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Clevenger v. Eastman Chemical Co.

August 24, 2007

RUSSELL CLEVENGER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE AND ADMINISTRATOR OF THE ESTATE OF CAROLYN CLEVENGER, AND AS GUARDIAN AND NEXT FRIEND OF MINOR CHILDREN ASHLEY CLEVENGER AND ANDREW CLEVENGER, PLAINTIFFS,
v.
EASTMAN CHEMICAL COMPANY, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

This matter is before the Court on a motion for remand to state court for lack of federal subject matter jurisdiction (Doc. 10). For the following reasons, the motion is GRANTED.

I. Introduction

In 2002, Plaintiff Russell Clevenger, an employee of Defendant Eastman Chemical Company ("Eastman") residing at that time near Chicago, Illinois, accepted from his employer an overseas assignment to Shanghai, China. As a condition of accepting the assignment, Mr. Clevenger sought assurances from Eastman that he and his family would have access to high-quality medical care in China, and received assurances from his employer that such care was available to Eastman personnel stationed in Shanghai through a clinic called Worldlink. In January 2005, twelve days after the Clevenger family returned from a vacation in Tanzania, Mr. Clevenger's wife, Carolyn Clevenger, began to display signs of illness. Worldlink medical personnel diagnosed Mrs. Clevenger as suffering from dengue fever and began a course of treatment for that illness. Despite treatment for dengue fever, Mrs. Clevenger's condition continued to decline to the point that Mr. Clevenger arranged for his wife, who by then was suffering from high fever and seizures, to be airlifted to a hospital in Hong Kong. At the Hong Kong hospital Mrs. Clevenger was diagnosed as suffering from malaria. Mrs. Clevenger died of malaria three days after her arrival at the Hong Kong hospital. After his wife's death, Mr. Clevenger was transferred by Eastman to an assignment at the company's headquarters in Kingsport, Tennessee, where he relocated with his two minor children, Plaintiffs Ashley Clevenger and Andrew Clevenger.

In 2007 Mr. Clevenger filed this action in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, under the Illinois Wrongful Death Act, 740 ILCS 180/0.01 -- 180/2.2. The gravamen of Mr. Clevenger's claim for relief is that Eastman misrepresented to him, either negligently or deliberately, the quality of medical care available to Eastman personnel stationed in China, and failed to ensure that adequate medical care was available to himself and his family in China, with the proximate result that Carolyn Clevenger died due to improper medical treatment. Eastman removed the case to this Court pursuant to 28 U.S.C. § 1441, asserting the existence of federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1332. Mr. Clevenger has moved for remand of the case to state court for lack of subject matter jurisdiction, and the motion has been fully briefed and is ripe for decision. Although Eastman has requested oral argument on the motion, the Court concludes that oral argument will not be helpful in deciding the motion. Accordingly, the Court now rules as follows.

II. Discussion

A. Legal Standard

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The party seeking removal has the burden of establishing federal jurisdiction. See Ford v. Keck, No. 06-cv-667-DRH, 2007 WL 1022003, at *1 (S.D. Ill. Apr. 2, 2007); Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 835 (S.D. Ill. 2006). "'Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.' Put another way, there is a strong presumption in favor of remand." Hill v. Olin Corp., No. 07-CV-0054-DRH, 2007 WL 1431865, at *1 (S.D. Ill. May 14, 2007)(quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). All doubts about the propriety of removal are to be resolved in favor of remand. See Morthland v. BRP US, Inc., No. 06-CV-01038-DRH, 2007 WL 853986, at *1 (S.D. Ill. Mar. 16, 2007); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000).

B. Federal Question Jurisdiction

The Court turns first to the matter of whether this case lies within so-called "federal question" jurisdiction. In general, of course, district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The usual test of whether an action arises under federal law for purposes of Section 1331 is the "well-pleaded complaint" rule, which provides generally that a case arises under federal law within the meaning of the statute only when federal law appears on the face of a plaintiff's complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 402 (7th Cir. 2001); Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091 (S.D. Ill. 2007). In other words, "a claim 'arises under' the law that creates the cause of action." Bennett v. Southwest Airlines Co., 484 F.3d 907, 909 (7th Cir. 2007) (citing American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257 (1916)). In a limited class of cases, however, an action may arise under federal law within the meaning of Section 1331 even if the complaint in the case asserts no claim for relief under federal law where state law is "completely preempted" by federal law. Complete preemption occurs when "the preemptive force of a . . . federal . . . statute is so . . . extraordinary . . . that it . . . converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Kuntz v. Illinois Cent. R.R. Co., 469 F. Supp. 2d 586, 590 (S.D. Ill. 2007) (quoting Nelson v. Stewart, 422 F.3d 463, 466-67 (7th Cir. 2005)). "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. In such situations, the federal statute . . . not only preempt[s] state law but also authorize[s] removal of actions that sought relief only under state law." Id. (citation omitted).*fn1

One of the narrow class of federal statutes that completely preempts state law so as to permit removal of state-law claims to federal court in federal question jurisdiction is, of course, the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, specifically, ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64-66 (1987); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486-87 (7th Cir. 1996); City of Rockford v. Raymond, No. 98 C 50353, 1999 WL 218549, at *1 (N. D. Ill. Apr. 14, 1999). That provision of ERISA states that "[a] civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). In this Circuit, courts examine three factors to determine whether a state-law claim is within the scope of ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), for purposes of complete preemption, specifically: "(1) whether the 'plaintiff [is] eligible to bring a claim under that section;' (2) whether the plaintiff's 'cause of action falls within the scope of an ERISA provision that the plaintiff can enforce via § 502(a);' and (3) whether the plaintiff's 'state law claim cannot be resolved without an interpretation of a contract governed by federal law.'" Moran v. Rush Prudential HMO, Inc., No. 98 C 0442, 1998 WL 325204, at *2 (N.D. Ill. June 9, 1998) (quoting Jass, 88 F.3d at 1487). See also Speciale v. Seybold, 147 F.3d 612, 615 (7th Cir. 1998).

In this case, the claims before the Court relate essentially to the quality of the medical care that Carolyn Clevenger received in China and exist independently of, and can be resolved separately from, the terms of any ERISA plan. Such claims generally are deemed not to be completely preempted by ERISA. For example, in Jass v. Prudential Health Care Plan, Inc., the United States Court of Appeals for the Seventh Circuit concluded that the crucial question in testing complete preemption under ERISA is whether a case can be resolved without interpreting a contract for benefits. See 88 F.3d at 1489 (holding that a claim that a health maintenance organization ("HMO") improperly denied physical therapy was preempted, since the claim "cannot be resolved without interpreting the benefits contract because that contract provided the benefits to which Jass was entitled"). Correspondingly, the court held that the claims for medical malpractice and vicarious liability were not preempted, as those claims were not dependent upon interpretation of a plan document. See id. at 1488. Similarly, in Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995), the plaintiff filed an action against his insurer, an ERISA health care benefits plan, claiming the plan was liable for the medical malpractice of one of the plan's providers under the state law of respondeat superior. See id.at 638-39. The Seventh Circuit Court of Appeals held that the case could not be removed to federal court based on complete preemption under ERISA, because the plaintiff's claim could be resolved without the interpretation of an ERISA plan and therefore was not in the nature of a claim for benefits under the statute. "In this case, Rice's claim that [the insurer] is liable for the alleged medical malpractice of [the provider] does not rest upon the terms of an ERISA plan, and it can be resolved without interpreting an ERISA plan. Therefore, his claim is not properly recharacterized as a suit to enforce his rights under the terms of a plan that is within the scope of § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a), and the claim is not 'completely preempted' under § 502(a)." 65 F.3d at 646.

As the Seventh Circuit Court of Appeals has explained, ERISA "does not oblige federal courts to take over the entire subject of medical care" Central States, S.E. & S.W. Areas Health & Welfare Fund v. Pathology Labs. of Ark., P.A., 71 F.3d 1251, 1254 (7th Cir. 1995). See also Moreno v. Health Partners Health Plan, 4 F. Supp. 2d 888, 893 (D. Ariz. 1998) ("Congress has expressed no desire that ERISA be used to degrade the quality of healthcare"). Similarly, as a court in a sister circuit has noted, claims that "merely attack the quality of the benefits [plaintiffs] received" are not tantamount to claims that "plans erroneously withheld benefits due" so as to be completely preempted under ERISA. Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 356 (3d Cir. 1995) (holding that claims based on allegedly negligent medical treatment were not completely preempted under ERISA) (emphasis in original). To hold otherwise would be to effectively federalize the area of medical malpractice law. See id. at 357 (noting that "[q]uality control of benefits, such as . . . health care benefits . . . , is a field traditionally occupied by state regulation" and that nothing in the text or the legislative history of ERISA suggests an intent to completely occupy the field). See also Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 272-73 (2d Cir. 1994) (claims for professional malpractice, breach of fiduciary duty, and intentional infliction of emotional distress against the employer of a psychotherapist that had contracted with the plaintiff's employer to provide services in connection with an employee health benefit plan governed by ERISA did not state a claim arising under ERISA for purposes of federal question jurisdiction); Herrera v. Lovelace Health Sys., Inc., 35 F. Supp. 2d 1327, 1331-32 (D.N.M. 1999) (state-law claims against an HMO and a physician who performed a vasectomy for medical malpractice, corporate negligence, negligence per se, and intentional infliction of emotional distress were not completely preempted under ERISA, as they were not claims to recover benefits due or to enforce rights under the terms of a plan and had nothing to do with plan administration and the approval or withholding of benefits); Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 958 F. Supp. 1137, 1145-46 (E.D. Va. 1997) (claims attacking the quality of treatment fell outside the scope of ERISA's provision authorizing an action by a participant to enforce or clarify rights under the terms of a health plan).

The Court is satisfied that the claims in this case are not properly characterized as claims for benefits under ERISA. See Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151, 154-55 (10th Cir. 1995) (a medical malpractice claim is not preempted by ERISA when the issue of a doctor's negligence requires the assessment of providing admittedly covered treatment or giving professional advice); Corporate Health Ins., Inc. v. Texas Dep't of Ins., 12 F. Supp. 2d 597, 620 (S.D. Tex. 1998) ("Claims challenging the quality of a benefit . . . are not preempted by ERISA."); Edelen v. Osterman, 943 F. Supp. 75, 76 (D.D.C. 1996) ("[R]un-of-the-mill state-law claims such as . . . torts committed by an ERISA plan . . . are not subject to ERISA preemption."); Smith v. HMO Great Lakes, 852 F. Supp. 669, 672 (N.D. Ill. 1994) (an action asserting vicarious ...


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