United States District Court, S.D. Mississippi, Western Division
MEMORANDUM OPINION AND ORDER
BRAMLETTE, UNITED STATES DISTRICT JUDGE
cause is before the Court on the plaintiff Marvin Myers (on
behalf of Pattie M. Myers, deceased)'s Motion to Remand
to State Court, i.e. the Circuit Court of Franklin
County, Mississippi (docket entry 13). Myers
asserts that the health insurance plan at issue in this case
gives him the unrestricted right to litigate his claim in
support of his motion, Myers shows that Pattie M. Myers was
employed by United Mississippi Bank in Franklin County,
Mississippi, and was insured under a health insurance policy
or plan obtained through her employment. The plan was
captioned “Mississippi Bankers Association Plan
III” and was underwritten, issued, insured, and
administered by Blue Cross & Blue Shield of Mississippi
Myers was hospitalized at New Iberia Medical Center in New
Iberia, Louisiana, from February 10, 2015, until her death on
March 14, 2015. The hospital submitted a bill to BCBS for
Mrs. Myers' final medical expenses in the total amount of
$556, 682. BCBS denied payment of the hospital bill on the
basis that it was “not a covered service” under
the plan in question.
Myers's husband, Marvin Myers, filed suit against BCBS in
the Circuit Court of Franklin County, Mississippi for
recovery of benefits due under the plan and for bad faith
denial of benefits. BCBS removed the case to this Court,
invoking federal question jurisdiction under 28 U.S.C. §
1331. BCBS contends that the health plan is governed by
ERISA, 29 U.S.C. § 1001 et seq, and that
enforcement of ERISA raises a federal question.
the telephonic case management conference, plaintiff's
counsel raised the issue that the plan gave the plaintiff the
choice of filing the case in state or federal court. Counsel
for plaintiff told Magistrate Judge Parker that the plaintiff
anticipated filing a motion to remand to enforce his right to
choose state court as a forum. Magistrate Judge Parker,
therefore, entered an order deferring entry of a case
management order and directed the plaintiff to file a motion
regarding the appropriate forum for this action.
counsel argues that the health plan in question is not
subject to ERISA and does not implicate a federal question.
Moreover, counsel insists that this Court is without subject
matter jurisdiction. On November 19, 2018, the plaintiff
filed a Motion to Remand (docket entry 13).
insists that its removal to this Court was proper, and that
the Plan language relied upon by the plaintiff merely informs
beneficiaries of their right under the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§ 1001 et seq., to file suit in state or
federal court, a disclosure required by ERISA. It does not
constitute a waiver of BCBS's statutory right to remove
this action to federal court.
February 9, 2015, Mrs. Myers was admitted to New Iberia
Surgery Center in New Iberia, Louisiana, to undergo a
laparoscopic sleeve gastrectomy, a type of bariatric or
weight loss surgery for treatment of morbid obesity. (Docket
entry 1-1, Complaint at ¶13). On February 10, 2015,
following the surgery and after being discharged, Mrs. Myers
began experiencing complications and was admitted to Iberia
Medical Center, where she continued to suffer complications
from the initial surgery until her death on March 14, 2015
(the “Hospitalization”). (Docket entry 1-1,
Complaint at ¶8). Mrs. Myers had health care coverage
under a health and wellness benefit plan (“the
Plan”) with BCBS through her employer, United
Mississippi Bank. (Docket entry 1-1, Complaint at ¶ 5).
Under the Plan, “[w]eight reduction programs and
treatments for obesity including any Surgery for morbid
obesity” and complications from such treatments are not
covered, regardless of the reasons for and/or medical
necessity of the surgery or services. See Ex. A,
Plan Excerpt, Article XIV, Paragraphs (A)(30) and (A)(61), at
BCBSMS 67, 69. Therefore, claims for Mrs. Myers's
Hospitalization were denied. See id.
plaintiff filed this lawsuit on May 17, 2018, asserting
claims against BCBS arising from the denial of hospital
benefits for Mrs. Myers's Hospitalization. [Dkt. 1-1].
Blue Cross was served with process on June 26, 2018, and
timely removed the case on July 24, 2018, on the basis of
federal question jurisdiction under ERISA. Mrs. Myers's
health care coverage under the Plan through her employer is
an “employee welfare benefit plan” as defined
under and subject to ERISA. Thus, the plaintiff's claim
for benefits arises under § 502(a)(1)(B) of ERISA, 29
U.S.C. § 1132(a)(1)(B), and is completely preempted by
November 19, 2018, the plaintiff filed his Motion to Remand
and supporting memorandum, asserting that under the terms of
the Plan he was permitted to choose between state and federal
court, and asserting that Blue Cross waived its right to
remove claims arising out of the Plan. (See Docket
entries 13 and 14).
responded, contending that the plaintiff's arguments are
without merit and that the Motion to Remand should be denied.
(See Docket entries 16, 17 and 20). Myers has filed
a rebuttal, insisting that he has the right to select the
state court forum. (See Docket entry 21).
and federal courts have concurrent jurisdiction over ERISA
claims brought by employees to recover benefits, enforce
rights, or clarify rights under employee benefit plans.
See 29 U.S.C. § 1132(e)(1). Thus, the
plaintiff's suit to recover benefits from Mrs.
Myers's Plan is the type of suit that may be filed in
either state or federal court. It is also the type of suit
that can be removed from state court to federal court at the
defendant's request. See 28 U.S.C. §
1441(a)(stating defendants may remove civil actions filed in
state court to federal district court if the district court
had original jurisdiction over the cause of action).
support of his Motion to Remand, the plaintiff argues that
BCBS waived its right to remove this case to federal court
because the summary plan description in the Plan states, in
part: “Under ERISA, there are steps you can take to
enforce the above [ERISA] rights. ... If you have a claim for
benefits which is denied or ignored, in whole or in part, you
may file suit in a state or federal court. See
Exhibit A, Plan Excerpt at BCBSMS 6-7. Numerous courts have
rejected the plaintiff's argument, holding that the
phrase “you may file suit in a state or federal
court” is a statutorily mandated disclosure of ERISA
rights rather than a forum selection clause, and that
“[t]he right to file suit in a particular forum is not
equivalent to the right to avoid removal from that
forum.” See, e.g., Cruthis v.
Metro. Life Ins. Co., 356 F.3d 816, 818-19 (7th Cir.
2004). The Fifth Circuit has indicated that it agrees.
See Ballew v. Cont'l Airlines, Inc., 668 F.3d
777, 786 n.8 ...