Abol G. Helmy v. Aetna Health of California, Inc et al

Filing 30

MINUTES (In Chambers) Order Re: Pending Motion by Judge Fernando M. Olguin: IT IS ORDERED THAT: (1) Plaintiff's Motion to Remand (Document No. 21 ) is GRANTED and DENIED in part. The Motion is granted to the extent it seeks remand of the action to state court. The Motion is DENIED to the extent plaintiff seeks fees and costs.(2) The above-captioned action shall be remanded to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of subject matter jurisdiction pursuant to 28 USC section 1447(c). (3) All pending motions are denied without prejudice. (4) The Clerk shall send a certified copy of this Order to the state court. (MD JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

CV 17-2125 FMO (GJSx)

Title

Abol G. Helmy v. Aetna Health of California, Inc.

Present: The Honorable

Date

November 9, 2017

Fernando M. Olguin, United States District Judge

Vanessa Figueroa

None

None

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorney Present for Plaintiff(s):

Attorney Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order Re: Pending Motion

Having reviewed and considered all the briefing filed in connection with plaintiff’s Motion
to Remand (Dkt. 21, “Motion”), the court finds that oral argument is not necessary to resolve the
Motion, see Fed. R. Civ. P. 78; Local Rule7-15; Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2
(9th Cir. 2001), and concludes as follows.
INTRODUCTION
On February 14, 2017, plaintiff Abol G. Helmy (“plaintiff” or “Helmy”) filed a state-court
complaint against Aetna asserting a single claim for breach of the implied covenant of good faith
and fair dealing (“implied covenant”). (See Dkt. 1-1, Complaint). On March 17, 2017, defendant
removed the action on the basis of federal question jurisdiction, asserting that plaintiff’s claim
arises under the Medicare Act. (See Dkt. 1, Notice of Removal (“NOR”) at 2-4); see also 42
U.S.C. §§ 1395, et seq. Plaintiff seeks remand of the action to state court.
PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that in June 23, 2015, he was hospitalized due to a major stroke. (See Dkt.
1-1, Complaint at ¶ 12). On July 23, 2015, he was transferred to The Rehabilitation Centre of
Beverly Hills (“Rehabilitation Centre”) for skilled nursing facility (“SNF”) care and services,
including physical therapy, occupational therapy, and speech therapy. (Id. at ¶ 13). The
Rehabilitation Centre determined that plaintiff’s “rehabilitation potential was good” and that he
“would benefit greatly from a fairly rigorous therapy plan that would include physical, occupational
and speech related therapies conducted five times a week[.]” (Id. at ¶ 16).
Plaintiff alleges that “it was critical that he receive SNF care and services immediately and
continuously after the occurrence of his stroke because it is generally and popularly understood
within the medical community that stroke victims have the best chances for meaningful
rehabilitation . . . when they undergo rehabilitation therapies immediately after the occurrence of
a stroke. Therefore, any delay in the receipt of [such] therapies . . . would be damaging to him.”
(Dkt. 1-1, Complaint at ¶ 17); (see id. at ¶ 25) (alleging that “rates of recovery after a stroke are
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-2125 FMO (GJSx)

Date

Title

Abol G. Helmy v. Aetna Health of California, Inc.

November 9, 2017

greatest when therapeutic rehabilitation activities occur during the acute and post-acute periods
of a stroke” and that “prematurely discontinuing” services would have a “damaging impact on
Plaintiff’s health and recovery”). On August 26, 2015, defendant advised “unexpectedly and
without reason” that it was unlikely to continue coverage for plaintiff’s SNF care and therapies
beyond September 2, 2015. (See id. at ¶ 22).
Ultimately, as a result of Aetna’s “wrongful” terminations of SNF coverage, plaintiff paid to
have the Rehabilitation Centre provide the required therapy, “albeit on a less intensive, ‘part-time
basis[.]’” (Dkt. 1-1, Complaint at ¶ 32). Plaintiff alleges that Aetna’s conduct violated the implied
covenant of good faith and fair dealing by denying and delaying coverage decisions “with full
knowledge and/or reckless disregard for the consequences to be borne by Plaintiff for not
immediately and consistently receiving” SNF care and services. (Id. at ¶¶ 47-50). According to
plaintiff, he was forced to forgo certain SNF care and services “to his detriment.” (Id. at ¶ 54).
LEGAL STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S.Ct. 1673, 1675 (1994). The courts are presumed to lack jurisdiction unless the contrary appears
affirmatively from the record. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126
S.Ct. 1854, 1861 (2006).
“The right of removal is entirely a creature of statute and a suit commenced in a state court
must remain there until cause is shown for its transfer under some act of Congress.” Syngenta
Crop Protection, Inc. v. Henson, 537 U.S. 28, 32, 123 S.Ct. 366, 369 (2002) (internal quotation
marks omitted). Where Congress has acted to create a right of removal, those statutes, unless
otherwise stated, are strictly construed against removal jurisdiction.1 See id. Unless otherwise
expressly provided by Congress, “any 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[.]” 28 U.S.C. § 1441(a); see Dennis v. Hart, 724 F.3d 1249, 1252
(9th Cir. 2013) (same). A removing defendant bears the burden of establishing that removal is
proper. See Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (per
curiam) (noting the “longstanding, near-canonical rule that the burden on removal rests with the
removing defendant”); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The strong
presumption against removal jurisdiction means that the defendant always has the burden of
establishing that removal is proper.”) (internal quotation marks omitted). Moreover, if there is any
doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts
in favor of remanding the action to state court. See Gaus, 980 F.2d at 566 (“Federal jurisdiction

1

For example, an “antiremoval presumption” does not exist in cases removed pursuant
to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). See Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-2125 FMO (GJSx)

Date

Title

Abol G. Helmy v. Aetna Health of California, Inc.

November 9, 2017

must be rejected if there is any doubt as to the right of removal in the first instance.”).
District courts have original jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. For purposes of removal based on
federal question jurisdiction, the well-pleaded complaint rule “provides that federal jurisdiction
exists only when a federal question is presented on the face of the plaintiff’s properly pleaded
complaint.” Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987)). “As the master of
the complaint, a plaintiff may defeat removal by choosing not to plead independent federal claims.”
ARCO Envt’l Remediation, L.L.C. v. Dep’t of Health & Envt’l Quality of Montana, 213 F.3d 1108,
1114 (9th Cir. 2000).
DISCUSSION
I.

SUBJECT MATTER JURISDICTION.

Aetna contends that removal is proper because plaintiff’s claim “arises under the Medicare
Act and presents a federal question[.]” (Dkt 1, NOR at 2; Dkt. 23, Defendant Aetna Health of
California, Inc.’s Opposition to Plaintiff’s Motion to Remand (“Opp.”) at 1). A claim “arises under”
the Medicare Act “(1) where the ‘standing and the substantive basis for the presentation of the
claims’ is the Medicare Act; and (2) where the claims are ‘inextricably intertwined’ with a claim for
Medicare benefits[.]” Do Sung Uhm v. Humana, Inc., 620 F.3d 1134, 1141 (9th Cir. 2010) (quoting
Heckler v. Ringer, 466 U.S. 602, 614-15, 104 S.Ct. 2013, 2021-22 (1984). A claim is inextricably
intertwined with a claim for Medicare benefits if it is “ultimately one for benefits under the Act.” Do
Sung Uhm, 620 F.3d at 1141; (see also Dkt. 1, NOR at 2).
Here, the court is not persuaded that plaintiff’s claim arises under the Medicare Act.
Plaintiff is seeking tort damages for the harm caused by Aetna’s “wrongful” refusal to provide
continued SNF care and therapies. Plaintiff alleges that Aetna’s conduct caused him harm since
it was critical that he receive such care and services “immediately and continuously” after his
stroke because “stroke victims have the best chances for meaningful rehabilitation from severe
strokes when they undergo rehabilitation therapies immediately after the occurrence of a stroke.”
(Dkt. 1-1, Complaint at ¶ 17). He alleges that “any delay in the receipt of [such] therapies . . .
would be damaging to him.” (Id.; see id. at ¶ 25 (alleging that “rates of recovery after a stroke are
greatest when therapeutic rehabilitation activities occur during the acute and post-acute periods
of a stroke” and that “prematurely discontinuing” services would have a “damaging impact on
Plaintiff’s health and recovery”)). As a result of Aetna’s wrongful conduct, plaintiff was forced to
forgo certain SNF care and services “to his detriment.” (Id. at ¶ 54). The delay in obtaining such
services cannot be undone.
This case is similar to Ardary v. Aetna Health Plans of California, Inc., 98 F.3d 496 (9th Cir.
1996), where the Ninth Circuit held that state law claims for wrongful death did not arise under the
Medicare Act. Id. at 502 (“Because we hold that the [plaintiffs’] state law claims do not ‘arise
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-2125 FMO (GJSx)

Date

Title

Abol G. Helmy v. Aetna Health of California, Inc.

November 9, 2017

under’ the Medicare Act, we must conclude that the action was improperly removed to federal
court.”). In that case, the decedent suffered a heart attack and was taken to a small rural facility
near her home. See id. at 497. Despite repeated requests from her physician, the health plan
administrator refused to authorize airlift transportation to a larger hospital. Id. Because of the
failure to authorize the airlift services, the decedent allegedly died at the rural hospital. Id. at 49798. Despite the fact that the plaintiffs conceded that their claim were all “predicated on” the plan
administrator’s failure to authorize the airlift, the court rejected defendant’s argument that federal
question jurisdiction existed because the plaintiffs’ claims all related to the denial of Medicare
benefits. See id. at 498 & 501-02. As the court noted, plaintiffs were “at bottom not seeking to
recover benefits.” Id. at 500 (emphasis omitted). Here, plaintiff is not seeking to recover Medicare
benefits. Rather, he is seeking tort damages for the failure to provide immediate and continual
SNF services.
Moreover, as in Ardary, the damage done to plaintiff from the failure to receive immediate
and continual SNF care and therapies “cannot be remedied by the retroactive authorization or
payment” for such services. See Ardary, 98 F.3d at 500; Hofler v. Aetna U.S. Healthcare of Cal.,
Inc., 296 F.3d 764, 769-70 (9th Cir. 2002), abrogated on other grounds by Martin v. Franklin
Capital Corp., 546 U.S. 132, 126 S.Ct. 704 (2005) (As in Ardary, “it is too late for the deceased
Mr. Hofler to get a second opinion about his esophageal cancer, have a biopsy to diagnose his
prostate cancer, or receive treatment for his aneurysm.”); (see also Dkt. 1-1, Complaint at ¶¶ 17,
54) (plaintiff was forced to forego certain SNF care and services to his detriment since it was
critical that he receive such care and services “immediately and continuously” after his stroke).
In short, given that any doubt regarding the existence of subject matter jurisdiction must be
resolved in favor of remanding the action to state court, see Gaus, 980 F.2d at 566, the court is
not persuaded, under the circumstances here, that defendant has met its burden. Therefore, there
is no basis for federal question jurisdiction. See 28 U.S.C. § 1331.
II.

COSTS AND FEES.

Plaintiff seeks an award of attorney’s fees and costs in connection with its Motion. (See
Dkt. 21-1, Memorandum of Points and Authorities in Support of Motion to Remand at 13). Section
1447(c) provides in relevant part that “[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28
U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees under §
1447(c) only where the removing party lacked an objectively reasonable basis for seeking
removal.” Martin, 546 U.S. at 141, 126 S.Ct. at 711. Here, the court finds that defendant did not
lack an objectively reasonable basis for removal.
This Order is not intended for publication. Nor is it intended to be included in or
submitted to any online service such as Westlaw or Lexis.
Based on the foregoing, IT IS ORDERED THAT:
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 17-2125 FMO (GJSx)

Date

Title

Abol G. Helmy v. Aetna Health of California, Inc.

November 9, 2017

1. Plaintiff’s Motion to Remand (Document No. 21) is granted in part and denied in part.
The Motion is granted to the extent it seeks remand of the action to state court. The Motion is
denied to the extent plaintiff seeks fees and costs.
2. The above-captioned action shall be remanded to the Superior Court of the State of
California for the County of Los Angeles, 111 North Hill St., Los Angeles, CA 90012, for lack of
subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
3. All pending motions are denied without prejudice.
4. The Clerk shall send a certified copy of this Order to the state court.

Initials of Preparer

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