North Shore-Long Island Jewish Health Systems, Inc. v. MultiPlan, Inc. et al

Filing 37

MEMORANDUM AND OPINION. Having conducted a de novo review of the Report and Recommendation, and having considered the parties' additional submissions, the Court denies plaintiff's motion to remand for the reasons set forth in the attached Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/12/2013. (Kaitlin O'Donnell)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-1633 (JFB)(AKT)
_____________________

NORTH SHORE-LONG ISLAND JEWISH HEALTH CARE SYSTEM, INC.,
Plaintiff,
VERSUS

MULTIPLAN, INC., TEAMSTERS LOCAL 210 AFFILIATED HEALTH & INSURANCE
FUND, AND LOCAL 812 HEALTH FUND,
Defendants.
___________________
MEMORANDUM AND ORDER
July 12, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff North Shore-Long Island
Jewish Health Care System, Inc. (“plaintiff”
or “North Shore”) brought this action
seeking an order of this Court to remand the
action to the Supreme Court of the State of
New York, County of Nassau (“Nassau
Supreme”), where the action originally was
initiated. Defendant Local 812 Health Fund
(“Local 812”) removed the case (with the
consent of defendants MultiPlan, Inc.
(“MultiPlan”) and Local 210 Affiliated
Health & Insurance Fund (“Local 210”))1
from Nassau Supreme to this Court. North
1

The Court refers to defendants Local 812 and Local
210 collectively as, “defendants.” Although
MultiPlan is a defendant in this action, it did not
participate in the underlying motion practice, and
therefore, is not included in the collective
“defendants” term.

Shore subsequently moved to remand the
case back to state court on the grounds that:
(1) Local 812 did not have the power to
remove the action because it is a third-party
defendant; (2) Local 812 did not timely
remove the action; and (3) this Court lacks
subject matter jurisdiction because the
claims asserted against it are not preempted
by the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C.
§ 1001, et seq.
On November 8, 2012, Magistrate Judge
Kathleen A. Tomlinson issued a Report and
Recommendation (“R&R”), recommending
that plaintiff’s motion be granted in its
entirety on the ground that this Court lacks
subject matter jurisdiction because the
underlying claim concerns an “amount of
payment” as opposed to a “right to
payment,” which does not bring ERISA’s

preemptive force into play. Both Local 812
and Local 210 submitted objections to
Magistrate Judge Tomlinson’s R&R, which
included additional evidentiary submissions
by Local 812 and 210 that were not before
Magistrate Judge Tomlinson when she first
considered defendants’ motions. The Court,
in its discretion, has decided to consider that
additional evidence, and plaintiff has been
given an opportunity to respond to it.

Judge Arthur D. Spatt and Magistrate Judge
Tomlinson. On April 9, 2012, North Shore
filed a motion to remand the action to state
court. Subsequently, Local 210 answered the
amended complaint on April 12, 2012. On
April 30, 2012, Local 812 submitted its
opposition to North Shore’s motion to
remand. North Shore filed its reply on May
7, 2012.
On June 18, 2012, Judge Spatt referred
the pending motion to remand to Magistrate
Judge Tomlinson for a report and
recommendation regarding the remand
request. As previously set forth, Magistrate
Judge
Tomlinson
issued
her
recommendation on November 8, 2012, in
which she concluded that North Shore’s
motion to remand should be granted on the
grounds that this Court lacks subject matter
jurisdiction over the matter.

For the reasons that follow, having
considered the parties’ submissions, as well
as having reviewed the entire R&R de novo
(with defendants’ respective objections and
additional evidentiary submission), the
Court denies plaintiff’s motion to remand.2
I. PROCEDURAL HISTORY
Plaintiff filed its complaint on May 11,
2011 in the Supreme Court of the State of
New York, County of Nassau. On June 24,
2011, MultiPlan answered the complaint. On
November 10, 2011, MultiPlan impleaded
Local 812 and Local 210 and served the
parties with a third-party complaint. On
March 1, 2012, Local 210 answered the
third-party complaint. That same day, Local
812 moved to dismiss the third-party
complaint.

On November 21, 2012 Local 812 filed
an objection to the R&R and requested oral
argument on its objections. Local 210
submitted objections, as well, on November
23, 2012. By letter dated November 26,
2012, North Shore challenged defendants’
respective submissions on the grounds that
they were procedurally improper. The Court
declined to consider the procedural propriety
of defendants’ submissions at that time,
instead instructing plaintiff to submit a
response to Local 210 and Local 812’s
objections. Plaintiff did so on December 5,
2012, and defendants submitted their reply
on December 12, 2012.

On March 22, 2012, North Shore
amended its complaint to assert direct claims
against Local 812 and Local 210. On April
3, 2012, Local 812 filed a Notice of
Removal to have the action removed to this
Court, where it initially proceeded before

Following
Magistrate
Judge
Tomlinson’s issuance of the R&R and the
parties’ submission of their objections,
Judge Spatt, the district court judge
previously assigned to the case, recused
himself from the matter on February 19,
2013. The undersigned was then assigned to
the case. On April 15, 2013, North Shore
requested oral argument regarding the

2

The Court agrees with the R&R’s conclusions
regarding the propriety of Local 812’s removal of the
case. That is, the Court agrees that Local 812’s
removal was timely, and that Local 812 was entitled
to remove this case to federal court because it
constitutes a direct defendant in this case. (See R&R
at 8-10.) Accordingly, the Court does not address the
R&R’s analysis as to these points, instead adopting
the analysis contained therein on that issue.

2

further evidence; or return the matter to the
magistrate judge with instructions.”).

previously submitted and pending objections
to the R&R. This Court granted the request,
and oral argument was held on May 14,
2013. On May 15, 2013, plaintiff submitted
a supplemental letter addressing an issue
that was raised at oral argument. On May
17, 2013, Local 812 submitted a letter in
response.

III. THE PARTIES’ POSITIONS3
Defendants object to the R&R with
respect to its recommendation that the Court
grant plaintiff’s motion to remand the case
to state court. Local 812 and Local 210 both
object on the ground that the R&R
erroneously concluded that plaintiff’s
motion to remand should be granted, even
though plaintiff seeks to recover payments
falling under an ERISA-governed plan, the
interpretation of which will be necessary in
order to determine Local 812’s payment
obligations, if any. (See Def. Local 812’s
Objections to Nov. 8, 2012 R&R (“Local
812’s Objections”) at 1-11; Def. Local 210’s
Objections to Nov. 8, 2012 R&R (“Local
210’s Objections”) at 1-7.)4 Incorporated
into this argument are defendants’
contentions that a remand is not appropriate
because plaintiff constitutes the type of party

The Court has fully considered the
parties’ submissions de novo.
II. STANDARD OF REVIEW
A district judge may accept, reject, or
modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330,
1345 (S.D.N.Y. 1994); Walker v. Hood, 679
F. Supp. 372, 374 (S.D.N.Y. 1988). As to
those portions of a report to which no
“specific written objection” is made, the
Court may accept the findings contained
therein, as long as the factual and legal bases
supporting the findings are not clearly
erroneous. Santana v. United States, 476 F.
Supp. 2d 300, 302 (S.D.N.Y. 2007); Greene
v. WCI Holdings Corp., 956 F. Supp. 509,
513 (S.D.N.Y. 1997). When “a party
submits a timely objection to a report and
recommendation, the district judge will
review the parts of the report and
recommendation to which the party objected
under a de novo standard of review.” Jeffries
v. Verizon, 10-CV-2686 (JFB)(AKT), 2012
WL 4344188, at *1 (E.D.N.Y. Sept. 21,
2012); see also 28 U.S.C. § 636(b)(1)(C)
(“A judge of the court shall make a de novo
determination of those portions of the report
or specified proposed findings or
recommendations to which objection is
made.”); Fed. R. Civ. P. 72(b)(3) (“The
district judge must determine de novo any
part of the magistrate judge’s disposition
that has been properly objected to. The
district judge may accept, reject, or modify
the recommended disposition; receive

3

The Court presumes familiarity with the factual
background and procedural posture of the case.
Where necessary to an understanding of the Court’s
analysis, however, the Court provides a brief factual
summary. For a greater description of the underlying
facts, see Report & Recommendation, North Shore
Long Island Jewish Health Sys. Inc. v. MultiPlan,
Inc., et al., No. 12-CV-1633(ADS)(AKT) (E.D.N.Y.
Nov. 8, 2012), ECF. No. 14.
4
Local 812 is an employee benefit plan that provides
hospitalization, as well as medical, pharmaceutical,
and other welfare benefits to eligible employees and
their dependents. (See Def. Local 812’s Mem. of Law
in Opp’n to Pl.’s Mot. to Remand (“Local 812’s
Remand Mem.”), Barry I. Levy Decl. (“Levy Decl.”)
¶ 3.) The plan is funded by employer contributions
made pursuant to collective bargaining agreements
between employers and the Soft Drink and Brewery
Works Union, Local 812, International Brotherhood
of Teamsters. (See id.) Similarly, Local 210 is a selffunded health insurance plan providing health care
coverage for its union members. (Am. Compl. ¶ 3.)
The parties predominantly refer to Local 812’s Plan
in their submissions. Accordingly, the Court likewise
focuses its analysis on this plan, referring to it as “the
Plan.”

3

because, should this Court adopt the R&R,
the case will be remanded to state court,
which will then be the appropriate venue in
which to address such matters (id. at 1314).5

that can bring an action under ERISA, the
underlying claims are colorable ones for
ERISA benefits, and Local 812’s actions do
not implicate any other independent legal
duty. Alternatively, Local 812 argues that,
should this Court adopt the R&R, it also
should hold that plaintiff is judicially
estopped from assuming a contrary position
in subsequent litigation. That is, “the Court
should make clear that North Shore is
judicially estopped from (i) seeking
recovery for any claim where a prior partial
payment has not already been made, (ii)
seeking the reversal of any determination of
a denial, and (iii) attempting in the future to
rely upon any assignment of rights from a
beneficiary with respect to the claims at
issue in this case.” (Local 812’s Objections
at 11-12.)

The Court has considered the parties’
submissions and has conducted a de novo
review of the R&R in its entirety. For the
following reasons, the Court denies the
motion to remand.
IV. DISCUSSION6

5

As to this last point, because the Court has
concluded that remand is unwarranted, this argument
is moot.
6
As one of its counterarguments to defendants’
objections, plaintiff argues that defendants
improperly submitted evidence that was not before
Magistrate Judge Tomlinson at the time of her R&R.
This argument is a non-starter. Rule 72(b)(3) of the
Federal Rules of Civil Procedure provides that “[t]he
district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to,” and further, that “[t]he district judge
may accept, reject, or modify the recommended
disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed.
R. Civ. P. 72(b)(3) (emphasis added); see also 28
U.S.C. § 636(b)(1)(C) (“A judge of the court shall
make a de novo determination of those portions of
the [Magistrate Judge’s] report or specified proposed
findings or recommendations to which objection is
made . . . [and] may also receive further evidence.”);
Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989)
(noting that the district court reviews a Magistrate
Judge’s R&R de novo and that the district judge may
consider new evidence when doing so); Motorola,
Inc. v. Abeckaser, No. 07-cv-3963 (CPS)(SMG),
2009 WL 2568526, at *1 (E.D.N.Y. Aug. 19, 2009)
(reviewing Magistrate Judge’s R&R de novo and
considering plaintiff’s newly submitted evidence
along with its objections).
Plaintiff also argues that Local 812’s objections fail
to meet the specificity requirements of the Federal
Rules of Civil Procedure, and that Local 812 simply
seeks to “engag[e] in a wholesale reargument of the
entirety of the issues that were raised in the Motion
for Remand.” (See Pl.’s Opp’n at 2; see also id. at 3
(citing Fed. R. Civ. P. 72(b)).) The Court rejects this
argument.

Plaintiff raises several counterarguments
to defendants’ objections. (See generally
Pl.’s Mem. of Law in Opp’n to Objections
Filed by Defendants to R&R (“Pl.’s
Opp’n”).) Plaintiff asserts that (1) Local
812’s objections to the R&R do not comply
with the Federal Rules of Civil Procedure
because they are not stated with the requisite
particularity (id at 2-3); (2) both Local 812
and Local 210 improperly submitted
evidence that was not before Magistrate
Judge Tomlinson in their objections (id. at
4-6); (3) Local 812 and Local 210’s
arguments that North Shore is an assignee of
Plan participant patients is a non-issue that
the Court need not address because whether
or not there was an assignment to receive
payments is a different question from
whether the claims at issue should be preempted; (id. at 6-8); (4) plaintiff’s state
claims arise from an independent legal duty
(id. at 9-11); (5) the underlying claims
concern an “amount of payment,” and not a
“right to payment,” and therefore, do not
implicate Local 812’s health plan (id. at 1113); and lastly, (6) Local 812 cannot request
relief on the grounds of judicial estoppel
4

A. ERISA Overview
In essence, the Court’s determination of
whether the R&R properly recommended
that this matter be remanded to state court
turns on whether plaintiff’s claims, as pled,
implicate ERISA, thereby establishing this
Court’s subject matter jurisdiction. To best
answer this question, the Court briefly
sketches the law regarding ERISA as
relevant to this case.

1. Legal Standard
ERISA’s main objective “is to provide a
uniform regulatory regime over employee
benefit plans.” Aetna Health Inc. v. Davila,
542 U.S. 200, 208 (2004). To provide such
uniformity, the statute contains broad
preemption provisions, which safeguard the
exclusive federal domain of employee
benefit plan regulation. See id.; see also
Alessi v. Raybestos-Manhattan, Inc., 451
U.S. 504, 523 (1981). One such source of
preemption under ERISA is Section
502(a)(1)(B), which serves as ERISA’s main
enforcement tool in ensuring a uniform
federal scheme. Section 502(a)(1)(B) of
ERISA provides:

Local 812’s objections to the R&R are specific to
the particular grounds upon which Magistrate Judge
Tomlinson based her conclusion that plaintiff’s
motion to remand should be granted, namely (and
most basically stated), that this Court lacks subject
matter jurisdiction because ERISA preemption is not
in play. The R&R based its determination upon the
conclusion that neither prong of Aetna Health Inc. v.
Davila, 542 U.S. 200, 208 (2004), discussed in
greater detail infra, was met under the facts of the
case. That is, the R&R determined that “this case
involves ‘amount of payment claims’ that are not
preempted by ERISA” (see R&R at 17; see also id.
(stating that “because the Court need not interpret the
Plan to resolve the disputes here, the claims do not
involve the beneficiaries’ rights to payment under the
Plan”)), and also, that defendants’ actions implicated
an independent legal duty, separate from the Plan –
specifically, Local 812’s alleged contract with North
Shore (id. at 21). In its objections, Local 812 argues
that it does in fact satisfy both prongs of Davila –
discussed further infra – and for this reason, ERISA
preemption is established, providing this Court with
subject matter jurisdiction over plaintiff’s claims.
(See Local 812’s Objections at 2-5 (setting forth the
reasons why plaintiff is the type of party that may
bring a claim under an ERISA plan); id. at 6-9
(explaining why plaintiff’s claims are colorable ones
for ERISA benefits); id. at 9-11 (asserting that no
other independent legal duties are implicated by
Local 812’s actions).) This is not a matter of Local
812 simply duplicating arguments already disposed
of in the R&R, nor is it the case that Local 812’s
arguments are conclusory or general; rather, its
arguments directly target each of the R&R’s grounds
for concluding that ERISA preemption was not
established and the reasons as to why this Court
should not accept the R&R’s ultimate conclusion.
Accordingly, the Court rejects plaintiff’s argument
regarding the specificity of defendants’ arguments
and the propriety of their submitted evidence.

A civil action may be brought – (1) by a
participant or beneficiary - . . . (B) to
recover benefits due to him under the
terms of his plan, to enforce his rights
under the terms of the plan, or to clarify
his rights to future benefits under the
terms of the plan.
29 U.S.C. § 1132(a)(1)(B).
The Supreme Court has explained that
“the detailed provisions of § 502(a) set forth
a comprehensive civil enforcement scheme
that represents a careful balancing of the
need for prompt and fair claims settlement
procedures against the public interest in
encouraging the formation of employee
benefit plans.” Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 54 (1987). The
Supreme Court has noted how “the inclusion
of certain remedies and the exclusion of
others under [§ 502’s] federal scheme . . .
‘provide[s] strong evidence that Congress
did not intend to authorize other remedies
that it simply forgot to incorporate
expressly.’” Id. (quoting Mass. Mut. Life
Ins. Co. v. Russell, 473 U.S. 134, 146
5

Montefiore Med. Ctr. v. Teamsters Local
272, 642 F.3d 321, 328 (2d Cir. 2011)
(alteration in original) (quoting Davila, 542
U.S. at 210); see also Davila, 542 U.S. at
210 (“[I]f an individual . . . could have
brought
his
claim
under
ERISA
§ 502(a)(1)(B), and where there is no other
independent legal duty that is implicated by
defendant’s actions, then the individual’s
cause of action is completely pre-empted by
ERISA § 502(a)(1)(B).”); Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 65-66 (1987)
(noting that section 502(a)(1)(B) of ERISA
contains “extraordinary pre-emptive power”
that “converts an ordinary state common law
complaint into one stating a federal claim,”
making “causes of action within the scope of
. . . § 502(a) removable to federal court”).
Additionally, “[t]o avoid potential confusion
under the first prong of Davila, [the Second
Circuit] has further clarified that the plaintiff
must show that: (a) he is the type of party
who can bring a claim pursuant to
§ 502(a)(1)(B) of ERISA; and (b) the actual
claim asserted can be construed as a
colorable claim for benefits pursuant to
§ 502(a)(1)(B).” Arditi, 676 F.3d at 299.
Where both of Davila’s factors are satisfied
– including the two sub-parts to Davila’s
first prong – ERISA will preempt the state
law claim. Id. (citing cases).

(1985)). It likewise has acknowledged that
“the federal scheme would be completely
undermined if ERISA-plan participants and
beneficiaries were free to obtain remedies
under state law that Congress rejected in
ERISA.” Id.
For this reason, where a plaintiff brings a
state law claim that is in reality an ERISAclaim cloaked in state-law language,
ERISA’s preemption power will take effect.
See Davila, 542 U.S. at 207 (stating that
“[w]hen a federal statute wholly displaces
the state-law cause of action through
complete pre-emption, the state claim can be
removed” to federal court (quoting
Beneficial Nat’l Bank v. Anderson, 539 U.S.
1, 8 (2003)) (alterations and internal
quotation marks omitted)); id. at 207-08
(“[W]hen the federal statute completely preempts the state-law cause of action, . . . even
if pleaded in terms of state law, [it] is in
reality based on federal law.” (citation and
internal quotation marks omitted)); id. at
209 (describing ERISA as “one of these
statutes” that holds complete preemption
power). The effect of this preemptive power
cannot be understated: it “prevents plaintiffs
from ‘avoid[ing] removal’ to federal court
‘by declining to plead necessary federal
questions.’” Arditi v. Lighthouse Int’l, 676
F.3d 294, 298-99 (2d Cir. 2012) (quoting
Romano v. Kazacos, 609 F.3d 512, 519 (2d
Cir. 2010)) (alteration in original).

2. Application
a. Davila Prong One

The relevant test for assessing whether a
claim is completely preempted under ERISA
consists of two parts:

In addressing Davila’s first prong, the
Court considers whether plaintiff constitutes
“the type of party that can bring a claim”
under Section 502(a)(1)(B), and next,
“whether the actual claim” at issue
constitutes a “colorable claim” for benefits
under Section 502(a)(1)(B). Montefiore, 642
F.3d at 328; see also Josephson v. United
Healthcare
Corp.,
No.
11-cv3665(JS)(ETB), 2012 WL 4511365, at *3
(E.D.N.Y. Sept. 28, 2012) (acknowledging

claims are completely preempted by
ERISA if they are brought (i) by “an
individual [who] at some point in time,
could have brought his claim under
ERISA § 502(1)(B),” and (ii) under
circumstances in which “there is no
other independent legal duty that is
implicated by a defendant’s actions.”
6

Plaintiff has not identified the payment
claims that are at issue here. Thus, as noted
both in Magistrate Judge Tomlinson’s R&R,
as well as in Local 812’s Objections to the
R&R, Local 812 is unable to effectively
assess whether the underlying claims here
constitute an assignment of benefits from
Plan participants/beneficiaries. (See R&R at
15 (“The Court acknowledges the difficulty
Local 812 faces in proving that a particular
claim is disputed in light of the fact that
[plaintiff] has not identified the specific
claims at issue. The Court also finds it
significant that [plaintiff] does not dispute
that the claims at issue were, in fact,
assigned to it.”); Local 812’s Objections at 3
(stating that “North Shore has not identified
the claims at issue in this matter, rendering it
impossible for Local 812 to confirm that
each claim allegedly at issue in this case
included an assignment of benefits from its
participants and/or their beneficiaries, let
alone what claims are at issue”).)

the Second Circuit’s interpretation of
Davila’s two-pronged test as consisting of
two inquiries under the first prong).
i.

Type of Party

As previously set forth, Section
502(a)(1)(B) clearly provides that a civil
action may be brought “‘by a participant or
beneficiary’ of an ERISA plan to enforce
certain rights under that plan pursuant to
ERISA.” Montefiore, 642 F.3d at 329
(quoting 29 U.S.C. § 1132(a)(1)(B)). Stated
differently, the Court considers whether
plaintiff here has standing to sue under
ERISA.
Generally,
ERISA
is
“narrowly
construed to permit only the enumerated
parties to sue directly for relief,” i.e., a
participant or beneficiary of an ERISA plan.
Id. However, there is a narrow exception for
“‘healthcare providers to whom a
beneficiary has assigned his claim in
exchange for health care.’” Id. (quoting
Simon v. Gen. Elec. Co., 263 F.3d 176, 178
(2d Cir. 2001)); see also Pascack Valley
Hosp., Inc. v. Local 464A UFCW Welfare
Reimbursement Plan, 388 F.3d 393, 400 n.7
(3d Cir. 2004) (“Almost every circuit to
have considered the question has held that a
health care provider can assert a claim under
§ 502(a) where a beneficiary or participant
has assigned to the provider that individual’s
right to benefits under the plan[.]”).

When initially presenting its unable-toconfirm-assignment
argument
before
Magistrate Judge Tomlinson, Local 812
asserted that “a random sample of claims
submissions from [plaintiff] reveals that it
was the assignee of at least three Local 812
Plan Beneficiaries that it treated[,] and
[plaintiff] does not dispute in its motion
papers that it is the assignee of every Local
812 Plan Beneficiary that it treated.” (Local
812’s Remand Mem. at 11 (citing Levy
Decl. ¶ 8 (stating both North Shore’s failure
to identify the claims at issue in this case,
and that “[i]t is Local 812’s belief [] that it is
standard practice for [plaintiff] to obtain an
assignment of benefits from the Plan
Beneficiaries it treated,” and that “[a]nnexed
hereto . . . is a random sampling of three
UB04 forms for Plan Beneficiaries treated
by North Shore reflecting that North Shore
did
receive
an
assignment
of
benefits . . . .”)).) Stated more succinctly,
Local 812 bases its position of an

Defendants assert that plaintiff has
standing
because
plaintiff
meets
Montefiore’s
recognized-yet-narrow
exception for parties who are “healthcare
providers to whom a beneficiary has
assigned his claim in exchange for health
care.” Montefiore, 642 F.3d at 329. Local
812’s argument (accepted by Local 210)
goes as follows:

7

Mem. of Law in Opp’n to Pl.’s Mot. to
Remand (“Local 812’s Remand Mem.”) Ex.
B); (2) a document entitled, “UB-04
Overview,” published by the Center for
Medicare and Medicaid Services (“CMS”)7
(see Local 812’s Objections Ex. B); (3) the
aforementioned Levy Declaration, drafted
by counsel for Local 812 in this matter (see
Local 812’s Remand Mem. Levy Decl.); (4)
the declaration of Michael DeBartolome, a
member of Local 812’s third-party Plan
administrator,
Crossroads
Healthcare
Management LLC (“Crossroads”) (Local
210’s Objections Ex. C, Michael
DeBartolome Decl. (“DeBartolome Decl.”));
(4) the UB-04 claim forms that
DeBartolome offers along with his
Declaration (id.); and (5) relevant case law
in which courts have considered similar
forms of documentation when assessing
whether an assignment of claims has taken
place.

assignment on both plaintiff’s failure to
dispute such a contention, as well as certain
claims submission forms that plaintiff
accepted from Plan beneficiaries, which
Local 812 reads as reflecting an assignment.
On reviewing these claim submission
forms, Magistrate Judge Tomlinson
concluded that the claim forms did not
affirmatively show that any assignment had,
in fact, occurred. (See R&R at 14 (stating
that “[t]he sample forms submitted,
however, do not reflect that any assignment
occurred nor do they contain any language
regarding assignment”).) In particular,
Magistrate Judge Tomlinson noted that
although the forms contain boxes with the
letter “Y,” “which could possibly reflect an
assignment,” Local 812 failed to proffer
evidence showing that such actually is the
case, nor did it submit other documentation
from an individual with personal knowledge
who could confirm the information provided
on the forms. (Id.) It was largely for this
reason – Local 812’s lack of evidence
supporting its reading of the submitted UB04 forms – that Magistrate Judge Tomlinson
concluded that Local 812 had failed to
demonstrate
an
assignment,
and
correspondingly, plaintiff’s status as the type
of party who could bring a claim under
ERISA. (See id. at 14 ([“[W]ithout any
further explanation from someone with firsthand knowledge or other evidence, the
Court cannot conclude that an assignment
occurred . . . .”).)

Generally, a UB-04 form is a uniform
billing statement used by hospitals (or other
institutional providers) to bill a party for
medical claims. (See Local 210’s Objections
Ex. B, UB-04 Overview (stating that “[t]he
UB-04 . . . is the uniform institutional
provider hardcopy claim form suitable for
use in billing multiple third party payers,”
and noting that “[t]he UB-04 is the only
hardcopy claim form that the [CMS] accepts
from institutional providers (e.g., hospitals,
Skilled Nursing Facilities, Home Health
Agencies, etc.”)); see also Montefiore Med.
Ctr. v. Teamsters Local 272, No. 09-CV3096(HB), 2009 WL 3787209, at *2
(S.D.N.Y. Nov. 12, 2009) (describing a UB04 form as “a uniform billing form”; in that
case, the form was utilized where a medical

On careful review of the submitted
documentation (including new evidence not
previously
before
Magistrate
Judge
Tomlinson) and the applicable case law, this
Court respectfully concludes that plaintiff
has standing such that it could have brought
its claims under ERISA. The Court bases
this conclusion upon the following items in
the record: (1) the UB-04 forms that
defendants submitted (see Def. Local 812’s

7

This acronym – CMS – is relevant here for an
additional reason: the submitted UB-04 billing
statements all contain, in the lower left-hand corner
of the forms, the language, “CMS 1450,” indicating
that the forms are prescribed by CMS. (See Local 210
Objections at 2; Local 812’s Remand Mot. Ex. B.)

8

center provided health care services to
certain participants and beneficiaries of an
ERISA-governed Fund and subsequently
submitted claims for payment to the Fund,
which required that any payment claims be
submitted on a UB-04).

participants/beneficiaries, which will affect
the amount of payment that defendants
ultimately owe plaintiff. (Id. at 7.) Because
plaintiff’s claims are separate state law
claims arising from a contractual obligation
with MultiPlan (and by virtue of this
arrangement, with Local 812 and Local 210,
explained infra), plaintiff argues that the
issue of whether an assignment actually
occurred is irrelevant. (See id. at 6 (stating
that “[p]laintiff has not pleaded and is not
pursuing any claim in this litigation as an
assignee of any patient who received
treatment,” but instead, “seek[s] claims on
the basis of an independent legal duty that
arose from a contract that both unions
entered into with [MultiPlan]”).)

Here, defendants submitted three claims
submission forms which they assert indicate
an assignment of benefits. (See Local 812’s
Remand Mot. Ex. B.) In its Objection
Motion, Local 210 directs the Court’s
attention to the second of these submitted
forms (also resubmitted as Exhibit A to
Local 210’s Objections), and walks the
Court through the relevant language of the
form.8 Of particular interest here is Line
Item 53, entitled “ASG BEN.” (Local 210’s
Objections Ex. A.) Page 6 of the UB-04
Overview, submitted as Exhibit B to Local
210’s Objections, clarifies that this language
signifies an “Assignment of Benefits.”
(Local 210 Objections at 3; see also id. Ex.
B.) In the box below this assignment
language is the letter, “Y,” which defendants
assert indicates that the Local 812 Plan
participant – on whose behalf Local 812 is
paying the bill for plaintiff’s rendered health
care services – has assigned his or her claim
to plaintiff (who has now submitted it to
Local 812 for payment). (See Local 210
Objections at 3; Local 812 Objections at 4.)
The Court returns to this point shortly.

The Court disagrees with plaintiff. For
reasons set forth in greater detail infra, the
Court does not believe this case solely
concerns a dispute about an amount of
payment owed. Furthermore, the Court does
not believe the question as to whether an
assignment occurred is inapposite. It is
directly relevant to determining one of the
first prongs of Davila, i.e., whether plaintiff
is the type of party that can bring an action
under ERISA, and correspondingly, whether
any of plaintiff’s claims are pre-empted
under ERISA. Answering this question turns
on whether plaintiff, under Montefiore’s
noted exception, constitutes a health care
provider asserting claims on behalf of plan
participants/beneficiaries. See Montefiore,
642 F.3d at 329. The UB-04 claim forms
submitted by defendants go specifically to
this point.

To these arguments regarding the UB-04
forms, plaintiff responds that the Court need
not resolve the issue of whether an
assignment occurred. (See Pl.’s Opp’n Mem.
at 6-8.) This is so because, as plaintiff
contends, the underlying claims here simply
involve a dispute concerning the rates for
services
rendered
to
Plan

In a newly submitted declaration to the
Court, DeBartolome, the President and
Managing Member of Crossroads, offers
insight into the workings of UB-04 claims
forms. (See Local 210 Objections Ex. C,

8

The Court notes that the identified language on the
second submitted claims form is identical to that
language contained on the other two submitted claims
forms. (See Local 812’s Remand Mot. Ex. B.)

9

DeBartolome Decl.)9 In his Declaration,
DeBartolome states that, according to his
reading (as a member of the third party
administrator for Local 812’s Plan) of the
UB-04 forms, an assignment of the Plan
participants/beneficiaries’ charges to North
Shore occurred. (Id. ¶¶ 6-10.) DeBartolome
states that “[t]hese assignments are indicated
by the letter ‘Y’ entered in the box of Line
Item 53 on the UB-[0]4.” (Id. ¶ 8.)
DeBartolome further explains that “Line
Item 53 shows whether the [Plan] participant
has assigned his/her medical claim to a
provider. A ‘Y’ entered in the Line Item 53

box means that the participant has assigned
his/her claim to a provider.” (Id.)
In support of his declaration,
DeBartolome submits several exhibits,
including excerpts from the same UB-04
Overview referenced earlier in defendants’
exhibits (explaining the Assignment-ofBenefits-import of Line 53), as well as four
claims submission forms. These claims
submission forms are different from those
submitted by defendants. (Compare Local
812 Remand Mem. Ex. B with Local 210
Objections Ex. C.) However, they also bear
the “Y” in Line 53’s Assignment of Benefits
section, as well as the CMS acronym,
indicating that they, too, are prescribed by
CMS (the same prescriber as that of the UB04 forms submitted by defendants).
DeBartolome states in his declaration that
these billing statements are “copies of UB[0]4s that North Shore represents are at
issue” in a different lawsuit between North
Shore and Local 812’s third party
administrator, Crossroads, and therefore,
“by implication [in] the instant action,”
given that Crossroads is Local 812’s Plan’s
third party administrator. (Id. ¶ 9.) Thus, in
addition to defendants’ Objections’ more
detailed explanations as to the significance
of the “Y” on its previously submitted-intoevidence claims forms, defendants also offer
the declaration of DeBartolome, who
explains in greater detail why a “Y” on Line
53 supports the conclusion that an
assignment here (from Local 812’s Plan
participants/beneficiaries to North Shore)
occurred.10

9

By brief means of background, Crossroads serves as
the third party administrator for the Trustees of Local
812’s Plan or Fund. The 812 Plan – from which
payment is sought in this dispute – constitutes an
“employee welfare benefit plan” as that term is
defined under Section 3(1) of ERISA. (Local 210
Objections Ex. C, DeBartolome Decl. ¶ 2.); see 29
U.S.C. § 1002(1) (Section 3(1) of ERISA defines an
employee welfare benefit plan as “any plan, fund, or
program which was heretofore or is hereafter
established or maintained by an employer or by an
employee organization, or by both, to the extent that
such plan, fund, or program was established or is
maintained for the purpose of providing for its
participants or their beneficiaries . . . benefits”). As
such, the Plan provides certain health and medical
benefits to Plan participant employees and their
dependents. (Local 210 Objections Ex. C,
DeBartolome Decl. ¶ 2.) Crossroads’ role in relation
to the 812 Fund addresses the payment of claims,
submitted by hospitals, physicians, or other medical
providers (like North Shore), for charges related to
medical treatment provided to Local 812’s Plan
participants/beneficiaries. (Id.) When submitting
payment requests, medical providers use a claim
form, prescribed by CMS, to bill the Plan for those
medical
services
rendered
to
Plan
participants/beneficiaries. (Id.) This form is known in
the industry as a UB-04 form. (Id.) Thus, in this case,
North Shore is the medical provider, the referenced
UB-04 forms are the billing statements, and the
statements concern medical services rendered to
Local 812 Plan participants/beneficiaries, with Local
812’s Plan being the source from which North Shore
now seeks the contested payments on behalf of the
Plan participants/beneficiaries.

10

Through the DeBartolome Declaration, defendants
have satisfied Magistrate Judge Tomlinson’s concern
regarding how to verify the significance of the “Y”
on the UB-04 forms. (See R&R at 14 (stating that
Local 812 had not “provided an affidavit or
assignment from a representative of Local 812 or
someone with personal knowledge pertaining to the
forms submitted”).)

10

that plaintiff actually received such an
assignment of benefits, the court was
skeptical of plaintiff’s explanation. Id.
Among other factors, the court found the
“Y” on the form to be a telling element in
support of its determination that an
assignment had occurred, stating that
“considering the perspective of the party
who regularly received and processed these
forms, defendants would have naturally
assumed upon seeing the ‘Y’ that, subject to
their coverage determination under the
relevant ERISA plan, they were obligated to
pay Plaintiff directly.” Id. at *4. Thus, based
largely on the UB-92 forms’ language, the
court concluded that defendants had
satisfied their burden of showing that
plaintiff could have brought its claims under
ERISA. Id. (“Because Plaintiff has
repeatedly held itself out as an assignee of
benefits under the relevant ERISA health
plans, both circumstantially and in writing,
and it presents no evidence other than the
testimony of its corporate representative that
it never actually received such assignments,
the evidence strongly suggests that it would
have the standing to bring an ERISA suit.”).

Defendants and DeBartolome’s reading
of the UB-04 forms does not stand in a
vacuum. As Local 812 indicates in its
Objections, other courts have recognized the
existence of an assignment based on a
similar form of evidence (i.e., a billing
statement containing identical language to
that highlighted here), along with, of course,
evidence showing that a plaintiff seeks to
stand in the shoes of the ERISA plan
participants on behalf of whom it seeks
payment. (See Local 812 Objections at 4.)
For instance, in Spring E.R., LLC v.
Aetna Life Insurance Co., the District Court
for the Southern District of Texas
considered the same issue that the Court
now addresses, i.e., whether plaintiff could
have brought its claims under ERISA by
virtue of the fact that it allegedly received an
assignment of benefits from ERISA plan
participants. No. H-09-2001, 2010 WL
598748, at *3 (S.D. Tex. Feb. 17, 2010)
(stating that “whether Plaintiff received an
assignment of the benefits under the ERISA
plans from plan members is fiercely
disputed by the parties”). The court
concluded that defendants had met their
burden of establishing such an assignment.

The District Court for the Northern
District of Texas reached the same
conclusion in Paragon Office Services, LLC
v. UnitedHealthGroup, Inc., when also
addressing the question of whether plaintiffs
in that case had standing to sue under
ERISA by virtue of an assignment. No. 11CV-2205-D, 2012 WL 1019953, at *4 (N.D.
Tex. Mar. 27, 2012). Evidence submitted by
defendants in support of such standing again
included UB-04 forms, which similarly
contained a “Y” under the entry, “Assign
Ben.,” which the court found supported the
conclusion of an assignment of benefits. Id.
Similar to plaintiff here, the plaintiffs in that
case argued that they were not suing by way
of assignments of benefits, and further, that
whether any such assignment of benefits
took place is irrelevant. Id. The court,

In particular, the court noted defendants’
submission of UB-92 forms, which, like the
UB-04 forms at issue in this case, constitute
“paper forms used by institutions such as
hospitals to submit claims for payment of
healthcare expenses under patients’ health
benefit plans.” Id. The UB-92 form at issue
in that case contained a section, in Field
Number 53 of the form, entitled
“Assignment of Benefits Certification
Indicator.” Id. The court noted that the
submitted UB-92 forms in that case
contained a letter, “Y,” which according to
one of plaintiff’s administrators’ testimony,
stood for “yes.” Id. Although plaintiff
asserted this “Y” indicated simply an
acceptance of assignment of benefits, not
11

relying on Spring E.R., noted that the
evidence in Paragon Office was similar to
that proffered in Spring E.R., and therefore,
was sufficient for purposes of establishing
that plaintiffs were assignees of ERISA plan
participants’ claims, thereby conferring
standing. Id. at *5.

(D.N.J. Oct. 24, 2011) (finding as a relevant
factor against plaintiff having standing to
sue under Section 502 of ERISA the fact
that the submitted UB-92 form did not
contain a “Y” for “yes” in the form’s Box
53, in which providers certify whether or not
they have a valid assignment).

In Montefiore, the District Court for the
Southern District of New York noted that
the “Y” for “Yes” contained on the
submitted UB-04 and UB-92 forms in that
case “certif[ied] that [plaintiff] has an
assignment of benefits from the patient for
that claim.” Montefiore, 2009 WL 3787209,
at *2. Other courts also have held similarly
regarding the significance of a “Y” on a UB04 form for purposes of indicating a
payment claim assignment. See, e.g., North
Shore-Long Island Jewish Health Sys., Inc.
v. Local 272 Welfare Fund, No. 12-CV1056(CM), 2013 WL 174212, at *2
(S.D.N.Y. Jan. 15, 2013) (noting that claims
from hospitals could be submitted to an
ERISA fund for payment on a UB-04 or
UB-92 form, stating that these “[c]laim
forms contain a space (Box 53) for the
provider to certify that it has an assignment
of benefits from the patient for that claim,”
and indicating as relevant the fact that
“[e]ach of the claims for which Plaintiffs
here seek reimbursement contains a ‘Y’ for
‘yes’ in Box 53, indicating that Plaintiffs
have an assignment of benefits from the
patient for that claim”); Israel v. N. N.J.
Teamsters Ben. Plan, Nos. 03-2922(JCL),
05-5309, 05-5737, 05-5742, 2006 WL
2830973, at *5 (D.N.J. Sept. 29, 2006)
(finding that hospital had met its burden of
establishing a valid assignment where
hospital submitted a completed UB-92 form
to the Plan and “a provider representative
checked the relevant box and signed the
completed form, thus representing . . . that a
valid assignment was obtained”); cf. Christ
Hosp. v. Local 1102 Health & Ben. Fund,
No. 11-5081(JLL), 2011 WL 5042062, at *5

Thus, on careful review of defendants’
various submitted claims forms, as well as
the relevant case law and DeBartolome’s
declaration and corresponding submissions,
the Court concludes that the UB-04 forms, at
the very least, make it more likely than not
that an assignment here did, in fact, occur.
See Spring E.R., 2010 WL 598748, at *3
(stating that “[a]s the removing party,
Defendants
bear
the
burden
of
demonstrating by a preponderance of the
evidence that there was such an
assignment”). The Court cautions, however,
that it does not base its conclusion as to an
assignment solely on whether or not a “Y” is
contained in Box 53 of the UB-04s. This is
so for the following reasons.
First, as Magistrate Judge Tomlinson
correctly noted, and as defendants also
acknowledge, North Shore, in its pleadings,
fails to identify the benefit claims at issue in
this matter. (See R&R at 12; Local 812’s
Objections at 3.) Thus, in the absence of
such identification, defendants cannot
conclusively determine
whether
the
presently contested claims were subject to
an assignment. However, this should not be
held against defendants. This is plaintiff’s
case. And the only reason defendants cannot
decisively confirm that the underlying
benefit claims here include an assignment of
benefits is because plaintiff repeatedly has
chosen – in its pleadings, arguments in
support of remand, and opposition
arguments to defendants’ R&R Objections -not to identify the claims at issue in this
dispute. Plaintiff cannot ask the Court to
view the evidence in a light most favorable
12

Litigation[, and] [t]he 812 Fund forwarded
this list to Crossroads for review.” (Id. ¶ 7.)
DeBartolome noted that, included with his
declaration are copies of UB-04 forms “that
North Shore represents are at issue in the
North Shore/Crossroads litigation and by
implication the instant action.” (Id. ¶ 9.)
These UB-04 forms, like those submitted by
defendants, bear the telltale “Y,” indicating
an assignment of benefits. Further, it is more
likely than not that these UB-04 forms
pertain to the claims at issue in this dispute,
given that North Shore has brought separate
suits against both Local 812 and its Plan
administrator, Crossroads, but as to the same
medical billings. Thus, these UB-04 forms
further support the conclusion that an
assignment more likely than not occurred.

to it when plaintiff, at the same time, is
responsible for casting much of its claims in
darkness, possibly to preserve the
appearance of state court jurisdiction. It is
well-settled that “a plaintiff may not defeat
federal subject-matter jurisdiction by
‘artfully pleading’ his complaint as if it
arises under state law where the plaintiff’s
suit is, in essence, based on federal law.”
Schultz v. Tribune ND, Inc., 754 F. Supp. 2d
550, 556 (E.D.N.Y. 2010); see also Arditi,
676 F.3d at 298-99 (noting that ERISA’s
preemptive power “prevents plaintiffs from
‘avoid[ing] removal’ to federal court by
‘declining to plead necessary federal
questions’” (quoting Romano, 609 F.3d at
519)). For plaintiff to seek payment on the
underlying claims here, it must make clear
what these claims actually are; it cannot, in
turn, fault defendants for lack of such
information when plaintiff is the one
refusing to relinquish it.

Third, and quite notably, North Shore
never denies that an assignment of benefit
claims took place. Instead, it asks the Court
to simply sidestep this issue altogether,
calling it a “red herring.” (Pl.’s Opp’n at 6.)
However, North Shore’s silence on this
point is deafening.11 North Shore, as the
provider seeking payment here, is the party
responsible for filling out the UB-04 billing
statement forms, a necessity to its receiving
payment; in so filling out the forms, it, for
all intents and purposes, represented that it
had received an assignment of benefits by
virtue of its inserting a “Y” into Line Item
53. North Shore’s lack of an explanation on
this issue is telling. See Spring E.R., 2010
WL 598748, at *4 (noting that, where
plaintiff “repeatedly held itself out as an
assignee of benefits under the relevant
ERISA plans, both circumstantially and in
writing, and it presents no evidence other
than the testimony of its corporate
representative that it never actually received

Second, even if it is not absolutely clear
that the UB-04 billing statements submitted
by defendants here represent some of the
claims at issue in this dispute, these are not
the only billing statements before the Court.
Defendants also submitted the declaration of
DeBartolome, a Crossroads representative,
who also offered several UB-04 claims
forms. These forms strongly suggest that an
assignment of the underlying claims in this
dispute took place for the following reasons.
As DeBartolome explains in his
declaration, North Shore brought an action
against Crossroads in 2009, and “[t]he
medical billings at issue in North Shore’s
claims against the 812 Fund in the instant
case are the same as the medical billings in
the North Shore/Crossroads Litigation.”
(DeBartolome Decl. ¶ 6.) DeBartolome
stated that North Shore’s attorney
“transmitted to the 812 Fund a list of
medical claims North Shore represents are at
issue in the North Shore/Crossroads

11

Indeed, when questioned at oral argument as to why
the Court should not consider the fact that
defendants’ submitted claims forms all bore a “Y” in
the field, indicating an assignment, plaintiff had no
explanation for this. (See Oral Arg., May 14, 2013.)

13

enforce the patients’ rights – i.e., whether by
asserting its claims against the Fund,
[plaintiff] seeks to stand in the participants’
and beneficiaries’ shoes to assert their
entitlement to benefits directly from the
Fund”); see also North Shore-Long Island
Jewish Health Sys., 2013 WL 174212, at *5
(stating that “[p]laintiffs meet the [standing]
test, because they are health care providers
to whom the participants and beneficiaries
of the Fund have assigned their claims” and
because plaintiffs “stand in the shoes of the
Fund’s participants and beneficiaries in
seeking to receive payment for medical
services rendered”).

such assignments, the evidence strongly
suggests that it would have the standing to
bring an ERISA suit” (emphasis added)).
Moreover, even if the Court were to accept
plaintiff’s unsubstantiated argument that it
does not bring these claims here as an
assignee, it is well-accepted that this is
insufficient for purposes of avoiding preemption. See Paragon Office Servs., 2012
WL 1019953, at *4 (denying motion to
remand where at least one of plaintiff’s
state-law claims was pre-empted under
ERISA, despite plaintiff’s assertion that it
was not “standing in the shoes of ERISA
plan participants by way of assignments of
benefits” (citation and internal quotation
marks omitted)); see also Vetanze v. NFL
Player
Ins.
Plan,
No.
11-CV2734(RBJ)(KLM), 2011 WL 6813182, at *3
(D. Colo. Dec. 28, 2011) (where plaintiff did
not deny that he had received an assignment
of patients’ claims, but argued instead that
he chose not to bring a claim as an assignee,
court concluded that “[p]laintiff’s argument
misses the point, which is whether he had
standing to sue as an assignee,” and also
cautioned that “[i]f choosing not to bring a
claim under ERISA, notwithstanding his
right to do so, ended the inquiry, then
ERISA’s complete preemption doctrine
would be ineffectual”).

In sum, North Shore has failed to
identify the claims at issue; it is notably
silent as to defendants’ assignment
arguments; the various UB-04 billing
statements that have been submitted all bear
the scarlet letter “Y,” indicating an
assignment; various courts have concluded
that where a defendant has submitted forms,
like the UB-04, with such indication, it
serves as relevant evidence supporting the
conclusion that an assignment has taken
place; and, for reasons discussed in greater
detail infra, it is clear that North Shore here
seeks to stand in the shoes of the Plan
participants here. Accordingly, this evidence
supports the conclusion that North Shore is
the type of party that can bring an action
under ERISA. Thus, the first facet of
Davila’s first prong is satisfied.

Most telling, however, for purposes of
concluding that an assignment of benefit
claims occurred here is the fact that North
Shore, for all intents and purposes, is
asserting a colorable claim for benefits on
behalf of Plan participants. Stated
differently, North Shore stands in the shoes
of the Plan’s participants and beneficiaries,
who received medical services for which
payment is now needed. Montefiore, 2009
WL 3787209, at *5 (stating that “the mere
existence of a purported assignment of
benefits is not dispositive of the standing
inquiry; rather, the Court must go on to
determine whether [plaintiff] seeks to

ii.

Colorable Claim: “Right to
Payment” Versus “Amount of
Payment”12

It is well-established that in order for
there to be grounds for the exercise of
federal subject matter jurisdiction, there
12

Because the parties only address North Shore’s
claims against Local 812 as a basis for subject matter
jurisdiction, the Court similarly limits its analysis.

14

“right to payment” versus claims involving
an “amount of payment.” See Monetfiore,
642 F.3d at 331 (emphasis added). Whereas
the former class of claims “implicate[s]
coverage and benefits established by the
terms of the ERISA benefit plan,” which
may be brought under § 502(a)(1)(B), the
latter
are
“typically
construed
as
independent contractual obligations between
the provider and . . . the benefit plan.” Id.
On reviewing the amended complaint, the
Court agrees with defendants that plaintiff’s
pleadings include claims implicating ERISA
for two principal reasons: (1) plaintiff’s
claims require an interpretation of the Plan’s
terms, and (2) at least some of plaintiff’s
claims concern coverage and benefits issue
that implicate ERISA. To best understand
this, the Court turns to plaintiff’s allegations.

need only be a single preempted claim
admist a party’s pleadings. See Montefiore,
642 F.3d at 331 n.11 (in case involving issue
of ERISA preemption, court noted that it
“need only locate a single preempted claim
to establish a basis for the exercise of federal
subject matter jurisdiction”); S.M. v. Oxford
Health Plans (N.Y.), Inc., No. 12-CV4679(PGG), 2013 WL 1189467, at *3
(S.D.N.Y. Mar. 22, 2013) (same). The R&R
concluded that plaintiff’s claims were not
colorable ones for ERISA benefits. (See
R&R at 15-20.) The R&R based this
conclusion upon the determination that
plaintiff’s claims were best categorized as
seeking an “amount of payment,” and not a
“right to payment,” the latter of which
would have made plaintiff’s claims subject
to complete ERISA preemption (See id.)
This was so, as the R&R determined,
because plaintiff’s dispute simply concerned
whether North Shore was required to
provide Local 812’s beneficiaries with innetwork (as opposed to out-of-network)
rates, the answer to which, as the R&R
found, did not implicate the terms of the
Plan. (See id. at 17 (stating that “because the
Court need not interpret the Plan to resolve
the disputes here, the claims do not involve
the beneficiaries’ rights to payment under
the Plan”).)

The amended complaint alleges that
from 2007 through 2011, North Shore
provided health care services to patients who
were participants in Local 812’s Plan. (See
Am. Compl. ¶ 76.) It is further alleged that,
on September 10, 2007, North Shore,
pursuant to the terms and conditions of its
contract with MultiPlan, took the requisite
steps to exclude Crossroads and its members
(including defendants) from eligibility for
member Preferred Payment Rates with
North Shore. (Id. ¶¶ 20-23.)13 As Local 812

Defendants object to this conclusion,
asserting that the language of plaintiff’s
amended complaint makes clear that at least
some of plaintiff’s claims do not fall into the
“amount of payment” classification.
Because resolution of these claims requires
an interpretation of the Plan, defendants
assert that they fall into the category of a
“right to payment” claim, and therefore,
constitute colorable claims for ERISA
benefits. (See Local 812’s Objections at 69.) The Court turns to the applicable law.

13

According to the amended complaint, North Shore
initially was under a contractual arrangement with
MultiPlan (specifically, the “2007 Participation
Provider Agreement,” or “PPA”), pursuant to which
it agreed to provide its health care services to
MultiPlan members at discounted rates (“Preferred
Payment Rates” or “in-network rates”), and
MultiPlan, in turn, agreed to make these special rates
available to other health plans and their respective
members. (See Am. Compl. ¶ 5.) One such health
plan with which MultiPlan agreed to provide the
aforementioned Preferred Payment Rates was
Crossroads (the “MultiPlan Network Agreement”),
pursuant to which Crossroads – along with its
respective members (here, defendants) – was deemed
eligible for access to North Shore’s Preferred
Payment Rates. (Id. ¶¶ 14-15.) So, by virtue of North

The Second Circuit has noted a
distinction between claims concerning a
15

explains in its initial opposition to plaintiff’s
motion to remand, the significance of this
exclusion is that, after September 10, 2007
(and effective through the period for which
North Shore seeks payment), Local 812 was
not a party who could send Plan participants
to North Shore at discounted rates. (See

Local 812 Remand Mem. at 13 (citing Levy
Decl. at ¶ 76).) Rather, on account of the
exclusion, Plan members were now subject
to North Shore’s usual, non-discounted
rates. (Id. (citing Levy Decl. at ¶ 33).)
Plaintiff’s allegations do not contradict
this point. Specifically, the amended
complaint states that defendants “had
acknowledged and agreed that plaintiff
should be compensated by [] defendants as a
non-participating provider for health care
services provided by plaintiff.” (Am. Compl.
¶ 77 (emphasis added).) Additionally, the
amended complaint claims that Local 812
owes plaintiff the difference between its
Preferred Payment Rates and North Shore’s
usual non-discounted rates for health care
services that plaintiff provided to
defendants’ Plan participants during the
period in question. (Id. ¶¶ 33, 78.)

Shore’s agreement with MultiPlan, and MultiPlan’s
agreement with Crossroads, defendants were eligible
for North Shore’s Preferred Payment Rates.
According to the Amended Complaint, prior to
September 10, 2007, it seems that Crossroads
breached the terms and conditions of its agreement
with MultiPlan by either underpaying the Preferred
Payment Rates for health care services rendered by
North Shore, or failing to pay such claims in a timely
fashion. (Id. ¶¶ 17-18.) North Shore warned
MultiPlan
that,
should
Crossroads
(and
correspondingly, defendants) continue to be noncompliant with the terms of MultiPlan’s agreement,
North Shore would have to exclude those members
from its Preferred Payment Rates. (Id. ¶ 19.) And, as
referenced above, this all came to a head on
September 10, 2007, when North Shore excluded
Crossroads/Local 812/Local 210 from those rates and
benefits previously available to them pursuant to
North Shore’s contractual agreement with MultiPlan.
In short, no more contractually agreed upon Preferred
Payment Rates amongst the parties. Following this
September 10, 2007 exclusion, members of
Crossroads (including defendants) continued to
receive services from North Shore, for which North
Shore now seeks payment.
By means of additional background, the Court
notes that North Shore has sued Crossroads to
recover the balance due for such services in a
separate lawsuit. (See id. ¶ 34.) Although not relevant
for purposes of the Court’s particular remandanalysis here, the Court also notes that the current
litigation initially was brought against MultiPlan for
the alleged failure to inform Crossroads and its
members of the September 10, 2007 exclusion, in
which North Shore alleges fraud and breach of the
covenant of good faith and fair dealing. (See id. ¶¶
39-41, 44-46, 54-65, 71-74.) North Shore also
brought several claims against Local 812 and Local
210 (including, inter alia, breach of contract, unjust
enrichment, and quantum meruit); although named as
third-party defendants in the amended complaint,
defendants are, for purposes of these claims, direct
defendants for the reasons set forth in Magistrate
Judge Tomlinson’s R&R. (See R&R at 8-10.)

In sum, it is alleged that, as of
September 10, 2007, North Shore excluded
Crossroads’ members (ergo, Local 812 and
Local 210) from being able to receive its
Preferred Payment Rates for any medical
services that it provided to such entities’
insureds. Thus, from September 10, 2007
onward, any of defendants’ Plan participants
who went to North Shore for medical
services did so at a non-discounted rate, and
not at the previous, contractually agreed
upon Preferred Payment Rate.
Given these allegations, to determine
what amounts defendants now owe North
Shore, the parties cannot solely turn to a
contractual agreement (whether between
North Shore and MultiPlan or MultiPlan and
Crossroads/defendants) to determine the rate
of payment that defendants owe North Shore
for the untimely or underpaid claims at
issue. Instead, because North Shore, via its
alleged exclusionary action, must now be
treated as a non-participating provider as to
those claims falling in the post-September
16

10, 2007 period, defendants must turn to the
terms of the Plan to assess those charges that
North Shore can claim from the Local 812
Fund on behalf of Plan participants.

The Court concludes that at least some
of plaintiff’s payment claims here go beyond
a simple rate calculation analysis. Instead,
they require consideration of the benefits
and/or coverage available for the medical
services rendered under the Plan, and lastly,
the appropriate corresponding payment rate
for such treatments for a non-participating
provider.

By means of clarification, Local 812
offers the following information: the Plan
provides different coverage and benefits
depending on whether or not the North
Shore physician who rendered the services
at issue was a MultiPlan PPO14 physician –
if he/she was, then 100% of those particular
charges are covered under the Plan; if he/she
was not, then 70% of the charges of those
charges are covered after deductible. (See
Local 812 Objections at 7; see also Local
210 Objections at 5-6.) Thus, a review of the
Plan’s terms will be necessary for purposes
of assessing the type of coverage and
benefits available (if any) for the medical
services provided and for which North
Shore, as a non-participating provider, now
seeks payment. To this, Local 210 adds the
following: as an assignee acting on behalf of
Plan participants, North Shore may only
claim those payment amounts permitted
under the Plan’s terms. (See Local 210
Objections at 6.) Given its status as a nonparticipating provider, North Shore may
only claim the reasonable and customary
cost of its health care services; it may not
claim any payment in excess of these
amounts. (See id. at 5-6 (noting that
“Covered Charges” and “Reasonable and
Customary Charges” are terms that are
defined in the Plan).) Thus, according to
Local 210, a review of the Plan’s terms, as
well as the nature of the medical services
provided, is necessary to determine the
coverage and benefits available, and
ultimately the appropriate payment amount,
for those claims that are not governed by the
contract with MultiPlan.

Certainly, plaintiff is correct that mere
reference to the Plan for purposes of
determining payment terms does not
automatically convert an “amount of
payment” claim into that of a “right to
payment.” (See Pl.’s Opp’n at 12); see also
Arditi, 676 F.3d at 302 (stating that “an
independent legal duty incorporating Plan
benefits on relying on Plan terms and
calculations does not in itself lead to ERISA
preemption”).
However,
plaintiff’s
argument, under the facts presented, misses
the mark, and furthermore, contradicts the
language of its amended complaint.
Paragraph 33 of the amended complaint
makes clear that the claims at issue
“consist[], to a great extent, of the
difference between the Preferred Payment
Rates for fees and services and North
Shore’s usual non-discounted rates as
required from out-of-network patients.”
(Am. Compl. ¶ 33 (emphasis added)). This
language, however, creates the express
inference that at least some of North Shore’s
claims for payment do not fall within this
simple difference between the Preferred
Payment Rate and usual, undiscounted rate
calculus. This makes sense given the factual
allegations.
According to the amended complaint,
after the September 10, 2007 exclusion,
Local 812 no longer was entitled to pay its
claims under the rates set forth in the
agreement with MultiPlan; rather, it had to
pay claims as if North Shore was a non-

14

This term in the industry refers to a preferred
provider organization. (See Am. Compl. ¶ 2.)

17

any payment rate analysis may occur.
Montefiore, 642 F.3d at 331. This a “right of
payment” claim.

participating provider. (See id. ¶¶ 20-23,
77.) Neither the MultiPlan Network
Agreement nor the Preferred Provider
Agreement, however, requires Local 812 to
pay a provider’s (here, North Shore’s) usual,
non-discounted rates in instances where
payments are untimely and that provider is
treated as non-participating. Notably, North
Shore does not argue that either the PPA or
MultiPlan Network Agreement requires as
such, either. Thus, the issue goes beyond
“whether Local 812 was properly afforded
those Preferred Payment Rates and, if so,
during what time period.” (Pl.’s Reply Mem.
at 6.) That is, the case does not neatly fall
within the confines of a basic mathematical
calculation regarding whether a Preferred
Payment Rate or a non-discounted payment
rate applies, given the lack of any
contractual clarification by the parties as to
what rate controls in the absence of an
agreed-upon in-network rate. Indeed, North
Shore cannot even rely on its alleged thirdparty beneficiary status under the MultiPlan
Network Agreement because this contract –
between Crossroads (and therefore Local
812) and MultiPlan – nowhere requires
Local 812 to pay a provider’s non-discount
rates in instances of late or incomplete
payments. Thus, any benefit owed to North
Shore, in its capacity as a non-participating
provider, will constitute an obligation that is
derived from the Plan and that cannot be
resolved by determining the differential
between the Preferred Payment Rate and
non-discount rate.

Moreover, although plaintiff criticizes
defendants for being unable to identify those
claims that require a coverage or benefit
determination before any payment(s) can be
made (see Pl.’s Opp’n at 11), it should not
do so. The only reason defendants cannot
clearly identify those claims for which a
coverage-benefit analysis is necessary is
because plaintiff has failed to identify the
claims for which it now seeks payment. As
previously stated, plaintiff cannot plead its
complaint so as to mask what in essence is a
federal claim in state law garb. Schultz, 754
F. Supp. 2d at 556.
Lastly, paragraph 104(c) of the amended
complaint provides further support that at
least some of the claims at issue are “right to
payment” claim. Although the parties do not
discuss this particular paragraph in their
motions, it clearly confirms that there are at
least some preempted claims in plaintiff’s
pleadings, thereby permitting the exercise of
federal
subject
matter
jurisdiction.
Specifically, paragraph 104(c) (included in
plaintiff’s eighth cause of action, a “thirdparty beneficiary” claim) alleges that:
During all relevant time periods
herein and prior to September 10,
2007, Local 210 and Local 812 were
in breach of the terms and conditions
of the agreements they entered into
with MultiPlan as follows: . . . (c)
improperly processed, adjudicate[d]
and denied and/or issued denials as
to properly submitted claims for
health care services rendered by
[North Shore].

In sum, it is these claims, as to which no
clear contractual payment rate is set, that
necessarily will go beyond any “basic right
to
payment . . . already . . . established,”
particularly if they fall during the
exclusionary period post-September 10,
2007, and that will require a consideration of
the coverage and benefits available under
the Plan for those medical services rendered
(and for which payment is sought) before

(Am. Compl. ¶ 104 (emphasis added).)

18

Thus, plaintiff’s own allegations make
clear that at least some of its claims concern
a denial of benefits. This falls directly into
the territory of a “right to payment” claim.15
See, e.g., Neuroaxis Neurosurgical Assocs.,
PC v. Cigna Healthcare of N.Y., Inc., No. 11
Civ. 8517 BSJ AJP, 2012 WL 4840807, at
*3-4 (S.D.N.Y. Oct. 4, 2012) (noting that
only “right to payment” claims “are
considered actual claims for benefits and can
be preempted”; further clarifying that
“‘[r]ight to payment’ claims involve
challenges to benefits determinations,
depend on the interpretation of plan
language, and often become an issue when
benefits have been denied,” whereas
“‘[a]mount of payment’ claims involve the
calculation and execution of reimbursement
payments, depend on the extrinsic sources
used for the calculation, and are commonly
tied to the rate schedules and arrangements
included
in
provider
agreements”);
Josephson v. United Healthcare Corp., No.
11-CV-3665(JS)(ETB) 2012 WL 4511365,
at *3 (E.D.N.Y. Sept. 28, 2012) (noting
distinction between claims for plan benefits
that turn on a “right to payment” as opposed
to an “amount of payment,” and concluding
that because some of the reimbursement
claims at issue “were denied for reasons that
would implicate coverage determinations
under the terms of the United benefit plans,”
federal subject matter jurisdiction applied);
Zummo v. Zummo, No. 11 CV
6256(DRH)(WDW), 2012 WL 3113813, at

*4 (E.D.N.Y. July 31, 2012) (because
plaintiff’s breach-of-contract claim required
an examination of an employee benefit
plan’s language and essentially sought
enforcement of a right to payment under the
terms of that plan, plaintiff’s “claim [fell]
squarely within the enforcement provision
of ERISA”); Olchovy v. Michelin N. Am.,
Inc., No. CV 11-1733(ADS)(ETB), 2011
WL 4916891, at *4 (E.D.N.Y. Sept. 30,
2011) (Report and Recommendation)
(stating that Montefiore “teaches that a
dispute is a colorable claim for benefits
under ERISA when its resolution depends
on an interpretation of the terms of an
ERISA-governed employee benefit plan;
that is, when, in order to determine whether
the plaintiff is entitled to relief, the court
must look to the terms of employee benefit
plan, itself”).
For these reasons, plaintiffs’ claims are
“colorable” under ERISA. Accordingly, they
satisfy both facets of the first prong of the
Davila test.
b. Davila Prong Two
The second prong of Davila addresses
whether any other legal duty, independent of
ERISA or the Plans’ terms, is implicated.
Davila, 542 U.S. at 210. The Second Circuit
has made clear that the “key words” in
conducting this analysis are “other” and
“independent.” See Montefiore, 642 F.3d at
332 (internal quotation marks omitted).

15

To the extent plaintiff attempted to assert in its
May 15, 2013 supplemental letter that subsection (c)
of paragraph 104 – which references denials of
claims – does not implicate a “right of payment,” the
Court disagrees based on the plain language of the
allegation. (See Pl.’s Letter of May 15, 2013.)
Moreover, to the extent that plaintiff is attempting to
delete or modify certain allegations in its amended
complaint to avoid the preemption issues, it is well
settled that jurisdiction is analyzed based upon the
pleadings when the notice of removal was filed. See
Law Offices of K.C. Okoli, P.C. v. BNB Bank, N.A.,
481 F. App’x. 622, 625 (2d Cir. 2012).

Here, plaintiff contends – and the R&R
agrees – that there is no dispute concerning a
“right” to payment because North Shore
already has received partial payment for the
claims at issue; accordingly, the only issue
to be determined is “whether Local 812 and
Local 210 were properly afforded Preferred
Payment Rates and, if so, during what time
period.” (Pl.’s Opp’n at 9; see also R&R at
17.) Thus, so plaintiff argues (and the R&R
19

accepts), the Court need only determine
“whether Local 812 is entitled to any
discount under the MultiPlan Network
Agreement, either because [defendants]
were not eligible or because of their late
payments or because they were excluded
from the plan.” (Pl.’s Opp’n at 9; see also
R&R at 17 (stating that “[t]his case is
distinguishable from Montefiore because
there is no dispute here over whether the
services at issue were covered by the Plan,”
rather, “[t]he dispute is whether [North
Shore] was obligated to provide Local 812’s
beneficiaries with in-network rates”).) In
other words, both plaintiff and the R&R take
the position that the source of Local 812’s
payment obligations to North Shore lies in
its alleged contractual agreement with North
Shore, which serves as the independent legal
duty that governs the parties’ obligations
here. For the following reasons, the Court
disagrees.

Indeed, despite the various agreements here,
neither party is able to point to language in
any of the contracts in which a calculation of
rates for North Shore when it is a nonparticipating provider is specifically set
forth. Thus, to adjudicate such claims,
reference to the Plan’s terms will be
necessary in order to determine the parties’
obligations for the untimely or underpaid
claims, including what coverage and
benefits are available under the Plan, as well
as the appropriate rate of payment for a nonparticipating provider. Cf. Montefiore, 642
F.3d at 331 (noting distinction between
claims implicating coverage determinations
under the terms of an ERISA Plan and
claims for “underpayment or untimely
payment, where the basic right to payment
has already been established and the
remaining dispute only involves obligations
derived from a source other than the Plan”)
(emphasis added).

A review of the contractual history
between the parties makes clear that for any
claims falling pre-September 10, 2007, there
is a governing contractual arrangement
pursuant to which defendants’ rate of
payment may be determined, namely the
PPA between North Shore and MultiPlan,
and the MultiPlan Network Agreement
(between MultiPlan and Crossroads).
Following September 10, 2007, however,
North Shore excluded Crossroads (and
accordingly, defendants) from its Preferred
Payment Rates. Thus, any medical services
provided during this time – which is the
relevant period at issue in this case – were to
be assessed as if North Sore was a nonparticipating provider. (Am. Compl. ¶¶ 2023, 77.) To calculate this non-participatingprovider payment rate, reference to the
Plan’s terms is necessary as there is no
governing contractual provision that clarifies
whether North Shore’s general, nondiscounted rate will apply in instances of
untimely or underpaid claims. See supra.

This case is distinguishable from
Pascack, 388 F.3d 393, on which both
plaintiff and the R&R rely to support the
conclusion that no reference to the Plan is
necessary to determine the requisite rate of
payment for North Shore’s submitted
claims. (See Pl.’s Reply Mem. at 7; R&R at
22.) Plaintiff and the R&R derive this
conclusion from the fact that, in Pascack,
the Third Circuit determined that a
hospital’s claims for untimely payments
were based on a legal duty independent of
ERISA because the court only needed to
refer to the subscriber agreement to
determine the rate of payment. An
examination of the case, however, reveals a
critical distinction from the facts of this
case.
In Pascack, the plaintiff-hospital entered
into a contract with MagNet, a company
(similar to MultiPlan) that agreed to provide
discounted rates to members (like
defendants) for medical services provided to
20

Shore as if it were a non-participating
provider during the relevant period at issue
in this case (i.e., post September 10, 2007
exclusion). (Am. Compl. ¶ 77.) North Shore
does not dispute this, nor does it claim that
the parties’ agreement (or any other
agreement) established any obligation
beyond this. Indeed, North Shore cannot
argue this, as Local 812’s agreement with
MultiPlan (via Crossroads) does not require
Local 812 to pay a provider’s nondiscounted rate in instances of untimely or
incomplete payments. Thus, as previously
set forth, any possible third-party benefit
that North Shore could try and claim as a
legally independent obligation, whether
under a contractual or quasi-contractual
theory, fails. In the absence of any
contractual or quasi-contractual agreement
governing the parties’ particular obligations
here, any independent duty argument, based
on contract or quasi-contract law, fails. Cf.
Montefiore, 642 F.3d at 331 (distinguishing
between
claims
requiring
coverage
determination under an employee benefit
plan, triggering ERISA preemption, and
claims “where the basic right to payment has
already been established and the remaining
dispute only involves obligations derived
from a source other than the Plan”).

beneficiaries of group health plans under the
quid pro quo that such plans would
encourage their beneficiaries to go to
network hospitals. 388 F.3d at 396.
Significantly, there was a subscriber
agreement between MagNet and the
members/benefit plans (as network hospitals
could not contract directly with the plans) to
which
it
was
providing
the
hospital/plaintiff’s agreed-upon discounted
rates. Id. This subscriber agreement
expressly stated that “if Subscriber fails to
pay within the appropriate time frame, the
Subscriber acknowledges that it will lose the
benefit of the MagNet discounted
reimbursement rate and that Network
Hospital is then entitled to bill and collect
from Subscriber and the Eligible Person its
customary rate for services rendered.” Id.
(emphasis added). Thus, in Pascack, the
parties specifically contracted as to the
applicable payment rate for when the
discount applied, as well as the payment rate
for when the discount was deemed
inapplicable (in that case, due to untimely
payments). See id. This is in direct contrast
to this case, where there is no contractual
agreement (whether between North Shore
and MultiPlan or MultiPlan and (via
Crossroads) defendants) that sets forth the
governing payment rate for untimely
payments where the agreed-upon discounted
rate is not applicable. For this reason,
plaintiff’s reliance on Pascack’s logic as to
why an independent legal duty controls the
rate of payment here does not work under
the facts of this case.

As to the unjust enrichment and quantum
meruit claims, these similarly fail to
establish an independent duty under Davila
or Montefiore. In essence, these claims
center on the fact that North Shore provided
medical services to Local 812’s Plan
participants and beneficiaries, and now
seeks payment for such services. For reasons
previously set forth, however, any
determination of payment rates in this case
will require a review of the Plan to
determine the applicable rate for a nonparticipating provider for untimely or unpaid
claims, which, in turn, will require a review
of the Plan’s provisions on coverage and
benefits for such providers, as no governing

North Shore’s direction of the Court to
other theories of law (namely, contract,
quasi-contract, unjust enrichment, and
quantum meruit), which it claims also serve
to establish an independent legal duty here,
is similarly unavailing. Regarding the
contract and quasi-contract theories of law,
it is clear that the parties reached an
agreement that Local 812 was to pay North
21

entities”). Indeed, the Supreme Court has
cautioned courts that “the federal [ERISA]
scheme would be completely undermined if
ERISA-plan participants and beneficiaries
were free to obtain remedies under state law
that Congress rejected under ERISA.” Pilot
Life Ins., 481 U.S. at 54.

contract between the parties established this.
Thus, given that any payments here for
medical services are derived from rights
created under the Plan, these claims remain
“inextricably
intertwined
with
the
interpretation of Plan coverage and
benefits.” Montefiore, 642 F.3d at 332.
Accordingly, they are preempted.

Because determination of the claims
here will, for the reasons previously set
forth, require a review of the Plan to
determine the parties’ respective obligations
here – given that no contractual agreement
amongst the parties clarifies the requisite
payment obligations or extent of coverage or
benefits available to a non-participating
provider – this case is not one in which an
ERISA plan is only tenuously or remotely
impacted. Cf. Aetna Life Ins. Co. v. Borges,
869 F.2d 142, 145 (2d Cir. 1989) (noting
that courts “cannot interpret ERISA as
preempting state statutes whose effect on
[employee benefit] plans is tangential and
remote”). Stated differently, because the
underlying claims concern rights that, in the
absence of a contract addressing defendants’
obligations to a non-participating provider
for untimely or unpaid claims, are derived
from the rights and obligations set forth in
the benefit Plan, plaintiff’s state law claims
are not entirely independent of defendants’
federally regulated Plan.

The Court additionally notes its more
general concern were it to determine that
plaintiff’s particular unjust enrichment and
quantum meruit claims here were not
preempted. Congress has made clear its
intent of creating a uniform enforcement
scheme that preempts any state-law cause of
action that “duplicates, supplements, or
supplants” an ERISA remedy. See Davila,
542 U.S. at 209; Paneccasio v. Unisource
Worldwide, Inc., 532 F.3d 101, 113 (2d Cir.
2008) (“The purpose of ERISA preemption
is to ensure that all covered benefit plans
will be governed by unified federal
law . . . .”); see also Franciscan Skemp
Healthcare, Inc. v. Cent. States Joint Bd.
Health & Welfare Trust Fund, 538 F.3d 594,
596 (7th Cir. 2008) (noting that ERISA’s
complete preemption doctrine “confers
exclusive federal jurisdiction in certain
instances where Congress intended the
scope of a federal law to be so broad as to
entirely replace any state-law claim”); cf.
Access Mediquip L.L.C. v. UnitedHealthcare
Ins. Co., 662 F.3d 376, 386-87 (5th Cir.
2011) (finding plaintiff’s quantum meruit
and unjust enrichment claims preempted
under ERISA on the grounds that “[t]hose
claims, if not preempted, would allow any
provider who has provided care for which
the ERISA plan denied coverage to
challenge the ERISA plan’s interpretation of
its policies in state court,” and that such an
“outcome would run afoul of Congress’s
intent that the causes of action created by
ERISA be the exclusive means of enforcing
an ERISA’s plan terms, and permit state law
to interfere with the relations among ERISA

*

*

*

For these reasons, the Court concludes
that both prongs of Davila are satisfied.
Accordingly, at least some of plaintiff’s
claims are completely preempted under
ERISA, which is sufficient for purposes of
establishing
federal
subject
matter
jurisdiction.
V. CONCLUSION
Having conducted a de novo review of
the R&R, and having considered the parties’
22

additional submissions, the Court denies
plaintiff’s motion to remand for the reasons
set forth herein.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 12 , 2013
Central Islip, NY
***
North Shore is represented by Timothy F.
Butler of Tibbetts Keating & Butler, 350
Fifth Avenue, Suite 6215, New York, NY
10118, and Mario D. Cometti, also of
Tibbetts, Keating & Butler LLC, 36 West
44th Street, Suite 816, New York, NY
10036. Local 210 is represented by Thomas
Alpert Thompson of the Law Offices of
Thomas A. Thompson, 148 Whites Cove
Road, Suite 1, Yarmouth, ME 04096. Local
812 is represented by Barry I. Levy and
Brian Laurence Bank of Rivkin Radler LLP,
926 RXR Plaza, Uniondale, NY 11556.

23