United States District Court, S.D. California
ORDER ON MOTION TO DISMISS AND MOTION TO REMAND [DOC.
NOS. 3, 6]
CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Aetna Health of
California Inc.'s (“Aetna”) motion to dismiss
[Doc No. 3] and Plaintiff's motion to remand [Doc. No.
6]. The motions have been fully briefed, and the Court finds
them suitable for submission without oral arguments. For the
following reasons, Defendant's motion is granted and
Plaintiff's motion is denied.
November 28, 2016, Plaintiff brought suit in the Superior
Court of the State of California against Sharp Rees Stealy
Medical Group (“Sharp”) and Aetna (collectively
“Defendants”) for “unreasonable denial of
benefits” in violation of Civil Code § 3428. [Doc
No. 1 at 5-12 (“the complaint”).] His factual
allegations, accepted as true, are as follows.
was a subscriber to Defendants' health care plan. [Doc
No. 1 at 10 ¶ 25. In April 2015, Plaintiff was a victim of a
preventable medical error at the hands of a Sharp affiliated
physician, Wilifred Kearse, MD. [Id. at 7 ¶
11.] As a consequence of the error, Plaintiff developed
Complex Regional Pain Syndrome (“CRPS”) that
“has manifested as intractable, 24/7, burning, searing,
life-altering pain primarily centered in Plaintiff's
groin region.” [Id. at ¶ 12.] For
patients who suffer from CRPS in these areas, the FDA
approved Dorsal Root Ganglion (“DRG”) stimulation
is considered a breakthrough technology. [Id. at 8
the Spring of 2016, Plaintiff has attempted to obtain
approval from Defendants for a DRG stimulator but Defendants
have continued to “refuse to coordinate this provision
of reasonably necessary medical care.” [Id. at
9 ¶ 18.] After filing multiple appeals and exhausting
administrative remedies, on September 30, 2016, Plaintiff was
informed by an unidentified Sharp representative that he
would be provided with “whatever care [he]
needed.” [Id. at ¶ 19.] The offer was
recanted three days later and Plaintiff was encouraged to
seek the opinion of a pain specialist who performed DRG
stimulation. [Id.] Plaintiff sought such an opinion,
and the pain specialist confirmed that Plaintiff was an ideal
candidate for DRG stimulation. [Id.]
receiving confirmation of Plaintiff's candidacy,
Defendants referred Plaintiff to an in-network provider to
assess if DRG stimulation was an appropriate treatment
option. [Id. at ¶ 20.] The in-network physician
recognized that the procedure he could provide was not as
effective or targeted as DRG stimulation and that Plaintiff
was an ideal candidate for the DRG procedure. [Id.]
refused to approve the DRG stimulation as a “reasonably
necessary medical treatment” for Plaintiff based on the
purported experimental nature of the procedure. [Id.
at 9-10 ¶ 21.] Denial on these grounds is
“directly contrary to how ‘experimental'
procedures are defined in Plaintiff's health insurance
agreement with Defendants.” [Id. at 10:8-9.]
on these allegations Plaintiff sued Defendants, pursuant to
Civil Code section 3428, for failure “to timely provide
medically necessary health care to Plaintiff by failing to
exercise ordinary care in addressing Plaintiff's medical
condition.” [Id. at 10 ¶ 27.] Further,
Plaintiff complains that the failure to approve and provide
DRG stimulation treatment was made in bad faith and
predicated upon a scheme to retaliate against Plaintiff for
filing a medical malpractice suit against Dr. Kearse.
[Id. at 11 ¶ 29-30.] Plaintiff seeks damages
for pain, medical expenses, earnings losses, along with
punitive damages. [Id. at 11.]
January 20, 2017, Aetna removed the action to this Court
pursuant to the provisions of 28 U.S.C. § 1441(a) [Doc.
No. 1] and filed a motion to dismiss on January 26, 2017
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) [Doc. No. 3]. On February 16, 2017, Plaintiff filed
both his opposition to the motion to dismiss [Doc. No. 5] and
a motion to remand [Doc. No. 6]. In light of the commonality
of arguments to both the motion to dismiss and the motion to
remand, the Court will consider them together.
defendant may remove any civil action from state court to
federal district court if the district court has original
jurisdiction over the matter. 28 U.S.C. § 1441(a).
“The party invoking the removal statute bears the
burden of establishing federal jurisdiction.”
Etheridge v. Harbor House Rest., 861 F.2d 1389, 1393
(9th Cir. 1988) (citation omitted). See also Marin Gen.
Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941,
944 (9th Cir. 2009) (the burden of establishing federal
subject matter jurisdiction falls on the party invoking
removal). In rare circumstances a federal law that completely
preempts state law will support removal, irrespective of
whether or not a federal question exists on the face of the
complaint. ARCO Envtl. Remediation, LLC. v. Dep't of
Health and Envtl. Quality of Montana, 213 F.3d 1108,
1114 (9th Cir. 2000).
federal jurisdiction is absent from the commencement of a
case, [a case] is not “properly removed” - and
therefore need not “stay  removed.””
Polo v. Innoventions Int'l., LLC, 833 F.3d 1193,
1197 (9th Cir. 2016) (citing United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers
Int'l Union v. Shell Oil Co., 602 F.3d 1087, 1091,
1092 n.3 (9th Cir. 2010)). See also 28 U.S.C §
1447(c). Remand is the correct remedy when subject
matter jurisdiction is absent because “[s]tate courts
are not bound by the constraints of Article III.”
Polo, 833 F.3d at 1196.
Rule 12(b)(6), a party may bring a motion to dismiss based on
the failure to state a claim upon which relief may be
granted. A Rule 12(b)(6) motion challenges the
sufficiency of a complaint as failing to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). For purposes of ruling on a Rule 12(b)(6)
motion, the court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the non-moving party.” Manzarek
v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008). But, a “pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555).
notice of removal, Defendant Aetna attested that this Court
“has original jurisdiction under 28 U.S.C. § 1331,
and is one which may be removed to this Court by Aetna
pursuant to the provisions of 28 U.S.C. § 1441(a) in
that it arises under the Employment Retirement Income
Security Act of 1974 (“ERISA”).” [Doc. No. 1
at 2: 5-8.] Subsequently, Aetna has moved for dismissal under
Rules 12(b)(1) and 12(b)(6) on the grounds that
Plaintiff's claim is completely preempted by the
Employment Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001 et
seq. [Doc. ...