Case 1:22-cv-03447-EK-LB Document 1 Filed 06/10/22 Page 1 of 7 PageID #: 1
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`Case No.:
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`NOTICE OF REMOVAL
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`Plaintiff,
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`-against-
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`GREENPOINT CHIROPRACTIC,
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`UNITED HEALTHCARE GROUP and "JOHN
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`DOE CORPORATION", said company being
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`fictitious, as true corporate entity is unknown,
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`TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF NEW YORK:
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`Defendants.
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`PLEASE TAKE NOTICE that Defendant United HealthCare Group (“United”) removes
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`the above-entitled action filed by Plaintiff Greenpoint Chiropractic (“Plaintiff”), presently of record
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`at Index No. 512413/2022 in the Supreme Court of the State of New York, County of Kings, to this
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`Court pursuant to 28 U.S.C. §1441(a). In support of removal, Defendant would show unto the Court
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`as follows:
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`1.
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`On or about April 28, 2022, Plaintiff commenced an action against the Defendant in
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`the Supreme Court of the State of New York, County of Kings. The suit is styled Greenpoint Chiropractic
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`v. United HealthCare Group and “John Does Corporation”, Index No. 512413/2022.
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`2.
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`On May 13, 2022, Plaintiff served copies of the Summons and Complaints on the
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`Defendant by personally delivering them via process server to the Defendant’s registered agent, CT
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`Corporation. The Summons and Complaint are the initial pleadings Plaintiff sent to the Defendant
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`Case 1:22-cv-03447-EK-LB Document 1 Filed 06/10/22 Page 2 of 7 PageID #: 2
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`forming the basis for this action. A true and correct copy of the Summons and Complaint1 is attached
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`hereto as Exhibit A and proof of service is attached hereto as Exhibit B.2
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`3.
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`The 2,514 paragraph Complaint (“Compl.”) asserts 114 causes of action (Counts 1-
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`112 and 225-226) against United, all of which (although not labeled) assert New York State law based
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`causes of action for (1) breach of (implied and actual) contract; (2) account stated; (3) fraud; (4) breach
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`of covenant of good faith and fair dealing. The vast majority of Plaintiff’s causes of action against
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`United are brought by Plaintiff as the alleged assignee of benefits from various individual patients who
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`are alleged to be members of group health benefit plans insured and/or administered by United.
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`Plaintiff alleges that United improperly denied many of its claims for benefits seeking payment for its
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`charges for services rendered to United’s health plan members. (See Exhibit A).
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`4.
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`Defendant removes this lawsuit to federal court based on federal question jurisdiction
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`under 28 U.S.C. §1441(a).
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`5.
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`The filing of this petition for removal is timely because it is being done within thirty
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`(30) days of the date the Defendant United HealthCare Group first received notice of this case on
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`May 13, 2022. (See Exhibit A).3
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`6.
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`By filing this Notice of Removal, Defendant does not waive its right to object to
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`service, service of process, the sufficiency of process, venue or jurisdiction, and specifically reserves
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`the right to assert any defenses and/or objections to which it may be entitled.
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`THIS ACTION IS REMOVABLE ON THE BASIS OF FEDERAL QUESTION
`SUBJECT MATTER JURISDICTION UNDER 28 U.S.C.§1441(a)
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`7.
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`This action is removable to this Court based on federal question subject matter
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`jurisdiction.
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`1 The Complaint has been redacted to remove patient identifying information and includes only initials.
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` The only other document included on the State Court’s docket is attached hereto as Exhibit C.
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` 3
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` The requirements for consent to removal “does not extent to unserved (let alone unidentified)” fictitious
`“John Doe” defendants. Bowen v. Home Depot, No. 01-cv-2411, 2001 WL 920263 (E.D.N.Y. Aug. 1, 2001).
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`8.
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`The basis for federal question subject matter jurisdiction is that Plaintiff’s Complaint
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`seeks payment of benefits under at least one employee welfare benefit plan governed by the
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`Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq., as amended (“ERISA”)
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`(See Compl. ¶¶ 370-456).
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`9.
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`As the United States Supreme Court has repeatedly held, the “carefully integrated
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`civil enforcement provisions” in Section 502(a) of ERISA, 29 U.S.C. §1132(a), set forth the
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`“exclusive” remedies available for the allegedly erroneous denial, non-payment, or underpayment of
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`benefits available under an ERISA-governed health benefits plan. Pilot Life Ins. Co. v. Dedeaux, 481
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`U.S. 41, 54 (1987). Indeed, the exclusivity of ERISA remedies is so strong that it permits removal of
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`any purported state-law cause of action that amounts to an alternative mechanism for enforcing a
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`claim to ERISA-governed benefits. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)
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`(holding the preemptive force of ERISA operates to “convert[]” ordinary state law claims into
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`federal claims for purposes of the well-pleaded complaint rule); see also Aetna Health, Inc. v. Davila,
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`542 U.S. 200, 209 (2004) (holding that “any state-law cause of action that duplicates, supplements or
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`supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make
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`the ERISA remedy exclusive and is therefore pre-empted”).
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`10.
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`Plaintiff’s Complaint alleges that it “accepted a valid assignment of benefits” from
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`each of the dozens of individual patients identified in the Complaint.
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`11.
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`Specifically, Plaintiff alleges that individuals A.H., E.H., I.H. and L. H.4 were covered
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`participants or beneficiaries under a group policy of insurance issued to Lendlease Americas
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`Holdings, Inc. by United under group policy number 228599. Compl., ¶¶ 372, 394, 416, 438.
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`12.
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`Plaintiff alleges that A.H., E.H., I.H. and L. H. each is “an assignor of benefits to
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`Plaintiff” and that “Plaintiff accepted a valid assignment of benefits” from each of those individuals,
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`4 The individuals are referred to herein by their initials.
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`or their parent or legal guardian, as appropriate. Compl., ¶¶ 370, 375, 392, 397, 414, 419, 436, 441.
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`13.
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`Defendant has reviewed its files and determined that at all relevant times identified in
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`the Complaint, A.H., E.H., I.H. and L. H. were participants and/or beneficiaries in the Lendlease
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`Americas Holdings, Inc. (“Lendlease”) Choice Plus Plan (Group No. 228599), which is an employee
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`welfare benefit plan governed by ERISA. See Exhibit D (2020 SPD) and Exhibit E (2021 SPD).
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`The Plan is self-funded by Lendlease and UnitedHealthcare Service, LLC, as the designated claims
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`administrator, administers claims under the Plan pursuant to a full grant of discretionary authority.
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`(See Ex. D, pp. 6, 11 and Ex. E pp. 7, 11).
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`14.
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`The Plan permits participants to assign their benefits under the Plan to non-network
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`providers with United’s consent, and provides criteria for what constitutes a valid assignment of
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`benefits under the Plan. Ex. D, p. 88 and Ex. E, p. 87.
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`15.
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`Both the 2020 and 2021 Plans provide:
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`Payment of Benefits
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`When you assign your Benefits under the Plan to a non-Network provider with
`UnitedHealthcare’s consent, and the non-Network provider submits a claim for payment,
`you and the non-Network provider represent and warrant that the Covered Health Services
`were actually provided and were medically appropriate.
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`To be recognized as a valid assignment of Benefits under the Plan, the assignment must
`reflect the Covered Person’s agreement that the non-Network provider will be entitled to all
`the Covered Person’s rights under the Plan and applicable state and federal laws, including
`legally required notices and procedural reviews concerning the Covered Person’s Benefits,
`and that the Covered Person will no longer be entitled to those rights….
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`Ex. D, p. 88 and Ex. E, p. 87.
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`16.
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`Plaintiff’s Complaint alleges that it has received valid assignments of benefits from
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`A.H., E.H., I.H. and L. H. or, where applicable, their parents or guardians. Compl., ¶¶ 375, 397,
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`416, 438.5
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`5 United does not concede the validity of any alleged assignments, as Plaintiff has not attached them to the
`Complaint. Plaintiff will have to prove that any alleged assignments are “valid” pursuant to the terms of the
`Plan.
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`4
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`17.
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`Plaintiff alleges, for each claim identified for A.H., E.H., I.H. and L. H., that it
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`“billed the assignor’s bills” to United, and that “the bills for reimbursement were not paid” by
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`United. See Compl.¶¶ 376-77, 399-400, 421-422, 443-444.
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`18.
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`For each of the foregoing claims, Plaintiff alleges that it is entitled to payment as
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`“agreed to and obligated under the Contract,” (Compl., ¶¶ 383, 405, 427, 449). Plaintiff defines
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`the “Contract” as the “contracts of insurance to provide coverage” for medical treatment to the
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`members. Compl., ¶ 13. With respect to A.H., E.H, I.H. and L.H., then, Plaintiff is alleging
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`entitlement to payment pursuant to the “Contract,” i.e., the Plan.
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`19.
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`Because Plaintiff alleges that it is bringing New York State law causes of action based
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`on valid assignments of benefits it received from A.H., E.H., I.H. and L. H., all of whom were
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`participants and/or beneficiaries of an ERISA-governed Plan, and challenges United’s
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`determinations on Plaintiff’s claims for benefits under the Plan, Plaintiff’s claims are completely
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`preempted by ERISA. See Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004); Metropolitan Life Ins. Co. v.
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`Taylor, 481 U.S. 58 (1987); Montefiore Medical Center v. Teamsters Local 272, 642 F.3d 321 (2d Cir. 2011);
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`Crawley-Mack v. Rite Aid of N.Y., Inc., 2017 U.S. Dist. LEXIS 76706, at *6-17 (E.D.N.Y. May 17,
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`2017)(holding that plaintiff’s state law breach of fiduciary duty claim was preempted by ERISA);
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`Ciampa v. Oxford Health Ins., Inc., No. 15-CV-6451, 2016 U.S. Dist. LEXIS 176672, at *8 (E.D.N.Y.
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`Dec. 21, 2016)(holding that plaintiff’s state law claims were completely preempted by ERISA
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`because “consideration of the [ERISA] Plan terms was necessary to determine whether defendant
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`committed any deceptive acts”); Plastic Surgery Group, P.C. v. United Healthcare Ins. Co. of N.Y., 64 F.
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`Supp. 3d 459, 468 (E.D.N.Y. 2014)(ruling that plaintiff’s state law claims for payment of claims for
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`surgical services were completely preempted); Enigma Mgmt., Corp. v. Multiplan, Inc., 994 F. Supp.2d
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`290 (E.D.N.Y. 2014) (ruling the provider’s claim for breach of contract and unjust enrichment were
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`completely preempted by ERISA); North Shore-Long Island Jewish Health Care Sys., Inc. v. Multiplan, Inc.,
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`953 F. Supp.2d 419 (E.D.N.Y. 2013); North Shore-Long Island Jewish Health Sys., Inc. v. Local 272 Welfare
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`Fund, No. 12 Civ. 1056 (CM), 2013 WL 174213 (S.D.N.Y. Jan. 14, 2013); Neuroaxis Neurosurgical
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`Assocs., P.C. v. Cigna Healthcare of N.Y., Inc., No. 11 Civ. 8517(BSJ)(AJP), 2012 WL 4840807, at *3-*5
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`(S.D.N.Y. Oct. 4, 2012); Gianetti v. Blue Cross & Blue Shield of Conn., Inc., No. 3:07cv01561(PCD),
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`2008 WL 1994895, *8 (D. Conn. May 6, 2008); Berry v. MVP Health Plan, Inc., No. 1:06-CV-120
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`(NAM/RFT), 2006 WL 4401478, *8 (N.D.N.Y. Sept. 30, 2006) (ruling provider’s unjust enrichment
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`claim was preempted by ERISA); see also Temple Univ. Hosp., Inc. v. Group Health, Inc., No. 05-102,
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`2006 WL 1997424 (E.D. Pa. July 13, 2006)(ruling that provider hospital claims allegedly based on
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`access agreement with third-party were preempted by ERISA). See e.g. Atl. Shore Surgical Assocs. v.
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`United Healthcare/Oxford, No. 18CV9506PGSDEA, 2019 WL 1382103, at *4 (D.N.J. Jan. 23, 2019);
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`see also Glastein v. Horizon Blue Cross Blue Shield of Am., No. 17-cv-7983 (PGS)(TJB), 2018 U.S. Dist.
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`LEXIS 135911, at *7-8 (D.N.J. Aug. 13, 2018); Atl. Shore Surgical Assocs. v. Horizon Blue Cross Blue
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`Shield, Civil Action No. 17-cv-07534 (FLW) (DEA), 2018 WL 2441770, at *3-7 (D.N.J. May 31,
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`2018); Advanced Orthopedics & Sports Med. Inst. v. Empire Blue Cross Blue Shield, No. 17-cv-
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`08697(FLW)(LHG), 2018 WL 2758221, at *7 (D.N.J. June 7, 2018).
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`20.
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`A state law claim is completely preempted, and thus removable to this Court under
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`ERISA Section 502(a) if: (1) the plaintiffs could have brought the claim under Section 502(a); and (2)
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`no other independent legal duty supports the plaintiffs’ claim. See Davila, 542 U.S. at 201. In
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`determining whether state claims fall within the scope of Section 502(a), the Court looks to the
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`substance of the Plaintiff’s allegations; “the particular label affixed to them” is immaterial. Davila,
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`542 U.S. at 214.
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`21. Here, in Counts 33-40 of Plaintiff’s Complaint, Plaintiff specifically alleges that it is
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`seeking benefits as an assignee of A.H., E.H., I.H. and L. H.’s rights related to purported denials of
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`claims for benefits. A.H., E.H., I.H. and L.H. are participants and/or beneficiaries of and ERISA-
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`governed Plan. The Plan permits valid assignments of benefits. Accordingly, assuming Plaintiff has
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`the valid assignments of benefits as it alleges, Plaintiff could have (and should have) brought its
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`Case 1:22-cv-03447-EK-LB Document 1 Filed 06/10/22 Page 7 of 7 PageID #: 7
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`claims under ERISA §502(a)(1)(B). See Davila, supra.
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`22.
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`Plaintiff’s state law based causes of action set forth in its Complaint are therefore
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`completely preempted by ERISA, this action is one over which this Court has original jurisdiction
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`under 28 U.S.C. §1331 and is one that may be removed to this Court by the Defendant pursuant to
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`the provisions of 28 U.S.C. §1441(a) because it is a civil action where the Complaint alleges a federal
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`question. See 28 U.S.C. §1367(a).
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`23.
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`The Court may exercise supplemental jurisdiction over any state law claims. See 28
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`U.S.C. § 1367(a); Bassel v. Aetna Health Ins. Co. of New York, No. 17-cv-5179, 2018 WL 4288635, *4
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`(E.D.N.Y. Sept. 7, 2018).
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`WHEREFORE, Defendant United HealthCare Group, in this action described herein
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`currently pending in the Supreme Court of the State of New York, County of Kings, pray that this
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`action be removed there from to this Honorable Court.
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`Dated: June 10, 2022
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`Respectfully submitted,
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`By:
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`s/Michael H. Bernstein
`Michael H. Bernstein
`ROBINSON & COLE LLP
`Chrysler East Building
`666 Third Ave., 20th Floor
`New York, NY 10017
`Main (212) 451-2900
`Facsimile (212) 451-2999
`Counsel for Defendant United HealthCare Group
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