Harris v. Deaconess Health Services Corp.

• Decision Date: 13 July 1999
• Docket Number: No. 4:99-CV-701 CAS.,4:99-CV-701 CAS.
• Parties: James HARRIS, et al., Plaintiffs, v. DEACONESS HEALTH SERVICES CORPORATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

61 F.Supp.2d 889

James HARRIS, et al., Plaintiffs, v. DEACONESS HEALTH SERVICES CORPORATION, et al., Defendants.

No. 4:99-CV-701 CAS.

United States District Court, E.D. Missouri, Eastern Division.

July 13, 1999.

COPYRIGHT MATERIAL OMITTED

Randall S. Parker, Parker Law Office, St. Louis, MO, for Plaintiffs.

Brent W. Baldwin, Hinshaw and Culbertson, Kenneth W. Bean, Sandberg and Phoenix, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

SHAW, District Judge.

This removed matter is before the Court on plaintiffs' Motion for Remand and defendant Group Health Plan, Inc.'s ("GHP") opposition thereto. Defendant GHP removed this action pursuant to 28 U.S.C. § 1441(b), on the basis that the claims against it invoke the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001, et seq. GHP specifically cites ERISA's conflict-preemption section, § 514(a), 29 U.S.C. § 1144. Plaintiffs move to remand, contending removal is improper because their cause of action asserts only state law tort claims arising out of negligent care and treatment by health care providers. Plaintiffs also assert that removal is improper because one of the defendants had not been served with process at the time of removal and therefore has not consented to the removal. For the following reasons, the Court concludes it lacks subject matter jurisdiction over this action and will remand the same.

I. Plaintiffs' Claims.

Plaintiffs filed their nine-count petition in state court, naming eight defendants including physicians, hospitals, and GHP, a federally-qualified health maintenance organization. Eight of the counts asserted negligence claims against various defendants, and the ninth asserted a claim for loss of consortium by plaintiff Melvean Harris. Each of the negligence counts arose from the same alleged operative facts, that defendants undertook to provide medical treatment to plaintiff James Harris but negligently failed to properly diagnose and treat his acute appendicitis condition. Plaintiffs allege that as a result of defendants' negligence, James Harris suffered a ruptured appendix, required surgery, incurred substantial medical bills, and suffered permanent injury.

Defendant GHP removed this case to this Court on the basis that it is preempted by ERISA because "plaintiff has challenged the decision of GHP as an HMO concerning the denial of treatment and benefits...." See Notice of Removal at 2. GHP's assertion was supported by citation to one allegation of negligence in Count V, ¶ 9F. of the original petition, to wit:

Defendant, GHP failed and omitted to authorize Plaintiff, JAMES HARRIS' admission into St. Louis University Hospital on March 29, 1997 or Deaconess Hospital on March 29, 1997 and/or March 31, 1997 when he presented himself to said facility with a history, signs and symptoms of appendicitis.

Petition, Count V, ¶ 9F.

Plaintiffs sought and were granted leave to amend their petition following removal. Paragraph 9F of Count V of the First Amended Complaint alleges as follows:

Defendant GHP, as a medical care provider through its employee physicians, failed and omitted to admit James Harris into St. Louis University Hospital on March 29, 1997 or Deaconess Hospital on March 29, 1997 and/or March 31, 1997 when he presented himself to said facility with a history, sign and symptoms of appendicitis.

First Amended Complaint, Count V, ¶ 9F.

In opposing the motion to remand, GHP cites no case law or other authority in support of its position, but merely states, "The mere substitution of the phrases cited above should not allow defendant to defeat an otherwise valid removal, as plaintiff continues to challenge the decision of GHP concerning the denial of treatment of benefits." GHP Mem.Opp. at 2.

II. Removal Jurisdiction.

Plaintiffs' motion for remand requires the Court to determine whether it has removal jurisdiction over this action. Removal of the case from state court is proper only if one or more of the plaintiffs' claims arise under federal law. 28 U.S.C. §§ 1441(a), 1332. As a general rule, an action is removable to federal court only if it might have been brought there originally.

The party invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction are satisfied. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir.1969). Removal statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.1993); McHugh v. Physicians Health Plan of Greater St. Louis, 953 F.Supp. 296, 299 (E.D.Mo.1997).

The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction. See 28 U.S.C. § 1441(b). A claim may be removed only if it could have been brought in federal court originally. Unless complete diversity of citizenship exists, removal is proper only if the claim raises a federal question.¹ See 28 U.S.C. § 1441. A federal question is raised in "those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Peters v. Union Pacific Railroad Co., 80 F.3d 257, 260 (8th Cir.1996) (quoting Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).

In most instances, the presence or absence-of a federal question is governed by the "well-pleaded complaint" rule, "which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); see also M. Nahas & Co., Inc. v. First Nat'l Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir.1991). A plaintiff is the "master of his complaint," and may avoid federal removal jurisdiction by exclusive reliance on state law. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425.

"A defense is not part of a plaintiffs properly pleaded statement of his or her claim." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1998). Therefore, a case may not be removed to federal court on the basis of a federal defense. Id. (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). There are limited circumstances, however, in which the presentation of a federal defense will give rise to federal jurisdiction. An "independent corollary" to the well-pleaded complaint rule is the "artful pleading doctrine", which provides that a plaintiff may not defeat removal by omitting to plead necessary federal questions. Rivet, 118 S.Ct. at 925, 118 S.Ct. 921 (internal punctuation and citation omitted). The artful pleading doctrine is limited to federal statutes which "so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Although federal preemption is ordinarily a defense, when an area of state law has been completely preempted, any claim purportedly based on the preempted state law is deemed to be a federal claim arising under federal law. Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425.

III. Discussion.

In removal cases, the district court reviews the petition pending at the time of removal, and not subsequent complaints or petitions, to determine its jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 814 (8th Cir.1969). Thus, to determine whether subject matter jurisdiction exists, the Court examines the original petition, not the amended complaint.

In Tovey v. Prudential Ins. Co. of America, 42 F.Supp.2d 919 (W.D.Mo.1999), Judge Dean Whipple recently examined claims of negligent misrepresentation and conversion made by a plaintiff in state court, which were removed to federal court on the basis of ERISA preemption. In a scholarly and well-reasoned opinion, the court explored the subtle complexities presented by removal of a state law tort case under ERISA and described the distinction between complete and ordinary (or conflict) preemption under the statute.

In Tovey, the court explained that ordinary preemption arises from ERISA Section 514(a), which states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by the statute. 29 U.S.C. § 1144(a) (emphasis added). Section 514(a) "provides a federal defense to a plaintiff's state law claims when those claims relate to an employee benefit plan governed by ERISA." Tovey, 42 F.Supp.2d at 922. A significant percentage of existing ERISA jurisprudence focuses on the meaning of the words "relate to" in determining ERISA's preemptive scope. See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Arkansas Blue Cross & Blue Shield v. St. Mary's Hosp., Inc., 947 F.2d 1341, 1344-45 (8th Cir.), cert. denied, 504 U.S. 957, 112 S.Ct. 2305, 119 L.Ed.2d 227 (1992) (citations omitted).

Judge Whipple concluded, however, and this Court agrees, that "neither the provisions of ERISA § 514 nor any judicial analysis of ordinary preemption under that section can help the Court determine whether it has subject matter jurisdiction." Tovey, 42 F.Supp.2d at 922 (citing Wilson v. Zoellner, 114 F.3d 713, 721-22 (8th Cir. 1997); In Home Health, Inc. v....