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 John Michael Vazquez to issue a report and
recommendation regarding Plaintiff Tvzi Small, M.D.'s
Motion to Remand and for Attorneys' Fees (ECF No. 12) and
Defendants Anthem Insurance Companies, Inc.'s
(“Anthem”) Opposition and Cross Motion for
Attorneys' Fees and Costs (ECF No. 31). 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, the attendant Motion for
Attorneys' Fees be DENIED, and Defendant
Anthem's Cross Motion for Attorney's Fees be
first filed this action in Bergen County Superior Court of
New Jersey on December 5, 2017, alleging state law claims of
quantum meruit, promissory estoppel, fraudulent inducement,
and violation of health insurance regulations 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 a patient.
(Compl. ¶ 11). According to Plaintiff, after the patient
was admitted to the emergency room, Plaintiff contacted
Defendant to request prior authorization of the emergency
surgery, which Plaintiff allegedly received from Defendant
BCBS in writing on August 6, 2016. (Compl. ¶¶ 18,
performed the surgery and billed a total of $22, 130.91 for
services provided. (Compl. ¶ 22). Plaintiff alleges that
Defendants paid only $1, 672.41 toward the charges, leaving a
balance due of $20, 458.20, 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. ¶¶ 23,
25). Plaintiff pleads quantum meruit, promissory estoppel,
fraudulent inducement, and health insurance regulation
violation claims and seeks relief for not less than $15, 000,
in addition to reasonable attorneys' fees, interests,
costs, and expenses. (Compl. ¶¶ 26-50).
January 10, 2018, Defendant Anthem removed this action to
this Court pursuant to 28 U.S.C. §§ 1331, 1332
1441, and 1446. (Notice of Removal, ECF No. 1 at 2).
Defendant's 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. at 4). On February 9, 2018, Plaintiff filed his
Motion to Remand and for an Award of Attorneys' Fees.
(ECF No. 12). Plaintiff argues that Defendant's removal
was improper because Plaintiff's state law causes of
action are independent of any claims the patient may have
under ERISA, and that Plaintiff's claims cannot be
preempted by ERISA when they do not have standing to bring a
claim under ERISA. (Id. at 2-3). Defendant Anthem
filed their Opposition as well as a Cross Motion for
Attorneys' Fees and Costs on March 5, 2018. (ECF No. 31).
Defendant Deutsche Bank also filed its own Memorandum of Law
in Opposition to Plaintiff's Motions on March 5, 2018. On
March 12, 2018, Plaintiff filed a Reply. (ECF No. 33). 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 improper.
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. 2016).
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'l 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
plaintiff's 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.” N.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, ...