The Court also notes that neither Defendant’s nor Plaintiff’s Surreply contain “summary- 1

judgment type” evidence or new arguments to warrant leave to file. See Hornbuckle v. State Farm

Lloyds, 385 F.3d 538, 542 (5th Cir. 2004).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION 

__________________________________

DRALVES GENE EDWARDS, M.D. *

 *

Plaintiff, *

 *

v. *

 * Civil No. 3:05-CV-0144-H

BLUE CROSS/BLUE SHIELD OF TEXAS; *

BLUE CROSS/BLUE SHIELD *

ASSOCIATION; and TRAILBLAZER *

HEALTH ENTERPRISES L.L.C., *

 *

Defendants. *

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiff’s Motion to Remand, filed February 23, 2005;

Defendant Blue Cross/Blue Shield of Texas’s Motion to Reconsider, filed March 4, 2005; Defendant

Blue Cross/Blue Shield of Texas’s Response, filed March 4, 2005; Plaintiff’s Reply, filed March 21,

2005. On February 23, 2005, relying on Plaintiff’s averments, the Court granted Plaintiff’s Motion

to Remand, filed February 22, 2005. The Court’s prompt ruling on Plaintiff’s Motion did not

provide BCBS an opportunity to respond. The Court thus finds grounds for review of and hereby

VACATES its Remand order, entered February 23, 2005. However, for the reasons stated below,

Plaintiff’s Motion to Remand is GRANTED.

Also before the Court are Defendant Blue Cross/Blue Shield of Texas’s (“BCBS”)

Motion for Leave to file Surreply, filed March 29, 2005; and Plaintiff’s Motion for Leave to file

Surreply, filed April 15, 2005. The Court has reviewed the parties’ respective Surreplies and finds

them repetitive of their previous pleadings and not helpful. Defendant Blue Cross/Blue Shield of 1

 

 Case 3:05-cv-00144-H Document 20 Filed 05/25/05 Page 1 of 10 PageID 85
 Plaintiff posits that his dismissal of Trailblazer and Blue Cross/Blue Shield of South Carolina 2

deprives the Court of jurisdiction. (Pl.’s Mot. at 1.) 

2

Texas’s Motion for Leave to file Surreply is therefore DENIED and Plaintiff’s Motion for Leave

to file Surreply in Support of Plaintiff’s Motion to Remand is also DENIED.

I. Procedural Background

Defendant Trailblazer Health Enterprises L.L.C. (“Trailblazer”), an alleged fiscal

agent for the United States Department of Health andHuman Services, unilaterally removed the case

under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). (Def. Trailblazer’s Notice of

Removal, filed Jan. 24, 2005.) On February 22, 2005, Plaintiff dismissed his claims against

Trailblazer and Blue Cross/Blue Shield of South Carolina. (Pl.’s Notice of Dismissal, filed Feb. 22,

2005.) In his Motion to Remand, Plaintiff asserts that no federal question exists and that “no

diversity exists as to the remaining Defendant.” (Pl.’s Mot. to Remand, filed Feb. 22, 2005.) 2

Although Plaintiff alleges a defect in Trailblazer’s removal procedure (Pl.’s Reply at 5), the parties

do not otherwise challenge the merits of Trailblazer’s removal. The issue before the court is whether

to remand, i.e., whether it has jurisdiction over the remaining claims. 

II. Analysis

 “If at any time before final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.” Buchner v. F.D.I.C., 981 F.2d 816, 819 (5th

Cir.1993) (quoting 28 U.S.C. § 1447). The burden of establishing jurisdiction is on BCBS. See

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998) (“[W]hen faced with

a motion to remand, it is the defendant’s burden to establish the existence of federal jurisdiction over

the controversy.”). BCBS argues that the Court retains jurisdiction on three grounds: (1) diversity

jurisdiction; (2) federal question jurisdiction; and (3) supplemental jurisdiction. (Def. BCBS’s Resp.

 

 Case 3:05-cv-00144-H Document 20 Filed 05/25/05 Page 2 of 10 PageID 86
 Plaintiff refers the Court to “Exhibit 2,” presumably BCBS’s Original Answer. (Pl.’s Reply at 3

2.) However, Plaintiff has not appended his Reply with either attachments or exhibits and the removal

record is incomplete.

3

at 1.) The Court addresses BCBS’s arguments in turn. 

A. Diversity Jurisdiction

Title 28, Section 1332 of the United States Code requires complete diversity, i.e., that

the parties be “citizens of different States.” 28 U.S.C. § 1332(a)(1) (West 2005). “[D]istrict courts

. . . have original jurisdiction [over] civil actions where the matter in controversy exceeds . . .

$75,000.” Id. § 1332(a). 

The Court “first examine[s] the complaint to determine whetherit is facially apparent

that the claims exceed the jurisdictional amount.” Hartford Ins. Group v. Lou-Con Inc., 293 F.3d

908, 910 (5th Cir. 2002) (citing St. Paul Reins. Co. Ltd. v. Greenburg, 134 F.3d 1250, 1253 n.13 (5th

Cir. 1998)). Plaintiff’s First Amended Original Petition alleges that Plaintiff has been denied 96%

of his claims submitted for payment. (Pl.’s 1st Am. Original Pet. at 3.) Extrapolating from the

$4,500 Plaintiff did receive for services rendered, it is facially apparent that Plaintiff’s claim seeks

to recover $108,000. Finding it facially apparent that Plaintiff’s claim exceeds the jurisdictional

amount, 28 U.S.C. § 1332(a), the Court next examines the citizenship of the parties. 

BCBS proffers the affidavit of Linda Cox (“Cox”), a paralegal in BCBS’s litigation

department, to show that BCBS’s principal place of business is in Chicago, Illinois. (Def.’s Ex. A

(Cox Aff. at 1).) Plaintiff does not offer any “summary judgment-type evidence” to counter BCBS’s

argument. See Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 542 (5th Cir. 2004); Hartford Ins.

3

Group, 293 F.3d at 910; Badon v. RJR Nabisco Inc., 236 F.3d 282, 284 (5th Cir. 2000). Instead

Plaintiff relies on Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999), to argue that

the Court “may not consider the entire post-removal record.” (Pl.’s Reply at 2.) 

 

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4

Under Plaintiff’s interpretation of Simon, the Court must ignore the jurisdictional

facts that existed at the time of removal because BCBS failed to timely allege those facts. However,

as noted in Simon, “any post-petition affidavits are allowable only if relevant to” the time of the

removal. Simon, 193 F.3d at 851 n.10 (citing Allen v. R &H Oil & Gas Co., 63 F.3d 1326, 1335 (5th

Cir. 1995)); see also Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (“The

jurisdictional facts that support removal must be judged at the time of the removal. . . .

[P]ost-removal affidavits may be considered in determining the amount in controversy at the time

of removal, . . . only if the basis for jurisdiction is ambiguous at the time of removal.”); St. Paul

Reinsurance, 134 F.3d at 1254 n.18 (“We have considered a post-removal affidavit when the

jurisdiction[] . . . was ambiguous . . . In doing so, however, we explained that the affidavit helped

clarify the jurisdictional facts ‘as of the time of removal.’”);Coury v. Prot, 85 F.3d 244, 249 (5th Cir.

1996) (“In making a jurisdictional assessment, a federal court is not limited to the pleadings; it may

. . . receive affidavits . . . concerning the facts underlying the citizenship of the parties.”). Therefore

the Court should consider Cox’s affidavit, submitted after removal, only if it is relevant to “the

jurisdictional facts as of the time the case is removed.” H&D Tire and Automotive-Hardware Inc.

v. Pitney Bowes Inc., 250 F.3d 302, 306 n.7 (5th Cir. 2001) (citing Asociacion Nacional de

Pescadores v. Dow Quimica, 988 F.2d 559, 565 (5th Cir. 1993)).

The Cox Affidavit, signed March 4, 2005, clearly states that BCBS’s principal place

of business is Chicago, Illinois. The Cox Affidavit, however, does not address whether, at the time

of removal or at the time Plaintiff filed his First Amended Original Petition, BCBS had its principal

place of business in Chicago, Illinois. Other than confirming the amount in controversy, Defendant’s

evidence provides no insight as to “the jurisdictional facts as of the time the case [was] removed.”

Id.; see Coury v. Prot, 85 F.3d at 249 (“In cases removed from state court, diversity of citizenship

 

 Case 3:05-cv-00144-H Document 20 Filed 05/25/05 Page 4 of 10 PageID 88
 Under the Federal Officer Removal Statute, a civil action against any agency of the United 4

States “or any officer (or any person acting under that officer) of the United States or of any agency

thereof, sued in an official or individual capacity for any act under color of such office” may be removed

by that agent or officer. 28 U.S.C. § 1442(a)(1) (emphasis added).

5

must exist both at the time of filing in state court and at the time of removal to federal court.”)

Therefore, the Court finds that BCBS has failed to meet its burden of showing diversity jurisdiction.

B. Federal Question Jurisdiction

BCBS argues that the Court retains jurisdiction becauseBCBS is a federal officer and

thus federal question jurisdiction exists. (Def.’s Resp. at 4.) BCBS relies heavily on the Federal

Officer Removal Statute, 28 U.S.C. § 1442. (Id.) Curiosly, BCBS did not remove and has not

removed since the inception of the suit in June 2003. Because BCBS did not remove, its reliance

on 28 U.S.C. § 1442 is misplaced. The Court has found no authority for BCBS’s unstated,

underlying premise: that a non-removing defendant can utilize a removal statute to support postremoval federal question jurisdiction.

Being a party who arguably could remove the case, BCBS did not so remove. Based 4

on Trailblazer’s removal, the matter before the Court is the issue of the Court’s jurisdiction over the

remaining claims. “Federal jurisdiction exists only when a federal question is presented on the face

of a plaintiff’s properly pleaded complaint.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th

Cir. 2003) (citing Caterpillar v. Williams, 482 U.S. 386, 392 (1987). “The existence of a defense

based upon federal law is insufficient to support jurisdiction.” Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922, 924 (5th Cir. 1997) (citing Caterpillar, 482 U.S. at 392). Although it is an exception

to the “‘well-pleaded complaint’ rule which would otherwise preclude removal even if a federal

defense were alleged,” Mesa v. California, 489 U.S. 121, 136 (1989), the Federal Officer Removal

Statute is inapplicable because BCBS did not exercise its right to remove thereunder. 

 

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 The deadline for removing under§ 1442(a)(1) Federal Officer Removal Statute is governed by 5

28 U.S.C. § 1446(b). See State of La. v. Sparks, 978 F.2d 226, 233 n.11 (5th Cir. 1992); Madden v. Able

Supply Co., 205 F.Supp.2d 695, 698 n.2 (S.D. Tex. 2002) (“Generally, parties removing an action

pursuant to § 1442(a)(1) must file a notice of removal within thirty days after receipt of the plaintiff's

initial pleading. If, however, the initial pleading does not articulate the details of the plaintiff's claims,

the thirty day time period begins to run on the date that the defendant receives “other paper” specifically

indicating the grounds for removal.”) (citing 28 U.S.C. § 1446(b)); Glendora v. City of White Plains, 53

F.Supp.2d 621, 622 (S.D.N.Y. 1999); Newtop v. Rhenquist, Civ. No. 94-4068-VRW, 1995 WL 23929 at

*1 (N.D. Cal. 1995); Perry v. United States, 936 F.Supp. 867, 878-79 n.3 (S.D. Ala. 1996); Pack v. AC

and S, Inc., 838 F.Supp. 1099, 1102 (D. Md. 1993).

 Plaintiff argues that BCBS waived its right to remove. (Pl.’s Reply at 2-3.) Specifically

6

Plaintiff avers that because it “conducted discovery, participated in docket control conferences, set trial

dates, and joined in a motion for continuance,” BCBS invoked the state process invoked and thus cannot

now remove. (Id.) Because the removal record is incomplete, the Court is unable to ascertain the extent

to which BCBS has “invoked the state judicial process.” See Brown v. Demco, Inc., 792 F.2d 478, 481

(5th Cir. 1986) (finding that defendant invoked the state court process where “they filed answers,

amended answers, motions of various kinds, third party demands, cross claims, amended cross claims,

and participated in discovery and depositions.”)

6

Assuming, arguendo, that BCBS’s Response could be construed as a removal, such

a removal is ineffective because it is untimely under 1446(b) and BCBS has not met the pleading

requirements as set out in Mesa, 489 U.S. at 136. Such defects are fatal to BCBS’s arguments

opposing remand. 

1. Untimely Actions

Under 28 U.S.C. § 1446(b), BCBS must have removed “within thirty days after the

receipt . . . of the initial pleading [or] ‘other paper.’” The state court docket sheet indicates that 5

Plaintiff’s Original Petition was filed June 30, 2003, and Plaintiff’s First Amended Original Petition

was filed December 20, 2004. (Def. Trailblazer’s Notice of Removal.) Despite having filed its

Answer on August 1, 2003, at no point since the inception of the lawsuit has BCBS removed.6

“[F]ailure to petition for removal within thirty days may render removal improvident within the

meaning of 28 U.S.C. § 1447(c).” Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986). 

Allowing BCBS to assert the removal statute as grounds for federal question jurisdiction, is

 

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 Although Mesa articulates a four-prong test, since Mesa, the Supreme Court has combined the 7

“causal nexus” prong into the second prong. See Jefferson County Ala. v. Acker, 527 U.S. 423, 431

(1999) (“To satisfy the [acting under color of office] requirement, the officer must show a nexus, a

‘causal connection’ between the charged conduct and asserted official authority.”) (internal citation

omitted); Winters, 149 F.3d at 398; see also Faulk v. Owens-Corning Fiberglass Corp., 48 F.Supp.2d

653, 659 n.7 (E.D. Tex. 1999).

7

tantamount to proving BCBS an opportunity to remove outside the deadline for removing. See 28

U.S.C. § 1446(b). The Court declines to so reward BCBS for its artful pleading in the face of its

untimely pleaded grounds for removal.

2. Pleading Requirements to Assert § 1442

In arguing that the Federal Officer Removal Statute can apply post-removal, BCBS

is arguing that jurisdiction exists by virtue of the defendant’s status as a federal officer. Such an

argument lacks merit. “The federal character of the litigant should not alone confer jurisdiction upon

a federal court.” Mesa, 489 U.S. at 131; see id. at 136 (“Section 1442(a), therefore, cannot

independently support Art. III ‘arising under’ jurisdiction. “); Williams v. Brooks, 945 F.2d 1322,

1324-25 n.2 (5th Cir. 1991); see also Arnold By and Through Arnold v. Blue Cross & Blue Shield

of Tex., Inc., 973 F.Supp. 726, 739 (S.D. Tex. 1997), overruled in part by, Winters, 149 F.3d 387.

For BCBS to properly remove, it “must show that (1) they are ‘persons’ within the meaning of the

statute; (2) [must show that] they [were] ‘acting under color of federal authority’ when committing

the acts leading to the instant lawsuit; [and] (3) must assert a colorable federal defense.” Winters 7

v. Diamond Shamrock Chemical Co., 901 F.Supp. 1195, 1197 (E.D. Tex. 1995), aff’d, 149 F.3d at

397-401. BCBS fails to establish prongs (2) and (3).

a. “Acting Under” Requirement

BCBS has not shown that it was “acting under color of federal authority” when it

denied 96% of Plaintiff’s claims submitted for payment. While BCBS articulates the regulations

from which it allegedly denied Plaintiff’s claims, (Def.’s Response at 5-8), it has not demonstrated

 

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8

that its decisions were performed pursuant to the direct and detailed control of an officer of the

United States. See Kennedy v. Health Options, Inc., 329 F.Supp.2d 1314, 1318 (S.D. Fla. 2004)

(“the presence of federal regulations does not satisfy the requirements to assert federal jurisdiction

pursuant to 28 U.S.C. § 1442(a)(1)”); Jamison v. Purdue Pharma Co., 251 F. Supp. 2d 1315, 1326

(S.D. Miss. 2003) (merely establishing that the relevant acts occurred under the general auspices of

federal direction does not support federal officer removal); Madden v. Able Supply Co., 205 F. Supp.

2d 695, 700-01 (S.D. Tex. 2002) (“the uncontested Gate affidavit plainly shows that [defendant] was

acting under the direction of a Naval officer”); Arnold, 973 F.Supp. at 740 (“Blue Cross must

establish that the federal officer or agent has ‘direct and detailed control over the defendant.’”)

(quoting Winters, 901 F.Supp. at 1199); Good v. Armstrong World Industries, Inc., 914 F. Supp.

1125, 1128 (E.D. Pa. 1996) (existence of statute governing defendant’s actions does not alone

support federal officer removal); Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992)

(same). Therefore, BCBS has not demonstrated that it was “acting under color of federal authority

when committing the acts leading to the instant lawsuit.” Winters, 901 F.Supp. at 1197.

b. Federal Defense Requirement

BCBS has failed to aver a federal defense. See Jefferson County, 527 U.S. at 431;

Mesa, 489 U.S. at 134, 139. Although BCBS “need not prove the asserted defense,” BCBS must

articulate the “‘colorable’ applicability” of a federal defense “to the plaintiff’s claims.” Winters, 149

F.3d at 400. Indeed, BCBS “need not win [its] case before he can have it removed.” Jefferson

County, 527 U.S. at 431 (citing Willingham v. Morgan, 395 U.S. 402, 407 (1969)); Mesa, 489 U.S.

at 134, 139 (same). 

The only inkling of a defense in BCBS’s Response is its implication that Plaintiff has

failed to exhaust his administrative remedies. (Def.’s Resp. at 3.) BCBS’s assertion that “at bottom,

 

 Case 3:05-cv-00144-H Document 20 Filed 05/25/05 Page 8 of 10 PageID 92
9

Plaintiff is challenging [a] Medicare contractor’s denials of Plaintiff’s Medicare claims,” sounds in

preemption. (Id. at 4.) Whether asserting preemption or a failure to exhaust administrative

remedies, BCBS may raise either argument as defenses to Plaintiff’s state law claims in state court.

See Christus Health Gulf Coast v. Aetna, Inc., — S.W.3d —, Civ. No. 14-03-01281-CV, 2005 WL

851187 (Tex. App.– Houston [14 Dist.] April 14, 2005) (analyzing defendant’s failure to exhaust

administrative remedies defense under Medicare); Wright v. Combined Ins. Co. of America, 959

F.Supp. 356, 363 (N.D. Miss. 1997) (“[T]he mere interpretation of the Medicare and Medicaid

statutes as an essential portion of the plaintiff’s claims does not confer upon this court original

jurisdiction over those state law claims.”) (citing Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804, 813 (1986)); Arnold, 973 F.Supp. at 730 (“The state courts are competent to interpret

federal law as well as adjudicate cases that may involve a significant federal interest.”) (quoting

Chuska Energy Co. v. Mobil Exploration & Producing, N. Am. Inc., 854 F.2d 727, 730 (5th

Cir.1988)). BCBS’s mere implication of a preemption or a failure to exhaust administrative

remedies defense falls short of the pleading standard. Accordingly, BCBS has failed, to meet its

burden of establishing that federal question jurisdiction exists. See Winters, 149 F.3d at 397. 

C. Supplemental Jurisdiction

The Court’s retention of supplemental jurisdiction is discretionary. 28 U.S.C. §

1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see Bass v. Parkwood

Hosp., 180 F.3d 234, 246 (5th Cir. 1999) (“The courtmust exercise its discretion whether to exercise

supplemental jurisdiction over” the remaining claims where “no federal question remains before the

district court.”). In the instant case, having no diversity or federal question jurisdiction, the Court

may decline to exercise supplemental jurisdiction. In the interests of comity, judicial economy, and

convenience, the Court does decline to retain jurisdiction over Plaintiff’s state law claims. United

 

 Case 3:05-cv-00144-H Document 20 Filed 05/25/05 Page 9 of 10 PageID 93
10

Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The Court finds that in doing so, no undue

burden will be placed upon the parties, since the case has progressed in state court since June 30,

2003.

IV. Conclusion

BCBS, as the party invoking the Court’s jurisdiction, bears the burden of establishing

jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see United States v. Garza,

124 Fed. Appx. 891, 893 (5th Cir. 2005). BCBS has not met its burden. Having reconsidered its

Order, entered February 23, 2005, the Court remains of the Opinion that the Court lacks subject

matter jurisdiction. Accordingly, the Court rules as follows. 

(1) Defendant Blue Cross/Blue Shield of Texas’s Motion to Reconsider is DENIED as

MOOT.

(2) Defendant Blue Cross/Blue Shield of Texas’s Motion for Leave to file Surreply is

DENIED.

(3) Plaintiff’s Motion for Leave to file Surreply in Support of Plaintiff’s Motion to Remand

is DENIED.

(4) Plaintiff’s Motion for Remand is GRANTED. The case is REMANDED to the 44th

Judicial District Court of Dallas County, Texas, where originally filed. 

SO ORDERED.

DATED: May 25, 2005.

 

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