United States District Court, M.D. Louisiana
RULING AND ORDER
BRIAN A. JACKSON, Chief District Judge.
On January 7, 2015, the United States Magistrate Judge issued a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), recommending that Plaintiff Cardiovascular Specialty Care Center of Baton Rouge, LLC's ("Cardiovascular") Motion to Remand (Doc. 6) be denied. (Doc. 18).
The Magistrate Judge's Report and Recommendation specifically notified Cardiovascular that, pursuant to 28 U.S.C. § 636(b)(1), it had fourteen (14) days from the date it received the Report and Recommendation to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. (Doc. 18 at p. 1). A review of the record indicates that Cardiovascular timely filed objections on January 21, 2015. (Doc. 19). Defendant United Healthcare of Louisiana, Inc. ("United") timely filed a response to Cardiovascular's objections on February 2, 2015. (Doc. 22). Each of Cardiovascular's objections will be considered in turn.
In Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the United States Supreme Court set forth a two-part test to determine whether claims are completely preempted by ERISA, which would permit removal. The Court stated:
If an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B) [the civil enforcement provision], and where there is no other independent legal duty that is implicated by a defendant's actions, then the individual's cause of action is completely pre-empted by ERISA § 502(a)(1)(B).
Id. at 210 (emphasis added). Cardiovascular argues that the Magistrate Judge misapplied the Davila test because United owed an independent legal duty to it, which precludes complete preemption under the Employee Retirement Income Security Act ("ERISA"). (Doc. 19 at p. 5). In opposition, United asserts that Cardiovascular "has not asserted any independent legal duty owed by United in its Petition." (Doc. 22 at p. 3).
As an initial matter, the Court recognizes that Cardiovascular's Petition alleges that United owed a duty independent of any ERISA-regulated plan because United made representations via telephone, prior to Cardiovascular rendering services, that Cardiovascular would be reimbursed by United, and Cardiovascular then reasonably and justifiably relied on this preauthorization in providing medical services. (Doc. 1-1 at ¶¶ 8, 9). However, this is not dispositive under the circumstances. To support its independent duty contention, Cardiovascular cites Center for Restorative Breast Surgery, L.L.C. v. Humana Health Benefit Plan of Louisiana, Inc., No. 10-4346, 2011 WL 1103760 (E.D. La. Mar. 22, 2011), but that case belies Cardiovascular's point. In it, the court stated:
The propriety of removal... depends on the nature of Plaintiffs' causes of action. If Plaintiffs allege only claims arising out of a breach of an independent legal duty assumed by Defendants when Defendants allegedly verified a specific degree of reimbursement, that claim is not completely preempted and there is no federal question jurisdiction for removal. But if Plaintiffs also derivatively assert their patients' claims for benefits under the Plans pursuant to an assignment, those claims are completely preempted and provide a jurisdictional hook that appears on the face of the petition .
Id. at *2 (emphasis added). The court's analysis then went on to note that the plaintiffs were conflating two distinct concepts: the assignment of rights and pre-procedure verification by the defendants. Id. Thus, although the plaintiffs brought direct claims and derivative claims, the jurisdictional question was easily resolved by the existence of the derivative claims. Id. at 3.
Similarly, although Cardiovascular's Petition does appear to assert a direct claim, ( See Doc. 1 at ¶¶ 8, 9), the bulk of Cardiovascular's claims require Cardiovascular to step into the shoes of the fifty-five patients insured by United ("United Insureds"), and assert the duty to reimburse pursuant to those fifty-five patients' plans - not a duty to reimburse pursuant to a separate agreement. ( Id. at ¶¶ 10, 28, 37). Thus, Cardiovascular's Petition confirms that it has made claims in a derivative capacity in addition to asserting direct claims arising out of United's alleged preauthorization. Id. Though it is unclear whether Cardiovascular's derivative claims are pled as an alternative to, or in addition to its direct claim, the fact that they have articulated the derivative claims as a means of obtaining reimbursement confers jurisdiction upon this Court. See Center for Restorative Breast Surgery, L.L.C., 2011 WL 1103760, *2 (citing Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1346-47 (11th Cir. 2009)).
Having established jurisdiction through that claim, this Court is permitted to exercise supplemental jurisdiction over any remaining claims. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337 (5th Cir. 1999) ("once the court has proper removal jurisdiction over a federal claim, it may exercise supplemental jurisdiction over state law claims") (citing 28 U.S.C. § 1367). This Court need only find, for the purpose of establishing subject matter jurisdiction, that one cause of action is completely preempted. Id. Here, Cardiovascular's breach of contract claim, which, pursuant to its Petition, is premised upon its assignment of rights, is completely preempted. Therefore, even if the claims for negligent misrepresentation and detrimental reliance are obligations independent of insurance policies, this Court may still exercise supplemental jurisdiction over those claims because at least one cause of action is completely preempted.
In its second objection, Cardiovascular argues that this Court may not consider post-removal evidence after the filing of the notice of removal. (Doc. 19 at p. 8). In opposition, United argues that "[i]t is the facts at the time the case is removed that are critical, " and United clearly indicated that the plans at issue were subject to ERISA. (Doc. 2 at p 2; Doc. 22 at p. 7) (citing Gebbia v. Walmart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)).
Cardiovascular is correct that "[t]he law is quite clear that whether removal jurisdiction is present depends on the claims as they are stated at the time of removal.'" Perritt v. Westlake Vinyls Co., LP, 986 F.Supp.2d 726, 732 (M.D. La. 2013) (emphasis added) (citing Cavallini v. State Farm Mutual Auto Insurance Co., 44 F.3d 256, 264 (5th Cir. 1995). Further, "[i]f removal is based on the assertion that the plaintiff's claims are completely preempted and fall within ERISA's civil enforcement provision, then the defendant also has the burden of establishing the existence of an ERISA plan." No. 12-151, 2012 WL 3028036, at *3 (M.D. La. June 13, 2012), report and recommendation adopted by 2012 WL 302807 (M.D. La. July 24, 2012) (citing Shearer v. Southwest Service Life Insurance Co., 516 F.3d 276, 278-79 (5th Cir. 2008)). Here, United did not submit any plan documents or affidavits with its Notice of Removal to establish that any of the claims were governed by ERISA. Rather, United simply alleged in the Notice of Removal that, "[p]laintiff's claims, as stated in the Petition, relate to employee welfare benefit plans and accordingly are subject to federal law pursuant to [ERISA]." (Doc. 2 at ¶ 4). After the filing of its Notice of Removal, United then supplemented its Opposition to Cardiovascular's Motion to Remand with plan documents and an affidavit by a legal case information analyst that the plans were governed by ERISA (Docs. 9-14).
Cardiovascular argues that United failed to meet its burden of proving subject matter jurisdiction under ERISA because it failed to establish the existence of an ERISA plan at the time of removal. Although Cardiovascular asserts that the plan documents were necessary to make this determination,  United's brief statement in its Notice of Removal that the plans were governed my ERISA, is sufficient to establish federal question jurisdiction. When determining jurisdiction, courts may rely on submissions filed after removal "so long as the post-removal filing sets forth facts developed at the time of removal." Dixon v. Nan Ya Plastics Corp., 2007 WL 4561136 at *4 (M.D. La. 2007) (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 n. 10 (5th Cir. 1993)). At the time of removal, United alleged that the plans were ...