UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON 

 

Neha Desai, et al., 

Plaintiffs, 

v. Case No. 3:18-cv-118 

 Judge Thomas M. Rose 

CareSource, Inc., 

Defendant. 

______________________________________________________________________________ 

ENTRY AND ORDER GRANTING IN PART PLAINTIFFS’ 

JURISDICTIONAL MOTION FOR REMAND AND 

REQUEST FOR COSTS AND EXPENSES PURSUANT TO 28 

U.S.C. §1447. (ECF 5). THE CLERK IS ORDERED TO 

REMAND THIS CASE TO THE MONTGOMERY COUNTY 

COURT OF COMMON PLEAS. PLAINTIFFS’ REQUEST 

FOR COSTS AND EXPENSES IS DENIED. 

______________________________________________________________________________ 

Pending before the Court is Plaintiffs’ Motion to Remand (ECF 5) this putative class action 

to the Montgomery County, Ohio Court of Common Pleas and to order appropriate costs and 

expenses in favor of Plaintiffs in connection with removal. Plaintiffs assert that none of their 

claims raise a federal question. 

I. Background

 Plaintiffs assert that they purchased health insurance from Defendant CareSource through 

the Federal Health Insurance Marketplace exchange under the Patient Protection and Affordable 

Health Care Act or ACA. Compl. at ¶ 35. 

 Plaintiffs claim they researched available plans offered through the exchange, and that they 

were attracted to CareSource’s allegedly broad network of providers and large marketplace 
2 

directory. Id. at ¶ 36. Plaintiffs allege they were damaged by CareSource misrepresenting its 

Network of Providers and Marketplace Directory by way of paying increased premiums. Id. at ¶ 

37. 

 To support their claims, Plaintiffs rely on the “Network Adequacy Standards” established 

by the ACA. The Complaint asserts that “CareSource’s provider directory is wholly inadequate, 

inaccurate, incomplete, and misleads current and prospective enrollees.” Id. at ¶ 14. 

 Plaintiffs’ Complaint asserts state-law claims, including one for injunctive relief “requiring 

CareSource to develop and implement an adequate system for ensuring the accuracy of its online 

provider directory....” Id. at ¶ 153. There is a description of an adequate system in 45 CFR § 

156.230. At the same time, CareSource is alleged to have publicized how it would maintain its 

provider directory in ways it is alleged to have failed. According to Plaintiffs, CareSource made 

the following representation through its website at the “Find a Doctor/Provider” link: 

Find a Doctor/Provider is an online Provider Directory. It lists the 

providers you can go to. Your Primary Care Provider (PCP) is the 

doctor you see for your regular health care. You may need to see 

your PCP first before you go to other doctors. 

We update Find a Doctor /Provider every day. You can find the date 

of the most recent update at the bottom of each page. We ask our 

providers to let us know: 

• When they have a new address or phone number 

• If they are accepting new patients 

• If they have age limits for the patients they’ll see 

• Which hospitals they can admit patients to 

• What languages they speak 

ECF 2, PageID 231, ¶ 118. 

 Count One alleges “Violations of Ohio Statutory Health Insuring Corporation Law —

Deceptive Practices (ORC §1751.20; 1751.31).” According to Plaintiffs, CareSource engages in 
3 

an ongoing pattern and practice of publishing fraudulent and negligent misrepresentations 

regarding the accuracy and size of its Network of Providers and Marketplace Directories. 

 Count Two alleges “Breach of Contract.” According to Plaintiffs, the identity of Network 

Providers is a material term of the contract. Because there are allegedly significantly fewer 

providers in CareSource’s network than what is represented in its directory, members of 

CareSource’s Plans do not receive the full benefit of what they bargained for when they selected 

the Plan. 

 Count Three alleges “Insurance Bad Faith.” According to Plaintiffs, CareSource regularly 

and repeatedly fails to accurately update its list of providers and continues to identify doctors who 

are not in their network, and in many cases, lists doctors that have specifically asked to be removed 

from CareSource’s network, contrary to CareSource’s representation on Ohio’s Marketplace 

website that it updates the online provider directory daily. 

 Count Four alleges “Negligent Misrepresentation.” According to Plaintiffs, CareSource 

has not used reasonable care or competence in communicating an accurate list of its Network of 

Providers and Marketplace Directories. 

 Count Five alleges “Constructive Fraud.” Plaintiffs allege CareSource failed to live up to 

its claims made on its website at the “Find a Doctor/Provider” link. 

 Count Six alleges as an alternative pleading “Unjust Enrichment.” According to 

Plaintiffs, by paying premiums to CareSource for health insurance coverage, Plaintiffs and class 

members conferred a benefit upon CareSource. According to Plaintiffs, CareSource’s retention 

of premiums paid by Plaintiffs and Class members is unjust and engaged in with bad faith and/or 

ill will under the circumstances presented. 
4 

 Count Seven seeks “Declaratory Relief.” Count Eight seeks injunctive relief. Plaintiffs 

seek an Order requiring CareSource to develop and implement an adequate system for ensuring 

the accuracy of its online provider directory on at least a monthly basis within 90 days of said 

Order. 

II. Standard of Review 

A motion to remand is determined in light of the law surrounding removal. The procedure 

for removal of an action to federal court is found in 28 U.S.C. § 1441(a), which provides: 

[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 

defendant or defendants, to the district court of the United States for 

the districts and division embracing the place where such action is 

pending.... 

28 U.S.C. § 1441(a). It is well settled that the party seeking removal bears the burden of 

establishing its right thereto. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98 (1921). The 

removal petition is to be strictly construed, with all doubts resolved against removal. Her Majesty 

The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989). 

On a motion for remand, the question is whether the district court lacks subject matter 

jurisdiction. 28 U.S.C. 1447(c). In other words, the issue is whether the case was properly 

removed in the first instance. Provident Bank v. Beck, 952 F. Supp. 539, 540 (S.D. Ohio 1996). 

In matters concerning the existence of a federal law question or diversity of citizenship, the right 

of removal is determined by pleadings, viewed as of the time when petition for removal is filed. 

Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132 (3d Cir. 1976). 

Any doubts resolving federal jurisdiction should be resolved in favor of remand. Hechten 

v. Nationwide Fire Ins. Co., 2015 U.S. Dist. LEXIS 5103 (S.D. Ohio, 2015); Nat’l City Bank v. 
5 

Aronson, 474 F. Supp. 2d 925, 2007 U.S. Dist. 11880 (S.D. Ohio, 2007) (removal petitions are to 

be strictly construed, with all doubts resolved in favor of remand); Safe Workers’ Org. v. Ballinger, 

389 F. Supp. 903, 1974 U.S. Dist. Lexis 5696, (S.D. Ohio 1974); See also, Diamed, LLC. V. 

Diamed United States, LLC, 2011 U.S. Dist., LEXIS 47280 (N.D. Ohio 2011) (all doubts regarding 

removal must be resolved in favor of remand); Hardy v. Square D. Co., 199 F. Supp. 2d 676, 2002 

U.S. Dist. LEXIS 7629, (N.D. Ohio 2002). 

III. Analysis 

Defendant would essentially have the Court rule that the ACA has completely preempted 

state insurance law, or, at the very least, the causes of action presented in the Complaint. No court 

has yet so ruled. Two Courts have persuasively ruled to the contrary. The Court notes a decision 

from the Eastern District of Virginia: 

In the instant case, federal law does not create the cause of 

action asserted. In essence, the Complaint states a breach of 

contract claim and seeks a declaration that the Defendant has not 

complied with the terms of the parties’ contract, which incorporated 

compliance with both federal and state laws as a condition of the 

contract. See Compl. ¶¶ 64-68. Generally, the rights and 

obligations under the parties’ contract are governed by state law. See 

Volt Info. Scis., Inc. v. Bd. Of Trs., 489 U.S. 468, 474 (1989). The 

parties, and the court, agree that §2706 of the ACA does not create 

a private right of action. See Def’s Mem. Opp’n at 15; Pl.’s Mem. 

Supp. Mot. Remand at 6. However, although a private right of 

action is a sufficient condition, federal question jurisdiction will 

exist in this case only if the Plaintiff’s state law claims necessarily 

depend on resolution of a substantial question of federal law. 

*** 

... The Plaintiff’s suit does not “necessarily raise’ an issue 

of federal law. As the Court of Appeals for the Fourth Circuit has 

recognized, “a plaintiff’s right to relief for a given claim necessarily 

depends on a question of federal law only when every legal theory 

supporting the claim requires the resolution of a federal issue.” 
6 

Flying Pigs, LLC v. RRAJ Franchising, LLC, 757 F.3d 177, 182 (4th 

Cir. 2014) (quoting Dixon, 369 F/3d at 816). Therefore, “if the 

plaintiff can support his claim with even one theory that does not 

call for an interpretation of federal law, his claim does not ‘arise 

under’ federal law for purpose of § 1331.” Dixon, 369 F.3d at 817. 

Dominion Pathology Labs., P.C. v. Anthem Health Plans of Virginia, Inc., 111 F. Supp. 3d 731 

(E.D. Va. 2015). Such is also the case here. Plaintiff can assert that Defendant failed to uphold 

the promises made irrespective of whether they were made to comply with federal law. 

 The Court also notes a case from the Northern District of Texas: 

 Plaintiffs seek to remand this civil action on the basis that: 

(1) their state law claims are not completely preempted by the 

Affordable Care Act; and (2) their state law claims do not 

necessarily depend on the resolution of a substantial question of 

federal law because (i) there is no federal issue necessary to resolve 

their state law claims, (ii) there is no federal issue that is actually 

disputed, (iii) there is not a substantial federal interest, and (iv) the 

balance of federal and state judicial responsibilities favors state 

court. 

A. Preemption 

 The doctrine of complete preemption recognizes that 

“federal law can so completely preempt a field of state law that the 

plaintiff’s complaint must be recharacterized as stating a federal 

cause of action.” Aaron v. Nat’l Union Fire Ins. Co. of Pittsburg, 

Pa., 876 F.2d 1157, 1161 (5th Cir. 1989). This exception to the 

well-pleaded complaint rule “applies only in extraordinary 

circumstances when Congress intends not only to preempt certain 

state law, but to replace it with federal law.” Cyr v. Kaiser Found. 

Health Plan of Texas, 12 F.Supp.2d 556, 566 (N.D. Tex. 1998) 

(citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)). 

Accordingly, the exception “requires a clearly manifested 

congressional intent to make causes of action removable to federal 

court.” Id. (citing Aaron, 876 F.2d at 1163). 

 The Supreme Court has explained that “once an area of state 

law has been completely pre-empted, any claim purportedly based 

on that pre-empted state law is considered, from its inception, a 
7 

federal claim, and therefore arises under federal law.” Caterpillar, 

482 U.S. at 393. However, the Supreme Court emphasized that: 

[T]he presence of a federal question...in a defensive 

argument does not overcome the paramount policies 

embodied in the well-pleaded complaint rule—that the 

plaintiff is the master of the complaint, that a federal 

question must appear on the face of the complaint, and that 

the plaintiff may, by eschewing claims based on federal law, 

choose to have the cause heard in state court...a defendant 

cannot, merely by injecting a federal question into an action 

that asserts what is plainly a state-law claim, transform the 

action into one arising under federal law, thereby selecting 

the forum in which the claim shall be litigated. If a 

defendant could do so, the plaintiff would be master of 

nothing. Congress has long since decided that federal 

defenses do not provide a basis for removal. 

Id. at 398-99. 

 To the extent Defendant argues that federal question 

jurisdiction is supported by the doctrine of complete preemption, the 

Court is not persuaded. As set forth in Plaintiff’s Motion to 

Remand, Congress clearly indicated that the Affordable Care Act 

does not preempt state law. Pl.’s Mot. to Remand p.5. Specifically, 

42 U.S.C. § 18041 provides “[n]othing in this title shall be construed 

to preempt any State law that does not prevent the application of the 

provisions of this title.” 

  

 As such, the Court finds further support for its determination 

that the Affordable Care Act was not enacted to preempt state law. 

Therefore, the Court finds that the doctrine of complete preemption 

is not applicable to the matter now before the Court. In the Court’s 

view, Defendant has attempted to assert a federal preemption 

defense, therein attempting to form the basis of federal question 

jurisdiction. Accordingly, Plaintiff’s Motion to Remand is 

GRANTED as it relates to issue of preemption. 

B. The Doctrine of Substantial Federal Question Jurisdiction 

 Under the substantial federal question doctrine, “the 

question is, does a state-law claim necessarily raise a stated federal 
8 

issue, actually disputed and substantial, which a federal forum may 

entertain without disturbing any congressionally approved balance 

of federal and state judicial responsibilities.” Grable & Sons Metal 

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). 

 Fifth Circuit precedent holds that “federal question 

jurisdiction exists where (1) resolving a federal issue is necessary to 

resolution of the state-law claim; (2) the federal issue is actually 

disputed; (3) the federal issue is substantial; and (4) federal 

jurisdiction will not disturb the balance of federal and state judicial 

responsibilities.” Singh v. Duane Morris LLP, 538 F.3d 334, 338 

(5th Cir. 2008).1 

 Having reviewed the parties’ briefings, the Court is of the 

opinion that there are no federal issues necessary to the resolution 

of Plaintiffs’ state law claims. 

** ** 

 At any rate, 42 U.S.C. § 18041 provides that “[n]othing in 

this title shall be construed to preempt any State law that does not 

prevent the application of the provisions of this title.” 

Texas Med. Res., LLP v. Molina Healthcare of Texas, Inc., No. 3:18-CV-2784-C, 2019 WL 

363178, at *2-4 (N.D. Tex. Jan. 2, 2019). 

IV. Conclusion

Because Plaintiffs’ claims are not preempted by ACA, the Court GRANTS Motion to 

Remand by Plaintiffs. ECF 5. Plaintiffs’ request for costs, expenses and attorney’s fees incurred 

as a result of the removal pursuant to 28 U.S.C. §1447 on the basis that CareSource’s Notice of 

Removal has no legitimate legal support is DENIED. 

The CLERK is ORDERED to REMAND the instant action to Montgomery County Court 

of Common Pleas.

 

1 Sixth Circuit precedent is similar. See Mikulski v. Centerior, 501 F.3d 555, 568 (6th Cir. 2007) 
9 

DONE and ORDERED in Dayton, Ohio, this Monday, March 11, 2019. 

 

 /s/ Thomas M. Rose 

 ________________________________ 

 THOMAS M. ROSE 

 UNITED STATES DISTRICT JUDGE