Garrison v. Northeast Georgia Medical Center, Inc.

• Citation: 66 F.Supp.2d 1336
• Decision Date: 20 April 1999
• Docket Number: No. CIV. 2:99-CV-08-WCO.,CIV. 2:99-CV-08-WCO.
• Parties: JoAnn GARRISON and David Garrison, individually, and JoAnn Garrison and David Garrison, as parents of Michaella Garrison, deceased, Plaintiffs, v. NORTHEAST GEORGIA MEDICAL CENTER, INC., the Longstreet Clinic, P.C., and Principal Health Care of Georgia, Inc., Defendants.
• Court: U.S. District Court — Northern District of Georgia

66 F.Supp.2d 1336

JoAnn GARRISON and David Garrison, individually, and JoAnn Garrison and David Garrison, as parents of Michaella Garrison, deceased, Plaintiffs, v. NORTHEAST GEORGIA MEDICAL CENTER, INC., the Longstreet Clinic, P.C., and Principal Health Care of Georgia, Inc., Defendants.

No. CIV. 2:99-CV-08-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

April 20, 1999.

COPYRIGHT MATERIAL OMITTED

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J. Vincent Cook, Cook Noell Tolley Bates & Michael, Athens, GA, for JoAnn Garrison, individually, and as parent of deceased Michaella Garrison, David Garrison, individually, and as parent of deceased Michaella Garrison, plaintiffs.

Thomas M. Cole, Whelchel & Dunlap, Gainesville, GA, for Northeast Georgia Medical Center, Inc., defendant.

Weymon H. Forrester, Forrester & Brim, Gainesville, GA, for the Longstreet Clinic, P.C., defendant.

Vernon Robert Denham, Jr., Kathlynn L. Butler, Powell Goldstein Frazer & Murphy, Atlanta, GA, for Principal Health Care of Georgia, Inc., defendant.

ORDER

O'KELLEY, Senior District Judge.

This case is before the court for consideration of plaintiffs' motion to remand [14-1], plaintiffs' motion to stay the ruling on plaintiffs' motion to remand [18-1], defendant Principal Health Care of Georgia, Inc.'s ("Principal") motion to file a surreply to plaintiffs' reply in support of the motion for remand, and Principal's motion to dismiss [20-1]. Plaintiffs are asserting claims arising from the medical care given to JoAnn Garrison during the delivery of her child, Michaella Garrison. Plaintiffs filed the instant action in the State Court of Fulton County, and the case was subsequently removed to the United District Court for the Northern District of Georgia, Atlanta Division. In the Notice of Removal, defendants asserted that the district court has jurisdiction under 28 U.S.C. § 1331 because plaintiffs' claim for the denial of benefits raises federal questions governed by sections 502 and 514 of the Employee Retirement Income Security Act ("ERISA"). Defendants then moved to transfer venue to the United District Court for the Northern District of Georgia, Gainesville Division, and the motion was granted.

MOTION TO STAY

Plaintiffs move to stay this court's ruling on plaintiffs' motion to remand until after plaintiffs have had a chance to depose the individuals who signed affidavits attached to defendants' opposition to the motion to remand. Specifically, plaintiffs assert that by submitting affidavits, Principal has created a question of fact on whether Principal's agents entered into the unlicensed practice of medicine, the basis of plaintiffs' claim against Principal. Principal opposes the motion to stay, asserting that the affidavits go to the factual inaccuracies in plaintiffs' complaint, which is a collateral issue in considering the motion to remand. This court agrees.

The jurisdictional inquiry under 28 U.S.C. § 1331 focuses on the allegations of the well-pleaded complaint. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Because the court must take these allegations as true in determining whether federal question jurisdiction exists, the court will make no determination as to whether Principal entered into the unlicensed practice of medicine. Instead, the court will look at the face of the complaint and determine whether it has jurisdiction. The court sees no reason to stay its ruling on the motion to remand. Accordingly, plaintiffs' motion to stay is DENIED.

MOTION FOR LEAVE TO FILE A SURREPLY

Principal moves for leave to file a surreply to plaintiffs' reply in support of the motion to remand because plaintiffs introduced two new arguments in their reply brief. No authorization exists in the Federal Rules of Civil Procedure or the local rules for the Northern District of Georgia for parties to file surreplies. To allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley of briefs. Moreover, after review of plaintiffs' various briefs, the court finds that plaintiffs have merely extended the arguments that they originally made in their motion to remand. Accordingly, Principal's motion for leave to file a surreply to plaintiffs' reply is DENIED.

MOTION TO REMAND

Plaintiffs move to remand to the State Court of Fulton County for lack of subject matter jurisdiction. Removal statutes are construed narrowly. Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir.1994). "Where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Id. In determining whether there is jurisdiction under 28 U.S.C. § 1331, federal courts look to see whether plaintiff has asserted a claim that "arises under" federal law as set forth in his well-pleaded complaint. Merrell Dow, 478 U.S. at 808, 106 S.Ct. 3229. In most cases, "a suit arises under the law that creates the cause of action." Id. (citations omitted). "[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

However, even though state law creates a plaintiff's causes of action, a case might still "arise under" federal law "if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Board of the State of Calif. v. Construction Laborers Vacation Trust for Southern Calif., 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). That is, "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). This "complete preemption" doctrine "will convert state law claims into federal claims for the purposes of the well-pleaded complaint rule, allowing a defendant to remove the case to federal court." Kemp v. International Business Machines Corp., 109 F.3d 708, 712 (11th Cir.1997). "[I]t is an independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." Franchise Tax Board, 463 U.S. at 22, 103 S.Ct. 2841 (citing Avco Corp. v. Aero Lodge No. 735, Int'l Assn. of Machinists, 376 F.2d 337, 339-40 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)).

In applying the well-pleaded complaint rule and the complete preemption doctrine to cases in which ERISA is implicated, the Supreme Court has held that state law claims in which it is anticipated that the defendants will invoke preemption under section 514 of ERISA, 29 U.S.C. § 1144, does not arise under federal law, and federal court jurisdiction is improper. Franchise Tax Board, 463 U.S. at 26-28, 103 S.Ct. 2841. In contrast, claims seeking relief available from section 502(a), ERISA's civil enforcement provision, 29 U.S.C. § 1132, are completely preempted, and removal jurisdiction exists. Metropolitan Life, 481 U.S. at 65-67, 107 S.Ct. 1542; see Whitt v. Sherman Int'l Corp., 147 F.3d 1325, 1329-30 (11th Cir.1998); Kemp, 109 F.3d at 712. Section 502(a) states in relevant part: "A civil action may be brought — (1) by a participant or beneficiary ... (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B).

As an initial matter, the court considers plaintiffs' request to be allowed to amend their motion to remand in the event that Principal submits evidence that Principal's plan covering medical benefits to Mrs. Garrison (the "Plan") is an employee welfare benefit plan under ERISA. After careful review of the evidentiary materials Principal has submitted, the court is confident that the Plan is an ERISA employee welfare benefit plan. See Slamen v. Paul Revere Life Ins. Co., 166 F.3d 1102 (11th Cir.1999) (outlining five factors in determining whether a plan falls under the definition of an ERISA employee welfare benefit plan). Plaintiffs were aware through the notice of removal that defendants based jurisdiction on the fact that Mrs. Garrison was covered under an ERISA welfare benefit plan and her claims were completely preempted by section 502 of ERISA. If plaintiffs had in their possession at the time of the filing of the motion to remand evidence which showed that Mrs. Garrison was not covered under an ERISA employee welfare benefit plan, plaintiffs should have made the argument in their motion to remand. Instead, plaintiffs filed a motion to remand, contesting complete preemption under ERISA and assuming that Principal's Plan was an ERISA plan. In addition, plaintiffs have continued to rely on this assumption in their reply brief and did not avail themselves of that opportunity to deny that Mrs. Garrison was covered under an ERISA plan. Thus, notwithstanding their footnote requesting an opportunity to amend their motion, the court finds that plaintiffs have waived any objection as to whether the Plan at issue is an ERISA plan. Plaintiffs' request is denied.

Plaintiffs move for remand for lack of subject matter jurisdiction, asserting that they have stated a medical malpractice claim against Principal based on Georgia's unauthorized practice of medicine statute, O.C.G.A. § 43-34-26.¹ Plaintiffs contend that because they do not claim that they were denied benefits under the ERISA plan, section 502(a) is not implicated. See Rice v. Panchal, 65 F.3d 637 (7th Cir.1995); Miller v. Riddle...