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April 28, 1997

MARGARET C. NEWTON, Executrix of the Estate of Adelbert F. Newton, Jr., deceased, and MARGARET C. NEWTON in her own capacity, Plaintiffs,
DENIS A. TAVANI, M.D. and U.S. HEALTHCARE, INC., Defendants.

The opinion of the court was delivered by: BROTMAN


 This is a medical malpractice case against a physician and a healthcare insurance provider. After suffering from colorectal cancer, Adelbert F. Newton, Jr. (hereinafter "decedent") died on January 3, 1995. Thereafter, the decedent's wife, Margaret C. Newton (hereinafter "Plaintiff"), filed the above-captioned negligence action in the Superior Court of New Jersey, Salem County, Law Division. Defendant U.S. Healthcare, Inc. (hereinafter "U.S. Healthcare") removed the action to this court, asserting federal jurisdiction based on Section 502(a) of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132 (hereinafter "Section 502(a)").

 Presently before the court is Plaintiff's Motion to Remand this action to the Superior Court of New Jersey. Plaintiff challenges the applicability of Section 502(a) to the present action and contends that removal was inappropriate. Plaintiff also seeks reimbursement of attorneys' fees associated with her motion pursuant to 28 U.S.C. § 1447(c).


 During all times relevant to the within action, the decedent was a patient of Denis A. Tavani, M.D. and a participant or beneficiary of a health insurance plan administered by U.S. Healthcare. During or after 1991, U.S. Healthcare delivered to the decedent a fecal occult blood test kit (hereinafter "FOBT Kit"), a cancer screening device used to detect colorectal cancer. The decedent, however, never returned the FOBT Kit for analysis, neither to Dr. Tavani, nor to U.S. Healthcare. As a result, the decedent was not diagnosed with colorectal cancer until July 9, 1994; he died on January 3, 1995.

 Plaintiff alleges, inter alia, that the Defendants were negligent in failing to ensure that the appropriate screening tests and studies were performed. (Compl. P 23.) Plaintiff contends that U.S. Healthcare was negligent (1) in failing to make sure that the decedent returned the FOBT Kit for testing, and (2) in failing to advise Dr. Tavani that the fecal occult blood test had not been completed. (Compl. PP 19, 23.)

 On September 12, 1996, U.S. Healthcare filed a Notice of Removal pursuant to 28 U.S.C. § 1446(a), asserting that Plaintiff's negligence claim relates to medical benefits supplied to the decedent pursuant to an employee benefit plan governed by ERISA. U.S. Healthcare claims that Plaintiff's claim challenges the administration or delivery of benefits under such a plan, and thus falls within the scope of Section 502(a). Accordingly, U.S. Healthcare argues that Plaintiff's negligence cause of action is preempted completely by ERISA and that federal jurisdiction is clear.


 A district court must remand a case removed from a state court "if at any time before final judgment it appears that [the federal court] lacks subject matter jurisdiction." 28 U.S.C. § 1447(b). In this case, Plaintiff challenges the propriety of removal by asserting that Section 502(a) does not govern this action. As a result, the court must review the complaint, *fn1" the petition for removal, and the statute pursuant to which U.S. Healthcare removed the claim to determine whether, indeed, this court maintains subject matter jurisdiction.

 A. Preemption

 In general, original federal jurisdiction exists and removal is proper only when a federal question is presented on the face of a plaintiff's properly pleaded complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). This is known as the "well-pleaded complaint rule." In keeping with this rule, a defense raising a federal question in response to a state law cause of action is typically insufficient to confer federal jurisdiction and justify removal. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 53 L. Ed. 126, 29 S. Ct. 42 (1908). However, where Congress provides specifically that a particular area of the law is "necessarily federal in character," Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987), a case may be preempted completely from the well-pleaded complaint rule, and federal jurisdiction may arise by virtue of such a federal defense to a state law cause of action. Franchise Tax Bd., 463 U.S. at 23.

 In the context of the present action, the complete preemption doctrine applies to state law causes of action falling within the scope of ERISA's civil enforcement provisions, as defined by 29 U.S.C. § 1144(a) (hereinafter ERISA Section 514.). Dukes v. United States Healthcare, Inc., 57 F.3d 350, 354 & n.2, 355 (3d Cir.), cert. denied, 133 L. Ed. 2d 489, 116 S. Ct. 564 (1995). ERISA Section 514, in turn, sets forth that its provisions "shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a). Courts have interpreted this provision broadly, so that when a cause of action has a connection with or refers to an employee benefit plan, it is deemed to "relate to" such a plan and triggers ERISA preemption. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987); Ricci v. Gooberman, 840 F. Supp. 316, 317 (D.N.J. 1993).

 However, the law in this Circuit now provides that not all claims preempted by ERISA are subject to removal. Dukes, 57 F.3d at 355. Rather, state law claims must fall within Section 502 to permit removal to federal court. Id. That section provides, in pertinent part, that a participant or beneficiary of an ERISA plan may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; . . ." 29 U.S.C. § 1132(a)(1)(B). In the instant case, the court must determine whether Plaintiff's medical malpractice claim, involving the delivery of an FOBT ...

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