On September 13, 2019, New Orleans federal judge Carl J. Barbier remanded a lawsuit filed by Crescent City Surgical Centre against health insurer Humana to Louisiana state court in Jefferson Parish. Crescent alleges that in 2011 Humana began paying less than what it agreed to pay for services on the Humana provider web portal. In other words, the insurer is accused of agreeing to pay a certain amount for a service before treatment and then ultimately paying less. In the petition, the Crescent made only claims under state law for breach of contract, fraud, and negligent representation. Judge Barbier found that Crescent made no claims preempted by ERISA, a federal law regulating employer-provided insurance, and thus there was no federal jurisdiction and no valid basis for removal.

The defendant waited six months before removing the case to federal court, only doing so when discovery revealed that Crescent was in possession of agreements with their patients assigning any underpayment claims under their ERISA health insurance plans to Crescent. The court found that these agreements could have given rise to derivative claims under ERISA, but the plaintiff did not make those claims and in fact refused to pursue them in any form. The court found the plaintiff’s efforts to not state any preempted claims a “painstakingly thorough disavowing.” Humana argued that the only plausible claims plaintiff has are the assigned ERISA claims, but the court found as long as those claims are not being asserted, the case cannot be removed. It will be left to the state court to determine if the state law claims have any merit.