United States District Court, M.D. Florida, Tampa Division
ORDER REMANDING CASE DUE TO LACK OF FEDERAL SUBJECT
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.
Court grants Plaintiff's motion to remand (Dkt. 12),
after reviewing the motion, the response (Dkt. 13) and the
record. The Amended Complaint (Dkt. 1-1) states that
Plaintiff is a group of anesthesiologists providing
non-emergency and emergency services to Sarasota Memorial
Hospital. The reimbursement rate for these services between
Plaintiff and Defendant was subject to negotiation, but the
negotiation reached impasse. Since then, Plaintiff has billed
“out of network” for Defendant's insureds.
Defendant has made some payment for all of these patients to
Plaintiff, at a rate of $40 per value unit. Id.
Plaintiff states that this $40 per unit rate is insufficient
and in the amended complaint they sought several Florida-law
remedies including unjust enrichment and implied contract.
Court examines the operative complaint at time of removal to
assess subject matter jurisdiction. Ehlen Floor Covering
v. Lamb, 660 F.3d 1283, 1287 (11 Cir. 2011). “The
existence of federal jurisdiction is tested as of the time of
removed this amended complaint and seeks to establish: 1)
“federal officer” subject matter removal
jurisdiction under 28 U.S.C. § 1442(a)(1); and 2)
complete ERISA preemption, creating federal subject matter
removing party bears the burden of establishing
jurisdiction.” Diaz v. Sheppard, 85 F.3d 1502,
1505 (11th Cir. 1996) (citing Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1356 (11th Cir. 1996)). Within this
context, “[t]he removal statute should be construed
narrowly with doubt construed against removal.”
Id. (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 107-09 (1941)). Federal courts are
courts of limited subject matter jurisdiction. Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
the first ground for removal, there is no CMS mandate,
guidance, or dictate that exists concerning the $40 rate that
Plaintiff claims is contractually low. This is not a right to
payment or denial of coverage case. The Court finds
convincing Baptist Hospital of Miami, Inc. v. Humana
Health Ins. Co. of Florida, Inc., No. 1:15-cv-22009-UU,
2015 WL 11237013 (S.D. Fla. Aug. 19, 2015). See also
Sheridan Healthcorp, Inc v. Aetna Health, Inc., 161
F.Supp.3d 1238, 1241 (S.D. Fla. 2016). Further, that some of
these patients are covered by federal employee health
benefits plans does not transform Defendant into a federal
agent for subject matter jurisdiction purposes.
Baptist, 2015 WL 11237013, at *4; Premier
Inpatient Partners LLC v. Aetna Health & Life Ins.
Co., 362 F.Supp.3d 1217, 1223-24 (M.D. Fla. 2019).
Nothing in the amended complaint shows Defendants did
anything for a federal reason or upon federal mandate or
does the Court agree complete ERISA preemption provides
subject matter jurisdiction. Premier Inpatient Partners
LLC v. Aetna Health & Life Ins. Co., 371 F.Supp.3d
1056, 1064-68 (M.D. Fla. 2019). “Complete preemption is
a rare doctrine that entirely transforms a state-law claim
into a federal claim, regardless of how the plaintiff framed
the legal issue in [the] complaint.” Cmty. State
Bank v. Strong, 651 F.3d 1241, 1260 n.16 (11th Cir.
ERISA preemption only occurs if 1) the plaintiff could have
sued under ERISA section 502(a), and 2) no independent legal
duty supports the plaintiff's claim. Conn. State
Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1345 (11th Cir. 2009). The second prong of this test is
clearly unmet, and the first prong is questionable. See
Borrerro v. United Healthcare of N.Y., Inc., 610 F.3d
1296, 1302 (11th Cir. 2010) (citing Conn. State
Dental, 591 F.3d at 1349-50) (a “rate of
payment” challenge does not necessarily implicate an
Plaintiff's motion to remand (Dkt. 12) is granted. This
case is remanded due to lack of federal subject matter
jurisdiction. The Court declines to award fees to movant
pursuant to 28 U.S.C. § 1447. The Clerk is directed to
remand this case to the Twelfth Judicial Circuit Court in and
for Sarasota County, Florida, and after effecting remand, to
close this case.
 Centers for Medicare & Medicaid