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October 14, 2004.

EUGENE McCOY, Plaintiff,

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge


This matter is before the court on Plaintiff Eugene McCoy's ("McCoy") motion for remand For the reasons stated below, we deny the motion to remand


  Defendant Unicare Life and Health Insurance Company ("Unicare"), is an Independent Physician Association model HMO Plan that contracted with the United States Office of Personal Management. McCoy was enrolled apparently as the spouse or dependent of a federal employee in a Federal Employee Health Benefits Act of 1998 ("FEHBA"), 5 U.S.C. § 8901 et seq., HMO plan provided by Unicare. Defendant Oak West Primary Physician Association, Inc. ("Oak West") is an Independent Physician Association that has a network of contracting health care service providers who render care and services under medical plans, including McCoy's HMO plan.

  In November of 2001, McCoy suffered first, second, and third degree burns on his right arm and torso. Physicians at the Loyola University Medical Center performed graft surgery on McCoy. McCoy was released from the hospital on November 27, 2001, and his treating physician ordered McCoy to undergo occupational therapy for the skin graft. McCoy alleges in his amended complaint that Defendant Dr. David Demorest ("Demorest"), acting as an agent and employee for Unicare and Oak West, determined that McCoy could only receive the occupational therapy if he sought the therapy at Defendant Westlake Community Hospital in Melrose Park, Illinois ("Westlake"). McCoy alleges that Westlake "did not possess the requisite skill or knowledge to properly perform occupational therapy on a skin graft patient" (A Compl. Count IV, Par. 9) and as a result he suffered personal and pecuniary injury. (A Compl. Count IV, Par. 10). McCoy brought the instant action in Illinois state court alleging malpractice claims against Unicare, Oak West, Demorest, and Westlake. The action was subsequently removed to federal court. McCoy has now filed a motion to remand LEGAL STANDARDS

  A party may file a motion to remand a case for improper removal based on lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c). The party seeking removal bears the burden of establishing federal jurisdiction. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Any doubt regarding jurisdiction should be resolved in favor of remanding to the state. Id. Furthermore, removal is only proper where the state-court claims could have originally been brought in federal court. 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).


  I. Mixed Plan Eligibility and Treatment Issues

  McCoy argues that his claim involves "mixed plan eligibility and treatment issues" and that his claim is therefore the type of claim envisioned in Pegram v. Herdrich, 530 U.S. 211 (U.S. 2000). However, in Aetna Health Inc. v. Davila, 124 S.Ct. 2488 (2004) the court limited the holding of Pegram stating that a "mixed issues" claim referred to in Pegram is only applicable to situations where a treating physician is making treatment decisions while simultaneously owning or operating the health plan for the patient and making eligibility determinations. Id. at 2500-01. Also, the court in Pegram did not specifically address FEHBA. Rather it addressed "mixed issues" claims in the context of ERISA. 530 U.S. at 2153-54. Oak West argues that it is distinct from Demorest. Oak West claims that it never treated McCoy and never employed Demorest. McCoy alleges in his amended complaint that Demorest was an employee or agent of Unicare and Oak West. (A Compl. Count I, Par. 5, Count II, Par. 3, Count IV, Par. 2). However, it is clear from the other allegations in McCoy's amended complaint that the essential facts concerning Demorest's relationship with Oak West is not contested. McCoy does not, for instance, argue that Demorest received a salary directly from Oak West. Rather, it is apparent that McCoy seeks to have the court infer from the agreed upon set of facts that the relationship was such that Demorest should be deemed an employee or agent of Oak West. McCoy fails however, to cite any case law to support his novel theory that such a connection may be inferred in this instance. Neither does McCoy allege facts that would indicate that Demorest was involved in treatment issues and eligibility issues. Clearly the facts in this action are not the type of facts envisioned in Pegram when addressing ERISA. McCoy contends that Demorest treated him, however, there is no indication whatsoever, that Demorest made treatment decisions for Unicare or Oak West and was simultaneously the administrator of McCoy's plan or owned or operated the plan. The facts in this action indicate that the two types of decisions remained separate and distinct. Also, we would be reluctant to simply infer that a new type of mixed issue action has been created in the FEHBA context because a similar type of claim was recognized in the ERISA context. Also as will be discussed below, Aetna Health Inc. v. Davila, 124 S.Ct. 2488 (2004) is instructive in the ERISA context regarding the complete preemption of claims.

  II. Complete Preemption

  Unicare and Oak West removed the instant action to federal court on the basis that McCoy's claims are "fully pre-empted and displaced by FEHBA. . . ." (Rem. Par. 4). Federal courts have federal question subject matter jurisdiction for cases that arise "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A claim arises "under the laws of the United States if the plaintiff's complaint raises a federal issue." Lister v. Stark, 890 F.2d 941, 943 (7th Cir. 1989).

  Generally, "[f]ederal pre-emption is ordinarily a federal defense to the plaintiff's suit . . . [,] does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). However, a removal may be warranted under the doctrine of complete preemption, which is an "`independent corollary' to the well-pleaded complaint rule." Caterpillar Inc., 482 U.S. at 393. The complete preemption doctrine allows removal only 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 v. AT&T Wireless Servs., Inc., 205 F.3d 983, 986-87 (7th Cir. 2000); See also Rogers v. Tyson Foods, Inc., 308 F.3d 785, 788 (7th Cir. 2002) (stating that there is complete preemption if there is a "congressional intent in the enactment of a federal statute not just to provide a federal defense to a state created cause of action but to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transforming the state cause of action into a federal cause of action").

  There are two alternative approaches in case law for the complete preemption doctrine which are referred to as the complete preemption model and the replacement model. See McQuerry v. American Medical Systems, Inc., 899 F.Supp. 366, 369 (N.D. Ill. 1995) (delineating approaches into complete preemption model and replacement model). See also Rogers, 308 F.3d at 788 (indicating that replacement model is an approach under complete preemption doctrine). But see Bastien, 205 F.3d at 986 (indicating that the applicable standard for the complete preemption doctrine is whether Congress intended to completely preempt an area and not leave room for state claims); Franczyk v. Cingular Wireless, LLC, 2004 WL 178395, at *1 (N.D. Ill. 2004) (stating that "[i]n some instances, Congress has completely preempted a particular area where there is no room for any state regulation and the complaint is `necessarily federal in character.'")

  Under the replacement model "removal is appropriate only if federal law not only preempts the state claim but also replaces it with a federal remedy." McQuerry, 899 F.Supp. at 369. According to this line of cases, the "ability to bring suit under [federal law] is an element of `complete preemption.'" Rogers, 308 F.3d at 788. The doctrine of complete preemption is not applicable "if a federal remedy did not exist in the alternative . . . [because] [o]therwise, a plaintiff would be forced into federal court with no relief available for `vindicating the same interest.'" Id. Federal preemption trumps state law, "but the foundation for removal is the creation of federal law to replace state law." Id. Thus, "unless the federal law has created a federal remedy — no ...

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