Glenn Provost v. ILWU PMA Welfare Plan
Filing
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ORDER by Judge Cormac J. Carney remanding case for Lack of Subject Matter Jurisdiction to Superior Court of California, County of Orange, Case number 30-2014-00743127. Case Terminated. Made JS-6 (twdb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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GLENN PROVOST,
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Plaintiff,
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v.
ILWU-PMA WELFARE PLAN,
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Defendant.
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Case No.: SACV 14-01982-CJC(DFMx)
ORDER REMANDING CASE FOR
LACK OF SUBJECT MATTER
JURISDICTION
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I. INTRODUCTION & BACKGROUND
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Plaintiff Glenn Provost, appearing pro se, filed a small claims action for $10,000 in
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Orange County Superior Court against Defendant ILWU-PMA Welfare Plan (“ILWU-
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PMA”) on September 4, 2014. (Dkt. No. 1 [“Removal Notice”], Exh. A [“Compl.”].)
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The form complaint alleges that Mr. Provost “is an MD and provided anesthesia care for
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a member of ILWU-PMA. No payment has been received and no explanation as to why
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payment is being withheld.” (Compl. ¶ 3.) On December 12, 2014, ILWU-PMA filed a
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notice of removal to this Court, asserting federal question jurisdiction on the basis of
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complete preemption under the Employee Retirement Income Security Act of 1974
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(“ERISA”), 29 U.S.C § 1001 et seq. (Removal Notice.) Ten days after filing its notice of
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removal, ILWU-PMA filed a motion to dismiss for lack of standing to bring an ERISA
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claim. (Dkt. No. 7.) Mr. Provost opposed the motion, arguing that complete preemption
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does not apply, (Dkt. No. 15 [“Pl.’s Opp’n”]), and ILWU-PMA filed a reply, (Dkt. No.
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17 [“Def.’s Reply”]). Through these papers, the parties have raised and argued the
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threshold jurisdictional issue that the Court must resolve. Having considered the notice
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of removal and the papers submitted by the parties, the Court concludes that it lacks
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subject matter jurisdiction and REMANDS this action to Orange County Superior
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Court.1
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II. LEGAL STANDARD
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A civil action brought in a state court, but over which a federal court may exercise
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original jurisdiction, may be removed by the defendant to a federal district court. 28
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U.S.C. § 1441(a). “A suit may be removed to federal court under 28 U.S.C. § 1441(a)
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only if it could have been brought there originally.” Sullivan v. First Affiliated Sec., Inc.,
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813 F.2d 1368, 1371 (9th Cir. 1987); Infuturia Global Ltd. v. Sequus Pharm., Inc., 631
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F.3d 1133, 1135 n.1 (9th Cir. 2011) (“[A] federal court must have both removal and
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subject matter jurisdiction to hear a case removed from state court.”). The removal
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statute is strictly construed against removal jurisdiction and, consequently, “the defendant
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always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
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The Court finds that a hearing on this jurisdictional issue is unnecessary. The hearing on ILWUPMA’s motion to dismiss set for February 9, 2015 at 1:30 p.m. is hereby vacated and off calendar.
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F.2d 564, 566 (9th Cir. 1992); see also id. (“Federal jurisdiction must be rejected if there
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is any doubt as to the right of removal in the first instance.”). If it appears that the federal
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court lacks subject matter jurisdiction at any time prior to the entry of final judgment, the
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federal court must remand the action to state court. 28 U.S.C. § 1447(c).
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III. ANALYSIS
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Generally, a cause of action arises under federal law only when a question arising
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under federal law appears on the face of the plaintiff’s well-pleading complaint. Metro.
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Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). However, as an exception to this rule,
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common law claims filed in state court that fall within the scope of section 502(a) of
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ERISA are completely preempted and subject to removal to federal court. Metro. Life
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Ins. Co, 481 U.S. at 67; Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d
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941, 945 (9th Cir. 2009). A claim is completely preempted by ERISA if (1) an
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individual, at some point in time, could have brought the claim under ERISA section
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502(a)(1)(b), and (2) there is no independent legal duty that is implicated by a
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defendant’s actions. Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004) (setting forth
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two-prong test for complete ERISA preemption).2 Here, an ERISA claim does not
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appear on the face of Mr. Provost’s Complaint, and ILWU-PMA has not satisfied the two
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requirements for complete ERISA preemption.
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By contrast, removal is improper where the defendant may raise ERISA conflict preemption under
section 514(a), 29 U.S.C. § 1144(a), but the “claim is not capable of characterization as an ERISA claim
[under § 502(a)].” Toumajian v. Frailey, 135 F.3d 648, 654 (9th Cir. 1998), abrogated on other grounds
by Davila, 542 U.S. at 214 n.4, 217–18; see also id. (“The mere fact that ERISA preemption under
§ 1144(a) may be raised as a defense, or is in actuality a defense, does not confer jurisdiction or
authorize removal.”).
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A. Davila’s First Prong
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The first prong asks whether “an individual, at some point in time, could have
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brought this claim under ERISA § 502(a)(1)(B).” Metro Life, 481 U.S. at 210. Section
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502(a)(1)(B) states, “A civil action may be brought by a participant or beneficiary to
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recover benefits due to him under the terms of his plan, to enforce his rights under the
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terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”
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29 U.S.C. § 1132(a)(1)(B). Here, contrary to ILWU-PMA’s contentions, the Complaint
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does not clearly indicate that Mr. Provost is seeking relief under the terms of an ERISA-
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covered plan or to enforce rights under the terms of such a plan. (See Def.’s Reply at 2.)
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Rather, the Complaint only alleges that Mr. Provost provided anesthesia care for a patient
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who was a member of ILWU-PMA. (Compl. ¶ 3.) Although such a claim may relate to
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an ERISA-covered ILWU-PMA plan, this alone does not furnish a basis for subject
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matter jurisdiction. See Dishman v. UNUM Life Ins. Co. of America, 269 F.3d 974, 984
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(9th Cir. 2001) (rejecting ERISA preemption even where a claim “obviously . . . related
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to the plan because “preemption does not occur . . . if the state law has only a tenuous,
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remote, or peripheral connection with covered plans”); see also Toumajian, 135 F.3d at
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654. Thus, ILWU-PMA has not met its burden to show that the first prong of Davila is
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satisfied. On this basis alone, removal under complete ERISA preemption was improper.
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See Marin, 581 F.3d at 947 (“The two-prong test of Davila is in the conjunctive.”).
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B. Davila’s Second Prong
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Additionally, ILWU-PMA has failed to establish the second prong of the Davila
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test. Under the second prong, there must be “no other independent legal duty that is
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implicated by a defendant’s action.” Metro Life, 481 U.S. at 210. Courts recognize that
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“not all state law claims are preempted.” The Meadows v. Emp’rs Health Ins., 47 F.3d
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1006, 1009 (9th Cir. 1995). On the face of the Complaint, it does not clearly identify the
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legal basis for the requested $10,000, and ILWU-PMA has not shown that no other
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independent legal duty is implicated. Moreover, Mr. Provost has clarified through a
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declaration that he is asserting claims for negligent misrepresentation, breach of oral and
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implied-in-fact contracts, and estoppel that are all based on prior oral representations that
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the proposed surgery was authorized. (Pl.’s Opp’n at 4; Dkt. No. 16 [“Provost Decl.”]
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¶¶ 4–6.); see Denes v. Travelers Indem. Co., No. C 07-4811 CW, 2008 WL 449879, at *5
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(N.D. Cal. Feb. 15, 2008) (“[T]he Court sees no reason to disregard Plaintiff’s
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representation that she in fact does not assert [an ERISA] claim.”). These claims are
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based on Mr. Provost’s status as a “third-party who sues an ERISA plan not as an
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assignee of a purported ERISA beneficiary, but as an independent entity claiming
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damages” and are consistent with the types of claims that courts have held are not subject
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to complete ERISA preemption. The Meadows, 47 F.3d at 1008–09; see, e.g., Marin, 581
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F.3d at 943, 950 (no complete preemption of hospital’s claims to obtain payments based
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on oral promises for 90% coverage of a patient’s treatment); Blue Cross of Cal. v.
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Anesthesia Care Assocs. Med. Grp., Inc., 187 F.3d 1045, 1050–51 (9th Cir. 1999) (no
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complete preemption where medical provider sought recovery against health care plan for
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breach of provider agreements).
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The Court simply cannot and will not assert subject matter jurisdiction over this
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action based on a claim that Mr. Provost does not intend to pursue. See Denes, 2008 WL
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449879, at *5. This is particularly true, now that Mr. Provost is judicially estopped from
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asserting claims for benefits under an ERISA plan. See id. (“Where a party assumes a
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certain position in a legal proceeding, and succeeds in maintaining that position, he may
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not thereafter, simply because his interests have changed, assume a contrary position,
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especially if it be to the prejudice of the party who has acquiesced in the position
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formerly taken by him.” (quoting New Hampshire v. Maine, 532 U.S. 742, 749 (2001)).
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IV. CONCLUSION
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Accordingly, the Court REMANDS the case for lack of subject matter jurisdiction.
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DATED:
February 4, 2015
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CORMAC J. CARNEY
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UNITED STATES DISTRICT JUDGE
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