Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MONTEFIORE MEDICAL CENTER,
`MONTEFIORE NEW ROCHELLE HOSPITAL,
`MONTEFIORE MOUNT VERNON
`HOSPITAL, MONTEFIORE NYACK
`HOSPITAL, ST. LUKE’S CORNWALL
`HOSPITAL, WINIFRED M. BURKE REHAB
`HOSPITAL, AND WHITE PLAINS HOSPITAL
`MEDICAL CENTER,
`
`Plaintiffs,
`
`-v-
`
`AETNA HEALTH, INC., and AETNA HEALTH
`INSURANCE COMPANY OF NEW YORK,
`
`Defendants.
`
`Case No. 1:21-cv-07838
`
`NOTICE OF REMOVAL
`
`TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF NEW YORK:
`
`The Defendants herein, Aetna Health Inc. and Aetna Health Insurance Company of New
`
`York (collectively, “Aetna”) by their attorneys, Baker Botts L.L.P., respectfully represent as
`
`follows:
`
`1.
`
`Aetna respectfully invokes this Court’s subject-matter jurisdiction and removes the
`
`state-court action described below from the Supreme Court of the State of New York, County of
`
`Bronx, to the United States District Court for the Southern District of New York. Removal is
`
`proper pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.
`
`2.
`
`On or about August 17, 2021, Plaintiffs Montefiore Medical Center, Montefiore
`
`New Rochelle Hospital, Montefiore Mount Vernon Hospital, Montefiore Nyack Hospital, St.
`
`Luke’s Cornwall Hospital, Winifred M. Burke Rehab Hospital, and White Plains Hospital Medical
`
`

`

`Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 2 of 6
`
`Center (collectively, “Montefiore”) filed a Summons with Notice, Index No. 811188/2021E, in the
`
`Supreme Court of the State of New York, County of Bronx (the “State Action”). On August 20,
`
`2021, Plaintiffs served the Summons with Notice on Aetna by service to the New York State
`
`Department of Financial Services. The Department of Financial Services then served Aetna with
`
`a copy of the Summons with Notice on August 26, 2021. Pursuant to 28 U.S.C. § 1446(a), a true
`
`and correct copy of all pleadings, process, and orders served upon Aetna in the State Action are
`
`attached hereto as Exhibit A.1-2.
`
`3.
`
`On September 9, 2021, Aetna served Plaintiffs’ counsel with a demand for a
`
`complaint, which must be served on Aetna by September 29, 2021, pursuant to N.Y. CPLR §
`
`3012(b).
`
`4.
`
`In its Summons with Notice, Montefiore alleges, in part, that Aetna violated the
`
`New York State Prompt Pay Law, N.Y. Insurance Law § 3224-a, by failing to timely pay
`
`Montefiore for “millions of dollars for services that were actually provided and which Aetna knew
`
`it was responsible to pay.” Exhibit A.2, Summons with Notice, at ¶ 24. Montefiore in substance,
`
`appears to allege that Aetna directly reimbursed New York State for healthcare costs mistakenly
`
`billed to Medicaid when Aetna was the primary payor, rather than reimburse Montefiore at higher
`
`contract rates for the same services. Although Montefiore does not specify the members whose
`
`claims are at issue in the Summons with Notice, Aetna believes that most, if not all, of those
`
`members are enrolled in employee welfare benefit plans governed by the Employee Retirement
`
`Income Security Act of 1974, 29 U.S.C. § 1001, et seq., as amended (“ERISA”). Pursuant to 29
`
`U.S.C. §1132(e)(1), federal courts have primary jurisdiction over such claims.
`
`5.
`
`Thus, although Montefiore’s allegations concerning its right to payment are framed
`
`as arising under New York Insurance Law, they are in fact cognizable under ERISA and are
`
`

`

`Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 3 of 6
`
`therefore preempted. See Neurological Surgery, P.C. v. Siemens Corp., No. 17 Civ. 3477 (ADS)
`
`(AKT), 2017 WL 6397737, at *6 (E.D.N.Y. Dec. 12, 2017) (“Although plaintiffs cite New York
`
`statutory law in the complaint, the factual allegations reveal the true motive of this action, to wit,
`
`to recover benefits for medical services to which, plaintiffs, as assignees, believe they are entitled
`
`under the terms of the plans. Thus, plaintiffs are seeking to use N.Y. INS. LAW §§ 4301(b)(2) and
`
`3224-a(a), as ‘separate vehicle[s] to assert a claim for benefits outside of ERISA’s remedial
`
`scheme.’”) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 217 (2004)).
`
`6.
`
`Moreover, the remaining state law claims referenced in Montefiore’s Summons
`
`with Notice are either completely preempted by ERISA and/or are removable to federal court
`
`pursuant to supplemental jurisdiction. Montefiore alleges that Aetna breached certain services
`
`agreements with the hospitals when Aetna denied benefits claims made by its members for certain
`
`hospital services. Exhibit A.2 at ¶ 26-29. But this allegation also goes to Montefiore’s supposed
`
`right to payment from Aetna pursuant to claims of coverage under ERISA-controlled plans. See,
`
`e.g., Davila, 542 U.S. at 209 (“Therefore, any state-law cause of action that duplicates,
`
`supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear
`
`congressional intent to make the ERISA remedy exclusive and is therefore pre-empted. . . . Hence,
`
`causes of action within the scope of the civil enforcement provisions of § 502(a) [are] removable
`
`to federal court.”).1 Further, concerning these and any remaining claims, including any state-law
`
`contract claims referenced in the Summons with Notice, this Court has subject-matter jurisdiction
`
`over the entire State Action under 28 U.S.C. § 1367(a), which provides for supplemental
`
`jurisdiction over state-law claims that form part of the same case or controversy as claims over
`
`which federal courts have original jurisdiction. The allegations in the Summons with Notice all
`
`1 Internal citations, quotation marks, and alterations omitted.
`
`

`

`Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 4 of 6
`
`concern Montefiore’s supposed right to payment from Aetna for services provided to Aetna
`
`insureds. Thus, the entire State Action is properly removed to this Court on the basis of federal-
`
`question jurisdiction pursuant to 28 U.S.C. §§ 1441(a) and 1446(b). Montefiore Med. Ctr. v.
`
`Teamsters Local 272, 642 F.3d 321, 332-33 (2d Cir. 2011) (holding certain claims completely
`
`preempted by ERISA and, therefore, that “assuming arguendo that any state-law claims exist, they
`
`are properly subject to the District Court’s supplemental jurisdiction”).
`
`7.
`
`Accordingly, the State Action is one which may be removed to this Court pursuant
`
`to 28 U.S.C. § 1441(a).
`
`8.
`
`The filing of this Notice of Removal is timely, as it is being made within thirty (30)
`
`days of the date Aetna first received notice that this action became removable based on federal-
`
`question jurisdiction. The Summons with Notice was served on the New York Department of
`
`Financial Services on August 20, 2021 and, in turn, on Aetna by the Department on August 26,
`
`2021. Aetna filed and served this Notice of Removal on September 20, 2021. See, e.g., Whitaker
`
`v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001) (“Because the defendants filed their
`
`notice of removal within that thirty day period, we find no error with the district court’s ultimate
`
`conclusion that the removal was timely.”).
`
`9.
`
`By filing this Notice of Removal, Aetna does not waive any defenses that may be
`
`available to it.
`
`10.
`
`As required by 28 U.S.C. § 1446(d), Aetna will provide written notice of this Notice
`
`of Removal to Garfunkel Wild, P.C., counsel of record for Montefiore, and will promptly file a
`
`copy of this Notice of Removal with the Clerk of the Supreme Court of New York, County of
`
`Bronx.
`
`

`

`Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 5 of 6
`
`CONCLUSION
`
`WHEREFORE, the above-described action now pending against Aetna in the Supreme
`
`Court of New York, County of Bronx is removed to the United States District Court for the
`
`Southern District of New York.
`
`Dated: New York, New York
`September 20, 2021
`
`
`BAKER BOTTS L.L.P.
`
`Earl B. Austin
`Brendan F. Quigley
`Eric DuPont
`30 Rockefeller Plaza
`New York, New York 10112
`Tel.: (212) 408-2500
`Fax: (212) 408-2501
`earl.austin@bakerbotts.com
`brendan.quigley@bakerbotts.com
`eric.dupont@bakerbotts.com
`
`Attorneys for Defendants Aetna Health, Inc.
`and Aetna Health Insurance Company of
`New York
`
`

`

`Case 1:21-cv-07838 Document 1 Filed 09/20/21 Page 6 of 6
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 20th day of September 2021, a copy of the foregoing NOTICE
`
`OF REMOVAL was electronically filed with the clerk of the court of the United States District
`
`Court, Southern District of New York. The document was also served on Plaintiff, by overnight
`
`courier and by e-mail, to its counsel of record as follows:
`
`Michael J. Keane
`Colleen M. Tarpey
`Joshua M. Zarcone
`GARFUNKEL WILD, P.C.
`111 Great Neck Road
`Great Neck, New York 11021
`(516) 393-2200
`mkeane@garfunkelwild.com
`ctarpey@garfunkelwild.com
`jzarcone@garfunkelwild.com
`
` Earl B. Austin
`
`