These consolidated appeals require us to decide whether § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), completely preempts one or more of Plaintiffs’ state law claims, thus providing a *1342 basis for federal question jurisdiction. Plaintiffs, Martin J. Rutt (“Rutt”) D.D.S., Michael Egan (“Egan”), D.D.S., and Connect State Dental Association (“CSDA”), filed separate complaints in Connecticut state court, and Defendant, Anthem Health Plans, Inc. (“Anthem”), removed the cases on the basis of ERISA preemption. The district court denied Plaintiffs’ motions to remand. For the following reasons, we conclude that ERISA completely preempts at least some portions of Rutt and Egan’s state law claims but does not preempt CSDA’s state law claim. We also conclude that the district court abused its discretion in denying Rutt and Egan’s motion to vacate or amend the judgment. Therefore, we affirm in part and reverse in part the order denying Plaintiffs’ motions to remand, reverse the order denying Rutt and Egan’s motion to vacate or amend, and remand.
I. BACKGROUND
Rutt and Egan are dentists who practice in Connecticut. CSDA is a membership organization comprised of Connecticut dentists, including Rutt and Egan. Anthem offers and administers managed health and dental plans to employers and employer groups which provide coverage to employees and their eligible dependents. Many of these plans are “employee welfare benefit plans” governed by ERISA. See 29 U.S.C. § 1002(1).
Rutt and Egan participate in Anthem’s network of dentists who provide services to individuals enrolled in Anthem’s plans. They became participating dentists by entering into contracts with Anthem (“Provider Agreement”), pursuant to which they agreed to provide professional services in exchange for compensation in “the amount specified in the Comprehensive Schedule of Professional Services, or the Usual, Customary and Reasonable allowable determination.” 1
On April 15, 2002, Rutt and Egan filed a five-count class action complaint against Anthem in Connecticut state court, alleging claims for breach of contract, breach of the duty of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), negligent misrepresentation, and unjust enrichment. The crux of the allegations was that Anthem employed a number of practices, such as “improper downcoding” and “improper bundling,” as a means of underpaying participating dentists for services they performed. CSDA also sued Anthem in state court, alleging in a single count that Anthem violated the CUTPA. The factual allegations mirrored those in Rutt and Egan’s complaint.
Anthem removed the cases to the United States District Court for the District of Connecticut on the basis that Plaintiffs’ state law claims are completely preempted by ERISA. Plaintiffs filed motions to remand, but before the motions were decided, the cases were transferred by the Joint Judicial Panel on Multi-District Litigation as “tag along” cases in the multi-district litigation titled In re: Managed Care, pending in the Southern District of Florida. The Florida federal district court eventually denied Plaintiffs’ motions to remand in brief orders, citing only its previous decision on a motion to remand in another case as the basis for denying Plaintiffs’ motions. 2
The district court stayed Plaintiffs’ tag-along cases from August 2003 to April *1343 2008, while it addressed the cases and matters on the main track. Prior to the stay, Anthem filed motions to dismiss, and Plaintiffs filed responses. The district court never ruled on these motions. Instead, twice it denied the motions without prejudice but directed Anthem to refile them. Anthem refiled its motions as instructed in November 2007 and again in April 2008. Plaintiffs responded to the November 2007 motions but, due to an error of counsel, failed to respond to the April 2008 motions. The district court thus granted Anthem’s motions based on Plaintiffs’ failure to respond. Plaintiffs then moved to vacate or amend the orders granting Anthem’s motions, but the district court denied the motions, concluding that Plaintiffs had not shown excusable neglect. Plaintiffs timely appealed.
II. STANDARDS OF REVIEW
We review
de novo
denials of motions to remand as well as preemption determinations.
Henderson v. Wash. Nat’l Ins. Co.,
We review the district court’s denial of the motions to vacate or amend judgment for an abuse of discretion.
Lockard v. Equifax, Inc.,
III. MOTION TO REMAND
On a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.
Pacheco de Perez v. AT&T Co.,
Complete preemption is a narrow exception to the well-pleaded complaint rule and exists where the preemptive force of a federal statute is so extraordinary that it converts an ordinary state law claim into a statutory federal claim.
Caterpillar, Inc. v. Williams,
A. ERISA Preemption
ERISA is one of only a few federal statutes under which two types of preemption may arise: conflict preemption and complete preemption. 3
*1344
Conflict preemption, also known as defensive preemption, is a substantive defense to preempted state law claims.
Jones v. LMR Int’l, Inc.,
Complete preemption, also known as super preemption, is a judicially-recognized exception to the well-pleaded complaint rule. It differs from defensive preemption because it is, jurisdictional in nature rather than an affirmative defense.
Jones,
Although related, complete and defensive preemption are not coextensive:
Complete preemption is [ ] narrower than “defensive” ERISA preemption, which broadly “supersede^] any and all State laws insofar as they ... relate to any [ERISA] plan.” ERISA § 514(a), 29 U.S.C. § 1144(a) (emphasis added). Therefore, a state-law claim may be defensively preempted under § 514(a) but not completely preempted under § 502(a). In such a case, the defendant may assert preemption as a defense, but preemption will not provide a basis for removal to federal court.
Cotton v. Mass. Mut. Life Ins. Co.,
Because the propriety of removal is at issue, our analysis concerns complete preemption.
For a number of years, this Court has applied the four-part test for ERISA complete preemption set forth in
Butero v. Royal Maccabees Life Insurance Co.,
[I]f an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls within the scope of ERISA § 502(a)(1)(B). In other words, if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B).
Aetna Health Inc. v. Davila,
While similar to the
Butero
test,
Davila
refines
Butero
by inquiring about the existence of a separate legal duty, which is not a consideration under
Butero.
Moreover, a number of other circuits have recognized
Davila’s
two-part test as the proper test for complete preemption under ERISA.
See Marin Gen. Hosp. v. Modesto & Empire Traction Co.,
In
Davila,
the plaintiffs, a participant and a beneficiary, sued their respective ERISA plan administrators in state court alleging that they violated the Texas Health Care Liability Act (“THCLA”) by failing to exercise “ordinary care” in denying their claims for health care benefits under the plans. The defendants removed the cases to federal district court, arguing that the plaintiffs’ claims fell within the scope of ERISA § 502(a) and were thus
*1346
completely preempted.
Davila,
The Court then turned to the second part of the test — the existence of an independent duty — and concluded that the duty upon which the plaintiffs’ claims were based did not arise independently of the plans. The plaintiffs argued that the duty of ordinary care imposed under the THCLA was a duty independent of any duty imposed by ERISA or the plan terms and, thus, was not a duty implicated by ERISA’s civil enforcement provision. Not so, the Court reasoned. It noted that while the THCLA does impose a duty on managed care entities to use “ordinary care” in making health care decisions, if a plan correctly concluded that a particular treatment was not covered, “the failure of the plan itself to cover the requested treatment would be the proximate cause” of any injuries arising from the denial.
Id.
at 212-13,
B. Rutt and Egan’s Complaint
Before turning to the preemption analysis of Rutt and Egan’s complaint, we make some general observations regarding complete preemption of healthcare provider claims under ERISA.
First, healthcare provider claims are usually not subject to complete preemption because “[h]ealtheare providers ... generally are not considered ‘beneficiaries’ or ‘participants’ under ERISA.”
6
Hobbs v. Blue Cross Blue Shield of Ala.,
Second, it is well-established in this and most other circuits that a healthcare provider may acquire derivative standing to sue under ERISA by obtaining a written assignment from a “participant” or “beneficiary” of his right to payment of medical benefits.
Hobbs,
Finally, a provider that has received an assignment of benefits and has a state law claim independent of the claim arising under the assignment holds two separate claims. In such a case, the provider may assert a claim for benefits under ERISA, the state law claim, or both.
See Franciscan Skemp,
The Third, Fifth, and Ninth Circuits have applied these principals to determine the line of demarcation between ERISA and state law claims in actions brought by healthcare providers.
In
Blue Cross of California v. Anesthesia Care Associates Medical Group, Inc.,
On appeal, the Ninth Circuit held that the providers’ breach of contract claims were not within the scope of § 502(a)(1)(B) because the providers’ breach of contract claims arose solely out of their provider agreements. In other words, the claims were not claims for benefits that could be asserted by the patients-assignors. Id. at 1050. The Ninth Circuit differentiated the breach of provider contract claims from assignment-based ERISA claims as follows:
[T]he Providers are asserting contractual breaches, and related violations of the implied duty of good faith and fair dealing, that their patient-assignors could not assert: the patients simply are not parties to the provider agreements between the Providers and Blue Cross. The dispute here is not over the right to payment, which might be said to depend on the patients’ assignments to the Providers, but the amount, or level, of payment, which depends on the terms of the provider agreements.
Id. at 1051 (emphasis in original). Because the providers’ state law claims arose out of separate agreements with Blue Cross that governed their provision of goods and services to plan members, the assignments were irrelevant to preemption. Id. at 1052.
The Third Circuit, in
Pascack Valley Hospital, Inc. v. Local 464A UFCW Welfare Reimbursement Plan,
Applying Davila, the Third Circuit concluded the hospital’s claims were not completely preempted because the hospital lacked standing to sue under § 502(a). Id. at 400. More specifically, the court found that the plan, as the removing party, failed to meet its burden of showing that the hospital had obtained an assignment — a requisite of derivative standing. 8 Id. at *1349 401. Although this conclusion was dispositive, the court went on to observe that even if the hospital had an assignment, its claims would not be preempted under Davila because they were based on a separate duty independent of ERISA. While it acknowledged that the hospital’s claims existed only because of an ERISA plan, the court observed that claims at issue did not implicate the plan:
Coverage and eligibility ... are not in dispute. Instead the resolution of this lawsuit requires interpretation of the Subscriber Agreement, not the Plan. The Hospital’s right to recover, if it exists, depends entirely on the operation of third-party contracts executed by the Plan that are independent of the Plan itself.
Id.
at 403 (citing
Caterpillar, Inc. v. Williams,
In a recent decision,
Lone Star OB/GYN Associates v. Aetna Health Inc.,
Because Lone Star’s standing was not at issue, the Fifth Circuit’s preemption analysis under Davila turned on whether Lone Star’s allegation that Aetna failed to pay claims at the rate established in the provider agreement was based on a duty independent of the ERISA plan at issue. While acknowledging that the provider agreement and the plan cross-referenced each other and it might be necessary to refer to the plan in order to determine the correct payment rate, the court held that Lone Star’s claims arose independently of the plan:
Though the plan and the Provider Agreement cross-reference each other, the terms of the plan — in particular, those related to coverage — are not at issue in a dispute over whether Aetna paid the correct rate for covered services as set out in the Provider Agreement. While Aetna is correct that any determination of benefits under the terms of a plan — i.e., what is “medically necessary” or a “Covered Service”— does fall within ERISA, Lone Star’s claims are entirely separate from coverage and arise out of the independent *1350 legal duty contained in the contract and the TPPA.
Id. at 530-31. Notwithstanding this conclusion, the court recognized that Lone Star’s claims may still be at least partially preempted because Aetna asserted that some of the partially paid claims actually reflected partial denials of services that were not covered. Lone Star disputed this characterization, but the record was insufficient to allow the court to resolve the factual issue. In order to guide the district court on remand, the Fifth Circuit held that while claims involving only underpayment are not preempted, claims that were partially denied because coverage was not afforded for all the submitted procedures may be preempted. Id. at 533.
We agree with these courts that the “rate of payment” and “right of payment” distinction is a useful means for assessing preemption of healthcare provider claims based upon a breach of an agreement separate from an ERISA plan and thus apply it in considering Rutt and Egan’s claims.
1. First Davila Inquiry
The first inquiry is whether Rutt and Egan, “at some point in time, could have brought [their] claim under ERISA § 502(b)(1)(B).”
Davila,
Rutt and Egan argue that their claims are not cognizable under § 502(a) because the relief they seek is unavailable under ERISA. They stress that they are not seeking benefits under an ERISA plan, but instead seek to collect unpaid amounts they are owed under their Provider Agreements as a result of Anthem’s use of improper payment methods, such as downcoding and bundling, under the guise of utilization review. Moreover, they assert, their state law claims are the types of claims federal courts have consistently held are not even defensively preempted under ERISA § 514. The Court emphasized in
Davila,
however, that merely referring to labels affixed to claims to distinguish between preempted and non-preempted claims is not helpful because doing so “would ‘elevate form over substance and allow parties to evade’ the preemptive scope of ERISA.”
Davila,
The factual allegations of the complaint do support Rutt and Egan’s argument that their claims involve the “rate of payment” under their Provider Agreements.
9
Yet, a closer look discloses more. Plaintiffs’ allegations implicate not only the “rate of payment” under their Provider Agreements, but also the “right of payment.” For example, in paragraph 10(a) under Class Allegations, Rutt and Egan allege that Anthem breached its contractual obligations by engaging in various acts, including “systematically denying and/or reducing Dentists’ reimbursement for medically necessary services through (i)
*1351
improper denials.” And, in paragraph 10(b), Rutt and Egan allege that Anthem denied “medically necessary claims through the use of so-called ‘guidelines’ which do not comply with accepted medical/dental treatment standards.” As the Fifth Circuit observed in
Lone Star,
such allegations concern coverage issues that fall within ERISA.
Lone Star,
What we have, then, is really a hybrid claim, part of which is within § 502(a) and part of which is beyond the scope of ERISA. Because Rutt and Egan complain, at least in part, about denials of benefits and other ERISA violations, their breach of contract claim implicates ERISA.
Rutt and Egan must have had standing to assert ERISA claims, and because they are providers, they could only have derivative standing through assignments. Thus, unlike Anesthesia Care, supra, the existence of assignments does matter in this case. In the district court, Anthem presented claim forms that Rutt and Egan submitted to Anthem for reimbursement for dental services. Lynn Appicelli, a Project Manager in Anthem’s Government Programs division, confirmed in an affidavit that the attached forms were typical of claim forms that Anthem receives from Connecticut dentists. The claim forms contain the following language: “I hereby authorize payment of the dental benefits otherwise payable to me directly to the below named dental entity.” Anthem contends that these claim forms suffice to show an assignment of benefits by Rutt’s and Egan’s patients. We agree.
Rutt and Egan contend that the claim forms cannot be valid assignments for two reasons, both of which we reject.
11
First, they point out that each of the three sample plan documents Anthem submitted preclude assignments. For example, they
*1352
note that the first plan states: “The Member or Covered Person may not assign benefits to a provider, except when parents are divorced.” Citing
Physicians Multispecialty Group v. Health Care Plan of Horton Homes, Inc.,
Rutt and Egan also contend that the claim forms are ineffective to create standing because they convey only the right to receive payment of benefits and not the patient’s right to file an action under § 502(a). They cite a number of unreported district court cases holding that an assignment of the right to payment of benefits that does not include the right to pursue litigation is not an unequivocal assignment that creates derivative ERISA standing.
See North Jersey Ctr. for Surgery, P.A. v. Horizon Blue Cross Blue Shield of N.J., Inc.,
No. 07-4812(HAA),
Of course, an assignment will not facilitate a plan participant’s or beneficiary’s receipt of benefits if the plan does not pay the benefits it owes, and provider-assignees are not permitted to sue on the participant’s or beneficiary’s behalf. If provider-assignees cannot sue the ERISA plan for payment, they will bill the participant or beneficiary directly for the insured medical bills, and the participant or beneficiary will be required to bring suit against the benefit plan when claims go unpaid. On the *1353 other hand, if provider-assignees can sue for payment of benefits, an assignment will transfer the burden of bringing suit from plan participants and beneficiaries to “providers!, who] are better situated and financed to pursue an action for benefits owed for their services.”
Id.
at 1515 (citations omitted) (alteration in original).
See also I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc.,
We conclude that Anthem has carried its burden of showing that Rutt and Egan received valid assignments from their ERISA patients. Furthermore, although Anthem did not link any particular assignment to a particular ERISA plan, the Appicelli affidavit sufficiently demonstrates that the submitted assignments in the claim forms are representative of assignments Rutt and Egan received for services they rendered, which would necessarily include patients covered by ERISA plans administered by Anthem.
2. Second Davila Inquiry
The second inquiry is whether Rutt’s and Egan’s claims are predicated on a legal duty that is independent of ERISA. Our analysis above answers this question. Rutt and Egan argue that their claims are based on a separate legal duty arising from their Provider Agreements. This is true to the extent their claims implicate only the amount they were owed under their Provider Agreements. But, as noted, their claims stray from the boundaries of their Provider Agreements into ERISA territory by asserting improper denials of medically necessary claims and violations of ERISA procedural requirements. Consequently, portions of their claims arise solely under ERISA or ERISA plans and not from any independent legal duty.
As for the remaining claims, where removal jurisdiction exists over a completely preempted claim, the district court has jurisdiction over any claims joined with the preempted claim.
Butero,
C. CSDA’s Complaint
CSDA’s allegations in its single-count complaint are essentially the same as those of Egan and Rutt, in that they assert Anthem violated the CUTPA through improper denials of necessary services and failing to comply with ERISA’s procedural requirements. The question, then, is whether CSDA, as an association, has standing under ERISA. CSDA contends that it lacks standing because it provided no services and thus could not have obtained derivative standing through an assignment. Anthem argues that CSDA need not obtain assignments or provide medical services to obtain standing because it has associational standing though the assignments that some of its members (Rutt and Egan) have obtained.
Although this Court has not considered the issue, other courts have concluded that a trade group may obtain statutory stand
*1354
ing under ERISA through associational standing.
See Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc.,
A trade association has standing to sue on behalf of its members when three requirements are met: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Hunt v. Wash. State Apple Adver. Comm’n,
IV. MOTION TO AMEND JUDGMENT
When the instant cases were transferred to the Southern District of Florida, they were docketed as tag along cases to the main case, No. 00-MD-1334 (the “1334 docket”). In July 2002, the district court administratively closed the tag along cases. Over the next five and one-half years, all motions and pleadings pertaining to the tag along cases were filed solely on the 1334 docket. During this time, Plaintiffs’ counsel filed various motions, briefs, reports, and other documents on the 1334 docket.
Anthem filed motions to dismiss on July 16, 2003, and Plaintiffs filed responses to these motions. On August 21, 2003, the district court stayed all tag along eases. In October 2007, the district court denied all pending motions without prejudice with instructions to refile. Anthem refiled its motions to dismiss on November 9, 2007, and Plaintiffs filed responses.
On January 26, 2008, the district court entered an order on both the 1334 docket and in the tag along cases directing the parties in tag along cases to file all documents only on the docket of the tag along case. On February 7, 2008, the court entered an order on the 1334 docket directing all counsel to file an appearance in the docket of all tag along cases in which they were involved. Plaintiffs’ counsel did not file appearances in the tag along cases as directed. On February 19, 2008, the court entered an order on both the 1334 docket and in the tag along cases denying all *1355 pending motions and directing counsel to file status reports on the dockets of the tag along cases. Plaintiffs’ counsel received the order by electronic notification through the 1334 docket, but erroneously filed status reports on the 1334 docket rather than in the tag along case. Finally, on April 14, 2008, the court entered an order in the tag along cases reopening the cases and setting a briefing schedule for motions to be filed in those cases. Because Plaintiffs’ counsel had not filed an appearance in the tag along cases, Plaintiffs’ counsel did not receive electronic notice of this order.
Anthem refiled its motions to dismiss for a for a third time on April 30, 2008. Plaintiffs’ counsel did not receive electronic notification of the motion, but they did receive a paper copy of the motion, which Anthem served by mail. When Plaintiffs failed to respond to Anthem’s motions, the district court entered an order granting the motions and dismissing the case.
Plaintiffs filed motions to vacate the judgment on June 16, 2008, ten days after the district court entered the orders of dismissal. Plaintiffs argued that their failure to respond to Anthem’s motions was excusable neglect due to their counsels’ belief that they were receiving all electronic filings from both the 1334 docket and the tag along dockets and were unaware that Anthem had refiled its motion to dismiss. Plaintiffs explained that they mistakenly believed that prior appearances and a motion to appear pro hac vice had functioned as appearances in the tag along cases.
The district court denied the motion. It reasoned that Plaintiffs failed to comply with the January 26, February 7, February 19, and April 14 orders and failed to respond to Anthem’s motion, even though Plaintiffs’ counsel received three of the orders electronically and received a paper copy of the motion by mail. The court concluded that these circumstances did not constitute excusable neglect.
Rule 60(b)(1) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment or order upon a showing of “mistake, inadvertence, surprise, or excusable neglect.” “Rule 60(b) motions are directed to the sound discretion of the district court, and we will set aside the denial of relief from such motion only for abuse of that discretion.”
Cheney v. Anchor Glass Container Corp.,
Excusable neglect is generally an “equitable inquiry” based upon the particular circumstances of the case.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
This Court applied the
Pioneer
factors in
Cheney v. Anchor Glass Container Corp.,
In this case, the district court abused its discretion because it did not even consider the
Pioneer
factors.
See Cheney,
Anthem argues that the district court properly denied Plaintiffs’ motion because counsel failed to read or understand the district court’s orders. While it is true that this circuit recognizes that an attorney’s misinterpretation of the law does not constitute excusable neglect,
see Advanced Estimating Sys., Inc. v. Riney,
Turning to the
Pioneer
factors, we conclude that they all weigh in favor of granting Plaintiffs relief. First, in spite of Anthem’s arguments to the contrary, there is no discernable prejudice to Anthem as a result of the delay. The delay was brief. Plaintiffs filed their motions only ten days
*1357
after the district court entered the orders granting Anthem’s motions to dismiss and only seven days after counsel first learned of the district court’s order. Anthem contends that it is prejudiced because it expected to win the motions, which would have concluded the litigation. But the inquiry is whether prejudice results from the
delay,
not from having to continue to litigate the case.
See Walter v. Blue Cross & Blue Shield United of Wisc.,
Accordingly, the district court abused its discretion by not finding excusable neglect under the Pioneer factors and failing to grant Plaintiffs’ motion.
V. CONCLUSION
For the foregoing reasons, we: (1) affirm that portion of the district court’s order, dated August 26, 2003, denying Rutt and Egan’s motion to remand, but reverse that portion of the order denying CSDA’s motion to remand, and (2) reverse the district court’s order, dated August 19, 2008, denying Rutt and Egan’s motion to vacate or amend judgment (the judgment being the district court’s prior order dated June 6, 2008 dismissing Rutt’s and Egan’s case against Anthem). We remand Case No. 08-15268 to the district court with instructions to remand CSDA’s complaint to state court. We remand Case No. OS-15277 for further proceedings on the merits of Rutt’s and Egan’s claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
. The Provider Agreements at issue were entered into by Anthem's predecessor in interest, Blue Cross & Blue Shield of Connecticut, Inc.
. The district court simply referred to a previous decision “regarding Dr. Sutter's motion to remand’’ but failed to explain why that decision controlled the outcome of Plaintiffs' motions.
. Besides ERISA, complete preemption has been recognized in only a few contexts, in-
*1344
eluding the area of labor contracts under the Labor Management Relations Act of 1947, 29 U.S.C. § 185,
et seq.,
and usury claims against federally-chartered banks under the National Bank Act, 12 U.S.C. § 85,
et seq. See Fayard v. Northeast Vehicle
Servs.,
LLC,
. ERISA § 514(a) provides:
Except as provided in subsection (b) of this section, the provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b).
29 U.S.C. § 1144(a).
. We recognize that in
Cotton v. Massachusetts Mutual Life Insurance Co.,
. A "participant” includes
any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.
29 U.S.C. § 1002(7). A "beneficiary is 'a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.’ ” 29 U.S.C. § 1002(8).
. In the context of defensive preemption, this Court has similarly concluded that healthcare provider claims for negligent misrepresentation are not preempted.
Lordmann Enters., Inc. v. Equicor, Inc.,
. The Third Circuit did not reach the question of whether derivative standing can be obtained by assignment under ERISA.
Pascack Valley Hosp., Inc.,
. Although Plaintiffs reference their amended complaints in their briefs, we consider the original complaints because removal jurisdiction is determined at the time of removal, and “events occurring after removal ... do not oust the district court's jurisdiction.”
Poore
v.
Am.-Amicable Life Ins. Co.,
. The claims for breach of the duty of good faith and fair dealing and violation of the CUTPA in Counts 2 and 3 contain allegations similar to the breach of contract allegations implicating ERISA.
. Rutt and Egan also contend that the assignments are not valid under Connecticut law. Because they raised this argument for the first time in their reply brief, we treat this argument as waived.
United States v. Evans,
. Regarding the paper copies of the motions that Anthem mailed to Plaintiff’s counsel, counsel explained in his affidavit that his law firm's staff placed the motions in a pile of paper documents to be filed in the case. Paper copies of the motions were also mailed to Plaintiffs’ local counsel in Florida, but Plaintiffs contend that local counsel assisted with filings only, and relied on Plaintiffs’ counsel in Connecticut to litigate the case.