Opinion
Civil Action No. 3:00-CV-1861-L
October 4, 2001
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs' Motion to Remand, which includes a request for attorney fees, filed September 25, 2000. After careful consideration of the motion, response, reply, briefs, evidence submitted, and applicable case law, the court grants the Motion to Remand but denies the request for attorney fees.
I. Procedural and Factual Background
On July 25, 2000, Plaintiffs Marisela Ruacho, Ismael Ruacho, and Andres Ruacho (the "Ruachos") filed suit in the 193rd Judicial District of Dallas County, Texas. The Ruachos have been citizens of California at all relevant times. They sued Aetna Healthcare of North Texas and Aetna U.S. Healthcare, Inc. (collectively "Aetna") for alleged negligent, grossly negligent, and malicious acts and omissions related to health care decisions that affected the Ruachos. The Aetna Defendants have been citizens of Texas at all relevant times.
Aetna removed the state court action on or about August 25, 2000. They base jurisdiction on diversity of citizenship and federal question in the form of complete preemption by the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. See Defendants Notice of Removal ("Removal") at 2-4.
Marisela and Ismael Ruacho were members of a health insurance plan administered by Aetna. The Rauchos brought suit against Aetna in relation to injuries purportedly caused by cost reduction agreements between Aetna and physicians that participate in Aetna's health plans, and because Aetna allegedly failed to adequately screen its participating physicians.
Members will be used as a generic term to encompass a participant or beneficiary of a health benefit plan.
The cost reduction component of the Ruachos's claims relates to a "C-section Incentive Plan," which Aetna has used to encourage participating physicians to avoid performing cesarean section deliveries ("C-sections"). The Ruachos contend that this incentive motivated their physician to delay conducting a C-section delivery of the Ruachos's baby, Andres Ruacho.
Marisela Ruacho went into labor at approximately 2:45 a.m., on June 26, 1998. She was taken to Medical Center of Arlington. Marisela's prenatal physician was not available, so the attending physician performed the birth. The attending physician was an Aetna network physician. Marisela was in labor for six hours. During this six hours, the attending physician attempted repeatedly to deliver the baby by using a suction device known as a vacuum extractor. After the vacuum extractor proved unsuccessful, the physician performed a C-section. According to the Ruachos, the vacuum extractor caused Andres Ruacho scarring and lifelong debilitating injury.
The Ruachos contend that the injury would not have occurred absent the physician's unsound judgment. The Ruachos further contend that the physician's unsound judgment was attributable to the agreement between Aetna and the physician. Moreover, the Ruachos contend that the physician's alleged unsound judgment reflects that Aetna did not adequately screen and select physicians to ensure that the physicians would provide quality care.
The court makes no judgment regarding the viability of the Ruachos's claims. At issue is the propriety of this removal and whether the Ruachos are entitled to attorney fees if the case is remanded. The Ruachos assert that diversity of citizenship was not a proper basis for removal and challenge Aetna's contention that their petition raises a federal question due to complete preemption under ERISA. See Plaintiffs' Motion to Remand ("Remand") at 1-2.
II. Analysis
A. Diversity of Citizenship
A defendant in state court may remove a suit to federal court if federal subject matter jurisdiction existed at the time the state court petition was initially filed. See 28 U.S.C. § 1441(a). The burden is on the party removing the action to establish that federal jurisdiction exists and that removal is proper. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). If a plaintiff moves to remand, a defendant retains the burden of showing that removal was proper and establishing the federal court's jurisdiction over the case. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).
Aetna has apparently abandoned the contention that diversity jurisdiction was a proper basis for removal. They do so for good reason. A defendant may rely on diversity of citizenship to remove an action to federal court only if "no defendant `is a citizen of the state in which such action is brought. . . .'" Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing 28 U.S.C. § 1441(b)) (internal quotations omitted). The Ruachos's suit has been brought in Texas, and Aetna is a citizen of Texas. Diversity of citizenship was not a proper basis to remove this action. This action can remain in federal court only if Aetna demonstrates that the court has subject matter jurisdiction because the Ruachos's claims are completely preempted by ERISA.
B. Complete Preemption under ERISA
"It is well settled that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law." Heimann v. Nat'l Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir. 1999). Generally, then, "[r]emoval is not possible unless the plaintiff's `well pleaded complaint' raises issues of federal law sufficient to support federal question jurisdiction." Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1017 (5th Cir. 1993). "One oftcited, yet often confused, corollary to the well-pleaded complaint doctrine . . . is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Heimann, 187 F.3d at 499 (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)) (emphasis added) (internal quotations omitted). This confusion exists because preemption may be characterized as either complete preemption or ordinary preemption.
In the present case, appreciation of the distinction between complete and ordinary preemption is at the heart of the court's jurisdictional analysis. This is so because "ordinary preemption . . . is a federal defense to [a] plaintiff's suit . . . [thus], it does not appear on the face of a well-pleaded complaint, and, thus, does not authorize removal to a federal court." Id. at 500. "By way of contrast, complete preemption is jurisdictional in nature rather than an affirmative defense . . . [a]s such, it authorizes removal to federal court even if the complaint is artfully pleaded to include solely state law claims for relief or if the federal issue is initially raised solely as a defense." Id.
There is little doubt that the Ruachos's state court petition ("petition") is pleaded such that no overt reference is made to a federal issue. Accordingly, the existence of subject matter jurisdiction depends upon whether the allegations in the petition relate to an area of state law that is completely preempted by federal jurisprudence. Aetna contends that ERISA provides that complete preemption. Aetna's proffered logic is that its use of cost reduction incentives and the manner by which it screens physicians are extensions of the methods that Aetna uses to administer health benefits under the Ruachos's benefit plan. Aetna therefore contends that these activities fall with ERISA because ERISA "supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." 29 U.S.C. § 1144(a) (emphasis added). This, according to Aetna, justifies the conclusion that the Ruachos's claims are completely preempted.
A state court plaintiff initiates a lawsuit by filing a petition, whereas a federal court plaintiff initiates a lawsuit by filing a complaint. The Ruachos initially filed suit in state court. The term petition, as opposed to complaint, will therefore be used during the remainder of this analysis.
Aetna misses the mark on this issue because this language refers to ordinary preemption rather than complete preemption. See McClelland v. Gronwaldt, 155 F.3d 507, 517 (5th Cir. 1998). Complete preemption considerations are narrowly applied and given a highly specific meaning in relation to ERISA. As the Fifth Circuit stated:
Historically, the doctrine of complete preemption has been narrowly applied. In general, to demonstrate that there has been complete preemption justifying federal removal jurisdiction over an otherwise purely state law claim, a petitioner must show (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right and (3) there is a clear Congressional intent that claims brought under the federal law be removable.Heimann, 187 F.3d at 500 (citing Aaron v. National Union Fire Ins. Co., 876 F.2d 1157 (5th Cir. 1989)).
The Fifth Circuit articulated the forgoing factors' application to ERISA when it adopted holdings in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983) and Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). Heimann, 187 F.3d at 500-02. In Franchise Tax Board, the Supreme Court held that although 29 U.S.C. § 1144(a) (ERISA's ordinary preemption provision) mandates that ERISA supersede state laws that relate to any employee benefit plan, the provision, "without more, does not . . . convert a state claim into an action arising under federal law. . . ." See 187 F.3d at 500 (citing Franchise Tax Board, 463 U.S. at 25-27). The Supreme Court instead suggested that complete preemption arises when a state action is not only preempted by 29 U.S.C. § 1144(a), but when the action also comes within the civil enforcement provisions of ERISA (which are found at 29 U.S.C. § 1132(a)). See Id.
In Metropolitan Life Ins., the Supreme Court clarified this issue when it held that "Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of [section 1132(a)] removable to federal court." See 187 F.3d at 501 (citing Metropolitan Life Ins., 481 U.S. at 66). The Fifth Circuit, in Heimann, therefore recognized that the current state of ERISA complete preemption is that a cause of action is not completely preempted unless the claim is preempted by 29 U.S.C. § 1144(a) and it falls within the scope of section 1132(a)'s enforcement provisions. See 187 F.3d at 502; see also McClelland, 155 F.3d at 517 (stating that, "this Court has held . . . that state law claims falling within the scope of the civil enforcement provisions contained in section [1132(a)] are completely preempted.").
The ultimate analysis of whether this court has subject matter jurisdiction therefore requires a determination whether the Ruachos's claims fall within the civil enforcement provisions of section 1132(a). Evaluation of section 1132(a) is the appropriate point to begin. Relative to the present analysis, section 1132(a) provides:
(a) Persons empowered to bring a civil action
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;
. . .
(3) by a participant [or] beneficiary . . . (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. . . .29 U.S.C. § 1132(a).
The Ruachos's claims cannot fall within the scope of section 1132(a) unless its provisions prohibit the conduct upon which the Ruachos base their suit. The conduct at issue is the cost reduction incentives that Aetna gives physicians and the manner in which Aetna screens physicians. The complete preemption inquiry thus becomes whether any provision within section 1132(a) prevents Aetna from offering cost reduction incentives to physicians or whether any provision imposes liability upon Aetna for inadequately screening physicians. A corollary component to the inquiry is whether the Ruachos seek damages that are available exclusively through section 1132(a).
As previously noted, Aetna has incorrectly applied the complete preemption analysis. Aetna primarily uses the reasoning that the Ruachos's claims relate to a benefit and should therefore be preempted. For instance, Aetna began its Response by correctly stating that "claims are completely preempted by ERISA and removable to federal court if (i) they relate to an employee benefit plan, and (ii) they seek relief falling within the scope of § [sic] 1132(a)." Response at 3 (emphasis added). Thereafter, Aetna only offers analysis regarding when state laws relate to an employee benefit plan. There is no focused discussion regarding how the Ruachos's cost reduction or inadequate screening claims fall within the scope of section 1132(a) .
An additional deficiency is that Aetna contends the Ruachos's claims relates to their employee benefit plan, but Aetna never identifies the employee benefit to which the claims relate. Aetna has not directed the court to any provision in the Ruachos's health benefit plan that creates the relevant benefit, and has not offered an analysis of how the Ruachos's claims are an effort to recover for violation of the express or implied meaning of the language within the benefit plan.
Aetna has apparently assumed that a health plan benefit can exist in the abstract, independent of an express and discernible provision within the actual benefit plan. The court believes that a meaningful evaluation can be made only once a specific provision within the benefit plan is identified, a showing is made regarding how that provision has been violated, and a showing is made that recovery for the violation is completely preempted.
1. Cost Reduction Incentives
The Ruachos have asserted that "Aetna's incentive program induced [their physician] to attempt to avoid a cesarean delivery of Andres Ruacho when one was obviously indicated. As a result . . . [the physician] continued to attempt the delivery with the vacuum extractor rather than delivering Andres by cesarean." Petition at 5. The Ruachos further assert that "[i]n implementing an incentive plan that discourages network physicians from performing cesarean deliveries . . . Aetna acted without due care . . . and proximately caused the injuries and damages suffered by Plaintiffs." Id.
The court has given close scrutiny to section 1132(a)'s enforcement provisions and can find no provision that addresses the Ruachos's cost reduction claim. Section 1132(a)(1)(B) permits participants or beneficiaries to: 1) recover benefits due under the terms of the plan, 2) enforce rights under the plan, 3) or to clarify rights to future benefits. See 29 U.S.C. § 1132(a)(1)(B).
The court notes that although it closely scrutinized each provision under section 1132(a), the ensuing discussion will be limited to only those sections that merit analysis.
The Ruachos's claim does not fall within the provision that relates to clarification of rights to future plan benefits. Aetna has not alleged that this suit relates to the clarification of future benefits, and nothing in the Ruachos's petition can be construed to that effect. The Ruachos seek to recover tort damages for injuries, not a declaration regarding the form of benefits that may hereafter be available to them. Further, the Ruachos are no longer members of the Aetna administered plan. Plaintiffs' Reply in Support of Motion to Remand ("Reply") at 7 (stating, "The Ruachos are . . . no longer insured by Aetna."). Thus, they have no future related to benefits under the plan and cannot seek clarification of future rights under the plan.
The court addresses the provision that deals with enforcing rights under the plan. The Ruachos could not have had a right afforded by their plan unless the plan created that right. Aetna has offered no argument that the Ruachos's benefit plan gave them the right to not be subject to the cost reduction incentive. A review of Aetna's health plan (submitted as an exhibit to Aetna's Response) reveals that the plan's only relevant discussion of maternity care states that the Ruachos were entitled to "[s]ervices and supplies furnished by a Hospital or Physician for prenatal care (including genetic testing), postnatal care, delivery, and care for the complications of pregnancy." Nothing about this provision, and the Ruachos's concomitant rights to the care described in the provision, overlaps the Ruachos's cost reduction claim. The maternity provision simply has not given the Ruachos a right to be free from cost incentives. That provision does not express or insinuate a stance related to the incentives. Thus, the Ruachos's claim cannot be construed as an attempt to enforce a right that the Ruachos had under their plan.
In fact, if the plan did afford members the right to be free from the incentives, for every plan that Aetna has implemented the incentives, the members have a ripe cause of action under section 1132(a)(1). Surely Aetna will not concede this issue.
The court adopts similar logic when it evaluates whether the cost reduction claim comes within the scope of the provision that relates to enforcing benefits under the plan. Here again, review of the Ruachos's health benefit plan reveals that the benefits afforded by the maternity care provision cover "[s]ervices and supplies furnished by a Hospital or Physician for prenatal care (including genetic testing), postnatal care, delivery, and care for the complications of pregnancy."
None of the benefits created by this provision was denied the Ruachos when Aetna implemented the cost reduction incentive. Aetna disagrees and contends otherwise. Although Aetna failed to shore up its argument by referencing a specific plan provision, it presumably takes the position that the cost reduction incentive denied the Ruachos's benefits related to "delivery, and care for the complications of pregnancy." The court disagrees because the Ruachos have expressly stated, and review of the Ruachos's petition verifies, that they have made no claim that Aetna failed to fulfill its obligation to provide treatment during and cover the cost of "delivery, and care for the complications of pregnancy." The Ruachos's Remand further addresses this by stating, "Plaintiffs have received the benefits under the medical plan, and they do not contend otherwise. Aetna paid for the expenses associated with Andres' [sic] delivery, birth and subsequent hospitalization. Plaintiffs are not claiming that Aetna wrongfully denied or excluded coverage." Remand at 5.
Aetna attempts to rebut this contention by referencing Tran v. Kaiser Foundation Health Plan, No. 3:00-CV-1559 (N.D. Tex. March 28, 2001) (an unpublished opnion). Tran essentially held that if a court believes a plaintiff's purported state law claim actually seeks to enforce rights that are exclusive to ERISA, the court can ignore the plaintiff's superficial contention that it is not seeking recovery under ERISA. The plaintiff therefore cannot simply give "lip service" to the effect that it is not seeking ERISA relief when its petition suggests otherwise.
While the court acknowledges the validity of this principle, it has no application here. The court does not believe that Aetna has established that the Ruachos's claim invokes ERISA. As such, the Ruachos are not merely offering lip service to that effect; they genuinely are not seeking relief exclusive to ERISA. Consequently, the Ruachos's claim is not within the scope of section 1132(a)(1)(B)'s provisions.
The court shifts attention to section 1132(a)(3), which allows a participant or beneficiary to "(A) enjoin any act or practice which violates any provision of this sub-chapter [ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this sub-chapter [ERISA] or the terms of the plan." 29 U.S.C. § 1132(a)(3). The court begins by noting that portions of section 1132(a)(3) afford a cause of action when the health benefit plan terms have been violated. The court references its prior conclusion that no term within the Ruachos's plan, or corresponding right to enforce such term, has been compromised by Aetna's cost reduction incentives. As such, the Ruachos's claim is not completely preempted by the portions of section 1132(a)(3) that relate to violated terms.
The remaining portions of section 1132(a)(3) afford a cause of action when a provision within ERISA, as opposed to a term within the actual benefit plan, is violated. Aetna has not made reference to any ERISA provision that is violated when an HMO employs cost reduction incentives. In fact, Aetna will likely challenge that any provision within ERISA prohibits these incentives. If it does not, it effectively concedes that it has violated ERISA on each occasion that it has employed the incentives.
The court nevertheless notes that section 1132(a)(3) is designated as the enforcement provision by which a plaintiff may bring a breach of fiduciary claim. See Varity Corp. v. Howe, 516 U.S. 489, 509 (1996) (overruling courts that held that a breach of fiduciary claim was not available under section 1132(a)(3)). Aetna has made no argument that the Ruachos's cost reduction claim is in effect a claim for breach of fiduciary duty; the court will not inject this issue into the litigation.
The court cannot assume, without Aetna raising the issue, that the Ruachos's claim should be characterized as a breach of fiduciary claim because Aetna has the burden of demonstrating the propriety of removal. See St. Paul Reinsurance Co., 134 F.3d at 1253 (holding that the party seeking to invoke federal jurisdiction has the burden of proof to demonstrate that subject matter jurisdiction does exist). As Aetna has not addressed the fiduciary argument, it has not carried its burden, and the court will not assume that burden on Aetna's behalf.
Even if the court did make this assumption, the argument would be untenable. The Supreme Court has made clear that ERISA does not create a breach of fiduciary cause of action against HMOs when the HMO gives physicians financial incentive to avoid costly treatments. See Pegram v. Hendrich, 530 U.S. 211, 237 (2000). This conclusion is further bolstered by language in Corporate Health Ins., Inc. v. Texas Dep't of Ins., where the Fifth Circuit embraced the unqualified principle that "ERISA confers no cause of action against HMOs for providing incentives to their doctors for limiting the costs of testing and treatment." 215 F.3d 526, 536 n. 34 (5th Cir. 2000) (construing Pegram) (emphasis added). The Ruachos's cost reduction claim cannot therefore be characterized as a breach of fiduciary claim, does not overlap an ERISA provision, and ultimately does not fall within the scope of section 1132(a)'s enforcement provisions. The court now turns its attention to the inadequate screening claim. 2. Inadequate Screening
The court notes that in Silva v. Kaiser Permanente, 59 F. Supp.2d 597 (N.D. Tex. 1999), this court held that a cause of action — facially similar to the present — was completely preempted by ERISA. It is worthy to note, however, that where Silva found complete preemption, in part because of a cost incentive claim similar to the present claim, the court drew that conclusion one year before the Fifth Circuit held that "ERISA confers no cause of action against HMOs for providing incentives to their doctors for limiting the costs of testing and treatment." Corporate Health Ins., Inc., 215 F.3d at 536 n. 34 (emphasis added). The holding in Corporate Health Ins., Inc. may therefore undermine this court's holding in Silva.
The court further notes that a pivotal issue in Silva was a claim utilization review, which the HMO used to determine whether participants should be approved to receive medical treatment. The Fifth Circuit, in Corcoran v. United HealthCare Inc., had previously held that a claim related to utilization review was preempted (it is worthy to note that, in Corcoran, the court was evaluating ordinary, not complete preemption). 965 F.2d 1321, 1329-31 (5th Cir. 1992). The claims in Corcoran related to injuries that arose when a utilization review panel twice denied the plaintiff's request for disability coverage and denied the plaintiff's request for extended hospitalization coverage. No utilization claim is currently before the court, which makes Corcoran inapplicable.
Moreover, the plaintiffs in Silva sought to recover on the express basis that its HMO "limited the care, treatment, and testing available to [the plaintiffs' deceased mother]." Silva Plaintiffs' Original Petition at 6. The Plaintiffs' Petition even characterized this as a denial of treatment. Id. These assertions more closely resemble assertions that an HMO denied benefits under the plan. The Ruachos have not based their recovery on the theory that treatment, care, or testing was denied or limited. The Ruachos instead claim that they received the treatment and care to which they were entitled, but they received it in an inferior manner.
The court finally notes that, although absent from the court's opnion in Silva, the Silva plaintiffs' petition includes a breach of contract claim against the HMO, which claims that the HMO "beached its contractual duty to [the plaintiffs' deceased mother] and in fact provided her with substandard care in violation of the terms of the contract." Id. (emphasis added). The only contract between the HMO and the plaintiffs' deceased mother was the health plan, and the only terms were the terms contained in that health plan. Accordingly, the plaintiffs' contract claim was expressly seeking to recover for violation of the terms of the health plan. This falls squarely within section 1132(a)(1)(B) and 1132(a)(3). The Ruachos have made no such claim. The court therefore believes the facts of Silva are distinct from the case at hand.
The Ruachos's inadequate screening claim asserts that Aetna "undertook the duty to screen, select, and evaluate network physicians in order to provide quality, competent care for members of its health plan. . . ." Petition at 5. "Aetna negligently failed to fulfill those duties and failed to provide quality, competent care. . . ." Id. The court evaluates whether this claim comes within the scope of 1132(a) by again setting out the provisions of relevant sections. Section 1132(a)(1)(B) permits participants or beneficiaries to: 1) recover benefits due under the terms of the plan, 2) enforce rights under the plan, 3) or to clarify rights to future benefits. See 29 U.S.C. § 1132(a)(1)(B).
The Ruachos's inadequate screening claim is intended to generate tort damages, not a declaration regarding the form of benefits that may hereafter be available to them. This is especially true in light that the Ruachos are no longer insured by Aetna. Aetna therefore cannot assert that the Ruachos are seeking clarification of their right to future plan benefits. The third consideration under section 1132(a)(1)(B) is thus inapplicable.
Additionally, Aetna has not identified any provision within the Ruachos's health plan that addresses the methods that Aetna uses to select physicians. In fact, analysis of the Ruachos's health plan reveals that no provision addresses such methods. Since the plan is completely silent on the issue, the Ruachos have had no right or corresponding benefit — created by the express and discernible provisions of the plan — that obligated Aetna to select physicians in a certain manner. Accordingly, the Ruachos's inadequate screening claim cannot fall within the provisions that cover recovery of benefits and enforcement of rights under the plan. The provisions presuppose a right or benefit was created by the plan, but the Ruachos's plan gave them no such right or benefit.
This is not a commentary on the viability of the Ruachos's assertion that Aetna had a duty to adequately screen physicians. The court's reasoning should be taken to mean only that the duty — if any — could not have been created by the plan because the plan is silent on the issue. Whether Aetna otherwise had a duty to adequately screen physicians is not a issue before the court.
The court shifts attention to section 1132(a)(3), which allows a participant or beneficiary to "(A) enjoin any act or practice which violates any provision of this sub-chapter [ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this sub-chapter [ERISA] or the terms of the plan." 29 U.S.C. § 1132(a)(3). The preceding paragraph illustrates that the Ruachos's plan contained no term that addressed Aetna's physician screening methods. The Ruachos's inadequate screening claim does not therefore seek to enforce or recover for violation of a plan term. Consequently, the Ruachos's inadequate screening claim is not completely preempted by the provisions that address term violations.
The remaining portions of section 1132(a)(3) afford a cause of action when a provision within ERISA, as opposed to a term within the actual health benefit plan, is violated. Again, Aetna has not made reference to any ERISA provision that is violated when an HMO inadequately screens physicians. In this instance, Aetna's failure to do so is more noteworthy than its failure to do so related to the Ruachos's cost reduction claim. This is so because the Ruachos's inadequate screening claim could arguably be characterized as a breach of fiduciary claim. A breach of fiduciary claim is actionable under section 1132(a)(3). See Varity Corp., 516 U.S. at 509.
Aetna did not brief the issue, and it is not before the court. Thus, the court will not arbitrarily assume the issue to Aetna's advantage. See Luckett v. Harris Hospital, 764 F. Supp. 436, 442 n. 14 (N.D. Tex. 1991) (holding that "well established policy dictates that, generally, ambiguities are construed against removal when there is a doubt as to the right to removal in the first instance . . . [because] deference should be to the plaintiff's choice of forum . . . [and] valuable judicial resources are wasted when a district court's decision that removal was proper is ultimately overturned on appeal after a full trial on the merits."); see also Cross v. Bankers Multiple Line Ins. Co., 810 F. Supp. 748, 750 (N.D. Tex. 1993) (holding: "Because jurisdiction is so fundamental, any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court."). The inadequate screening claim will therefore not — under these circumstances — validate removal.
Aetna has not prevailed upon the court that the inadequate screening claim falls within the scope of section 1132(a)'s provisions. Aetna's final jurisdictional contention is that the Ruachos's request for medical expenses brings their cause of action within ERISA complete preemption.
3. The Ruachos's Medical Expense Damages
Aetna contends that the Ruachos's request for medical expenses causes their petition to be completely preempted: "At the time of removal, [the Ruachos] expressly sought payment from Aetna of past and future medical expenses. . . . These claims fall squarely within 29 U.S.C. § 1132(a)(1)(B), and are completely preempted." Response at 10. The court first notes that this is the only point at which Aetna identifies a specific provision within section 1132(a) that purportedly overlaps the Ruachos's claim. Hence, this is the only point at which Aetna undertakes a complete preemption analysis that is consistent with the manner in which the court undertakes the analysis. The court nevertheless disagrees with Aetna's contention.
Regarding future medical expenses, the Ruachos are no longer members of Aetna's plan. See Reply at 7. As such, to the extent the Ruachos seek and could recover future medical expenses, it will not be because they are entitled to medical benefits by virtue of the plan. They cannot receive benefits from a plan of which they are no longer members. Instead, the Ruachos would potentially recover future medical expenses as tort damages. Thus, the claim for expenses is not a claim for benefits under Aetna's plan and does not "fall squarely within 29 U.S.C. § 1132(a)(1)(B)."
Aetna's argument regarding the Ruachos's claim for past medical expenses presents a closer question. If the Ruachos request for past medical expenses relates to a time period during which the Ruachos were members of Aetna's plan, if the expenses were covered by the plan, and if Aetna did not — but should have — paid those expenses, a fair argument could be made that the Ruachos's request for past medical expenses is a request for plan benefits. Such request would "fall squarely within 29 U.S.C. § 1132(a)(1)(B)."
The speculative language that the court uses to set forth this hypothetical is telling of the deficiency that prevents Aetna from succeeding on this contention. The court does not know whether the Ruachos's claim relates to a period within which they were still covered by Aetna, whether their expenses were covered by the plan, or whether the Ruachos are claiming that Aetna should have — but did not — pay those expenses. In fact, the Ruachos have expressly conceded that they received all benefits to which they were entitled and they are not seeking additional benefits. See Remand at 5. Aetna has given no indication that the Ruachos's assertions are inaccurate, and has not given the court any substantive reason to believe that the assertions do not remove the Ruachos's past medical claim from the scope of section 1132(a)(1)(B). The court therefore necessarily concludes that the past medical expenses do not relate to the time period in which the Ruachos were covered by Aetna. Consequently, the court has no basis to conclude that the Ruachos's claim falls within section 1132(a)'s enforcement provisions. As such, subject matter jurisdiction is lacking, and remand is appropriate.
III. Attorney Fees and Costs
Plaintiff has requested attorney fees pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). The court has discretion to assess attorney fees. See Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993). The court may award these fees without a finding of bad faith or vexatious, wanton, or oppressive conduct. See Penrod Drilling Corp. v. Granite State Ins. Co., 764 F. Supp. 1146, 1147 (S.D. Tex. 1990).
Had Aetna only advanced diversity of citizenship as the basis for removal, the court would have no reservation against assessing attorney fees. Aetna's attempt to invoke diversity ignored the plain language of the removal statute: no defendant can be a citizen of the state in which such action is brought. Aetna, however, did not solely rely on diversity. They also advanced the ERISA complete preemption contention. If the court can be sure of anything, it is that ERISA and the complete preemption analysis are immensely involved areas of law. Aetna's arguments were not so far removed from reason to justify assessment of attorney fees. The Ruachos's request is therefore denied. Although the court denies the request for attorney fees, the court assesses against Aetna all other just costs and expenses incurred by the Ruachos as a result of the removal to federal court.
IV. Conclusion
For the reasons stated herein, the court does not have subject matter jurisdiction, and Plaintiffs' Motion to Remand is granted. This action is remanded pursuant to 28 U.S.C. § 1447(c) to the 193rd Judicial District of Dallas County, Texas. The clerk is hereby directed to effect this remand in accordance with the usual procedures.
It is so ordered.