JERRY BUCHMEYER, United States District Judge
Now before this Court are Plaintiff's Motion to Remand (filed September 18, 2002) and Defendants' Motion to Stay for Failure to Exhaust Administrative Remedies (filed October 3, 2002) (collectively, the "Motions"). For the reasons discussed below, Plaintiff's Motion to Remand is GRANTED, and Defendant's Motion to Stay is DENIED AS MOOT.
Pursuant to this Court's Scheduling Order, the Motion to Remand was subsequently refiled on October 21, 2002 in joint motion submission format.
I.
On August 7, 2002, Plaintiff filed its Original Petition (the "Complaint") in the 298th Judicial District Court of Dallas County, Texas alleging, inter alia, that Defendants violated Texas statutory and common law by committing misrepresentations regarding Defendant Jonathon Wilder's ("Wilder") health insurance coverage, and by failing to pay for health care services provided to Wilder by Plaintiff. Defendants subsequently removed this action to this Court, on August 30, 2002, asserting that federal question jurisdiction exists in this case. After the filing of Plaintiff s Motion to Remand and Defendants' Motion to Stay, Plaintiff filed its First Amended Complaint (the "Amended Complaint") on October 16, 2002.
II.
The primary question raised by the Motions is whether the state law claims brought by Plaintiff are completely preempted by ERISA. A second question relates to how the jurisdictional analysis is impacted by the contents and filing of Plaintiff's First Amended Complaint (filed October 16, 2003) (the "Amended Complaint").
When Plaintiff was granted leave to amend his Complaint, Defendants were also granted leave to file a surreply to Plaintiff's Motion in order to address the Amended Complaint.
A.
There are two types of preemption under ERISA: complete preemption and conflict-preemption (also known as ordinary preemption). Giles v. NYLCare Health Plans, Inc., 172 F.3d 332 (5th Cir. 1999). Federal question jurisdiction arises from complete preemption, but not from ordinary preemption. As the Fifth Circuit has explained:
when a complaint raises state causes of action that are completely preempted, the district court may exercise removal jurisdiction. When a complaint contains only state causes of action that the defendant argues are merely conflict-preempted, the court must remand for want of subject matter jurisdiction. When a complaint raises both completely-preempted claims and arguably conflict-preempted claims, the court may exercise removal jurisdiction over the completely-preempted claims and supplemental jurisdiction (formerly known as "pendent jurisdiction") over the remaining claims.
Id, at 337-38.
See also, Arana v. Ochsner Health Plan, 302 F.3d 462, 468 (5th Cir. 2002),
pet. for rehearing granted, 319 F.3d 205 (Jan. 16. 2003).
To determine whether particular claims are completely preempted by ERISA, courts apply a two-part test: (1) examining "whether the beneficiary under the ERISA plan was covered at all by the terms of the health care policy," and (2) if "there is some coverage . . . determin[ing] whether the claim in question is dependent on, and derived from the rights of the plan beneficiaries to recover benefits under the terms of the plan." Transition Hosp. Corp. v. Blue Cross and Blue Shield of Tx., Inc., 164 F.3d 952, 955 (5th Cir. 1999).
Applying this two-part test to the claims in Plaintiff's First Amended Complaint, this Court concludes that those claims are not completely preempted by ERISA, and therefore do not furnish this Court with original jurisdiction. First, it is not disputed that Jonathon Wilder had some degree of health coverage from an ERISA plan administered by Western Growers Assurance Trust. Thus, the inquiry proceeds to the second step of determining "whether the claim in question is dependent on, and derived from the rights of the plan beneficiaries to recover benefits under the terms of the plan." Id. The Amended Complaint contains claims of common law misrepresentation and violation of Article 21.21 of the Texas Insurance Code. These state law misrepresentation claims are not dependant on and derived from the rights of a plan beneficiary, but rather are based on an alleged misrepresentation occurring without regard to whether Wilder had any insurance coverage. See Id. ("state law claims alleging common law misrepresentation and statutory misrepresentation under the Texas Insurance Code Art. 21.21 are not dependent on or derived from [the beneficiary's] right to recover benefits under the [ERISA] plan"); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 250 (same). This conclusion is unaffected by any assignment of claims made by Wilder to Plaintiff. Memorial, 904 F.2d at 250 (hospital brought action "in its independent status as a hospital, and [the beneficiary's] assignment of benefits is irrelevant to [the hospital's] right to recover.")
This Court must also consider any basis for jurisdiction arising from Plaintiff's Original Petition (the "Complaint"). As the Fifth Circuit has stated:
The rule that a plaintiff cannot oust removal jurisdiction by voluntarily amending the complaint to drop all federal questions serves the salutary purpose of preventing the plaintiff from being able to destroy the jurisdictional choice that Congress intended to afford a defendant in the removal statute.
Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985). In addition to the misrepresentation claims pleaded in the Amended Complaint, the Complaint includes a claim under section 17.46(b)(5) of the Texas Deceptive Trade Practices Act (the "DTPA"). Claims under the DTPA are claims made under a "state law of general application and not a law regulating insurance" and are not dependent on, and derived from the rights of the plan beneficiaries to recover under the plan
Transition, 164 F.3d at 954 (quoting
Herman Hosp. v. MEBA Medical Benefits Plan, 845 F.2d 1286,1290 (5th Cir. 1988)). Thus, Plaintiff's claim under the DTPA is completely preempted by ERISA, and, accordingly, provides this Court with subject matter jurisdiction over this case.
B.
With the filing of the Amended Complaint, Plaintiff's DTPA claim is no longer pending before this Court. Rather it appears to have been intentionally deleted by Plaintiff in an attempt to get the case back into state court. C.f. Giles, 172 F.3d at 340 ("She simultaneously moved to amend to delete her completely-preempted federal claims and moved for remand. Her obvious objective was to change the forum by getting back into state court. We do not see this as forum manipulation, but rather as a legitimate attempt to try her state law claims in the forum of her choice.") Similarly, any alleged facts made in the Complaint and not incorporated in the Amended Complaint have been "amended away." Hibernia National Bank v. Carner, 997 F.2d 94, 101 (5th Cir. 1993). Thus, this Court must decide whether to exercise supplemental jurisdiction over Plaintiff's remaining claims or to remand. As the Fifth Circuit stated in Giles:
A district court, in its discretion, may remand supplemental state law claims when it has dismissed the claims that provide the basis for original jurisdiction. When deciding whether to remand supplemental claims, a court should examine economy, fairness, convenience, and comity.
Giles, 172 F.3d at 340. After considering these four factors, this Court concludes that remand is proper in this case. The parties will not be subjected to greatly excessive expense as they have wisely "delayed conducting substantive discovery and filing substantive motions on the merits of the case in order to avoid potentially unnecessary time and expense" pending the resolution of the Motions.
Comity concerns also support remand, as the remaining claims are governed by state law, health care is "an area of traditional state regulation," and the state courts "being of equal dignity with federal courts, are equally competent to address" any potential conflict-preemption defense raised by Defendants.
Id., at 339. Moreover, this Court is not aware of any prejudice, unfairness or inconvenience which would result from having the case adjudicated by the state court. Finally, this Court concludes, pursuant to
Giles, that Plaintiff has not committed forum manipulation.
Id., at 340. Accordingly, this Court chooses to exercise its discretion by remanding this case to the state court.
Agreed Motion to Amend Scheduling Order (filed May 15, 2003), at 2.
III.
For the foregoing reasons, Plaintiff's Motion to Remand is hereby GRANTED. This Court hereby REMANDS this case to the 298th Judicial District Court of Dallas County, Texas.
As this case is now remanded to the state court, Defendants' Motion to Stay is hereby DENIED AS MOOT.
It is so ORDERED.