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August 21, 2003


The opinion of the court was delivered by: James Larson, Magistrate Judge



Plaintiff's Motion to Remand to State Court came on for hearing on August 20, 2003. Douglas C. Fladseth, LAW OFFICES OF DOUGLAS C. FLADSETH, appeared for Plaintiff. William F. Horsey, DUNN, ROGASKI, PREOVOLOS, WEBER & PATTERSON, LLP, appeared for Defendant. The written pleadings and oral arguments of counsel have been fully considered and good cause appearing, it is hereby ordered that the motion is granted.


Lisa Roach ("Plaintiff"), who now uses her married name of Clinton, was employed as a firefighter with the U.S. Forest Service from 1991 through 1999. Mail Handlers Benefit Plan provided her health insurance pursuant to the Federal Employee Health Benefits Act [ Page 2]

("FEHBA"). Access Health, Inc. contracted with Mail Handlers to provide a medical advice line for plan subscribers. (Collectively "Defendants")

On January 16, 1998, Plaintiff injured her ankle while jogging. The following morning her ankle was still swollen and she considered going to an emergency room. To locate the nearest hospital, she called Mail Handlers and spoke with an advice nurse. The nurse advised Plaintiff that she had likely sprained her ankle and should use painkillers and ice. The nurse advised Plaintiff to consult a doctor if the ankle did not improve. The nurse also offered to call Plaintiff back in two days to check on her condition but Plaintiff declined, since she would be traveling and not easily accessible by phone. She did not request, and the nurse did not refuse, authorization for an emergency room visit. In fact, certification was unnecessary because Plaintiff did not intend to be hospitalized.

The following day, Plaintiff left for Hawaii where she bicycled and hiked for 10 days. She then returned to California for two days during which time she did not seek treatment for the ankle injury. She then traveled to Ecuador to hike and volunteer in the rainforest for 30 days.

Plaintiff's ankle still bothered her when she returned to work. She consulted a doctor who diagnosed a fracture. Over the next few months she visited other doctors, one of whom performed surgery. Mail Handlers reimbursed her for the surgery and other costs. However, she remains unable to perform her duties as a firefighter, which require top physical condition.

Plaintiff filed suit in Sonoma County Superior Court July 16, 1999, alleging causes of action for: medical negligence; breach of contract; breach of the implied covenant of good faith and fair dealing; fraud; negligence; and negligent infliction of emotional distress. Plaintiff did not raise any federal claims. Defendants removed the case to federal district court August 30, 1999, by asserting federal question jurisdiction: that the provisions of FEHBA preempted the breach of contract claims.

This court granted Defendants' motion for summary judgment January 3, 2001 on the grounds that plaintiff failed to exhaust her administrative remedies, sued the wrong [ Page 3]

parties, and that all of Plaintiff's state law claims were preempted. Plaintiff appealed on February 8, 2001. On August 1, 2002, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded solely as to Plaintiff's medical malpractice claim. The appellate court concluded:

"We reverse the district court's summary judgment as to Roach's medical malpractice claim, the sole remaining claim in the case. This means that the case, at least for the time being, remains in federal court. Yet, the only remaining claim is under state law. Removal of the case to federal court was proper because at that time the complaint contained a breach of contract claim which was completely preempted by the FEHBA. That breach of contract claim, however, has been dismissed. Therefore, assuming no other basis for federal jurisdiction exists, the district court may wish to consider remanding this case to state court. We leave that decision to the district court." Roach v. Mail Handlers Ben. Plan, 298 F.3d 847, 851 (9th Cir. 2002)

Defendants filed a motion for summary judgment that undisputed evidence establishes that Defendants' conduct was appropriate and within the applicable standard of care. Plaintiff ...

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