Olsen v. Quality Continuum Hospice, Inc.

• Decision Date: 25 February 2004
• Docket Number: No. CIV02-0875JB/WDS.,CIV02-0875JB/WDS.
• Parties: Tom OLSEN, Naomi Olsen, et al., Plaintiffs, v. QUALITY CONTINUUM HOSPICE, INC., a New Mexico corporation, Does 1 through 100, inclusive; ABC Corporations I through XX, inclusive; and Black & White Partnership I through XX, inclusive, Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1225

380 F.Supp.2d 1225

Tom OLSEN, Naomi Olsen, et al., Plaintiffs, v. QUALITY CONTINUUM HOSPICE, INC., a New Mexico corporation, Does 1 through 100, inclusive; ABC Corporations I through XX, inclusive; and Black & White Partnership I through XX, inclusive, Defendants.

No. CIV02-0875JB/WDS.

United States District Court, D. New Mexico.

February 25, 2004.

Tom Olsen, Naomi Olsen, San Francisco, California, Plaintiffs pro se.

S. Charles Archuleta, Ben Feuchter, Keleher & McLeod, P.A., Albuquerque, New Mexico, for Defendant RUAH Enterprises, Inc., d/b/a Quality Continuum Hospice and Healthcare.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Quality Continuum Hospice, Inc.'s Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed August 25, 2003 (Doc. 14).¹ The primary issue is whether the Plaintiffs' Complaint sets forth a federal question that confers jurisdiction on this Court. Because the Court concludes that the Plaintiffs' Complaint does not present a question of federal law, and that no other jurisdictional basis exists, the Court will grant Quality Continuum's motion and dismiss this case for lack of jurisdiction.

BACKGROUND

Plaintiff Tom Olsen was injured in an industrial accident in 1978. See Plaintiffs' Opposition to Defendant's Motion For Dismissal at 2, filed September 15, 2003 (Doc. 18). Olsen is thus a long-term beneficiary of the Social Security System. See id. He is also enrolled in the federal Medicare program. See id.

Olsen suffers from an incurable disease known as Lymphadema. See id. at 4. Olsen's pain is so severe that he is confined to bed. See id. at 5. Olsen is 47 years old. See id. Other than massage therapy with accompanying compression garments, nothing is known to medical science to relieve the severe and debilitating pain associated with this disease. See id.

After physicians informed Olsen that he was a "terminal ill person," Olsen entered into a "[h]ospice care contract" with Quality Continuum. Id. at 2. Quality Continuum is a private sector New Mexico corporation that provides hospice services for seriously and terminally ill individuals. The contract provided that, for a flat monthly fee, Quality Continuum would provide all services needed to keep Olsen as pain free and comfortable as possible during the time he is terminally ill, and would provide nursing care, transportation, and prescriptions. See id. The contract between Olsen and Quality Continuum forbids him from participating in traditional "fee-for-service" between health care providers and recipients. See id. at 2-3. According to Olsen, the Health Care Finance Administration and other financial intermediaries process payments and pay Quality Continuum a flat monthly fee, regardless of the costs or expenditures. See id. at 3. In cases in which the hospice costs are minimal or nothing at all, this flat fee represents a profit to the medical provider; in other cases, where the costs or expenses exceed the monthly fee under the program, the hospice contractor takes a loss. See id. The contract does not allow the hospice contractor to withdraw when costs exceed the monthly fee. See id.

Olsen's Complaint sets forth numerous common law and statutory causes of action premised on Quality Continuum's alleged failure to provide him with certain medical treatment. See Complaint at 6-8, filed July 23, 2002 (Doc. 1). The treatment that he sought from Quality Continuum is manual lymphatic drainage, a form of massage which he alleges provides pain relief, reduces swelling (and hence decreases tissue damage), increases fluid drainage, decreases chances of secondary infection, and decreases the excessive discomfort that victims of Lymphadema suffer. Olsen contends that the American Medical Association recognizes this treatment.

Olsen contends that Quality Continuum's medical director prescribed this "palliative" treatment. Olsen argues that Quality Continuum's owner, Sheila Nipper, overruled the doctor's prescription and refused to provide the prescribed services. Olsen asserts that Nipper is not a doctor or a physician.

Olsen contends that, despite the prohibition against disenrolling him from Quality Continuum's care when costs exceed reimbursement, Quality Continuum did that, Olsen asserts that Quality Continuum used a variety of fanciful pretenses and fraudulent excuses, and maintained that the medical care that Olsen sought from Quality Continuum under the Medicare Hospice program was "curative" rather than "palliative." Quality Continuum responds that it is not its duty to provide such "curative" care.

Olsen does not dispute that it is not Quality Continuum's duty to provide "curative" care. Rather, Olsen contends that the treatment he sought was, in fact, not "curative." The treatment that he requested from Quality Continuum was to decrease his pain and suffering, not to cure him of an incurable condition.

Olsen contends that the facts alleged show that Quality Continuum realized the costs to provide him with the prescribed manual lymphatic drainage would exceed the contractually allowed flat monthly fee from Medicare. In an effort to circumvent Quality Continuum's responsibility to provide "palliative" treatment that the medical director had prescribed, Nipper called the treatment "curative."

Olsen argues that this semantic re-labeling is an excuse that Nipper is using to avoid Quality Continuum's legal responsibility and duty to provide him "palliative care." Olsen contends that, regardless what Nipper calls this treatment, it remains a recognized palliative treatment, and that it is Quality Continuum's legal and ethical duty to provide it to him. Olsen asserts that Quality Continuum's setting of its financial interest above his need for palliative therapy violates Quality Continuum's contractual obligations to provide him Medicare services.

Olsen also contends that Quality Continuum's decision is detrimental to him by unduly restricting the scope of his treatments. Olsen asserts that Nipper's decision was an intentional act designed to substantially decrease the quality of life for the time that he is alive.

At the time of the alleged wrongs, Olsen had recently moved to New Mexico from California. Olsen is now back in California. Olsen contends that the Court has jurisdiction over these causes of action because the Plaintiffs allege that they were injured "under the auspices of the United States Social Security Act of 1965[and] ... the Medicare program[.]" Complaint at 2.

Quality Continuum denies all of the Plaintiffs' allegations. Quality Continuum moves, under rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure, for an order dismissing the Plaintiffs' Complaint for lack of subject matter jurisdiction. At oral argument, Olsen clarified that, although he listed numerous defendants on the face of his Complaint, Quality Continuum is the only defendant in this action. See Transcript of Motion Proceedings at 18:18-25; id. 19:20-23.²

ANALYSIS

Olsen does not allege diversity of citizenship as a basis for jurisdiction under 28 U.S.C. § 1332. The allegations in Olsen's Complaint also do not present a question of federal law that would grant the Court jurisdiction under 28 U.S.C. § 1331. The Court therefore lacks subject matter jurisdiction over Olsen's claims and will dismiss the Complaint.

I. THE COURT DOES NOT HAVE A BASIS FOR DIVERSITY JURISDICTION.

Olsen did not originally assert diversity jurisdiction in his Complaint, nor has he amended it to do so.

We examine the face of the complaint to determine whether a party has adequately presented facts sufficient to establish diversity jurisdiction. The party asserting jurisdiction must allege facts essential to show jurisdiction. Thus, the complaint must allege that the plaintiff and defendant are citizens of different states and that the amount in controversy is greater than $75,000. 28 U.S.C. § 1332(a). Where the pleadings are inadequate, we may review the record to find evidence that diversity exists.

Rice v. Office of Servicemembers' Group Life Ins., 260 F.3d 1240, 1245 (internal quotation marks and citation omitted). The Complaint shows the Plaintiffs' city and state as Santa Fe, New Mexico. See Complaint at 8. Quality Continuum is a New Mexico corporation. See Motion to Dismiss at 1. Accordingly, there is no basis for diversity jurisdiction in this case.

Olsen suggests in his Response that the Court may have diversity jurisdiction over this matter because he moved to California after filing his Complaint. The Court, however, must determine diversity jurisdiction by the facts that exist at the time the plaintiff files the complaint, and subsequent changes in those facts have no bearing on this determination. See, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (holding that the court determines whether diversity requirements are satisfied at time the plaintiff files complaint); Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824)(holding jurisdiction of the court depends upon the state of things at the time the action is brought, and that once vested, jurisdiction is not changed by subsequent events); Wolde Meskel v. Vocational Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 62 (2d Cir.1999)(stating "time of filing" rule is that § 1332(a) diversity requirements are determined at time of filing); Johnston v. Cordell Nat'l Bank, 421 F.2d 1310, 1311 (10th Cir.1970)(same). Under these authorities, whether Olsen later moved to California is legally irrelevant for the purpose of determining diversity jurisdiction.

Finally, Olsen has not alleged sufficient facts for the Court to determine whether his claims meet the amount-in-controversy requirement of 28 U.S.C. § 1332. His Complaint seeks $10,000.00 in "costs" and an unspecified amount for other damages. Section 1332(a) requires the matter in...