United States District Court, D. New Jersey
REPORT & RECOMMENDATION
L. WALDOR UNITED STATES MAGISTRATE JUDGE
matter comes before the Court by way of referral from the
Honorable Susan D. Wigenton to issue a report and
recommendation regarding Plaintiff Tvzi Small, M.D.'s
Motion to Remand and for Attorneys' Fees (ECF No. 5) and
Defendants Blue Cross Blue Shield of Michigan
("BCBS") and TTI Global, Inc.'s Opposition (ECF
No. 7). The Court declined to hear oral argument pursuant to
Rule 78 and as set forth more fully below, the Court
recommends the Motion to Remand be GRANTED
and the attendant Motion for Attorneys' Fees be
first filed this action in Bergen County Superior Court of
New Jersey on July 13, 2018, alleging state law claims of
breach of contract, promissory estoppel, account stated, and
fraudulent inducement against the Defendant, (see
generally Compl., ECF No. 1-1). Plaintiff was a
non-participating or out-of-network provider that rendered
medically-necessary services to the patient. (Compl. ¶
15). According to Plaintiff, prior to performing surgery on
the patient, Plaintiff contacted Defendant to request prior
authorization of the surgery, which Plaintiff allegedly
received from Defendant BCBS in writing on November 2, 2016.
(Compl. ¶ 17).
performed the surgery and billed a total of $51, 400 for
services provided. (Compl. ¶¶ 18, 19). Plaintiff
alleges that Defendants paid only $4, 413.32 toward the
charges, leaving a balance due of $46, 986.68, and asserts
that Defendants, knowing Plaintiff was an out-of-network
provider, did not disclose its intention not to pay for the
services Plaintiff ultimately provided to the patient.
(Compl. ¶ 21). Plaintiff pleads breach of contract,
promissory estoppel, account stated, and fraudulent
inducement claims and seeks relief for not less than $46,
986.68, in addition to reasonable attorneys' fees,
interests, costs, and expenses. (Compl. ¶¶ 28, 32,
13, 2018, Defendants removed this action to this Court
pursuant to 28 U.S.C. § 1331, 1441(a), and 1446, as well
as 29 U.S.C. § 1332(a). (Notice of Removal, ECF No. 1).
Defendants' basis for removal was the doctrine of
pre-emption, asserting that ERISA is one of the statutes to
which the complete preemption doctrine applies and that the
patient's health benefit plan falls under ERISA.
(Id.). On August 10, 2018, Plaintiff filed his
Motion to Remand and for an Award of Attorneys' Fees.
(ECF No. 5). Plaintiff argues that Defendants' removal
was improper because Plaintiffs state law causes of action
are independent of any claims the patient may have under
ERISA, and that Plaintiffs claims cannot be preempted by
ERISA when they do not have standing to bring a claim under
ERISA. (Id. at 3). Defendants filed their Opposition
on September 17, 2018. (ECF No. 7). On September 24, 2018,
Plaintiff filed a Reply. (ECF No. 8). The Court concludes
that Plaintiff does not have standing to bring a claim
pursuant to ERISA § 502(a). Consequently, there is no
federal jurisdiction over this action, and its removal was
federal removal statute provides, "any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed..
.to the district . courts of the United States for the
district and division embracing the place where such action
is pending." 28 U.S.C. § 1441. Federal district
courts have original jurisdiction over "all civil
actions arising under the... laws, or treaties of the United
States." 28 U.S.C. § 1331; see also Parrish v.
ARC of Morris Cty., LLC, 193 F.Supp.3d 425, 430 (D.N.J.
party asserting "jurisdiction bears the burden of
showing at all stages of the litigation that subject matter
jurisdiction is proper in the federal court."
DeJoseph v. Cont 'I Airlines, Inc., 18 F.Supp.3d
595, 597 (D.N.J. 2014). The federal removal statute should be
"strictly construed against removal...[and] all doubts
should be resolved in favor of remand." Id.
There is a "presum[ption] that federal courts lack
jurisdiction unless the contrary appears affirmatively from
the record." Id. at 598 (quoting Renne v.
Geary, 501 U.S. 312, 316 (1991)).
COMPLETE PREEMPTION UNDER ERISA § 502(A)
general, the well-pleaded complaint rule ordinarily bars the
removal of an action to federal court where federal
jurisdiction is not presented on the face of the plaintiffs
complaint. Dukes v. U.S. Healthcare, 57 F.3d 350,
353 (3d. Cir. 1995). But, in certain limited circumstances,
federal question jurisdiction exists over state law claims
where the "state-law claim necessarily raise[s] a stated
federal issue, actually disputed and substantial, which a
federal forum may entertain without disturbing any
congressionally approved balance of federal and state
judicial responsibilities." Grable & Sons Metal
Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S.
308, 314 (2005). One such limited circumstance exists if the
action "falls within the narrow class of cases to which
the doctrine of 'complete pre-emption' applies."
Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare
Reimbursement Plan, 388 F.3d. 393, 400 (3d Cir. 2004)
(citing Aetna Health Inc. v. Davila, 542 U.S. 200,
207 (2004)). "[C]omplete pre-emption recognizes
'that Congress may so completely pre-empt a particular
area that any civil complaint raising this select group of
claims is necessarily federal in character.'"
Id. (quoting Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63-64 (1987); see also
Progressive Spine & Orthopaedics, LLC v. Anthem Blue
Cross Blue Shield, Civ. No. 17-536, 2017 WL 4011203, at
*4 (D.N.J. Sept. 11, 2017).
civil enforcement mechanism, § 502(a), is one of those
provisions with such "extraordinary pre-emptive power
that it converts an ordinary state common law complaint into
one stating a federal claim for purposes of the well-pleaded
complaint rule, and permits removal." N.J.
Carpenters v. Tishman Constr. Corp., 760 F.3d 297, 303
(3d Cir. 2014) (quoting Davila, 542 U.S. at 209);
see also Garrick Cox MD LLC v. Cigna Healthcare,
Civ. No. 16-4611 (SDW)(LDW), 2016 WL 6877778, at *2 (D.N.J.
Oct. 28, 2016), R&R adopted, 2016 WL 6877740
(D.N.J. Nov. 21, 2016 (remanding case to state court). As a
result, state law causes of action that are within the scope
of § 502 (a) are completely pre-empted and therefore
removable to federal court.
is completely pre-empted and removable under ERISA §
502(a) if: "(1) the plaintiff could have brought the
claim under § 502(a); and (2) no other
independent legal duty supports the plaintiff s claim."
TV. J. Carpenters, 760 F.3d at 303 (citing
Pascack Valley Hosp., 338 F.3d at 400). This
two-part analysis, commonly referred to as the
Pascack test, is "conjunctive, [and] a