Anderson v. Blue Cross and Blue Shield et al

Filing 14

Memorandum Opinion and Order denying 5 MOTION to Remand . Signed by District Judge Tom S. Lee on 8/26/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
SILAS ANDERSON

PLAINTIFF

VS.

CIVIL ACTION NO. 3:13CV402TSL-JMR

BLUE CROSS AND BLUE SHIELD,
THE UNIVERSITY OF MISSISSIPPI
MEDICAL CENTER, AND SOUTHERN FARM
BUREAU CASUALTY INSURANCE COMPANY

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiff
Silas Anderson to remand pursuant to 28 U.S.C. § 1447 on the basis
that the notice of removal was not timely filed.

Defendant

Southern Farm Bureau Casualty Insurance Company (Farm Bureau),
joined by defendant Blue Cross and Blue Shield (Blue Cross), has
responded to the motion, and the court, having considered the
memoranda of authorities submitted by the parties, concludes the
motion should be denied.
Anderson filed the present action in the Circuit Court of
Hinds County, Mississippi, on July 20, 2012 against defendants
Blue Cross and UMMC seeking to recover benefits he claims are owed
him under a health insurance policy issued to his wife through
Farm Bureau, her employer, for medical expenses that Anderson
incurred for injuries sustained in an automobile accident.

After

Blue Cross filed a motion for summary judgment asserting it was
not the insurer but rather the claims administrator, and that in

fact, Farm Bureau was the insurer, Anderson filed an amended
complaint on May 22, 2013 adding Farm Bureau as a defendant.

On

July 25, 2013, within thirty days of service of the amended
complaint, Farm Bureau filed a notice of removal, asserting
federal question jurisdiction under 28 U.S.C. § 1331 since the
insurance policy is an employer-sponsored self-funded health
benefits plan governed by the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. § 1001 et seq.
In his motion to remand, Anderson argues that removal was
improper because state courts have concurrent jurisdiction over
ERISA actions brought under 29 U.S.C. § 1132(a)(1)(B) for the
recovery of benefits.

See 29 U.S.C. § 1132(e) (providing for

concurrent jurisdiction of actions under section (a)(1)(B)).
However, the fact that there is concurrent jurisdiction does not
preclude removal.

On the contrary, the Fifth Circuit has held

that “[u]nless ... there is an express declaration by Congress to
the contrary, all types of civil actions, in which there is
concurrent original jurisdiction in both federal and state courts,
are removable.”

Baldwin v. Sears, Roebuck and Co., 667 F.2d 458,

460 (5th Cir. 1982).

There is no Congressional prohibition on

removal of cases brought under § 1132(a)(1)(B).

See Callison v.

Charleston Area Med. Ctr., Inc., 909 F. Supp. 391, 394 (S.D. W.
Va. 1995) (stating that “[t]he existence of concurrent
jurisdiction [in a case brought under § 1132(a)(1)(B)] does not
require remand” and that “where federal and state courts have

2

concurrent jurisdiction, Congress must expressly provide for
nonremovability to prevent removal”); McWilliams v. Metro. Life
Ins. Co., 172 F.3d 863, 1999 WL 64275, at *1–2 n.1 (4th Cir. 1999)
(noting that the existence of concurrent jurisdiction does not
preclude removal in cases brought under § 1132(a)(1)(B))
(unpublished opinion); Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 66, 107 S. Ct. 1542, 1548, 95 L. Ed. 2d 55 (1987) (noting that
“Congress has clearly manifested an intent to make causes of
action within the scope of the civil enforcement provisions of
§ 502(a) [of ERISA] removable to federal court”).
Anderson further argues that the removal was untimely because
Farm Bureau’s alleged agent, Blue Cross, did not remove the case
within thirty days upon being served with process, as required by
28 U.S.C § 1446 (b)(1).

Section 1446 of Title 28, United States

Code, states, in pertinent part,
(b) Requirements; generally.--(1) The notice of removal
of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based....
(B) Each defendant shall have 30 days after receipt by
or service on that defendant of the initial pleading or
summons described in paragraph (1) to file the notice of
removal.
Anderson does not dispute that Farm Bureau filed its notice
of removal within thirty days of service of process on Farm
Bureau.

Rather, he apparently contends that Blue Cross was Farm

Bureau’s agent for purposes of removal.

He cites no authority for

this proposition and the court has found none.
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While it is

alleged that Blue Cross was claims administrator of Farm Bureau’s
health plan and acted as its agent in that capacity, there is no
factual or legal basis for plaintiff’s suggestion that Blue Cross
was Farm Bureau’s agent for purposes of litigation.

Section

1446(b)(1)(B) gives “each defendant” thirty days after service on
such defendant to remove.

Farm Bureau filed its notice of removal

within thirty days of being served with process, and the notice of
removal was thus timely in accordance with the removal statute.1
Accordingly, it is ordered that plaintiff’s motion to remand
is denied.
SO ORDERED this 26th

day of August, 2013.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

1

In another removal context, consent to removal, the
Fifth Circuit has held that each defendant whose timely consent to
removal is required by the removal statute, see § 1446(b)(2)(A)
(“When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in
or consent to the removal of the action.”), may manifest its
consent to removal through some timely filed written indication
from the defendant himself or from “some person or entity
purporting to formally act on its behalf in this respect and to
have the authority to do so, that it has actually consented to
such action.” Getty Oil v. Ins. Co. of N. Am., 841 F.2d 1254,
1262 n.11 (5th Cir. 1988). In all cases, however, the consent to
removal must be the consent of the defendant himself; one
defendant (even if in other respects an agent for the other
defendant), may not consent to removal on the other’s behalf.
Rather, he may only convey the fact of the other defendant’s
consent to removal, and he may only do this where he actually has
the authority to convey such consent. Blue Cross could not have
failed to timely remove on behalf of Farm Bureau any more than it
could have consented to removal on behalf of Farm Bureau.
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