United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
the undersigned on referral from the district judge is a
Motion To Remand filed by Plaintiff, Progressive Healthcare
Solutions LLC (“Progressive”), [Rec. Doc. 5], a
Response in Opposition filed by Defendant, United Healthcare
Services, Inc. (“United”) [Rec. Doc. 10], and
Progressive's Reply thereto [Rec. Doc. 11]. For the
reasons that follow, the undersigned recommends that the
Motion be granted.
is a vendor of medical hardware which is surgically implanted
to address a patient's spinal instability and pain.
Plaintiff's state court Petition alleges that Dr. Illyas
Munshi, a neurosurgeon, determined in December 2016, that his
patient, Brian Esley, required a spinal discectomy procedure
which included implanting medical hardware provided by
Progressive. R. 1-3, p. 4. Prior to Easley's
surgery, Dr. Munshi's office contacted United and
described the planned surgery and implantation of the
Progressive medical hardware. Dr. Munshi's office
received written confirmation that Easley had coverage under
his United policy and that United approved the recommended
surgery as well as the implantation of Progressive's
hardware. Id., R. 5-2. Dr. Munshi performed the
recommended surgery on Easly on December 12, 2016, and
Progressive submitted invoices to United in the amount of
$49, 425.00 for the medical hardware surgically implanted in
Easley. R. 1-3, p. 4, ¶¶ 4-6; R. 10-1,
Declaration of Fairley .
initially denied payment to Progressive for a variety of
reasons claiming: (1) an authorization number United had
given Progressive had been “cancelled;” (2)
Progressive's claim was “under review;” (3)
the “code” under which Progressive's claims
was submitted had changed; and (4) Progressive was the wrong,
“place of service.” Id. at pp. 4-5.
After additional months of “review” of
Progressive's invoice for the medical hardware United had
authorized prior to surgery, United approved payment of
Progressive's invoice in July 2017. Id. at p. 5.
requested that United send the payment for its medical
hardware directly to Progressive. United, however, refused to
do so, instead indicating that it would send the payment to
Easley. Id. Thereafter, Progressive contacted Easley
and informed him that United would send the payment for
Progressive's medical plate and screws used in
Easley's surgery to him rather than in payment to
Progressive. Id. Easley agreed to sign an assignment
of the United payment for Progressive's medical hardware
and Progressive informed United of same. Id. Despite
Easley's assignment of the $49, 425.00 payment to
Progressive, Easley did not give Progressive the funds.
Instead, he cashed the United check in June 2017, and
converted such funds for his own use. Id.
filed this action against United and Easley in the Fifteenth
Judicial District Court for the Parish of Lafayette, State of
Louisiana, on September 25, 2017. R. 1-3.
Progressive alleged that Defendants were jointly and
severally liable to it for the sum of $49, 425.00, plus
interest, costs and attorney's fees. Defendants were
served with the Petition and removed the action to this Court
on November 7, 2017. R. 1. United filed an answer
with affirmative defenses on November 14, 2017. R.
8. Easley has not filed responsive pleadings in the
case. Progressive filed this motion to remand on November 9,
2017. R. 5.
The Contentions of the Parties
support of its motion to remand, Progressive contends that it
has asserted only state-law claims and there is no diversity
jurisdiction; therefore, this Court lacks federal question
subject matter and removal jurisdiction. United maintains
that section 502(a) of ERISA, 29 U.S.C. § 1132(a), is
applicable and completely preempts Progressive's claims.
Law and Analysis
Legal Standard-Motion to Remand
courts are courts of limited jurisdiction.” Howery
v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.2001).
Furthermore, courts “must presume that a suit lies
outside this limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking
the federal forum.” Id. In deciding whether
subject matter jurisdiction exists, a court must look to the
claims in the state court pleadings as they existed at the
time of removal. Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir.2002). Thus, in the
context of actions removed from state court, the removing
party bears the burden of demonstrating the federal
court's jurisdiction and that removal was proper. See
Id. Because the removal statute should be strictly
construed in favor of remand, any ambiguities in the state
court petition are construed against removal. Id.
(citing Acuna v. Brown & Root, Inc., 200 F.3d 335,
339 (5th Cir.2000)).
district courts have original subject matter jurisdiction
over cases “arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
“It is long settled law that a cause of action arises
under federal law only when the plaintiff's well-pleaded
complaint raises issues of federal law.” Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).
Congress, however, may choose to completely pre-empt a
particular claim in that any civil complaint raising this
particular claim shall be considered “federal” in
nature. Id. at 63-64. Specific to ERISA,