The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is the plaintiffs' motion to
remand. The matter has been fully briefed and is thus ripe for
disposition. For the reasons that follow, the motion will be
Beginning in January 2003, Plaintiff Maureen Kurtek was covered
by a comprehensive health insurance policy provided through
Plaintiff Joseph Kurtek's employment. Defendant Capital Blue
Cross provided the insurance, and the benefits were underwritten
by Defendant Capital Advantage Insurance Company (hereinafter
"defendants" or "Capital").
Plaintiff Maureen Kurtek (hereinafter "plaintiff") was
diagnosed with Lupus in 1989. In order to treat the disease,
plaintiff began to undergo "IV IG Therapy" in 1998, which was
covered under the health insurance contract she had at that time.
IV IG Therapy requires a two (2) day inpatient hospital admission and costs approximately $14,000.00. The therapy was too expensive
for plaintiff to pay for herself, and she could not obtain it
unless it was covered by health insurance.
In January 2003, the new insurance took effect, and plaintiff
contacted Defendant Capital to arrange IV IG Therapy. Defendant
Capital's representative informed plaintiff that she would have
to check with her supervisor about the treatments as they were
considered "experimental." The representative told plaintiff that
she would get back to her once a decision was made. Subsequently,
plaintiff spoke with another representative of the company who
assured her that someone was working on the IV IG Therapy issue
and would get back to her. Several days later, plaintiff sought
to speak to the representative's supervisor, but the supervisor
would not talk to her. No one on behalf of the defendants ever
responded to her until March 11, 2003.
On March 1, 2003, before the therapy was approved, plaintiff
was hospitalized for acute catastrophic antiphospholipid antibody
syndrome ("APLS"). While being treated for this condition,
plaintiff suffered multiple organ system failures and had only a
5% chance of survival. Plaintiff avers that this condition would
have been prevented or dramatically diminished had she received
the IV IG Therapy in January. On March 11, 2003, defendants
contacted plaintiff to inform her that the IV IG Therapy would be
100% covered under Defendant Capital's comprehensive health
coverage as long as the services were medically necessary.
Because of defendants' delay in coordinating, arranging,
directing and paying for the administration of the therapy,
plaintiff suffered from acute catastrophic APLS, prolonged
hospitalizations, tracheotomy, pulmonary failure, renal failure,
sepsis, gangrene, sinus damage, transmetatarsal amputation of the
right foot, osteomyelitis, loss of the tips of her index fingers
and neuropathy according to the plaintiff. She will require daily injections of medicine into her stomach, sinus surgery,
medical care, attention and monitoring for the remainder of her
Based upon these facts, plaintiffs filed the instant four-count
lawsuit. The counts allege the following four state law causes of
action against the defendants: 1) Negligence in medical judgment
when making medical treatment decisions and coordinating and
directing medical care in addition to negligence in selecting,
hiring, retaining, supervising and training competent people to
exercise reasonable medical judgment when carrying out their
responsibilities under the insurance coverage; 2) Medical
negligence in, inter alia, delaying approval of the IV IG
therapy; 3) Loss of consortium; and 4) Negligent infliction of
Plaintiffs filed this lawsuit in the Luzerne County Court of
Common Pleas on November 17, 2004. On December 17, 2004,
defendants filed a notice of removal to this court. The
defendants' basis for removal is that this case falls under the
civil enforcement provisions of the federal Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. § 1132(a) et seq.
Defendants assert that plaintiffs' state law negligence claims
are completely preempted by ERISA. Plaintiffs filed a motion to
remand on February 18, 2005, bringing the case to its present
Defendants removed this case pursuant to 28 U.S.C. § 1441(a),
which provides that a case can be removed to federal court if the
United States District Court to which it is removed would have
had original jurisdiction over the action. 28 U.S.C. § 1441(a).
We have original jurisdiction over cases arising under federal
law. 28 U.S.C. § 1331. Defendants assert that we have
jurisdiction as this case arises under ERISA, a federal law.*fn2
Plaintiffs argue that their claims are simply state law
allegations of medical negligence and corporate negligence that
do not involve federal law. Therefore, federal law is not
involved and the case should be remanded.*fn3
Defendants bear the burden of establishing jurisdiction.
Difelice v. Aetna U.S. Healthcare, 346 F.3d 442, 445 (3d Cir.
2003). We must accept as true all factual allegations of ...