OPINION
This is a medical malpractice case against a physician, a hospital, and a healthcare insurance provider. Plaintiffs Steven and Michelle Bauman (“Plaintiffs”) filed the above-captioned negligence action in the Superior Court of New Jersey, Law Division, Camden County. Defendant U.S. Healthcare, Inc. (“U.S.Healtheare”) removed the action to this Court, asserting federal jurisdiction based on Section 502(a)(1)(B) of the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B) (“Section 502(a)”).
Presently before this Court is defendant U.S. Healthcare’s Motion to Dismiss or, in the Alternative, for Summary Judgment. Plaintiffs counter with a Motion for Remand to New Jersey State Court in which they challenge the applicability of Section 502(a) to the present action and contend that removal was inappropriate. Plaintiffs also seek reimbursement of attorney’s fees associated with their motion pursuant to 28 U.S.C. § 1447(c).
I. BACKGROUND
Michelina Bauman (“Michelina”) was born on May 16, 1995. She and her mother were discharged from the hospital twenty-four hours later. Michelina died on May 18,1995, the day following her discharge. Plaintiffs contend that she died from a virulent infection that went undiagnosed and developed into meningitis.
Defendant Kennedy Hospital is the health care facility at which she was born. Defendant Kamilah Nemeh, M.D. (“Dr.Nemeh”) was the discharging physician at Kennedy Hospital. Defendant U.S. Healthcare is a Pennsylvania corporation which wholly owns a subsidiary corporation known as The Health Maintenance Organization of New Jersey, Inc. (“HMO-NJ”). HMO-NJ is a health maintenance organization that furnishes employee health carе benefit benefits to plan participants, including Plaintiffs, pursuant to employee benefit plans established under ERISA.
On May 12, 1997, Plaintiffs filed its Complaint. The counts involving U.S. Healthcare can be summarized as follows:
Count One alleges that U.S. Healthcare acted negligently in adopting a policy that “encouraged, pressured, and/or directly or indirectly required that its participating physicians discharge newborn infants and their mothers from the hospital within 24 hours of the infant’s birth.”
Count One also alleges that U.S. Healthcare is vicariously liable for the negligent actions of its agents Dr. Nemeh and Kennedy Hospital in discharging Michelina Bauman from the hospital after only 24 hours.
*422 Count Two alleges that U.S. Healthcare acted recklessly indifferent to the health consequences of its policy “governing discharge of mоthers and newborns from the hospital within 24 hours of birth knowing, among other things, that many infants would be at risk for developing life-threatening disease after leaving the hospital and that these guidelines would result in life-threatening delays in the diagnosis and treatment of these diseases.”
Count Five alleges that U.S. Healthcare acted negligently in (1) “adopting policies with respect to hospital utilization by its participating physicians that discouraged these physicians from re-admitting infants to the hospital when health problems were identified subsequent to the newborns original discharge from the hospital” and in (2) “failing to exercise due care in the selection, supervision, training, and/or monitoring of Dr. Nemeh as a participating provider of health services.”
Count Six alleges that U.S. Healthcare acted negligently in “nоt providing for [an in-home] visit by a participating provider despite assurances under its L’il Appleseed Program that such a visit would be provided and despite a telephone call ... from the Baumans requesting this service.” 1
On June 12, 1997, U.S. Healthcare removed this case to federal court. It then moved to dismiss the Complaint pursuant to Section 514(a) of ERISA, 29 U.S.C. § 1144(a), or, in the alternative, for summary judgment. Plaintiffs have responded by moving to remand this action to state court for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c)-(Supp.1996).
II. DISCUSSION
A. PLAINTIFFS’ MOTION TO REMAND
Defendants removed this action on the grounds that Section 502(a) and the “complete preemption” exception to the “well-pleaded complaint rule” provided this Court with subject matter jurisdiction. Plaintiffs, however, challenge the propriety of this removal by asserting thаt Section 502(a) does not govern this action. They argue that this Court should remand the action to state court for lack of subject matter jurisdiction. •As a result, this Court must review the complaint, the petition for removal, the statutes pursuant to which U.S. Healthcare removed the claim, and the relevant ease law to determine whether, indeed, this court maintains subject matter jurisdiction over the aсtion.
1. “Complete Preemption”
The jurisdictional principles governing removal are well established. “The threshold requirement is that the complaint must fall within the ‘original jurisdiction’ of the federal district court.”
Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc.,
There is, however, an exception to the “well-pleaded complaint rule” — the “complete preemption” exceptiоn. Under this exception, “Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.”
Dukes v. U.S. Healthcare, Inc.,
2. Scope of Section 502(a)
The United States Court of Appeals for the Third Circuit construed Section 502(a) and determined whether certain state law claims for medical malpractice fit within its scope in
Dukes v. United States Healthcare, Inc.,
3. Counts One, Two, and Five
U.S. Healthcare bases federal removal jurisdiction on Counts One, Two, and Five of Plaintiffs’ Complaint. Count One alleges that U.S. Healthсare acted negligently in adopting a policy that “encouraged, pressured, and/or directly or indirectly required that its participating physicians discharge newborn infants and their mothers from the hospital within 24 hours of the infant’s birth.” Count Two alleges that U.S. Healthcare acted recklessly indifferent to the health consequences of its policy “governing discharge of mothers and newborns from the hospital within 24 hours of birth knowing, among other things, that many infants would be at risk for developing life-threatening disease after leaving the hospital and that these guidelines would result in life-threatening delays in the diagnosis and treatment of these diseases.” Count Five alleges that U.S. Healthcare acted negligently in “adopting policies with respect to hospital utilization by its participating physicians that discouraged these physicians from re-admitting infants to the hospital when health problems were identified subsequent to the newborns original discharge from the hospital.” Because of the uniqueness of these claims, this Court will conduct its own statutory construction analysis to determine whether any fit within the scope of Section 502(a).
The plain meaning of the text of Section 502(a) does not cover the three counts. Section 502(a) covers claims “to recover benefits due ... under the terms of [the] plan.” 29 U.S.C. § 1132(a)(1)(B).
2
Such a claim “is concerned exclusively with whether or not the benefits due under the plan were actually provided.”
Dukes,
Even if some ambiguity exists about whether the plain meaning of the text of *424 Section 502(a) covers the three counts, however, the legislative history, structure, and purpose of ERISA also support the conclusion that the counts do not fit within the scope of the section 502(a). The legislative history, structure, and purpose of ERISA suggest that:
[w]hen Congress enacted [the Act] it was concerned in large part with the various mechanisms and institutions involved in the funding and payment of plan benefits. That is, Congress was concerned “that owing to the inadequacy of current minimum [financial and administrative] standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered.” § 2, 29 U.S.C. § 1001(a). Thus, Congress sought to assure that promised benefits would be available when рlan participants had need of them and § 502 was intended to provide each individual participant with a remedy in the event that promises made by the plan were not kept.
Dukes,
Both sides have cited what appear to be conflicting cases to support their respective positions. 5 As discussed above, this Court has chosen to apply its own statutory construction analysis. Having done so, it concludes that Counts One, Two, and Five of Plaintiffs’ Complaint do not fit within the scope of the section 502(a). 6 Accordingly, *425 none of these claims provides an appropriate basis for federal removal jurisdiction.
4. Count Six
U.S. Healthcare also bases federal removal jurisdiction on Count Six of Plaintiffs’ Complaint. Count Six alleges that U.S. Healthcare acted negligently in “not providing for [an in-home] visit by a participating provider despite assurances under its L’il Appleseed Program that such a visit would be provided and despite a telephone call ... from the Baumans requesting .this service.”
Count Six states a claim that fits within the scope of Section 502(a). Courts have held that claims against an insurer for its negligence in failing to provide a benefit due under a рlan fit within the scope of Section 502(a).
See Dukes,
Since Count Six fits within the scope of Section 502(a), removal of the Complaint was proper. This Court must deny Plaintiffs’ Motion for Remand to New Jersey State Court pursuant to § 1447(c). 7 It will now consider U.S. Healthcare’s Motion to Dismiss.
B. U.S. HEALTHCARE’S MOTION TO DISMISS
The ERISA preemption defense stems from the ERISA preemption clause, Section 514(a). That clause sets forth that its provisions “shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). “It is important to recognize that the jurisdictional doctrine of complete preemption differs from the federal defense of ERISA preemption.”
Lancaster,
Despite the differences between complete preemption under Section 502(a) and ERISA preemption under Section 514(a), each preemption doctrine does not exist independently of the other. Specifically, courts have held that “[w]here a claim is completely preempted under [Section] 502(a) it is necessarily preempted under [Section] 514(a).”
Rice,
C. REMANDING THE REMAINDER OF THE ACTION
This Court will remand the remainder of this action to state court, including Plaintiffs’ remaining pendent state-law claims against U.S. Healthcare. “[A] district court has discretion to remand to state court а removed ease involving pendent claims upon a proper determination that retaining jurisdiction over the case would be inappropriate.” Car
negie-Mellon University v. Cohill,
III. CONCLUSION
For the reasons stated above, this Court finds that removal was proper and denies Plaintiffs’ Motion for Remand to New Jersey State Court and request to assess counsel fees pursuant to 28 U.S.C. § 1447(c). Furthermore, it will dismiss Count Six since it is preempted by Section 514(a) of ERISA. Finally, since the only basis for subject matter jurisdiction has now been dismissed, this Court will enter an appropriate order remanding the remainder of the ease to the Superior Court of New Jersey, Law Division, Camden County.
AMENDED ORDER
THIS MATTER having come before this Court on defendant U.S. Healthcare, Inc.’s (“U.S.Healthcare”) Motion to Dismiss or, in the Alternative, for Summary Judgment and plaintiffs Steven and Michelle Bauman’s (“Plaintiffs”) Motion for Remand to New Jersey State Court pursuant to 28 U.S.C. § 1447(c);
The Court having reviewed the record and the submissions of the parties;
For the reasons set forth in the Court’s opinion of this date;
IT IS this 1st day of April, 1998 HEREBY
ORDERED that Plaintiffs Motion for Remand to New Jersey State Court pursuant to 28 U.S.C. § 1447(c) is DENIED; and it is further
ORDERED that Plaintiffs request for assessment of attorney’s fees is also DENIED; and it is further
ORDERED that U.S. Healtheai-e’s Motion to Dismiss or, in the Alternative, for Summary Judgment is GRANTED in part, and COUNT SIX of Plaintiffs’ Complaint is DISMISSED as to U.S. Healthcare only; and it is further
ORDERED that COUNTS ONE, TWO, THREE, FOUR, FIVE, SEVEN, and EIGHT of Plaintiffs’ Complaint are remanded to the Superior Cоurt of New Jersey, Law Division, Camden County.
No costs.
Notes
. Count Six also alleges that Kennedy Hospital acted negligently in “failing to timely notify U.S. Healthcare of Michelina's birth so such a visit could be arranged and/or failing to otherwise secure arrangements for such a visit prior to discharging Michelina from the hospital.’’
. Section 502(a) also covers claims are "to enforce ... rights under the terms of the plan[ ] or to clarify ... rights to future benefits under the terms of the plan.” These claims are not at issue in this case.
. In fact, Plaintiffs state in their Memorandum of Law that "[t]he plan provided for 24 hours stay in the hospital and [Plaintiffs] received this 'benefit.' " They further state in their Reply Memorandum that they "do not claim that Michelina was entitled to more than 24 hours under the plan and that she was refused this service.”
. This Court will refrain from engaging in an analysis that focuses on whether Plaintiffs’ claims attack the "quantity of benefits” received versus the "quality of benefits” received. It finds that such an analysis has limited applicability to the facts of this case.
See Dukes,
. In support of its argument that Plaintiffs’ claims in Counts One, Two, and Five fit within the scope of Section 502(a), U.S. Healthcare cites
Lancaster v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc.,
In response to U.S. Healthcare's argument, Plaintiffs cite
Ouellette v. Christ Hospital,
. This Court also notes that the United States Court of Appeals for the Seventh Circuit has derived a three factor test for determining whether a claim is within the scope of Section 502(a):
(1) whether the "plaintiff is eligible to bring a claim under that section; (2) whether the plaintiff’s "cаuse of action falls within the scope of an ERISA provision that the plaintiff can enforce via [Section] 502(a);” and (3) whether the plaintiff’s "state law claim cannot be resolved without an interpretation of the contract governed by federal law.”
Jass v. Prudential Health Care Plan, Inc.,
. In conjunction with their Motion for Remand to New Jersey State Court, Plaintiffs seek reimbursement from U.S. Healthcare for attorney’s fees incurred in filing the Motion pursuant to § 1447(c). Since this Court will deny the Motion, however, Plaintiffs are not entitled to attorney’s fees.