United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the motion of Plaintiff,
East Coast Advanced Plastic Surgery (“ECA”), to
remand the action to the Superior Court of New Jersey Law
Division, Bergen County. See Plaintiff's Motion
to Remand, D.E. 5. The District Court referred this matter to
the Undersigned to issue a Report and Recommendation. This
Court has considered the matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. For the
reasons set forth herein, the Court respectfully recommends
that the District Court grant Plaintiff's motion and
remand this matter to the Superior Court of New Jersey, Law
Division, Bergen County.
ECA is a medical practice group with offices located in Essex
County, New Jersey. Complaint, D.E. 1-1, at ¶¶ 1,
5, 13. On January 29, 2015, two doctors employed or
contracted by ECA, Drs. Cerio and Loghmanee, performed a
double mastectomy and deep inferior epigastric perforator
(“DIEP”) reconstructive surgery on Patient AR.
Id. at ¶¶ 18-21. AR had health insurance
through the UFCW Local 464A Welfare Services Fund (the
“Fund”). The Fund was a self-insured plan that
Defendant Horizon Blue Cross Blue Shield of New Jersey
that BCBS was the Fund's agent, ECA sought
pre-authorization from BCBS before Drs. Cerio and Loghmanee
performed the surgery. According to ECA, BCBS knew that ECA
was an out-of-network provider, and yet responded that
pre-authorization was not necessary for this procedure.
Id. at ¶ 27. The Fund has since posited that
BCBS was not its authorized representative, and that BCBS was
not authorized to represent that pre-authorization was
unnecessary. Id. at ¶ 29.
billed BCBS $207, 135.00 for Dr. Cerio and $262, 975.00 for
Dr. Loghmanee, for a total of $470, 210.00 for the procedure.
Id. at ¶¶ 22-24. According to Plaintiff,
BCBS paid a total of $9, 306.63, leaving a balance of $460,
903.37. Id. at ¶ 25.
filed the instant action on March 7, 2018 in New Jersey
Superior Court, Law Division, Bergen County. See
Exh. A to Notice of Removal, D.E. 1-1. ECA's Complaint
sets forth claims for breach of contract (Count One),
estoppel (Count Two), account stated (Count Three), and
fraudulent inducement (Count Four). See Complaint,
D.E. 1-1. As ECA puts it, “this dispute is about the
amount of the payment, not the right to payment.” Brief
in Support of Motion to Remand, May 16, 2018, D.E. 5-1, at 7.
April 16, 2018, BCBS removed this case from state court on
the basis of federal question pursuant to 28 U.S.C. §
1331. See Notice of Removal, D.E. 1. Although there
is no ERISA claim explicitly plead in the Complaint, BCBS
contends that ERISA completely preempts ECA's state law
claims. Id. Accordingly, BCBS argues that this Court
has jurisdiction under 28 U.S.C. § 1331. Id.
ECA filed the motion to remand on May 16, 2018. ECA contends
that it lacks standing to assert an ERISA claim, and that its
claims are independent state law causes of action that are
not preempted by ERISA.
decision to remand is dispositive. In re U.S.
Healthcare, 159 F.3d 142, 146 (3d Cir. 1998)
(“[A]n order of remand is no less dispositive than a
dismissal order of a federal action for lack of subject
matter jurisdiction where a parallel proceeding is pending in
the state court.”). Accordingly, this Court addresses
Plaintiff's motion via Report and Recommendation.
of a civil case to a federal court is governed by 28 U.S.C.
§ 1441. A defendant may remove an action brought
originally in state court only if the plaintiff could have
filed the complaint within the original jurisdiction of the
federal court. 28 U.S.C. § 1441(b); see also 28
U.S.C. §1441(a) (“Except as otherwise provided by
Act of Congress, any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant . . . to the
district court of the United States....”). A federal
court lacking subject matter jurisdiction over a case must
remand the matter to state court. 28 U.S.C. § 1447(c);
see Farina v. Nokia, Inc., 625 F.3d 97, 114 (3d Cir.
2010) (noting that a federal court cannot proceed without
subject matter jurisdiction, nor can a party waive such
jurisdiction). BCBS, as the party asserting federal
jurisdiction by way of removal, bears the burden of
establishing that subject matter jurisdiction exists at all
stages in which the case is properly before the federal
court. Samuel-Bassett v. KIA Motors Am., Inc., 357
F.3d 392, 396 (3d Cir. 2004). Section 1441 is to be construed
strictly; all doubts must be resolved in favor of remand.
Id.; see also Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 (3d Cir. 1992) (“[R]emoval
statutes are to be strictly construed against removal and all
doubts should be resolved in favor of remand.”)
(citations omitted) (internal quotations marks omitted);
Abels v. State Farm Fire & Casualty Co., 770
F.2d 26, 29 (3d Cir. 1985) (“Because lack of [federal]
jurisdiction would make any decree in the case void and the
continuation of the litigation in federal court futile, the
removal statute should be strictly construed and all doubts
should be resolved in favor of remand.”) (citations
determining whether an action should be remanded to state
court, “a district court must focus on the operative
complaint at the time the petition for removal was
filed.” Group Hospitalization & Med. Servs. v.
Merck-Medco Managed Care, LLP. 295 F.Supp.2d 457,
461-462 (D.N.J. 2003). District courts have federal question
subject matter jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. In order for a
claim to arise under federal law, the “well-pleaded
complaint” must establish “either that federal
law creates the cause of action or that the plaintiffs[']
right to relief necessarily depends on resolution of
substantial question of federal law.” Franchise Tax
Bd. of Cal. v. Construction Laborers Vacation Trust for
Southern Cal., 463 U.S. 1, 27-28 (1983).
exception to the well-pleaded complaint rule is the doctrine
of complete preemption, which “‘operates to
confer original federal jurisdiction notwithstanding the
absence of a federal cause of action on the face of the
complaint.'” New Jersey Carpenters and the Trs.
Thereof v. Tishman Constr. Corp.760 F.3d 297, 302 (3d
Cir. 2014) (quoting In re U.S. Healthcare, Inc., 193
F.3d 151, 160 (3d Cir. 1999)). The Supreme Court has
recognized the “complete preemption” doctrine in
claims pursuant to § 502(a) of ERISA. See ...