United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
Miller United States District Judge.
before the court is (1) plaintiff Experience Infusion
Centers, LLC's (“EIC”) motion to remand (Dkt.
17), and (2) defendants Anthem, Inc., Anthem Insurance
Companies, Inc., and Health Care Service
Corporation's (collectively, “Insurance
Defendants”) partial motions to dismiss (Dkts. 8, 27,
33). Having considered the motions, responses, replies, oral
arguments at the hearing, and applicable law, the court is of
the opinion that (1) EIC's motion to remand should be
GRANTED (Dkt. 17), and (2) the Insurance Defendants'
partial motions to dismiss should be DENIED AS MOOT (Dkts. 8,
seeking payment for medical expenses for infusion treatments
incurred by defendants Randall Lusby and Kristin Lusby. Dkt.
1-10 (Randall Lusby); Case No. 4:17-cv-1169, Dkt. 1-8
(Kristin Lusby). EIC is suing the Lusbys under Texas state
law for breach of contract and quantum meruit.
Id. EIC is suing the Insurance Defendants under the
Employee Retirement Income Security Act of 1974
(“ERISA”) and also various state law causes of
action. Id. (citing 29 U.S.C. § 1132).
of their treatments, EIC alleges that the Lusbys each signed
an assignment of benefits, consent, and release form allowing
EIC to seek payment from their insurer. Id. Further,
EIC alleges that the Lusbys agreed they would be responsible
to any costs not covered by insurance. Id. EIC is
seeking to recover $484, 773.31 in actual damages for Kristin
Lusby's treatment and $2, 119, 474.66 in actual damages
for Randall Lusby's treatment, pre- and post-judgment
interest, attorneys' fees, and court costs. Id.
September 23, 2015, EIC filed its original complaint against
Randall Lusby in the 125th Judicial District Court of Harris
County. Dkt. 1-2. On September 24, 2015, EIC filed its
original complaint against Kristin Lusby in the 190th
Judicial District Court of Harris County. Case No.
4:17-cv-1169, Dkt. 1-2. On March 12, 2017, EIC amended each
of the complaints to add the Insurance Defendants. Dkt. 1-10;
Case No. 4:17-cv-1169, Dkt. 1-8. On April 14, 2017, the
Insurance Defendants removed both cases to federal court on
the basis of federal question jurisdiction. Dkt. 1; Case No.
4:17-cv-1169, Dkt. 1. The Lusbys did not join in the removal,
nor did they file a separate consent to the removal. Dkt. 17
at 1; Dkt. 20 at 6. On June 20, 2017, the court consolidated
the cases. Dkt. 25; see also Dkt. 25, Ex. A
(demonstrating the minor differences between the two
12, 2017, EIC filed a motion to remand. Dkt. 17. The
Insurance Defendants responded, and EIC replied. Dkts. 20,
22. On April 21, 2017, the Insurance Defendants filed a
partial motion to dismiss. Dkts. 8, 27. EIC responded,
and the Insurance Defendants replied. Dkts. 16, 18. On July
13, 2017, the court held a hearing on both motions. Dkt. 28.
On July 14, 2017, EIC filed a second amended complaint. Dkt.
29. On July 28, 2017, the Insurance Defendants filed a second
amended motion to dismiss. Dkt. 33.
may remove to federal court “any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. §
1441 (2012). The party seeking removal bears the burden of
establishing federal jurisdiction. Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). This
statutory right to removal is strictly construed because
“removal jurisdiction . . . raises significant
federalism concerns.” Id. (citations omitted).
Therefore, “any doubt about the propriety of removal
must be resolved in favor of remand.” Gasch v.
Hartford Accident & Indem. Co., 491 F.3d 278, 281-82
(5th Cir. 2007).
argues that the Insurance Defendants' removal was
procedurally defective because they failed to procure the
Lusbys' consent to removal. Dkt. 17 at 1 (citing 28
U.S.C. §§ 1446, 1447). “When a civil action
is removed solely under section 1441(a), all defendants who
have been properly joined and served must join in or consent
to the removal of the action.” 28 U.S.C. §
1446(b)(2)(A); see also Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254, 1262 (5th Cir. 1988). Section
1441(a) governs removal based on the federal question
jurisdiction. 28 U.S.C. § 1441(a). As an initial matter,
both parties agree that EIC's claims against the
Insurance Defendants arise under ERISA, which invokes the
district court's federal question jurisdiction. Dkt. 17
at 3; Dkt. 20 at 5-7. Likewise, the parties agree that
EIC's breach of contract and quantum meruit
claims against the Lusbys arise under Texas state law.
argues that the basis for the court's jurisdiction over
EIC's claims against the Lusbys is supplemental
jurisdiction and, therefore, the Lusbys' consent to
removal is required. Dkt. 17 (citing 28 U.S.C. § 1367).
However, the Insurance Defendants argue that because
EIC's claims against the Lusbys are joined under section
1441(c), that the Lusbys' consent is not required. Dkt.
20 at 5 (citing 28 U.S.C. 1441 (c)). The court will address
each of the parties' arguments regarding jurisdiction in
the court will consider whether it has supplemental
jurisdiction over EIC's claims against the Lusbys.
“[In] any civil action of which the district courts
have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367. State and federal
claims form part of the same case or controversy when they
derive from a “common nucleus of operative fact.”
City of Chi. v. Int'l Coll. of Surgeons, 522
U.S. 156, 164-66, 118 S.Ct. 523 (1997); Mendoza v.
Murphy, 532 F.3d 342, 346 (5th Cir. 2008). “[A]
federal court has jurisdiction over an entire action,
including state-law claims, whenever the federal-law claims
and state-law claims in the case derive from a common nucleus
of operative fact and are such that [a plaintiff] would
ordinarily be expected to try them all in one judicial
proceeding.” Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 349, 108 S.Ct. ...