Oser v. Weirton Medical Center, Inc.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND DENYING REQUEST FOR ATTORNEY'S FEES: Granting 5 Motion to Remand; Request for attorney's fees is Denied; case remanded to Brooke Co. and Dismissed and Stricken from active docket of this Court; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 7/10/17. (copy to Clerk - Circuit Court of Brooke Co., WV)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CRAIG R. OSER, D.O.,
Civil Action No. 5:17CV68
WEIRTON MEDICAL CENTER, INC.,
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
AND DENYING REQUEST FOR ATTORNEY’S FEES
complaint in the Circuit Court of Brooke County, West Virginia,
alleging that the defendant breached its employment agreement with
the plaintiff by terminating him without the 120 days notice
required under the employment agreement, by unilaterally cancelling
his medical professional liability insurance, and by failing to
Specifically, the plaintiff’s amended complaint sets forth five
causes of action against the defendant: (1) declaratory judgment
pursuant to West Virginia Code § 55-13-1; (2) breach of contract;
(3) violation of the West Virginia Wage Payment and Collection Act;
(4) tort of outrage; and (5) tortious interference and defamation.
The defendant removed the case to this Court on the basis of
federal question jurisdiction.
In its notice of removal, the
defendant contends that this case involves one or more questions of
interference contain embedded federal law claims for a violation of
the Health Insurance Portability and Accountability Act of 1977
defamation claims implicate Section 1877 of the Social Security
Act, 42 U.S.C. § 1395nn (the “Stark Law”). The Stark Law prohibits
physicians from referring a patient to an entity with which the
statutory or regulatory exception is met.
The plaintiff filed a motion to remand, arguing that this case
does not raise a substantial federal issue.
The defendant filed a
timely response to the motion to remand, to which the plaintiff
The motion to remand is currently pending before this
Court and is ripe for review.
For the reasons set forth below,
this Court finds that the plaintiff’s motion to remand must be
The plaintiff was employed by the defendant subject to the
terms of an employment agreement dated January 31, 2012.
to the employment agreement, the plaintiff was employed to provide
plastic and reconstructive surgery services at the defendant’s
For purposes of deciding this motion to remand, this Court
considers, for the most part, the facts as presented in the
plaintiff’s amended complaint.
acute care hospital.
The employment agreement expressly excluded
the plaintiff’s private cosmetic practice and his surgical practice
The defendant received no revenue arising from
the plaintiff’s private cosmetic practice and was responsible only
employment of the plaintiff in the reconstructive surgery practice
performed at the defendant’s facilities.
The initial term of the
employment agreement expired on February 1, 2014, but was extended
to allow the parties time to negotiate a new employment contract.
The parties ceased negotiations on or before September 30, 2014, at
which point the employment agreement expired.
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
28 U.S.C. § 1441.
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
interests and costs pursuant to 28 U.S.C. § 1332(a).
See Mulcahey v. Columbia Organic Chems. Co., Inc.,
29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly
construed, and if federal jurisdiction is doubtful, the federal
court must remand.
State law complaints usually must stay in
state court when they assert what appear to be state law claims.
See Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004).
Further, the court is limited to a consideration of facts on the
record at the time of removal.
See Lowrey v. Alabama Power Co.,
483 F.3d 1184, 1213-15 (11th Cir. 2007) (stating that in assessing
whether removal was proper, the district court has before it only
the limited universe of evidence available when the motion to
remand is filed);
Marshall v. Kimble, No. 5:10CV127, 2011 WL
43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The defendant’s removal
cannot be based on speculation; rather, it must be based on facts
as they exist at the time of removal.”).
In support of his motion to remand, the plaintiff contends
that remand is proper because there is no diversity and no federal
complaint does not allege a HIPAA violation as a cause of action as
the defendant asserts in its notice of removal.
contends that HIPAA cannot apply because it protects a patient’s
privacy and no patient is a party to this action.
plaintiff argues that he references HIPAA in his amended complaint
only as factual evidence of the plaintiff’s state law claim of the
tort of outrage.
Specifically, the plaintiff alleges that the
defendant viewed the plaintiff’s private patient files without
proper HIPAA authorization.
Additionally, the plaintiff contends that he does not allege
a Stark Law violation as a cause of action against the defendant as
claimed by the defendant in its notice of removal.
argues that, in his state-law-based tortious interference claim, he
alleges only that agents of the defendant falsely represented to
the plaintiff’s current employer, Trinity Health System, the facts
surrounding the plaintiff’s termination from the defendant and
falsely represented to Trinity Health System that their employment
of the plaintiff violated the Stark Law.
The plaintiff asserts
that this is not a separate cause of action; rather, it is merely
evidence of his tortious interference claim involving his current
The plaintiff further states that he never referenced
the Stark Law in his state-law-based defamation claim, as the
Agreement, which was prepared by the defendant, provides that
“Brooke County shall be the sole, proper venue for any litigation,
proceedings or special proceedings between the parties which arises
out of or is in connection with any rights, duty or obligation
under this Agreement.”
The plaintiff seeks an award of costs and
expenses, including attorney’s fees, for his motion to remand.
In response, the defendant argues that its right to removal is
Agreement because the clause is “plainly geographic” as it contains
only a reference to a location and no reference to a specific court
or court system.
The defendant also contends that the plaintiff’s
claim for fees and costs should be denied because, even if this
Court remands the civil action, the defendant had an objectively
reasonably basis for removal on the grounds of federal question
Substantively, the defendant argues that, to prove the tort of
Employment Agreement did not violate the Stark Law, and, therefore,
the defendant’s alleged statements that it did were false; and (2)
that the defendant violated HIPAA in reviewing the plaintiff’s
Agreement violated the Stark Law because the plaintiff received
private incurment by utilizing the defendant’s facilities for his
private cosmetic practice without giving fair market value.
application of the Stark Law, and, thus, argues that the dispute is
a pure issue of federal law.
The defendant then contends that the plaintiff’s tort claims
related to the alleged HIPAA violations also raise substantial
issues of federal law because, while the plaintiff alleges the
defendant violated HIPAA, the defendant maintains that it did not
because it was permitted under HIPAA to review the plaintiff’s
patient files as such alleged use was intended for treatment,
payment, and/or health care operations activities by the defendant.
The plaintiff argues in reply that the defendant’s response
complaint, but rather asserts its own interpretation of the cited
paragraphs of the amended complaint.
The plaintiff reasserts his
argument that the amended complaint, on its face, does not present
a federal question.
Furthermore, the plaintiff contends that the
arguments raised in the defendant’s response are not based on the
language of the amended complaint, but rather are based on language
relevant to its defenses to the amended complaint
The presence or absence of federal question jurisdiction is
governed by the well-pleaded complaint rule, which provides that a
federal question must be presented on the face of the plaintiff’s
properly pleaded complaint. See Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987); Hunter Douglas, Inc. v. Sheet Metal Workers
Int’l Assoc., Local 159, 714 F.2d 342, 345 (4th Cir. 1983).
those cases “in which a well-pleaded complaint establishes either
plaintiff’s right to relief necessarily depends upon resolution of
a substantial question of federal law” are subject to removal.
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 27-28 (1983).
In this case, the defendant attempts to rely on the Grable
doctrine to justify removal. In Grable & Sons Metal Products, Inc.
v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), the Supreme Court
considered “another longstanding, if less frequently encountered,
variety of federal ‘arising under’ jurisdiction, . . . having
significant federal issues.”
Id. at 312.
The Supreme Court in
Grable established the test for determining whether a “substantial
question of federal law” sufficient to warrant removal exists:
The question is, does a state-law claim necessarily raise
substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of
federal and state judicial responsibilities.
Id. at 314.
However, merely alleging a “federal issue” does not
operate “as a password opening federal courts to any state action
embracing a point of federal law.”
Id.; see Empire Healthchoice
Assurance, Inc., v. McVeigh, 547 U.S. 677, 704 (2006) (“Few cases
can be squeezed into the slim category Grable exemplifies.”).
This Court finds that the plain language on the face of the
federal question and that the defendant has failed to demonstrate
that the three prongs of the Grable test have been met.
the plaintiff’s amended complaint mentions HIPAA and the Stark Law,
this Court is not persuaded that there is an “actually disputed and
substantial” federal issue included in the amended complaint. None
of the state law claims require resolution of the HIPAA or Stark
As the plaintiff points out, HIPAA and the Stark Law
appear in the amended complaint only as evidence in support of the
state law claims. Under Grable, the mere presence of a federal law
or regulation does not convert the state law claims into a federal
declaratory judgment pursuant to West Virginia Code § 55-13-1; (2)
breach of contract; (3) violation of the West Virginia Wage Payment
interference and defamation.
These are all state law causes of
action, none of which require the resolution of a federal question.
Counts I and III arise specifically under the West Virginia Code.
Counts II, IV, and V also arise under West Virginia law.
A plaintiff can establish a claim for breach of contract under
West Virginia law by showing “proof of the formation of a contract,
a breach of terms of that contract, and resulting damages.”
“Intentional or reckless infliction of emotional distress, also
called the ‘tort of outrage,’ is recognized in West Virginia as a
separate cause of action.” Travis v. Alcon Labs., Inc., 504 S.E.2d
419, 424 (W. Va. 1998).
It is also settled law in West Virginia
that, to establish a claim of tortious interference, a plaintiff
must prove the following elements: “(1) existence of a contractual
or business relationship or expectancy; (2) an intentional act of
interference by a party outside that relationship or expectancy;
(3) proof that the interference caused the harm sustained; and (4)
damages.” Torbett v. Wheeling Dollar Savs. & Trust Co., 314 S.E.2d
166, 173 (W. Va. 1983).
Additionally, the elements to prove a
defamation action are well-settled under West Virginia law.
Serian v. Penguin Group (USA), Inc., No. 1:08CV74, 2009 WL 2225412,
at *6 (N.D. W. Va. July 23, 2009).
Furthermore, “HIPAA does not provide an express or implied
right of action to individuals.”
Carte v. United States, No.
CIV.A. 2:07-0515, 2010 WL 3259420, at *8 (S.D. W. Va. Aug. 18,
2010); see also Segan v. Buchanan General Hosp., Inc., 552 F. Supp.
2d 579, 584 (W.D. Va. 2007) (“[I]t is clear that a private right of
action does not exist based upon HIPAA violations.”).
federal cause of action exists under HIPAA even where “[t]he plain
language of [a] [c]omplaint shows that [the] plaintiff attempted to
raise a federal cause of action” because “HIPAA does not provide a
federal cause of action.”
Fields v. Charleston Hosp., Inc., No.
CIV.A. 2:06-0492, 2006 WL 2371277, at *5 (S.D. W. Va. Aug. 15,
2006). Rather, “only the Secretary of Health and Human Services or
other authorized state agencies may bring forth a HIPAA enforcement
Additionally, a district court has remanded a civil action to
the state court where “[t]he alleged violation of HIPAA was
negligence and privacy causes of action.” Bigelow v. Sherlock, No.
CIV.A. 04-2785, 2005 WL 283359, at *3 (E.D. La. Feb. 4, 2005); see
also McKnight v. Surgical Assocs. of Myrtle Beach LLC, No. 4:11-CV02782-RBH, 2011 WL 5869800, at *4 (D.S.C. Nov. 18, 2011) (remanding
the civil action to state court where an alleged HIPAA violation
was merely a federal element in the plaintiff’s state law claim and
“not enough to open the ‘arising under’ door”).
In the present
case, the alleged HIPAA violation is similarly referenced only as
an element of the asserted tort claims and, thus, is not enough to
create a federal cause of action.
The Stark Law also “does not have a private right of action.”
United States ex rel. Rector v. Bon Secours Richmond Health Corp.,
No. 3:11-CV-38, 2014 WL 1493568, at *14 (E.D. Va. Apr. 14, 2014).
Furthermore, a district court has granted a motion to remand on the
basis of no federal question jurisdiction where the “[p]laintiff’s
complaint [did] not call into question the proper interpretation of
the Stark Law or the FCA, but rather concern[ed] the reasonableness
of [the] [d]efendant’s advice regarding the part-time employment
contract vis-a-vis federal law.”
Tuomey v. Nexsen Pruet, LLC, No.
CV 3:16-2806-MBS, 2017 WL 1190871, at *4 (D.S.C. Mar. 31, 2017).
In that case, it was established that the “[employment] agreements
violated federal law,” but the Court nonetheless found “that
resolution of a Stark Law or FCA question [was] not ‘necessarily
raised’ or ‘actually disputed’” as to the adjudication of the state
law professional malpractice claim asserted in the complaint.
Similarly, the present case does not call into question the proper
interpretation of the Stark Law, and the resolution of a Stark Law
question is not necessarily raised by means of any asserted tort
Accordingly, there is no federal cause of action and this
Court does not have jurisdiction over this civil action. Thus, the
Court will not consider the plaintiff’s argument that the venue
litigated in state court regardless of the presence of a federal
Lastly, the Court denies the plaintiff’s request for
defendant did state an objectively reasonable basis for removal on
the basis of federal question jurisdiction. See Martin v. Franklin
circumstances, attorney’s fees should not be awarded when the
removing party has an objectively reasonable basis for removal.”).
For the reasons stated above, the plaintiff’s motion to remand
(ECF No. 5) is GRANTED and the plaintiff’s request for attorney’s
fees and costs is DENIED.
Accordingly, it is ORDERED that this
case be REMANDED to the Circuit Court of Brooke County, West
It is further ORDERED that this case be DISMISSED and
STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Brooke County, West Virginia.
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
July 10, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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