The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
Plaintiff Grand Park Surgical Center brings this two-count complaint premised on diversity jurisdiction against Inland Steel Company, seeking damages for (1) intentional interference with contract and (2) libel and slander. Inland believes that these state law claims are preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., and moves to dismiss. For the reasons that follow, the motion to dismiss is granted in part and denied in part. In addition, we order the parties to brief whether this case should be transferred to the Northern District of Indiana under 28 U.S.C. § 1404(a).
Grand Park is an outpatient surgery center located and incorporated in Indiana. Among its patients are Inland employees and retirees, and their dependents, who participate in Inland's health insurance plans. Grand Park alleges that some of these patients, although treated in 1994 and early 1995, have yet to pay for the medical care rendered. Compl. P 6 (listing patients, date of service, date and amount billed, and remaining balance). The patients had executed assignment of benefits forms directing that payments for each patient's claim be made directly to Grand Park, and the surgery center prepared claims for reimbursement on each patient's behalf. Rather than pay, however, the defendant has completely withheld payment for most of the patients, and in three instances has paid a patient directly.
According to the plaintiff, Inland sent letters to patients and non-patients, asserting that "detailed reviews of Grand Park Surgical claims . . . indicated substantial overcharging and inappropriate and unnecessary care." Compl. P 12; Pl.'s Resp., Ex. 1.
In addition, the letters declared, "Last and most importantly, DO NOT PAY ANY GRAND PARK SURGICAL BILLS that may be sent to you." Pl.'s Resp., Ex. 1 (capitalization and emphasis in original); see Compl. P 13. Furthermore, Grand Park alleges, the defendant told physicians, health care providers, and an employees' union that Grand Park substantially overcharged patients and rendered inappropriate and unnecessary care. Compl. P 14. Finally, Inland requested that the Indiana Attorney General's office investigate the alleged wrongdoing. Id. P 16; Pl.'s Resp., Ex. 1.
In the instant suit, Grand Park's complaint asserts two state law causes of action: interference with contractual relationships (Count I), and libel and slander (Count II). Presently before the court is Inland's motion to dismiss the complaint as preempted by ERISA, or in the alternative, for failure to state a claim.
II. Standard for Reviewing Motions to Dismiss
A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Richmond v. Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir. 1995); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986). We take as true the well-pleaded factual allegations of the complaint and view them, as well as reasonable inferences drawn from them, in the light most favorable to the plaintiff. Cornfield v. Consolidated High Sch. Dist. 230, 991 F.2d 1316, 1324 (7th Cir. 1993) (citing Ellsworth, 774 F.2d at 184). In addition, we consider exhibits incorporated into the complaint, Webster v. New Lenox Sch. Dist. 122, 917 F.2d 1004, 1005 (7th Cir. 1990), as well as factual assertions in the plaintiff's brief, Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992), as allegations in the complaint.
A. Intentional Interference with Contract (Count I)
Among other things, ERISA governs employee welfare benefit plans, including plans that provide "medical, surgical, or hospital care" benefits for participants and beneficiaries.
29 U.S.C. § 1002(1)(A). In order to ensure uniform regulation of benefit plans, ERISA § 514(a) declares that ERISA's provisions preempt "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a)
; New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 131 L. Ed. 2d 695, 115 S. Ct. 1671, 1677 (1995). Because ERISA § 502 creates a cause of action for recovery of benefits, 29 U.S.C. § 1132(a), state law is preempted to the extent that a beneficiary or participant relies upon it to recover benefits. Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 127 (7th Cir. 1992) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987)); see also Rice v. Panchal, 65 F.3d 637, 646 n.10 (7th Cir. 1995) (explaining that complete preemption under § 502(a) necessarily entails preemption under § 514(a)).
Accordingly, the first possible reading of Grand Park's intentional interference claim--that the defendant must pay the plaintiff medical benefits under the assignments executed by the patients--is preempted as an "effort to use state law, including state common law, to obtain benefits" under the health insurance plans Pohl, 956 F.2d at 127. To the extent that Grand Park seeks to collect benefits pursuant to the assignments, the plaintiff acts as a "beneficiary" under ERISA, Kennedy v. Connecticut Gen. Life Ins. Co., 924 F.2d 698, 700 (7th Cir. 1991), and must sue under ERISA § 502(a) for recovery, Pilot Life Ins. Co., 481 U.S. at 52. At this stage of the litigation, however, we will refrain from sua sponte converting the intentional interference claim unto a § 502(a) claim; it is unclear that direct suit on the assignments of benefits is the theory pursued by the plaintiff, and the ...