Hogan v. Jacobson

Decision Date23 May 2016
Docket NumberNo. 15–5572.,15–5572.
PartiesViolet HOGAN, Plaintiff–Appellant, v. Jo Ellen JACOBSON; Kem Alan Lockhart, Defendants–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

823 F.3d 872

Violet HOGAN, Plaintiff–Appellant
Jo Ellen JACOBSON; Kem Alan Lockhart, Defendants–Appellees.

No. 15–5572.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2016.
Decided and Filed: May 23, 2016.

823 F.3d 876

ARGUED: Michael D. Grabhorn, Grabhorn Law Office, PLLC, Louisville, Kentucky, for Appellant. Cameron S. Hill, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Chattanooga, Tennessee, for Appellees. ON BRIEF: Michael D. Grabhorn, Andrew M. Grabhorn, Grabhorn Law Office, PLLC, Louisville, Kentucky, for Appellant. Cameron S. Hill, Baker, Donelson, Bearman, Caldwell & Berkowitz,

823 F.3d 877

P.C., Chattanooga, Tennessee, for Appellees.

Before: MOORE, GIBBONS, and DAVIS,* Circuit Judges.



In 2011, Violet Hogan sued the Life Insurance Company of North America for violating the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by denying her claim for benefits under a disability-insurance policy. After losing that case, Hogan appealed to this court, which later affirmed the grant of judgment against her. While that appeal was still pending, Hogan filed the present case in the Jefferson County Circuit Court against Jo Ellen Jacobson and Kem Alan Lockhart, two nurses who worked for the Life Insurance Company of North America and who had provided opinions regarding Hogan's eligibility for disability benefits after reviewing her claim. Hogan carefully pleaded her claims in the second suit to avoid reference to the Life Insurance Company of North America or ERISA, alleging only that Jacobson and Lockhart committed negligence per se by giving medical advice without being licensed under Kentucky's medical-licensure laws. The defendants removed the case to federal court on the basis of ERISA's complete-preemptive effect, and the district court denied Hogan's attempts to remand the case to state court and later granted the defendants' motion to dismiss. Because Hogan's artfully pleaded state-law claims are, at bottom, claims for the wrongful denial of benefits under an ERISA plan that arise solely from the relationship created by that ERISA plan, we AFFIRM the denial of Hogan's motion to remand. Further, because Hogan's second claim for benefits is virtually identical to her first and suffers from the same infirmities, and because her new claim under a different portion of ERISA fails to state anything beyond conclusory allegations, we AFFIRM the grant of the defendants' motion to dismiss. Finally, we DENY the defendants' motion for sanctions on appeal because Hogan's arguments are not frivolous.


Hogan was employed by SHPS, Inc., through which she was covered by a disability-insurance policy. See R. 43 (Am. Compl. ¶ 12) (Page ID # 697). During the course of her employment, she “became disabled and unable to continue working at SHPS, Inc.” Id. ¶ 13 (Page ID # 697). The disability-insurance policy made Hogan “eligible to seek and to receive short term disability benefits” and separately allowed her to receive long-term disability benefits if she was “disabled for 180 days.” Id. ¶ 14 (Page ID # 697).

Jo Ellen Jacobson and Kem Alan Lockhart worked for the insurance company that supplied the policy, and neither is licensed to practice medicine or psychology in Kentucky. See id. ¶¶ 16–18 (Page ID # 697). They “each provided opinions concerning Mrs. Hogan's diagnosis and treatment[,] including her physical and mental restrictions and limitations.” Id. ¶ 19 (Page ID # 697–98). Neither opinion was favorable to Hogan's application for benefits. See id. Hogan claims that Jacobson and Lockhart “individually and jointly knowingly provided the illegal medical and

823 F.3d 878

psychological opinion,” doing so “for their own financial gain, both in terms of favorable performance reviews and in compensation.” Id. ¶ 20 (Page ID # 698).

On February 4, 2011, Hogan filed an ERISA lawsuit in federal court in Kentucky “alleging improper denial of [short-term disability] benefits and amended her complaint later that month to include a claim for improper denial of [long-term disability] benefits.” Hogan v. Life Ins. Co. of N. Am. (“Hogan I ”), 521 Fed.Appx. 410, 414 (6th Cir.2013). Hogan's short-term disability claim was rejected by the district court and, on appeal, by our court, which found that the denial of benefits was not arbitrary or capricious. See id. at 414–17. We also held that Hogan's claim for long-term disability benefits failed because “she did not first seek these benefits from [the Life Insurance Company of North America] and therefore she failed to exhaust administrative remedies with respect to this claim.” Id. at 417.

After the district court's decision in that case, but before our ruling, Hogan filed the present action in Kentucky state court. See R. 1–3 (Compl.) (Page ID # 15–18). She alleged that Jacobson and Lockhart were liable for negligence per se, under the theory that Kentucky's licensing statutes for medical professionals, Ky.Rev.Stat. § 311.560, and psychologists, Ky.Rev.Stat. § 319.005, are violated when an unlicensed individual working for an insurance company makes a disability determination in connection with an application for disability benefits. See R. 1–3 (Compl. ¶¶ 16–19) (Page ID # 17). The defendants removed the action to federal court on the basis of complete ERISA preemption. See R. 1 (Notice of Removal at 2–3) (Page ID # 2–3).

The district court denied Hogan's motion to remand the case, R. 23 (Sept. 26, 2013 Opinion) (Page ID # 605–12), and her motion to reconsider that decision, R. 38 (Mar. 12, 2014 Opinion) (Page ID # 681–87). In response, Hogan filed an Amended Complaint, which continued to plead her state-law claim “for the sole purpose of preserving her right to pursue said claim at such future time as the Court allows,” R. 43 (Am. Compl. at 4 n. 1) (Page ID # 698), and added an ERISA claim under 29 U.S.C. § 1140 for interference with Hogan's right to obtain disability benefits under the insurance policy, id. ¶¶ 28–32 (Page ID # 699). The defendants moved to dismiss, and the district court granted the motion in full. R. 56 (Apr. 28, 2015 Opinion) (Page ID # 812–18).


A. Complete Preemption

“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction[ ] may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). One basis for removal is federal-question jurisdiction, which exists over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. We determine whether a case raises a federal question by reference to “the ‘well-pleaded complaint’ rule,” Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Franchise Tax Bd. v. Const. Laborers Vacation Tr., 463 U.S. 1, 9–10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ), which directs us to look only to “what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose,” id. (quoting Taylor v. Anderson, 234 U.S. 74, 75–76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914) ).

823 F.3d 879

“Ordinarily federal pre-emption is raised as a defense to the allegations in a plaintiff's complaint,” meaning “that a case may not be removed to federal court on the basis of ... the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392–93, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). But an exception to the well-pleaded complaint rule arises from the “misleadingly named doctrine” of complete preemption, Hughes v. United Air Lines, Inc., 634 F.3d 391, 393 (7th Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 103, 181 L.Ed.2d 30 (2011), which is more aptly described as a “jurisdictional” doctrine, Loffredo v. Daimler AG, 500 Fed.Appx. 491, 500 (6th Cir.2012). “On occasion, the [Supreme] Court has concluded that the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ). “[T]he question whether a certain state action is preempted by federal law is one of congressional intent.” Ingersoll–Rand Co. v. McClendon, 498 U.S. 133, 137–38, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (alteration in original) (quoting Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) ).

Congress has expressed such an intent in ERISA, which “can preempt state-law claims in two ways: complete preemption under 29 U.S.C. § 1132(a) and express preemption under 29 U.S.C. § 1144.” Loffredo, 500 Fed.Appx. at 500. Express preemption under §...

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