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Oser v. Weirton Medical Center, Inc.

United States District Court, N.D. West Virginia

July 10, 2017

CRAIG R. OSER, D.O., Plaintiff,



         I. Procedural History

         The plaintiff commenced this civil action by filing a complaint in the Circuit Court of Brooke County, West Virginia, alleging that the defendant breached its employment agreement with the plaintiff by terminating him without the 120 days notice required under the employment agreement, by unilaterally cancelling his medical professional liability insurance, and by failing to market him as required under the Employment Agreement. Specifically, the plaintiff's amended complaint sets forth five causes of action against the defendant: (1) declaratory judgment pursuant to West Virginia Code § 55-13-1; (2) breach of contract; (3) violation of the West Virginia Wage Payment and Collection Act; (4) tort of outrage; and (5) tortious interference and defamation.

         The defendant removed the case to this Court on the basis of federal question jurisdiction. In its notice of removal, the defendant contends that this case involves one or more questions of federal law. Specifically, the defendant argues that the plaintiff's claims for the tort of outrage and tortious interference contain embedded federal law claims for a violation of the Health Insurance Portability and Accountability Act of 1977 (“HIPAA”) and that the plaintiff's tortious interference and defamation claims implicate Section 1877 of the Social Security Act, 42 U.S.C. § 1395nn (the “Stark Law”). The Stark Law prohibits physicians from referring a patient to an entity with which the referring physician has a financial relationship, unless a statutory or regulatory exception is met.

         The plaintiff filed a motion to remand, arguing that this case does not raise a substantial federal issue. The defendant filed a timely response to the motion to remand, to which the plaintiff replied. The motion to remand is currently pending before this Court and is ripe for review. For the reasons set forth below, this Court finds that the plaintiff's motion to remand must be granted.

         II. Facts [1]

         The plaintiff was employed by the defendant subject to the terms of an employment agreement dated January 31, 2012. Pursuant to the employment agreement, the plaintiff was employed to provide plastic and reconstructive surgery services at the defendant's acute care hospital. The employment agreement expressly excluded the plaintiff's private cosmetic practice and his surgical practice in Pennsylvania. The defendant received no revenue arising from the plaintiff's private cosmetic practice and was responsible only for the payment of practice expenses related to the direct employment of the plaintiff in the reconstructive surgery practice performed at the defendant's facilities. The initial term of the employment agreement expired on February 1, 2014, but was extended to allow the parties time to negotiate a new employment contract. The parties ceased negotiations on or before September 30, 2014, at which point the employment agreement expired.

         III. Applicable Law

         A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75, 000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). The party seeking removal bears the burden of establishing federal jurisdiction. See Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Id. State law complaints usually must stay in state court when they assert what appear to be state law claims. See Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004). Further, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey v. Alabama Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007) (stating that in assessing whether removal was proper, the district court has before it only the limited universe of evidence available when the motion to remand is filed); Marshall v. Kimble, No. 5:10CV127, 2011 WL 43034, at *3 (N.D. W.Va. Jan. 6, 2011) (“The defendant's removal cannot be based on speculation; rather, it must be based on facts as they exist at the time of removal.”).

         IV. Discussion

         In support of his motion to remand, the plaintiff contends that remand is proper because there is no diversity and no federal question presented on the face of the plaintiff's amended complaint. The plaintiff states that his well-pled amended complaint does not allege a HIPAA violation as a cause of action as the defendant asserts in its notice of removal. The plaintiff contends that HIPAA cannot apply because it protects a patient's privacy and no patient is a party to this action. Rather, the plaintiff argues that he references HIPAA in his amended complaint only as factual evidence of the plaintiff's state law claim of the tort of outrage. Specifically, the plaintiff alleges that the defendant viewed the plaintiff's private patient files without proper HIPAA authorization.

         Additionally, the plaintiff contends that he does not allege a Stark Law violation as a cause of action against the defendant as claimed by the defendant in its notice of removal. The plaintiff argues that, in his state-law-based tortious interference claim, he alleges only that agents of the defendant falsely represented to the plaintiff's current employer, Trinity Health System, the facts surrounding the plaintiff's termination from the defendant and falsely represented to Trinity Health System that their employment of the plaintiff violated the Stark Law. The plaintiff asserts that this is not a separate cause of action; rather, it is merely evidence of his tortious interference claim involving his current employer. The plaintiff further states that he never referenced the Stark Law in his state-law-based defamation claim, as the defendant asserts.

         Lastly, the plaintiff also notes that the Employment Agreement, which was prepared by the defendant, provides that “Brooke County shall be the sole, proper venue for any litigation, proceedings or special proceedings between the parties which arises out of or is in connection with any rights, duty or obligation under this Agreement.” The plaintiff seeks an award of costs and expenses, including attorney's fees, for his motion to remand.

         In response, the defendant argues that its right to removal is unaffected by the forum selection clause in the Employment Agreement because the clause is “plainly geographic” as it contains only a reference to a location and no reference to a specific court or court system. The defendant also contends that the plaintiff's claim for fees and costs should be denied because, even if this Court remands the civil ...

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