REPORT AND RECOMMENDATION
Plaintiff Bonnie Cicio brings suit against Vytra Healthcare
("Vytra"), a health maintenance organization ("HMO"), Vytra's
Medical Director, Dr. Brent Spears, M.D., and eight unidentified
individuals ("John Does 1-8"). Defendants removed this action to
federal court and now seek an order of dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the grounds that
Plaintiffs claims are preempted by the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.
Plaintiff maintains that her claims are state claims not
preempted by ERISA and moves for an order of remand. The above
motions were referred to the undersigned by the Honorable Joanna
Seybert, United States District Judge, by order dated August 22,
2000 for a report and recommendation.
Plaintiff was employed by North Fork Bank and received health
insurance coverage for herself and her husband, Carmine Cicio,
through an insurance policy purchased by North Fork Bank. Vytra
administered the policy. (Compl., ¶¶ 9-11.)
According to Plaintiff, Carmine Cicio was diagnosed with
multiple myeloma, a type of blood cancer, in March 1997. (Id.,
¶ 14.) On January 28, 1998, Dr. Edward Samuel, Mr. Cicio's
oncologist, wrote Vytra requesting that Mr. Cicio receive a
tandem double stem cell transplant, a treatment which Dr. Samuel
described as medically necessary and possibly life-saving.
(Id., ¶ 15.) In a letter dated February 23, 1998 from Dr.
Spears, Vytra's Medical Director, Vytra denied the request,
stating that a double stem cell transplant was an
"experimental/investigational" procedure and thus not covered
under Mr. Cicio's policy. (Id., ¶¶ 19, 21.) Mr. Cicio, through
Dr. Samuel, appealed Vytra's decision in writing on March 4,
1998, which resulted in Vytra's approval of a single stem cell
transplant on March 25, 1998.[fn1a] (Id., ¶¶ 25, 29.) However,
according to Plaintiff, the window of opportunity for the
effectiveness of the treatment had passed by the time Vytra
approved coverage for a single stem cell transplant on March 25,
1998. Mr. Cicio died approximately six weeks later.
On May 3, 2000, Plaintiff commenced this action against
Defendants in the Supreme Court of the State of New York,
Suffolk County alleging eighteen causes of action arising under
New York state law. The theories of liability include: medical
malpractice, practicing medicine without a license, negligence,
gross negligence, tortious interference with the
physician-patient relationship, breach of fiduciary duty,
misrepresentation, negligent misrepresentation, negligent
supervision of employees, negligent infliction of emotional
distress, intentional infliction of emotional distress, breach
of contract, bad faith breach of insurance contract, and
deceptive acts and business practices under § 349 of the New
York General Business Law ("GBL"). On May 30, 2000, Defendants
filed a notice of removal on the basis that Plaintiffs claims
relate to an "employee welfare benefit plan" as defined by
ERISA. See 29 U.S.C. § 1002(3) (definition of "employee
welfare benefit plan").
On June 21, 2000, Defendants moved for an order of dismissal
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim
upon which relief may be granted. On June 28, 2000, Plaintiff
moved to remand this action to the Supreme Court of the State of
New York, Suffolk County pursuant to 28 U.S.C. § 1447(c).
I. Removal Jurisdiction
Removal jurisdiction under 28 U.S.C. § 1441 exists when a
federal district court has original subject-matter jurisdiction
over the plaintiffs claim. See 28 U.S.C. § 1441; Lupo v.
Human Affairs Int'l. Inc., 28 F.3d 269, 271 (2d Cir. 1994).
Under 28 U.S.C. § 1447(c), a district court must remand an
action to state court "[i]f at any time before final judgment it
appears that the district court lacks subject-matter
jurisdiction." 28 U.S.C. § 1447(c); Lupo, 28 F.3d at 271. A
district court's assessment of subject matter jurisdiction for
the purposes of determining removal jurisdiction is governed by
the well-pleaded complaint rule. See Lupo, 28 F.3d at 272
("[I]n addressing the substantive jurisdictional issue, the
initial matter before us is the application of the well-pleaded
complaint rule"); Romney v. Lin, 94 F.3d 74, 79 (2d Cir. 1996)
("`[i]t is long settled law that a cause of action arises under
federal law only when the plaintiffs well-pleaded complaint
raises issues of federal law'") (quoting Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95
L.Ed.2d 55 (1987)).
The well-pleaded complaint rule limits the search for federal
subject matter jurisdiction to "`what necessarily appears in the
plaintiffs statement of his own claim in the bill or
declaration, unaided by anything alleged in anticipation or
avoidance of defenses which it is thought the defendant may
interpose.'" See Lupo, 28 F.3d at 272 (quoting Taylor v.
Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 725, 58 L.Ed. 1218
(1914)). Courts have also recognized an important corollary to
the well-pleaded complaint rule, known as the complete
preemption doctrine, which provides that, "Congress may so
completely preempt a particular area that any civil complaint
raising this select group of claims is necessarily federal in
character." Metropolitan Life Ins. Co., 481 U.S. at 63-63, 107
S.Ct. at 1546.
The well-pleaded complaint rule and the complete preemption
doctrine have particular relevance to actions removed to federal
court by the defendant on the basis of ERISA preemption. In
Romney v. Lin, 94 F.3d 74 (2d Cir. 1996), the Second Circuit
[A] state-law cause of action arises under federal
law within the meaning of 28 U.S.C. § 1331, and is
removable under 28 U.S.C. § 1441, if (1) the cause of
action is based on a state law that is preempted by
ERISA, and (2) the cause of action is `within the
scope of the civil enforcement provisions of ERISA §
502(a)'. That is because Congress specifically
intended to exert `extraordinary preemptive power'
when it adopted the detailed provisions of ERISA §
Romney, 94 F.3d at 78 (internal citations omitted).
"[P]reemption is therefore one requisite of removal
jurisdiction, as well as the key to the merits." Id. State-law
causes of action may not be removed to federal court solely on
the theory of ERISA preemption. See id. ("Preemption alone is
insufficient to support removal jurisdiction.") The second prong
of the Romney test is that the state-law claim falls within
the scope of the civil enforcement provisions of ERISA § 502(a).
Because the preemption issue also deals with the merits, we
address the latter condition first.
(1) "Within the Scope of" ERISA § 502(a)
ERISA § 502(a), in relevant part, provides:
A civil action may be brought —
(1) by a participant or beneficiary
(B) 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). Congress intended for the civil
enforcement mechanisms created under § 502(a) to be the
exclusive remedy for rights guaranteed by ERISA. ERISA § 502(a)
"represents a careful balancing of the need for prompt and fair
claims settlement procedures against the public interest in
encouraging the formation of employee benefit plans." Romney,
94 F.3d at 80 (quoting Ingersoll-Rand v. McClendon,
498 U.S. 133, 144, 111 S.Ct. 478, 485, 112 L.Ed.2d 474 (1990) and Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54, 107 S.Ct. 1549,
1556, 95 L.Ed.2d 39 (1987)). ERISA defines an "employee welfare
benefit plan" as:
any plan, fund or program which was . . . established
or maintained by an employer . . . for the purposes
of providing for its participants or their
beneficiaries, through the purchase of insurance or
otherwise, (A) medical, surgical, or hospital care or
benefits, or benefits in the event of sickness,
accident, disability, death or unemployment . . .
29 U.S.C. § 1002(1)(A). In Romney, the Second Circuit
reaffirmed its holding in Smith v. Dunham-Bush, Inc.,