PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

RICHARD SALZER, Individually and on behalf of others similarly situated, Plaintiff

– Appellant,

v. SSM HEALTH CARE OF OKLAHOMA INC., Defendant

– Appellee. No. 13-6099

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CV-01093-C)

Teresa S. Renaker, (Bradley C. West, The We st Law Firm, Shawnee, Oklahoma, with her on the briefs), Lewis Feinberg Lee Renaker & Jackson, Oakland, California, for the Plaintiff

– Appellant. Jodi W. Dishman (M. Richard Mullins, Mark D. Spencer, and Elizabeth Bowersox with her on the briefs), McAfee & Taft, Okla homa City, Oklahoma, for the Defendant

– Appellee.

Before LUCERO , MURPHY , and PHILLIPS , Circuit Judges.

LUCERO , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### August 6, 2014
Elisabeth A. Shumaker Clerk of Court-2- Richard Salzer sued SSM Health Care of Oklahoma, Inc. (“SSM”), alleging breach of contract and other st ate law claims based on SSM’ s attempt to collect payment for medical care from Salzer instead of his he alth insurance company. SSM removed the case to federal district court. Salzer challenges the district court’s denial of his motion to remand based on its determination that his claims were completely preempted by the Employee Retirement Income Secu rity Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Because “the propriety of removal is j udged on the complaint as it stands at the time of the removal,” Pfeiffer v. Hartford Fi re Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991), we draw the following facts from Salze r’s original complaint. Salzer received medical care at an SSM facility for injuries he sustained in an accident. At the time of his treatment, he possessed a health insurance pl an (the “Plan”). Salzer entered into a contract with SSM to receive its services (the “Hospita l Services Agreement”), under which he “authorized disclosure of [his] medical information fo r billing purposes and authorized [his] health in surance company to pay.” SSM had an existing contract with Salz er’s health insurance company (the “Provider Agreement”) 1 which required SSM to submit covered medical charges to

1 A “Provider Agreement is a unique type of contract” that is “entered into by hospitals and health care faci lities across the country.” In re Univ. Med. Ctr., 973 F.2d Continued . . .-3- Salzer’s insurance company and accept disc ounted payment from the insurer. Although the Provider Agreement prohibited SSM fro m seeking payment for a covered charge from Salzer, SSM sought the non-disc ounted amount directly from him. Salzer filed suit against SS M in Oklahoma state court for breach of contract, violation of the Oklahoma Consumer Protec tion Act, deceit, and tortious interference with contract. He proposed to represent a putative class of certain Oklahoma residents who received covered medical care or treatment at the “Defendant’s Facilities” as the result of injuries for which a th ird party was potentially responsible, and who were insured thro ugh a health insurance company that maintained a Provider or Participati on Agreement with the Defendant, but the Defendant collected a payment fro m, or brought a collection action against, or asserted a lien against a pa tient for a covered charge, other than a co-payment, deductible, or co-insurance. In addition to damages, Salzer sought, on behalf of himself and the putative class, “specific performance of a contract to whic h plaintiff is a thir d party beneficiary” (referring to the Provide r Agreement). SSM removed the suit to federal district court. In its notice of removal, SSM alleged that Salzer was a beneficiary of his wi fe’s employee welfare benefit plan operated by Aetna Health Inc., and that this plan was governed by ERISA. SSM further alleged that Salzer’s claims are preempted because they can be fairly characterized as seeking to

1065, 1069, 1081 (3d Cir. 1992 ) (quotation omitted), supersed ed by statute on other grounds as stated in In re Mu’min, 374 B. R. 149, 168-69 (Bankr. E.D. Pa. 2007). “It does not provide for a defined transaction or ev en a series of transactions,” but rather “establishes a relationship between the par ties.” Id. at 1081 (quotation omitted).-4- recover benefits or enforce rights under an ERISA plan. Following removal, Salzer moved to remand the case back to state court. The district court denied Salzer’s motion, holding that his claims were completely preempted by ERISA. 2 Salzer filed a motion for relief pursuant to Fed. R. Civ. P. 60(b), which was also denied. Salzer then filed an amended complaint that largely reasserted his original claims and added other state law claims. SSM res ponded with a motion to dismiss the suit for failure to state any ERISA claims. The district court granted SSM’s motion and dismissed the case with prejudice, concludi ng that the amended complaint disregarded the court’s prior orders by continuing to ar gue that ERISA did no t preempt the lawsuit and failed to allege any ERISA viola tions. Salzer timely appealed.
II The district court denied Salzer’s moti on to remand to state court based on its determination that his claims were preemp ted by ERISA. “We review de novo the question of whether Plaintiffs’ state law clai ms are completely preempted.” Felix v. Lucent Techs., Inc., 387 F.3d 1 146, 1153 (10th Cir. 2004). We also review de novo the district court’s denial of a motion to remand fo r lack of removal jurisdiction. Garley v. Sandia Corp., 236 F.3d 12 00, 1207 (10th Cir. 2001). A defendant may remove a civil action initially brought in state court if the federal

2 The court also rejected Salzer’s c ontention that the removal was untimely. On appeal, Salzer does not meaningfully challe nge the court’s timelin ess determination.-5- district court could have exer cised original jurisdiction. 28 U.S.C. § 1441(a). However, a federal court must remand a removed action ba ck to state court “[i]f at any time before final judgment it appears that the di strict court lacks subject matter jurisdiction.” § 1447(c). The party invoking federal jurisdic tion has the burden to establish that it is proper, and “there is a presumption against its existence.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). “One category of cases over which the distri ct courts have original jurisdiction are ‘federal question’ cases; that is, those case s ‘arising under the Constitution, laws, or treaties of the United States.’” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (quoting 28 U.S.C. § 1331). In determining the existence of federal question jurisdiction, courts are “guided generally by the ‘well- pleaded complaint’ rule, under which a suit arises under federal law only when the plaint iff’s statement of his own cause of action shows that it is based on federal law.” Turg eau v. Admin. Rev. Bd., 446 F.3d 1052, 1060 (10th Cir. 2006) (quotation omitted). Thus, as a general matter, the plaintiff “may prevent removal to federal court by choosing no t to plead a federal claim even if one is available.” Id. (quotation and alterati on omitted). The doctrine of “complete preemption,” however, is “a corollary or an exception to the well pleaded complaint rule,” under which “a state law cause of ac tion may be removed to federal court on the theory that federal preemption makes the state law claim necessarily federal in character.” Id. at 1061 (quotation omitted ). “[O]nly a few federal statutes [] so pervasively regulate their respective areas th at they have complete preemptive force;-6- ERISA is one.” Hansen v. Harper Excavatin g, Inc., 641 F.3d 12 16, 1221 (10th Cir. 2011). The dispositive question before us is wh ether Salzer’s claims are completely preempted by ERISA. “[C]ause s of action within the scope of the civil enforcement provision of [ERISA] § 502(a) [are] removable to federal court.” Taylor, 481 U.S. at 66. In Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the Supreme Court laid out a twopart test for determining whether a claim fall s within the scope of the civil enforcement provision: “[I]f an individual, at some poi nt 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 acti ons, then the individual’s cause of action is completely pre-empted by ERISA § 502 (a)(1)(B).” Id. at 210. 3 The civil enforcement provision allows a plan participant or beneficiary to br ing a civil action “to recover benefits due to him under the terms of his plan, to enforce hi s rights under the terms of the plan, or to clarify his rights to future benefits under th e terms of the plan.” ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).

3 Salzer’s argument on appeal that re moval requires “conflict” or “express” preemption under ERISA § 514 as well as complete preemption under § 502(a) is incorrect. See Davila, 542 U.S. at 214 n.4 (rejecting this argument). Salzer misconstrues our cases explaining that a claim preempted under § 514 must also fall under § 502(a) to be completely preempted. See, e.g., Felix, 387 F.3d at 1156 -58. Section 514 “creates a federal defense of preemption to a substantiv e state-law claim that may be asserted in either state or federal court, but it does not of its own force create federal jurisdiction.” Hansen, 614 F.3d at 1221 (emphases omitted). We therefore do not reach the question of § 514 preemption.-7- A We conclude that five of Salzer’s si x original claims do not fall under ERISA § 502(a)(1)(B) because they do no t seek to vindicate rights set forth in the “terms of the plan,” as required by that provision. A claim meets the first prong of th e Davila test if it asserts rights to which the pl aintiff is entitled “ only because of the terms of an ERISAregulated employee benefit plan.” Davila, 54 2 U.S. at 210 (emphases added). In his claims for breach of contract , violation of the Oklahoma Consumer Protection Act, deceit, specific performance, and punitive damages, Salzer does not assert claims for benefits under his Plan, nor does he seek to enforce or clarify rights under the Plan. Instead, he complains that SSM did not fulfill its obligation to submit charges for his care to the insurer, but instead billed him direc tly. The contracts under which these claims arise are the Provider Agreemen t and the Hospital Services Ag reement, not the Plan. See Anderson v. Ochsner Health Sys., No. 11-22 36, 2012 WL 2116173, at *4 (E.D. La. June 11, 2012) (unpublished) (patient’s claim ag ainst health care provider as third-party beneficiary to provider agreement was not preempted by ERISA because the claim “does not involve a denial of benefits” and t hus could not be brought under § 502(a))

. Because Salzer seeks to enforce contracts ot her than the Plan in these five claims, the claims also fail the second prong of the Davila preemption test, which requires that no “independent legal duty” other than ERISA be im plicated. 542 U.S. at 210. The district court concluded that Salzer, “as a patient, is not a party to the provider agreement [between SSM and Aetna] and, therefore, do es not have independent rights that do not-8- derive from the ERISA benefit plan.” But Salzer alleges that SSM violated duties it owed to him under the Hospital Services Agreem ent—to which he is a party—and that he is a third-party beneficiary to the Provider Agreement. See Denver Health & Hosp. Auth. v. Beverage Distrib. Co., 546 F. App’x 742, 747 (10th Cir. 2013) (unpublished) (“[E]xtrinsic documents relevant to the plan . . . do not them selves constitute the terms of the plan for purposes of § 502(a)(1)(B).” (q uotation omitted)). Salz er also alleges in these claims that by improper ly billing him in violation of the above-cited agreements, SSM violated state statutory dutie s and common law tort duties. Some courts have held that patient s cannot make out claims under provider agreements. Blue Cross of Cal. v. Anesth esia Care Assoc. Med. Grp., Inc., 187 F.3d 1045, 1051 (9th Cir. 1999) (holdi ng that health care providers’ claims against insurer for violation of a provider agreement were not co vered by § 502(a)(1)(B) in part because direct contract claims could not have been asserted by patients); Mem’l Hermann Hosp. Sys. v. Aetna Health Inc., No. H-06-00828, 2007 WL 1701901, at *5 (S.D. Tex. June 11, 2007) (unpublished) (same). We agree that claims based on a provider agreement do not necessarily fall within § 502(a)(1)(B), and note that these courts did not consider the possibility of a third-party beneficiary claim. See Arthur Andersen, LLP v. Carlisle, 556 U.S. 624, 631 (2009) ( “[T]raditional principles of stat e law allow a contract to be enforced by or agains t nonparties to the contract thro ugh . . . third-party beneficiary theories . . . .” (quotation omitted)). Moreover, the merit of Salz er’s claim that he is a third-party beneficiary of the Provider Ag reement is not properly part of our-9- jurisdictional analysis as to the removal question. The possi bility that Salzer fails to make out a winning state law claim does not indicate that comple te preemption applies. SSM argues that Salzer’s claims depend on the Plan because his complaint refers to “covered charges” and because his asserted third-party beneficiary status under the Provider Agreement exists via his status as a beneficiary of an ERISA plan. As an initial matter, references to “covered charges” in the complaint merely acknowledge that SSM was permitted to charge Salzer directly for co-payments, co-insurance, and deductibles. It is not entirely clear to us that “covered ch arges” refers to charge s covered by the Plan; the most natural reading of th e complaint suggests that “c overed charges” means charges covered by the Provider Agreement. 4 SSM affirmatively allege d in its notice of removal that its hospitals’ contracts with Aetna “defin e the obligation of the hospitals to provide medical treatment for ‘Covered Benefits ’ . . . as well as Aetna’s corresponding responsibility to reimburse the hospitals for the services.” Further, we agree with the Ninth Circuit’s determination th at references to “covered billed charges” in a provider agreement do not establish that a claim for breach of a provi der agreement is completely preempted. Blue Cross of Cal., 187 F.3d at 1051 (“Where the meani ng of a term in the Plan is not subject to dispute, the bare fact th at the Plan may be consulted in the course of

4 Unfortunately, the parties have neglecte d to include in the record the actual agreements at issue. We therefore must base our decision on the a llegations contained in the original complaint and th e uncontested allegations in the notice of removal. See McPhail v. Deere & Co., 529 F.3d 947, 955 ( 10th Cir. 2008); Pfeiffer, 929 F.2d at 1488.-10- litigating a state-law claim does not require th at the claim be extin guished by ERISA’s enforcement provision.”). The Provider Agreement may be related to the Plan in some way, but on the record before us, SSM has not shown that the Plan “forms an essentia l part,” Davila, 542 U.S. at 213, of Salzer’s claims relate d to improper billing. See David P. Coldesina, D.D.S., P.C., Empl. Profit Sharing Plan & Trust v. Estate of Simper, 407 F.3d 1126, 1137 (10th Cir. 2005) (no ERISA preemption where “any connec tion to the plan is fortuitous”). The same district court that decided the presen t matter recently held that ERISA preemption does not apply to claims based primarily on contracts other than an insurance plan if the plan plays only a tangential role in the claim: Plaintiff’s claims primarily hinge u pon an agreement sh e claims she was forced to sign in order to obtain me dical care and whether or not that agreement violates Oklahoma contract law or some other provision of Oklahoma law. Her health insurance or that of any other of the class plaintiffs plays at most only a pe ripheral role in the claim. Cargill v. Norman Reg’l Health Sys. and/ or Norman Reg’l Hosp . Auth., No. CIV-12- 0180-C, slip op. at 3 (W.D. Okla. Ap r. 10, 2012) (unpublished); see also Anderson, 2012 WL 2116173, at *4 (“ERISA does not completely preempt [p laintiff’s] contract claims and her right to sue as a third party benefici ary for breach of” a pr ovider agreement). We acknowledge that a nother decision from the Western District of Oklahoma concluded that an ERISA plan beneficiary’s suit against a health care provider for failing to submit claims according to the terms of a provider agre ement was preempted because her “status as a third-party beneficiary is dependent on her participation in the ERISA-11- Plan in the first place.” Cates v. Integris Health, Inc., No. CIV- 12-0763-HE, 2012 WL 5456093, at *3 (W.D. Okla. Nov. 7, 2012) (unpublished). But we find this connection too attenuated to meet the Davila standard . See David P. Coldesina, 407 F.3d at 1138 (ERISA preemption does not apply if plan is merely “part of the factual backdrop of th[e] case”). We conclude that Cargill’s reasoni ng is the more persuasive, and that a substantively similar analysis applies to the case at bar. In five of his claims, Salzer has allege d that SSM breached its contractual duties under the Provider Agreemen t and the Hospital Services Agreement by billing him directly for services, and that in doing so th e company also violated state statutory and tort law. SSM has not shown that these claims seek to enforce righ ts that exist under the terms of the Plan, nor has it rebutted Salzer’s allegations that these claims rest on legal duties independent of the Plan. Accordingly, we conclude that these claims are not subject to complete ERISA preemption on the record before us.
B We reach the opposite conclusion as to Salzer’s remaining claim, for tortious interference with contract. In that claim, Salzer alleges th at “[a]ccording to each class member’s contract for health insurance, each cl ass member should have received a discount for the medical services provided by Defendant,” and that SSM’s failure to bill the insurance companie s “deprived each class member of the benefit of their health insurance.” Unlike the other claims in Salzer’s comp laint, this claim de pends entirely upon the-12- existence of a benefit contained in an ERISA plan. 5 In this respect, the claim is highly analogous to those consid ered in Davila. There, plaintif fs asserted claims under a state statute that “impose[d] a duty on managed ca re entities to exercise ordinary care when making health care treatment decisions, and ma [de] them liable for damages proximately caused by failures to abide by that duty.” Davila , 542 U.S. at 212 (quotation omitted). But the statute did not oblige managed care en tities “to provide to an insured or enrollee treatment which is not covere d by the health care plan of the entity.” Id. at 213 (quotation omitted). The Court explained that this intera ction resulted in complete preemption: [I]nterpretation of the terms of [p laintiffs’] benefit plans forms an essential part of their [state-law] clai m, and . . . liability would exist here only because of [defendants’] admini stration of ERISA-regulated benefit plans. [Defendants’] potential liability under [state law] in these cases, then, derives entirely from the particul ar rights and obligations established by the benefit plans. . . . Hence, [plaintiffs] bri ng suit only to rectify a wrongful denial of

5 The complaint refers to h ealth insurance plans generally rather than specifically identifying a plan subject to ERISA. Howeve r, SSM alleged in its notice of removal that Salzer’s Plan is “an employee welfare benef it plan governed by ERISA” because it was established and maintained by Hospital Corporation of America, an employer engaged in commerce or an industry aff ecting commerce. See 29 U.S.C. § 1003(a) (ERISA covers employee benefit plans established or ma intained “by any employer engaged in commerce or in any industry or activity affecting commerce” subject to certain exceptions). Salzer did not dispute this belo w, and despite his contention on appeal that SSM has not carried its burden of proving the Plan is governed by ERISA, he does not contest SSM’s material factual allegations. Accordingly, we accept the allegations as true. See 28 U.S.C. § 1446(a) (notice of removal must contain “a short and plain statement of the grounds for removal”); Mc Phail, 529 F.3d at 955 (“[A] proponent of federal jurisdiction must, if material fact ual allegations are contested, prove those jurisdictional facts by a preponderance of the ev idence.” (quotation omitte d)).-13- benefits promised under ERISA-regulat ed plans, and do not attempt to remedy any violation of a legal duty inde pendent of ERISA. We hold that [plaintiffs’] state causes of acti on fall within the scope of ERISA § 502(a)(1)(B), and are therefore comp letely pre-empted by ERISA § 502 and removable to federal district court. Id. at 213-14 (quotatio n and citation omitted). As in Davila, Salzer’s claim for torti ous interference can succeed only if his ERISA plan actually entitled him to a discount for the services pr ovided by SSM. Accordingly, interpretation of the Plan is a necessary component of the claim and thus the legal duty at issue cannot be described as “independent of ERISA.” Id. at 214. His right to relief depends u pon Plan provisions. For largely the same reason, we conclude that Salzer’s tortious interference claim meets the first prong of the Davila test. Salzer “could have brought his claim under ERISA § 502(a)(1)(B),” id. at 210, because it is one “to enforce his rights under the terms of the plan,” ERISA § 502(a)(1)(B), 29 U. S.C. § 1132(a)(1)(B). According to the unambiguous allegations in th e complaint, Salzer seeks a remedy because he was “deprived . . . of the benefit of [his] hea lth insurance.” Althou gh the Plan is not contained in the record, Salzer has affirmativ ely alleged that he was entitled to a discount that “derives entirely from the particular ri ghts and obligations established by the” terms of the Plan, Davila, 542 U.S. at 213, and that SSM’s actions deprived him of that benefit. Because Salzer’s tortious interference clai m is one seeking to enforce rights under the terms of an ERISA plan, and does not re st on a legal duty independent of an ERISA plan’s terms, Davila mandates complete pree mption of that claim. Although we have-14- concluded that most of Sal zer’s claims are not preempted , federal jurisdiction over any one claim is sufficient to support removal. See Gilmore v. Weatherford, 694 F.3d 1160, 1176 (10th Cir. 2012) (“[I]f any one claim within Plainti ffs’ complaint supports federal question jurisdiction, a federal court may assert jurisdiction over all the claims, including any alleged state-law claims, arising from th e same core of operative facts.” (quotation omitted)); see also 28 U.S.C. § 1441(a) (p ermitting removal of any case over which district court could have exer cised original jurisdiction). 6
III For the foregoing reasons, we AFFIRM

.

6 Although we conclude that not all of the claims in Salzer’s or iginal complaint are completely preempted, he fails to challenge th e dismissal with prejudi ce of the claims in his amended complaint. See Bronson v. Sw ensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening br ief generally forfeits appellate consideration of that issue.”).