Bigelow v. Sherlock

Full title: CHRISTINA BIGELOW, WIFE OF/AND ROBERT BIGELOW v. ROB SHERLOCK, SHERRY…

Court: United States District Court, E.D. Louisiana

Date published: Feb 3, 2005

Civil Action No. 04-2785 Sect. `T'(5) (E.D. La. Feb. 3, 2005)

Opinion

Civil Action No. 04-2785 Sect. `T'(5).

February 3, 2005

ORDER AND REASONS

G. PORTEOUS, District Judge

Before this Court is a motion by Plaintiffs, Christina Bigelow, wife of/and Robert Bigelow (hereinafter, the "Bigelows"), to remand this action to the 34^th Judicial District Court for the Parish of St. Bernard and to award attorney's fees and costs. The parties waived oral argument and this matter was submitted for the Court's consideration on November 17, 2004. The Court, having studied the legal memoranda submitted by both parties, the evidence presented, the Court record, the law and applicable jurisprudence, is fully advised and ready to rule.

I. BACKGROUND:

The Bigelows filed suit in the 34^th Judicial District Court for the Parish of St. Bernard, State of Louisiana, on September 13, 2004. Their petition alleges that while Mr. Bigelow was under anesthesia, preparing to undergo surgery at the defendant hospital, Chalmette Medical Center, hospital employees applied women's make-up to him, wrote vulgarities on his body and posted photographs of him in this state on a hospital bulletin board. At the time of this incident, Mr. Bigelow was an employee of Chalmette Medical Center. The Bigelows' petition claimed several state law violations as well as violation of regulations of the Health Insurance Portability and Accountability Act (hereinafter, "HIPAA"). On October 12, 2004, Chalmette Medical Center removed the case to this Court pursuant to 28 U.S.C. § 1441, alleging federal subject matter jurisdiction on the basis of the claimed HIPAA violation. The Bigelows filed the Motion to Remand and for Attorney's Fees and Costs now before this Court.

II. ARGUMENTS OF THE RESPECTIVE PARTIES:

A. Arguments of the Plaintiffs' In Support of Remand:

The Bigelows argue that remand is required because their petition raises only state law causes of action and, therefore, this Court lacks subject matter jurisdiction. Their petition admittedly alleges violation of HIPAA, but they argue this does not amount to a federal question. They assert that HIPAA does not provide a private, federal right of action, and the petition "merely asserts a state cause of action, based on Defendants' negligence by violating federal statutes and thereby causing Plaintiffs' damages." Furthermore, they argue the petition raises only state law causes of action on its face because it does not "indicate that the claims really and substantially involves a dispute or controversy respecting the validity, construction or effect of a law of Congress."

B. Arguments of the Defendant in Opposition to Remand:

Defendant agrees that HIPAA does not provide a private right of action in this case. They argue that subject matter jurisdiction exists nonetheless because the wording of the petition indicates an attempt to raise a cause of action under HIPAA. They argue the petition does not raise any mature, viable state law causes of action and therefore can "only reasonably be construed to be an effort to . . . recognize a private cause of action under HIPAA." Defendant requests the Court deny the Bigelows' Motion to Remand on the basis of an asserted federal question. They then request the federal claim be dismissed with prejudice, and the state law claims dismissed without prejudice.

II. LAW AND ANALYSIS:

A. Federal Question Jurisdiction: 28 U.S.C. § 1441(b) provides that any action in which the district courts of the United States have original jurisdiction based on the presence of a "federal question" may be removed without regard to the diversity of the parties. In determining whether a case falls within original federal question jurisdiction, the Court looks to the allegations in the plaintiffs' "well-pleaded complaint." See, Carpenter v. Wichita Falls Independent School District, 44 F.3d 362, 365 (citingWilson v. Republic Iron Steel Co., 257 U.S. 92 (1921). "[A] defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Board v. Construction Laborers, 463 U.S. 1, 103 S.Ct. 2841 (1983).

The United States Supreme Court concluded that "a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim" arising under federal law. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 817, 106 S.Ct. 3229, 3237 (1986). We must determine, therefore, whether Congress intended for HIPAA to provide a private federal cause of action, and whether the Bigelows' petition alleges a violation of HIPAA as an independent federal cause of action or as an element of an asserted state cause of action.

First, the parties agree that HIPAA does not provide a private, federal cause of action. Courts addressing the issue have reached this same conclusion. O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176 (2001) (Health Insurance Portability and Accountability Act of 1996 does not expressly or impliedly create a private right of action); University of Colo. Hosp. Auth. v. Denver Publishing Co., 340 F. Supp. 2d 1142 (2004) (Provision of the Health Insurance Portability and Accountability Act prohibiting disclosure of individually identifiable health information did not create a private cause of action). For purposes of this decision, we assume this is a correct interpretation of HIPAA.

Second, we do not believe that the Bigelows' petition attempts to raise a separate federal cause of action. The petition does not expressly limit itself to state law causes of action. However, when the petition is read in its entirety, it is clear the Bigelows' reference to violation of HIPAA was made purely within the context of their asserted state law privacy and negligence claims. For example, paragraph VIII of the petition states, "The intentional acts of fault, gross and wanton negligence, and lack of skill by defendants . . . were as follows:

(a) In intentionally inflicting mental and emotional distress upon Petitioners.

(b) In negligently inflicting mental and emotional distress upon Petitioners.

©) In violating Petitioner's privacy rights and as well as HIPAA regulations by intentionally displaying his medical records.

(d) In intentionally assaulting and battering the Petitioner,"

Defendants' Notice of Removal, Exhibit A, Record # 1 (04-2785) (emphasis added).

The petition twice references HIPAA, both times within the context of clearly asserted state law causes of action. The rest of the petition raises claims which, absent the diversity of the parties, are within the subject matter jurisdiction of the state court. The alleged violation of HIPAA was referenced only as an element of the petition's state law negligence and privacy causes of action.

For these reasons, this Court finds that the Bigelows' action is only properly before the appropriate Louisiana state court.

B. Attorney's Fees and Costs:

28 U.S.C. § 1447(c) provides that when a case is remanded, the remanding court "may require payment of just costs and any actual expenses, including attorney fees." An award of costs does not require a finding of bad faith. News-Texan, Inc. v. City of Garland, 814 F.2d 216 (5^th Cir. 1987). In determining whether the improper removal of a case to federal court warrants an award for attorney's fees, courts do "consider objectively the merits of the defendant's case at the time of removal." Valdes v. Wal-Mart Stores, Inc., 199 F.3rd 290, 292 (5^th Cir. 2000). However, the decision to award attorney's fees in such case remains within the discretion of the remanding court. Id.

The Court does not feel an award of attorney's fees and costs is appropriate in this case. As noted earlier, the Bigelows' petition does not expressly state that its reference to HIPAA was done as an element of a state cause of action. Though we find that such statement is not required in the context of remand, the defendant's belief that removal was proper was not unreasonable under the circumstances.

Accordingly,

IT IS ORDERED that the Motion for Remand to the 34^th Judicial District Court for the Parish of St. Bernard, filed on behalf of the plaintiffs, Christina Bigelow, wife of/and Robert Bigelow, be and the same is hereby GRANTED; and that their Motion for Attorney's Fees and Costs be and the same is hereby DENIED.