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Stevenson v. Aetna Health of California, Inc.

United States District Court, S.D. California

April 10, 2017

JESSE STEVENSON, Plaintiff,
v.
AETNA HEALTH OF CALIFORNIA, INC.; SHARP REES STEALY MEDICAL GROUP; and DOES 1 to 10, Inclusive, Defendants.

          ORDER ON MOTION TO DISMISS AND MOTION TO REMAND [DOC. NOS. 3, 6]

          HON. CATHY ANN BENCIVENGO UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         On 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.

         Plaintiff was a subscriber to Defendants' health care plan. [Doc No. 1 at 10 ¶ 25.[1] 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 ¶ 16.]

         Since the Spring of 2016, Plaintiff has attempted to obtain approval from Defendants for a DRG stimulator[2] 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.]

         Upon 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.]

         Defendants 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.]

         Based 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.]

         On 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.

         II. Legal Standard

         A 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).

         But, if 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).[3] 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.[4]

         Under 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.[5] 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).

         III. Discussion

         In its 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[6] (“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. ...


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