IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

ERICA WHITE, 

Plaintiff, 

v. 

HUMANA INC., 

Defendant. 

_________________________________/ 

Case No. ___________________ 

DEFENDANT’S NOTICE OF REMOVAL 

NOTICE OF REMOVAL 

Defendant Humana Inc. (“Defendant” or “Humana”) hereby removes the above-captioned 

action from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, 

Florida, to the United States District Court for the Southern District of Florida, pursuant to 28 

U.S.C. §§ 1331, 1441 and 1446, and states as follows: 

1. Plaintiff Erica White seeks to recover benefits allegedly owed under an employer 

group health benefit plan sponsored by White, White & Associates and administered by Humana 

Medical Plan, Inc.1 (Exhibit A, A-0005-62, Compl. ¶¶ 5-12 & A-0010 (Certificate of Coverage, 

Title Page)). 

1

 The Complaint named the wrong party. As reflected in the Certificate of Coverage attached to 

the Complaint, Humana Inc. did not administer the policy. 

2

 Bates numbering added by Humana for ease of reference. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 1 of 8
2

2. The plan is governed by the Employee Retirement Income Security Act (“ERISA”). 

(See Ex. A at A-0010 (Certificate of Coverage, Title Page), A-0149-51 (Federal Notices provision 

citing ERISA); Exhibit C, Declaration of Andrea Harvel (“Harvel Decl.”) ¶ 4). 

3. Plaintiff filed this action in the Circuit Court of the Eleventh Judicial District in and 

for Miami-Dade County, Florida (“State Court Action”), on or about November 7, 2022. (See Ex. 

A at A-0007.) Plaintiff served a copy of the complaint upon Defendant on November 18, 2022. 

(See id. at A-0001.) 

4. The three-page Complaint does not identify any particular cause of action, but 

appears to allege a breach of the ERISA plan by failing to cover a claim related to medical services 

received by Plaintiff. (See Ex. A, A-0005-6, Compl. ¶¶ 5-12). Correspondence attached to the 

Complaint indicates that medical services at issue were denied “according to the provisions of the 

plan.” (Ex. A at A-0171-72.) 

5. Plaintiff seeks monetary damages for Defendant’s alleged breach of the ERISA 

policy. (Ex. A, A-0005, Compl. ¶ 1 & A-0007, WHEREFORE Clause.) 

6. This action is therefore removable pursuant to 28 U.S.C. § 1331 and 1441(a) 

because Plaintiff’s action involves a federal question – the denial of benefits of an employer group 

health plan subject to ERISA. 

I. THE PROCEDURAL REQUIREMENTS FOR REMOVAL ARE SATISFIED. 

7. Plaintiff’s Complaint was served on November 18, 2022. (Ex. A at A-0001.) This 

Notice of Removal is therefore timely under 28 U.S.C. § 1446(b), as it has been filed within 30 

days of service of the initial pleading. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 2 of 8
3

8. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, orders, and other 

papers served on Defendant in this action are attached as Exhibit A, which includes the Certificate 

of Coverage Plaintiff attached to the Complaint. A copy of the state court docket is attached as 

Exhibit B. 

9. The United States District Court for the Southern District of Florida embraces the 

county in which the state court action is now pending and thus this Court is a proper forum for this 

action pursuant to 28 U.S.C. §§ 89(c) and 1441(a). Such venue is represented as proper solely for 

removal purposes. 

10. Humana Inc. is the only defendant in this action, thus, no consent is needed from 

any other party. 

11. No previous application has been made for the relief requested herein. 

12. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being served 

on Plaintiff’s counsel and a copy is being filed with the Clerk of the Circuit Court of the Eleventh 

Judicial Circuit in and for Miami-Dade County, Florida. 

II. REMOVAL IS PROPER BECAUSE THIS COURT HAS JURISDICTION 

PURSUANT TO 28 U.S.C. §§ 1331 AND 1441. 

13. 28 U.S.C. § 1441(a) permits the removal of any civil action where the district courts 

have original jurisdiction. “[A]ny civil action brought in a State court of which the district courts 

of the United States have original jurisdiction, may be removed by the defendant or the defendants, 

to the district court of the United States for the district and division embracing the place where 

such action is pending.” 28 U.S.C. § 1441(a). 

14. “The district courts shall have original jurisdiction of all civil actions arising under 

the Constitution, laws, or treatises of the United States.” 28 U.S.C. § 1331. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 3 of 8
4

15. While this type of original jurisdiction—federal question jurisdiction—is ordinarily 

governed by the well-pleaded complaint rule, “the complete preemption doctrine of ERISA creates 

an exception to that rule.” Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 

2011). 

16. Complete preemption under ERISA “arises from Congress’s creation of a 

comprehensive remedial scheme in 29 U.S.C. § 1132 for loss or denial of employee benefits.” 

Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211 (11th Cir. 1999). “When Congress 

comprehensively occupies a field of law, any civil complaint raising this select group of claims is 

necessarily federal in character and thus furnishes subject-matter jurisdiction under 28 U.S.C. 

§ 1331.” Id. at 1211-12 (internal quotes omitted). “Therefore, federal courts have subject-matter 

jurisdiction over state-law claims that have been [completely preempted], and defendants may 

remove to federal court those actions that contain such claims.” Id. at 1212. 

17. This is true regardless of how a plaintiff frames the complaint. Ehlen Floor 

Covering, Inc., 660 F.3d at 1287 (“Regardless of its characterization as a state law matter, a claim 

will be re-characterized as federal in nature if it seeks relief under ERISA.”). 

18. The Eleventh Circuit identified two prongs necessary to secure federal jurisdiction 

under ERISA: (1) “the claimant must have been able to . . . bring his claim under ERISA § 

502(a)(1)(B);” and (2) “there must be ‘no other independent legal duty that is implicated by a 

defendant’s actions.’” Borrero v. United HealthCare of N.Y., Inc., 610 F.3d 1296, 1301 (11th Cir. 

2010) (quoting Davila, 542 U.S. at 210, 124 S. Ct. at 2496). 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 4 of 8
5

1. Plaintiff Could Have Brought Her Claim Under Section 502(a) of 

ERISA. 

19. The first step is satisfied if Plaintiff has standing to sue under ERISA and Plaintiff’s 

claim falls within the scope of Section 502(a) of ERISA, 29 U.S.C. § 1132(a). Id. Section 502(a) 

expressly permits a plan beneficiary or participant to bring claims “to recover benefits due to him 

under the terms of his plan [or] to enforce his rights under the terms of the plan.” 29 U.S.C. § 

1132(a)(1)(B). 

20. Here, Plaintiff asserts that she is a plan beneficiary or participant of the plan 

referenced in the Certificate of Coverage attached to the Complaint by alleging that she has a 

medical policy with Defendant and attaching a copy of the Certificate of Coverage. (See Ex. A, 

A-0005-6, Compl. ¶¶ 4, 6-8 & A-0010 (Certificate of Coverage)). The Certificate of Coverage 

attached to the Complaint is an employer group plan administered by Humana Medical Plan, Inc. 

(See Ex. A at A-0149-51 (Federal Notices provision citing ERISA); Ex. C, Harvel Decl. ¶¶ 3-4). 

Thus, Plaintiff, as an alleged beneficiary and participant in the ERISA plan, has standing to bring 

a claim for benefits allegedly due from the plan. 

21. Plaintiff’s claim falls within the scope of Section 502(a) of ERISA because she 

seeks to recover benefits allegedly due under her ERISA plan and to enforce her alleged rights 

under the terms of that plan. Plaintiff specifically alleges that Defendant breached its contract with 

her “by failing to pay the benefits which became due and owing to Plaintiff as a result of her health 

condition.” (Ex. A, A-0006, Compl. ¶ 12). 

22. Thus, the first step of the ERISA completion preemption analysis is satisfied. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 5 of 8
6

2. Plaintiff’s Claim Does Not Implicate A Duty Independent of ERISA. 

23. Step two “looks to whether the plaintiffs' claims implicate a duty independent of 

ERISA.” Ehlen Floor Covering, Inc., 660 F.3d at 1288. 

24. Regardless of how a plaintiff styles the complaint, step two is satisfied where courts 

have to look to the substance of an ERISA plan because the plaintiff relies on that plan as a basis 

for recovery. Borrero, 610 F.3d at 1304 (step two satisfied where “the content of the claims 

necessarily requires the court to inquire into aspects of the ERISA plans because of the invocation 

of terms defined under the plans”); see also Ehlen Floor Covering, Inc., 660 F.3d at 1288 (citing 

Borrero). 

25. Here, Plaintiff’s claim references and is dependent upon the terms of her ERISA 

plan. She contends that Humana Inc. breached the plan by failing to pay for treatment pursuant to 

its provisions. (Ex. A, A-0006, Compl. ¶¶ 9-12). Correspondence attached to the Complaint 

indicates that the medical services at issue were denied “according to the provisions of the plan.” 

(Ex. A at A-0171-72.) To resolve Plaintiff’s claim for benefits, the court has to look at the 

substance and language of the plan and, therefore, step two is satisfied. 

26. Accordingly, Humana Inc. has demonstrated that the test for complete preemption 

is met and this case is properly removable to federal court. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 6 of 8
7

CONCLUSION 

Defendant, Humana Inc., respectfully removes the captioned action to this Court pursuant 

to 28 U.S.C. § 1441(a). 

DATED: December 13, 2022 Respectfully submitted, 

Squire Patton Boggs (US) LLP 

200 South Biscayne Boulevard, Suite 3400 

Miami, FL 33131 

Telephone: +1 305 577 7032 

Facsimile: +1 305 577 7001 

By: /s/ P. Jan Kubicz

Kimberly J. Donovan 

Florida Bar No. 16496 

kimberly.donovan@squirepb.com

P. Jan Kubicz 

Florida Bar No. 84405 

jan.kubicz@squirepb.com 

Counsel for Humana Inc. 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 7 of 8
8

CERTIFICATE OF SERVICE

I hereby certify that on December 13, 2022 a true and correct copy of the foregoing was 

served via the CM/ECF system on all registered participants, and also served on Counsel for 

Plaintiff via electronic mail (ldesir@thedesirlawfirm.com, paralegal@thedesirlawfirm.com, 

casemanager@thedesirlawfirm.com, assistant@thedesirlawfirm.com). 

/s/ P. Jan Kubicz 

P. Jan Kubicz 

Case 1:22-cv-24030-RKA Document 1 Entered on FLSD Docket 12/13/2022 Page 8 of 8