Opinion
Civil Action Nos. 01-4675 (JBS), 01-4964 (JBS), 01-5217 (JCL), 01-5237 (JWB), 01-5339 (AMW), 01-5812 (JBS), No. 02-417 (JBS) [CONSOLIDATED]
July 24, 2002
Natalie A. Finkelman, Esq., Scott R. Shepherd, Esq., James C. Shah, Esq., Shepherd Finkelman, LLC, Turnersville, NJ, John W. Trimble, Jr., Esq., Morrison Trimble, Turnersville, NJ, for plaintiffs Carducci, Levine, and Edmonson.
Franklin P. Solomon, Esq., Weitz Luxenberg, Cherry Hill, NJ, Donna Siegel Moffa, Esq., Lisa J. Rodriguez, Esq., Trujillo, Rodriguez Richards, LLC, Haddonfield, NJ, for plaintiffs West, Collins, and Bogurski.
Burt M. Rublin, Esq., Raymond A. Quaglia, Esq., Ballard, Spahr, Andrews Ingersoll, LLP, Philadelphia, PA, for defendants Aetna U.S. Healthcare, Horizon Blue Cross Blue Shield of NJ, and Horizon Healthcare Services.
Edward S. Wardell, Esq., Kelley, Wardell Craig, LLP, Haddonfield, NJ, for defendant Horizon Healthcare Services, Inc., d/b/a Horizon Blue Cross Blue Shield of New Jersey, and also for defendants Aetna U.S. Healthcare, Horizon Blue Cross Blue Shield of NJ, and Horizon Healthcare Services.
William J. O'Shaughnessy, Esq., Harvey C. Kaish, Esq., B. John Pendleton, Esq., McCarter English, LLP, Newark, NJ, for defendants Oxford Health Plans, Inc. and Health Net of the Northeast, Inc.
Theodore D. Aden, Esq., Carol A. Lafond, Esq., LeBoeuf, Lamb, Greene McRae, LLP, Newark, NJ, Edward A. Scallet, Esq., Thomas F. Fitzgerald, Esq. William F. Hanrahan, Esq., Groom Law Group, Chartered, Washington, DC, for defendant United Healthcare Corp., k/n/a United Health Group, Inc.
MEMORANDUM OPINIONI. INTRODUCTION
This action is before this Court in these consolidated cases on plaintiffs' motion to alter or amend this Court's May 28, 2002 Opinion and Order denying remand (see Carducci v. Aetna U.S. Healthcare, 204 F. Supp.2d 796 (D.N.J. 2002)), and also to stay further proceedings in this action. Plaintiffs essentially seek the addition of language that would allow them to seek an interlocutory appeal of this Court's denial of their remand motion pursuant to 28 U.S.C. § 1292(b). This Court will therefore treat the motion as seeking certification of an interlocutory appeal to the United States Court of Appeals for the Third Circuit under 28 U.S.C. § 1292(b). Defendants oppose this motion, arguing that no certification should occur because plaintiffs have failed to show that there is a "substantial ground for difference of opinion" as to this Court's correctness or that a grant of interlocutory appeal would materially advance the ultimate termination of the litigation. For the reasons stated herein, plaintiffs' motion for certification of the remand question resolved in this Court's May 28, 2002 Opinion and Order will be denied without prejudice.
The first six above-captioned cases were consolidated prior to the May 28, 2002 Opinion and Order at issue here. The seventh case Barbour v. Cigna Corp., d/b/a Cigna Healthcare Corp. , Civil No. 02-00417 (JBS)was consolidated by Consent Order filed June 28, 2002.
II. ANALYSIS
Section 1292(b) reads, in part:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. . . .28 U.S.C. § 1292(b). It is within the district court's discretion whether or not to certify for appeal a controlling question of law. Additionally, a Section 1292(b) is limited to cases where "exceptional circumstances" justify the general policy of postponing appellate review until entry of a final order. See Coopers Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457 (1978); In re Ford Motor Co. Ignition Switch Products Liability Litigation, 1999 U.S. Dist. LEXIS 22891, *14 (D.N.J. Jul. 27, 1999) (quoting Hulmes v. Honda Motor Co., Ltd., 936 F. Supp. 195, 208 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir. 1998)).
As indicated by the remaining language of Section 1292(b), an appeal under that section also requires the Court of Appeals to accept any certification of a controlling question of law before an interlocutory appeal under that section may be heard.
There are three components a district court must consider when deciding whether to grant certification under 28 U.S.C. § 1292(b). First, the court must consider whether the order at issue involves a controlling issue of law. A controlling issue of law is one that, if erroneously decided, would result in reversible error on final appeal. Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.) (en banc), cert. denied, 419 U.S. 885 (1984). Second, there must be a substantial ground for difference of opinion concerning the resolution of the question to be presented for Section 1292(b) appeal. Katz, 496 F.2d at 754. That an issue is one of first impression in a circuit or that other circuits disagree is not necessarily sufficient to fulfill this requirement. Third, an immediate appeal must materially advance the ultimate termination of litigation. Katz, 496 F.2d at 754. The movant bears the burden of showing that these three components are met. Waldorf v. Borough of Kenilworth, 959 F. Supp. 675, 679 (D.N.J. 1997); Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 1004 (D.N.J. 1996).
1. Controlling Question of Law
This Court denied plaintiff's motion to remand this action to state court, finding that plaintiff's claims were within this federal court's jurisdiction under Section 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), because, in the statute's words, plaintiffs seek "to recover benefits due to [them] under the terms of [their] plan." Plaintiffs' motion for § 1292(b) certification does not define the precise controlling issue of law to be presented upon interlocutory review. There can be little doubt, however, that the question for interlocutory review could be framed as follows: "Whether the District Court correctly determined that plaintiff's unjust enrichment claims against their healthcare insurers, which had collected these monies from plaintiffs' tort recoveries pursuant to the subrogation provisions of plaintiffs' ERISA plans, are claims for recovery of benefits due under those plans, within the meaning of Section 502(a)(1)(B) of ERISA." If this Court erroneously decided that issue, then it would result in reversal on final appeal, because this court would have been without jurisdiction over the action. Defendants do not contend that the issue decided in this Court's May 28, 2002 Opinion and Order is not a controlling question of law they concede for the purpose of this motion that it is. (See Defs.' Br. in Opp. to Pls.' Mot. at 3, n. 3.) This Court agrees.
2. Substantial Ground For Difference of Opinion
In their moving statement in lieu of a brief, plaintiffs assert that the extensive oral argument heard by this Court along with the lengthy Opinion considering remand support their position that there is substantial ground for difference of opinion on the remand issue. Defendants argue that plaintiffs have fallen short of meeting their burden of showing that a substantial ground for difference of opinion exists.
The Court agrees that plaintiffs have failed to meet their burden of presenting anything other than disagreement with the Court's ruling, which does not constitute a substantial ground for difference of opinion under Section 1292(b). P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp.2d 355, 360 (D.N.J. 2001); Kapossy v. McGraw-Hill, Inc.,supra, 942 F. Supp. at 1001. As discussed at length in this Court's May 28, 2002 Opinion, which considered all of the remand briefs and argument previously submitted, plaintiffs have not offered any explanation of what the monies plaintiffs received were if they were not benefits under an ERISA plan. Their civil actions seek recovery of plan benefits, purely and simply. Clearly, plaintiffs disagree with this Court's conclusion and it is their prerogative to do so.
In the present motion, however, plaintiffs do not point to precedents indicating a split of authority on this issue which might suggest a substantial ground for difference of opinion justifying interlocutory review in an extraordinary case. It does not suffice to claim that this is a matter of first impression within this Circuit, unless there is considerable thrust to the argument that the relief sought by plaintiffs is not for plan benefits within the meaning of Section 502(a)(1)(B). To the contrary, the courts previously considering this issue have found that jurisdiction lies under Section 502(a)(1)(B), see Franks v. Prudential Health Care Plan, Inc., 164 F. Supp.2d 865, 873 (W.D.Tex. 2001); Riemer v. Columbia Medical Plan, Inc., 1997 WL 33126252, at *1-2 (D.Md. Mar. 28, 1997); Kaszula v. Parker, 1997 WL 106267 (N.D.Ill. Feb. 13, 1997). As the Third Circuit has more recently stated, the test for Section 502(a)(1)(B) requires making a distinction:
[T]he ultimate distinction to make for purposes of complete preemption is whether the claim challenges the administration of or eligibility for benefits, which falls within the scope of § 502(a) and is completely preempted, or the quality of medical treatment performed, which may be the subject of a state action.Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 273 (3d Cir. 2001). Quite simply, if plaintiffs are to succeed on their claims of unjust enrichment, they must prove they were entitled to receive and retain these plan benefits. Their entitlement to monetary benefits under their ERISA plans is an essential element of their unjust enrichment claims.
3. Advance Termination of Litigation
Plaintiffs finally argue that certification of this issue would materially advance the ultimate termination of the litigation because if the appellate court were to find a lack of jurisdiction, the case would be terminated in federal court and remanded to state court for consideration. Defendants correctly cited law from within the Third Circuit which supported denying certification in circumstances such as these, where grant of certification would likely delay, rather than hasten, the ultimate termination of the case. See Hulmes, 936 F. Supp. at 211; see also Singh v. Daimler-Benz AG, 800 F. Supp. 260, 263 (E.D.Pa. 1993) (refusing to certify remand issue), aff'd, 9 F.3d 303 (3d Cir. 1993).
Plaintiffs have not shown that prolonged discovery or a lengthy trial will take place absent certification of this issue. To the contrary, the next issue to be addressed by this Court if it denies plaintiffs' request for certification is whether the case must be dismissed under Section 514 of ERISA. Plaintiffs argue that an interlocutory appeal could render future proceedings void and therefore would necessarily materially advance the termination of the litigation in this Court. This is far from clear; several defendants have already briefed dismissal motions under Section 514 of ERISA, and a briefing schedule was recently postponed to consider this motion for interlocutory appeal. If defendants succeed in such dismissal, the cases would be ripe for appeal from a final order under 28 U.S.C. § 1291 within a short time. If the cases survive the dismissal motions, this calculus could be revisited. This Court finds, however, that plaintiffs have failed to meet their burden of showing that certification of the remand issue would materially advance termination of these proceedings.
A briefing schedule for defendants' dismissal motions in these consolidated cases is set forth in the accompanying Order, by which the consolidated dismissal motions should be fully briefed within 50 days.
III. CONCLUSION
For the reasons stated herein, this Court will deny plaintiffs' motion to alter or amend the May 28, 2002 Opinion and Order and also will deny the application for 28 U.S.C. § 1292(b) certification of the remand issue. Plaintiffs have failed to meet their burden of showing substantial ground for difference of opinion or that an interlocutory appeal would materially advance the ultimate termination of the litigation. Upon entry of a final order in this case, plaintiffs may appeal the case as a whole to the appellate court. This denial of Section 1292(b) certification is without prejudice. The accompanying Order is entered.
ORDER
This matter having come before the Court on plaintiffs' motion to alter or amend judgment and to stay further proceedings in the above-referenced action [Docket Item 33-1] pursuant to Rule 59(e), Fed.R.Civ.P. and for certification of an issue for interlocutory appeal pursuant to 28 U.S.C. § 1292; and this Court having reviewed the submissions by all parties; and for the reasons in the Opinion issued this date;
IT IS this day of July 2002, hereby
ORDERED that plaintiffs' motion to alter or amend judgment and to stay further proceedings in the above-referenced action [Docket Item 33-1] be, and hereby is, DENIED WITHOUT PREJUDICE ; and
IT IS FURTHER ORDERED that motions to dismiss shall be initiated pursuant to Appendix N within twenty (20) days of the date of this Order, and the complete brief packets shall be due to this Court no later than thirty (30) days after the filing of the defendants' notices of intent; and
IT IS FURTHER ORDERED that parties refrain from repetitive briefing of identical issues and are encouraged to incorporate all or parts of similarly-situated parties' briefs by reference if appropriate.