The opinion of the court was delivered by: Joan B. Gottschall, Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs sued defendant in the Circuit Court of Cook County
Illinois, County Department — Chancery Division. Defendant removed
the action to this court. Plaintiffs have moved this court to remand the
case to the Illinois state court. Plaintiffs have also moved to strike a
surreply filed by the defendants in connection with the motion to
remand. For the reasons set forth below, plaintiffs' motion to strike is
denied, but plaintiffs' motion to remand is granted.
The dispute before the court concerns the Federal Employees Health
Benefits Act ("FEHBA"), 5 U.S.C. § 8901 et seq., a federal statute
that governs certain aspects of health benefit plans provided to federal
employees and their dependents. One of the named plaintiffs in this
case, Jose S. Cruz, was enrolled in, and a member of the Service Benefit
Plan ("Plan"), which is one of the federal government's employee health
benefits plans.*fn1 The Plan was created by a federal government
contract between the U.S. Office of Personnel Management ("OPM") and the
Blue Cross and Blue Shield Association ("Carrier") on behalf of several
Blue Cross and Blue Shield plans pursuant to FEHBA. The Plan is
underwritten by the participating Blue Cross and Blue Shield plans which
administer it on behalf of the Carrier and are referred to as Local
Plans. Defendant Blue Cross Blue Shield of Illinois, a Division of Health
Care Service Corporation ("HCSC"), is the local plan that underwrites the
Plan with respect to Cruz.
The plaintiffs were injured in an accident and received treatment
through health benefit plans administered by Blue Cross Blue Shield of
Illinois. The named plaintiffs, together with other purported class
members, retained counsel to prosecute claims against third-party
tortfeasors arising out of the incident that caused plaintiffs'
injuries. Plaintiffs and the other purported class members obtained a
recovery, and incurred attorney's fees and other related costs in
connection with that recovery. Defendant did not assist plaintiffs or
their counsel in obtaining the third-party recovery.
Defendant asserted a lien against any recoveries plaintiffs might
obtain, pursuant to its reimbursement rights under the Plan. Defendant,
however, refused to provide plaintiffs a full set-off for attorney's fees
and costs incurred in obtaining the third-party recovery. Plaintiffs
contend that the set-off offered by defendant is insufficient and
violates Illinois' common fund doctrine. Defendant responds by arguing
that it is entitled under the terms of the Plan to a full reimbursement
of any benefits paid under the Plan, without a set-off for fees or
costs, in the event that an enrollee recovers from a third party.
Plaintiffs filed suit in state court. Plaintiffs' amended state court
complaint alleged that defendant's refusal to provide a full set-off
violates the Illinois common fund doctrine, and that by refusing to
follow the dictates of that doctrine, defendant also violated the
Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1, et seq.
The general rule is that a plaintiff is the master of his own complaint
and can avoid federal question jurisdiction by pleading exclusively state
law claims. See Caterpillar, 482 U.S. at 392; Franchise Tax Bd. v.
Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983);
Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 986 (7th Cir.
2000). Defendant argues that two exceptions to the well-pleaded complaint
rule apply in this case, making removal appropriate despite the fact that
plaintiffs' complaint alleges only state law claims.
One recognized exception to the well-pleaded complaint rule is the
"complete preemption" doctrine. This doctrine applies where "Congress has
so completely preempted a particular area that no room remains for any
state regulation and the complaint would be `necessarily federal in
character.'" Bastien, 205 F.3d at 986 (citing Metropolitan Life Ins. Co.
v. Taylor, 481 U.S. 58, 63-64 (1987)). Where this is the case, removal to
federal court is proper. See id. Complete preemption is to be
distinguished from "ordinary preemption" (or "partial preemption") in
which a federal law and a state law conflict, but Congress has not
clearly indicated that it intends to completely preempt the particular
area. In the typical ordinary preemption case, a defendant would raise a
federal law as a defense to plaintiffs' state law claim. In these
circumstances, the Supreme Court has clearly stated that federal question
jurisdiction does not exist under the well-pleaded complaint rule, making
removal improper. See Caterpillar, 482 U.S. at 393; Metropolitan Life,
481 U.S. at 63. Complete preemption, by contrast, is not only a defense,
but also provides a basis for federal jurisdiction, making removal
Determining whether a field is completely preempted has been described
as a two-part inquiry. First, Congress must have clearly manifested an
intent to preempt the field. Second, the court must also find that the
plaintiffs' claims fit within the "civil enforcement provisions" provided
by the federal statute. Goepel v. National Postal Mail Handlers Union,
36 F.3d 306, 311 (3d Cir. 1994) (relying on a comparison of Metropolitan
Life and Franchise Tax Bd.); see also Moran v. Rush Prudential HMO,
Inc., 230 F.3d 959, 967 (7th Cir. 2000) (in ERISA case, plaintiffs'
claims are completely preempted only if they fall within the scope of an
ERISA provision that plaintiff can enforce). In this case, the court
finds that Congress has clearly manifested an intent that FEHBA
completely preempt certain state law causes of action in the area of
federal employee benefit plans. The court, however, concludes that the
civil enforcement provisions of the FEHBA do not protect the same
interests that plaintiffs seek to vindicate through their state law
To date, the Supreme Court has found two federal laws that completely
preempt certain state causes of action: the Labor Management Relations Act
(LMRA), and the Employee Retirement Income Security Act (ERISA). Prior to
1998, most lower courts addressing the issue determined that the FEHBA
did not completely preempt state law in the area of health benefits for
federal employees. See Ramirez v. Humana, Inc., 119 F. Supp.2d 1307, 1310
(M.D. Fla. 2000) (providing examples). Since Congress amended the FEHBA
in 1998, however, the majority of courts ...