United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
LEDA DUNN WETTRE UNITED STATES MAGISTRATE JUDGE.
the Court is plaintiff East Coast Advanced Plastic
Surgery's motion to remand this action to the Superior
Court of New Jersey, Law Division, Morris County. (ECF Nos.
4, 6). Defendant Eastern Concrete Materials, Inc.
("Eastern Concrete") opposes the motion. (ECF No.
5). The Honorable Susan D. Wigenton, U.S.D.J., referred the
motion to the undersigned for a Report and Recommendation.
The Court heard oral argument on die motion on June 3, 2019.
Having considered the parties' submissions and argument,
and for good cause shown, the Court recommends that the
motion to remand be GRANTED.
is a private healthcare services provider with an office
located in Denville, New Jersey. (Compl. ¶ 1, ECF No.
1-1). Defendant Eastern Concrete sponsors and administers a
self-insured health plan through which it provided benefits
to its employee "R.B." (Id. ¶¶
8, 15). Defendant Blue Cross Blue Shield of Texas
("BCBSTX") is the claims administrator for Eastern
Concrete's health plan. (Id. ¶ 4).
Plaintiff alleges that at all relevant times, it was a
"non- participating or out-of-network provider that
rendered medically-necessary services" to R.B.
(Id., ¶ 13). Specifically, on July 23, 2015,
November 24, 2015, May 13, 2016, and October 24, 2016, R.B.
underwent mastectomy, breast reconstruction, and cyst removal
surgeries. (Id. ¶¶ 17, 31, 38, 45).
Plaintiff asserts that it contacted BCBSTX by telephone prior
to each surgery to request pre-authorization, and each time
BCBSTX advised that "there was no authorization or
precertification required" in order to be paid the
usual, customary, and reasonable rates for medical services
it provided to R.B. (Id. ¶¶ 16, 24, 30,
37, 44). Plaintiff alleges that it relied on what it
characterizes as BCBSTX's pre-surgery approvals to its
detriment, ultimately billing a total of $364, 132.77 for the
surgeries, of which defendants paid $1, 353.23. (Id.
January 4, 2019, plaintiff filed suit in the Superior Court
of New Jersey, Law Division, Morris County asserting claims
for promissory estoppel and unjust enrichment. The complaint
specifically states that plaintiffs claims arise under state
law, and not under the Employee Retirement Income Security
Act ("ERISA"), 29 U.S.C. § 1001 et
seq., or any other federal law. (Id. ¶
10). With the consent of BCBSTX, Eastern Concrete removed the
action to this Court on February 19, 2019, arguing that
plaintiffs state law claims for recovery of benefits are
completely preempted by ERISA, (Notice of Removal
¶¶ 4-12, ECF No. 1). Plaintiff timely filed the
instant motion to remand on March 21, 2019. (ECF No. 4).
defendant may remove "any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction." 28 U.S.C. § 1441(a).
But, "[i]fat any time before final judgment it appears
that the district court lacks subject matter jurisdiction,
the case shall be remanded." 28 U.S.C. § 1447(c).
Here, defendant as the removing party bears the burden of
demonstrating that the case is properly before the federal
court. Frederico v. Home Depot, 507 F.3d 188, 193
(3d Cir. 2007). "Removal statutes are to be strictly
construed, with all doubts to be resolved in favor of
remand." Brown v. JEVIC, 575 F.3d 322, 326 (3d
district court has subject matter jurisdiction over "all
civil actions arising under the Constitution, laws, or
treaties of the United States." 28 U.S.C. § 1331. A
claim arises under federal law where the "well-pleaded
complaint establishes either that federal law creates the
cause of action or that the plaintiffs right to relief
necessarily depends on resolution of a 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). In certain cases, however, a
complaint that presents only state law claims and no other
bases for federal jurisdiction may nonetheless be removed to
federal court pursuant to the doctrine of complete
preemption. See Pascack Valley Hosp., Inc. v. Local 464A
UFCW Welfare Reimbursement Plan, 388 F.3d 393, 399 (3d
Cir. 2004) (citing Aetna Health Inc. v. Davila, 542
U.S. 200, 207 (2004)). Complete preemption "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 Metropolitan Life Ins. Co. v.
Taylor, 481 U.S. 58, 63-64 (1987)); see NJ.
Carpenters & the Trustees Thereof v. Tishman Constr.
Corp. of N.J., 760 F.3d 297, 302 (3d Cir. 2014)
("[C]omplete preemption operates to confer original
federal subject matter jurisdiction notwithstanding the
absence of a federal cause of action on the face of the
complaint." (quotation omitted)); Lazorko v.
Pennsylvania Hosp., 237 F.3d 242, 248 (3d Cir. 2000).
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, 760 F.3d at 303 (quoting Davila,
542 U.S. at 209). In analyzing whether plaintiffs state law
claims are completely preempted by ERISA, the Court applies
the two-pronged Pascacktest to determine whether:
"(1) the plaintiff could have brought the claim under
§ 502(a); and (2) no other independent legal
duty supports the plaintiffs claim." Id.;
Pascack, 388 F.3d at 400. With respect to the first
prong of the Pascack test - whether plaintiff could
have brought its claim pursuant to ERISA - the court
considers: "1(a) whether the plaintiff is the
type of party that can bring a claim pursuant to
Section 502(a)(1)(B), and 1(b) whether the actual
claim that the plaintiff asserts can be construed as a
colorable claim for benefits pursuant to Section
502(a)(1)(B)." Progressive Spine & Orthopaedics,
LLC v. Anthem Blue Cross Blue Shield, Civ. A. No. 17-536
(KM), 2017 WL 4011203, at *5 (D.NJ. Sept. 11, 2017).
respect to Pascack''s second prong, "a
legal duty is 'independent' if it is not based on an
obligation under an ERISA plan, or if it 'would exist
whether or not an ERISA plan existed.'" NJ.
Carpenters, 760 F.3d at 303 (quoting Marin Gen.
Hosp. v. Modesto & Empire Traction Co., 581 F.3d
941, 950 (9th Cir. 2009)). As the Pascack test is
"conjunctive, a state-law cause of action is completely
preempted only if both of its prongs are satisfied."
Pascack Test Prong 1
Type of Party
the Court considers whether plaintiff is the type of party
that can bring a claim under § 502(a)(1)(B). That
section provides that a "participant or
beneficiary" may bring a claim pursuant to ERISA.
29U.S.C. § 1132(a)(1). A "participant" is
"any employee or former employee of an employer, or any
member or former member of an employee organization, who is
or may become eligible to receive a benefit of any type from
an employee benefit plan which covers employees of such
employer or members of such organization, or whose
beneficiaries may be eligible to receive any such
benefit." 29U.S.C. § 1002(7). A
"beneficiary" is "a person designated by a
participant, or by the terms of an employee benefit plan, who
is or may become entitled to a benefit thereunder."
Id. § ...