Benjamin J. Cousins, M.D., P.A. v. Blue Cross and Blue Shield of Florida, Inc. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:25-cv-22270-EA
BENJAMIN J. COUSINS, M.D., P.A.,
Plaintiff,
v.
BLUE CROSS AND BLUE SHIELD
OF FLORIDA, INC., et al.,
Defendants.
___________________________________ /
REPORT AND RECOMMENDATIONS
THIS MATTER comes before the Court on Plaintiff Benjamin J. Cousins, M.D., P.A.’s
Motion to Remand to State Court. (ECF No. 8). This matter was referred to the undersigned by
the Honorable Rodolfo A. Ruiz, II, United States District Judge, to take all action as required by
law pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Judge Rules of the Local Rules of
the Southern District of Florida. (ECF No. 15). Following the order of referral, this case was
reassigned to the Honorable Ed Artau, United States District Judge, on September 18, 2025. (ECF
No. 18). Upon careful review of the Parties’ briefing, and being otherwise fully apprised of the
record, the undersigned respectfully RECOMMENDS that Plaintiff’s Motion to Remand, (ECF
No. 8), be GRANTED and that the case be REMANDED to state court.
I. 	BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is a provider of emergency medical services. Defendant Blue Cross and Blue
Shield of Florida (“BCBSF”) is licensed as an insurer providing health insurance coverage in the
State of Florida. (ECF No. 1-2 at 3). Defendant Health Options, Inc. is BCBSF’s health
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maintenance organization affiliate. (Id.). Both BCBSF and Health Options, Inc. (collectively,
“Florida Blue”) insure or administer group health benefits plans for individuals covered under
employer-sponsored health benefit plans governed by the Employee Retirement Income Security
Act, 29 U.S.C. §§ 1001–1461 (“ERISA”). (Id.).
Plaintiff first brought suit against BCBSF alone on May 24, 2024, alleging improper
underpayment with respect to fifteen of Plaintiff’s patients. See Case No. 2024-009597-CA-01
(Fla. 11th Cir. Ct.). Plaintiff amended its complaint several times at the state court level. Plaintiff’s
operative Third Amended Complaint, filed on May 7, 2025, names eleven “BCBS Entities” as
defendants, including Defendant Health Options, Inc., and challenges Defendant’s underpayment
of the benefits of a combined thirty-eight patients treated by Plaintiff. Plaintiff asserts six Counts
under Florida law: failure to reimburse a non-participating provider of emergency health care
services at the usual and customary rate, under section 627.64194(4), Florida Statutes, (Count I);
failure to pay the usual and customary rates of compensation under section 641.513(5), Florida
Statutes, (Count II); breach of contract, (Count III); quantum meruit, (Count IV); account stated,
(Count V); and unjust enrichment, (Count VI). See (ECF No. 1-1 at 269–79). Upon review of the
Third Amended Complaint, Florida Blue learned that two of Plaintiff’s patients, Patient 13 (“S.B.”)
and Patient 21 (“O.L.”), were insured beneficiaries of ERISA plans.
Defendants Blue Cross and Blue Shield of Florida, Inc. and Health Options, Inc. then
removed the action from the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade
County, Florida, to the United States District Court for Southern District of Florida pursuant to 28
U.S.C. §§ 1331, 1367, and 1446.1 (ECF No. 1). Defendants claimed that removal of the action was
1 Plaintiff argues that Defendants’ removal was procedurally defective because the other nine defendants named in
the Third Amended Complaint have not been served with process and did not consent to the case’s removal from
state court. Below, I find that Plaintiff’s claims do not trigger complete preemption under ERISA and therefore do
not state a federal question. Accordingly, I do not reach the Parties’ separate dispute over whether Florida Blue’s
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proper because Plaintiffs’ Third Amended Complaint “presents a federal question under the
[ERISA] . . . complete preemption doctrine.” (Id. at 2). Defendants contend that Plaintiff “could
have—and, indeed, should have—brought its claims related to Florida Blue’s members who are
covered under an ERISA-governed benefit plan pursuant to ERISA” because “no other legal duty
supports Plaintiff’s claims relative to those plans, irrespective of how Plaintiff labels its claims.”
(ECF No. 1 at 2).
Plaintiff filed the present Motion to Remand on July 21, 2025, (ECF No. 8), arguing that
its claims were not completely preempted under section 502(a) of ERISA. Defendant filed a
Response, (ECF No. 9), to which Plaintiff filed a Reply, (ECF No. 10). Plaintiff’s Motion is now
ripe for review.
II. 	LEGAL STANDARD
“[F]ederal courts are courts of limited jurisdiction: When they do not have (or no longer
have) authorization to resolve a suit, they must hand it over.” Royal Canin U. S. A., Inc. v.
Wullschleger, 604 U.S. 22, 28 (2025). “Only state-court actions that originally could have been
filed in federal court may be removed to federal court by the defendant.” 	Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987); see also 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1447(c),
district courts must remand cases to state court when subject matter jurisdiction is lacking. See 28
U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”). On a motion to remand, the burden of
establishing federal subject matter jurisdiction is on the party removing to federal court. Miami
Beach Cosm. & Plastic Surgery Ctr. v. Blue Cross & Blue Shield of Fla., Inc., 947 F. Supp. 2d
1375, 1379 (S.D. Fla. 2013) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)).
removal of the action prior to the remaining named BCBS Entities’ receipt of service satisfies the “unanimity rule”
or else requires remand.
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Removal statutes are to be strictly construed. 	Syngenta Crop Prot., Inc. v. Henson, 537
U.S. 28, 32–33 (2002). “[W]here plaintiff and defendant clash about jurisdiction, uncertainties are
resolved in favor of remand.” 	Burns v. Windsor Ins., 31 F.3d 1092, 1095 (11th Cir. 1994). “A
presumption in favor of remand is necessary because if a federal court reaches the merits of a
pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a
state court of its right under the Constitution to resolve controversies in its own courts.” Univ. of
So. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). When determining whether a
case should be remanded, the Court “accepts as true all relevant allegations contained in the
complaint and construes all factual ambiguities in favor of the plaintiff.” Orthopaedic Care
Specialists, P.L. v. Cigna Health & Life Ins. Co., No. 20-82142-CIV, 2021 WL 389130, at *1 (S.D.
Fla. Jan. 15, 2021) (citing Gulf-to-Bay Anesthesiology Assocs., LLC v. UnitedHealthcare of Fla.,
Inc., No. 18-233, 2018 WL 3640405, at *1 n.1 (M.D. Fla. July 20, 2018)). As a general rule, in
determining removal jurisdiction, federal courts apply the “well-pleaded complaint” rule, which
allows federal jurisdiction “only when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 392.
Enter the “complete preemption” doctrine under ERISA. See 29 U.S.C. § 1132(a). “The
purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans.” Aetna
Health, Inc. v. Davila, 542 U.S. 200, 208 (2004). Pursuant to that purpose, Congress included
“expensive pre-emption provisions . . . intended to ensure that employee benefit plan regulation
would be ‘exclusively a federal concern.’” Id. (quotation omitted). Complete preemption under
ERISA provides an “exception to the well-pleaded complaint rule and exists where the preemptive
force of a federal statute is so extraordinary that it converts an ordinary state law claim into a
statutory federal claim.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337,
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1344 (11th Cir. 2009). Complete preemption derives from ERISA’s civil enforcement provision,
section 502(a). 28 U.S.C. § 1132(a). Section 502(a) provides that “[a] civil action may be brought
. . . (1) by a participant or beneficiary . . . (B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan[.]” 28 U.S.C. § 1132(a). Thus, “‘causes of action within the scope of
the civil enforcement provisions of § 502(a) [are] removable to federal court.’” Davila, 542 U.S.
at 209 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)).
III. 	DISCUSSION
To determine whether complete preemption applies, the Court must apply the two-part test
set forth by the Supreme Court in Aetna Health, Inc. v. Davila. See Conn. State Dental, 591 F.3d
at 1345. “The Davila test asks (1) whether the plaintiffs could have ever brought their claim under
ERISA § 502(a) and (2) whether no other legal duty supports the plaintiffs’ claims.” Ehlen Floor
Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011) (citation omitted). The first step of
the Davila test asks two questions: (1) whether the claims fall within the scope of ERISA § 502(a);
and (2) whether ERISA grants the plaintiff standing to bring suit. Id.; see also Orthopaedic Care
Specialists, 2021 WL 389130, at *2.
In determining whether claims fall within the scope of ERISA § 502(a), the Eleventh
Circuit has adopted a “rate of payment” versus “right of payment” distinction. Conn. State Dental,
591 F.3d at 1350; Hialeah Anesthesia Specialists, LLC v. Coventry Health & Care of Fla., Inc.,
258 F. Supp. 3d 1323, 1327 (S.D. Fla. 2017). This line of precedent explains that “claims involving
only underpayment are not preempted”, while “claims that were partially denied because coverage
was not afforded for all the submitted procedures may be preempted.” See Conn. State Dental, 591
F.3d at 1349–50; see Rocky Mountain Holdings, LLC v. Blue Cross & Blue Shield of Fla., Inc.,
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No. 08-cv-686, 2008 WL 3833236, at *5 (M.D. Fla. Aug. 13, 2008) (finding claim not completely
preempted where plaintiff healthcare providers challenged “whether Defendants reimbursed the
providers at a rate consistent with Florida law,” as opposed to “the denial of benefits under an
ERISA plan”) (citing Med. & Chirurgical Fac. of State of Md. v. Aetna U.S. Healthcare, Inc., 221
F. Supp. 2d 618, 621 (D. Md. 2002) (“What is at issue is the amount of payment, and the source
for that determination is the states, not the HMO plans.”)); see also Hialeah Anesthesia Specialists,
LLC, 258 F. Supp. 3d at 1229.
A. 	Plaintiff Brings a Rate of Payment Rather than a Right of Payment Claim
Defendant argues that this case reflects a “right of payment” rather than a “rate of payment”
dispute. (ECF No. 9 at 19–20). Defendant contends that Plaintiff’s “thread bare” assertions that its
claims are “rate of payment” disputes should be rejected, particularly “in the face of [Plaintiff’s]
breach of contract claim[].” (Id. at 20) (citations omitted). Plaintiff, for its part, maintains that its
claims “center upon Defendants’ failure to reimburse the ‘usual and customary’ amounts due for
this geographic area” as set forth under Florida law. (ECF No. 8 at 2); (ECF No. 10 at 3).
Review of Plaintiff’s Third Amended Complaint supports Plaintiff’s argument that it
fundamentally seeks to obtain the proper rate of payment from Defendants in this action. The
Complaint does not seek to determine Plaintiff’s Patients’ entitlement to benefits. Plaintiff, a
nonparticipating 	provider 	of 	emergency 	services, 	asserts 	that 	it 	“invoiced 	$586,676” 	in
reimbursements, but that the named defendants in the Third Amended Complaint “paid only
$20,941.91.” (ECF No. 1-1 at 216 ¶ 32). Plaintiff alleges that the BCBS Entities’ payment of “a
portion of the total rate due” evidences “that the SERVICES are covered under the INSURANCE
POLICIES.” (Id. ¶ 33). Thus, Plaintiff’s claim appears to concern not the right to benefits, which
the Third Amended Complaint does not allege are in dispute, but the named Defendants’ “fail[ure]
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to pay the proper rate of payment under section 641.13, Florida Statutes, and section 627.64194(4),
Florida Statutes. (Id. ¶ 35). Indeed, each Count of the Third Amended Complaint seeks relief in
the form of payment at the proper rate under Florida law. See (id. at 268 ¶ 383, 271 ¶¶ 405–06,
274 ¶ 429, 276 ¶ 439, 277 ¶ 451, 279 ¶ 465). Plaintiff’s claims are akin to a rate of payment dispute
because Plaintiff does not allege that Defendants “failed to pay,” but rather that Defendants’
grossly underpaid Plaintiff for the services for which Plaintiff sought reimbursement. See REVA,
Inc. v. HealthKeepers, Inc., No. 17-24158-CIV, 2018 WL 3323817, at *3 (S.D. Fla. Jul. 6, 2018).
Exhibits to the Third Amended Complaint confirm that the Parties’ dispute is at bottom
about the proper rate of payment owed. Florida Blue issued significantly reduced payments to
Plaintiff. See, e.g., (Ex. D, ECF No. 1-1 at 372–76). Plaintiff communicated to the BCBS Entities
its understanding that benefits payments had been improperly reduced by a significant margin due
to the BCBS Entities’ determinations that the billed charges were more than the usual and
customary rate for certain procedures or items. See, e.g., (Ex. C, ECF No. 1-1 at 297–305).
Following Plaintiff’s administrative appeal, Florida Blue notified Plaintiff of its determination
“that the claim processed and paid correctly in accordance with the terms of the applicable health
plan contract and medical policy guidelines. Specifically, CLAIM PRICED CORRECTLY.” (Ex.
D, ECF No. 1-1 at 377). Questions of Plaintiff’s entitlement to payment in the first instance,
meanwhile, are lacking from the Third Amended Complaint and its exhibits. Applying the
Connecticut State Dental test leads to the conclusion that this dispute is one over the rate of
payment, not over the entitlement to benefits. Conn. State Dental, 591 F.3d at 1350; Hialeah
Anesthesia Specialists, LLC, 258 F. Supp. 3d at 1329–30. Accordingly, Plaintiff’s claims fall
outside the scope of section 502(a) of ERISA.
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B. 	Plaintiff Does Not Have Derivative Standing to Bring Claims Under the
ERISA Plans
“[H]ealthcare provider claims are usually not subject to complete preemption because
‘[h]ealthcare providers . . . generally are not considered “beneficiaries” or “participants” under
ERISA.’” Conn. State Dental, 591 F.3d at 1346 (quotations and citations omitted). “[A] healthcare
provider may acquire derivative standing to sue under ERISA by obtaining a written assignment
from a ‘participant’ or ‘beneficiary’ of his right to payment of medical benefits.” Id. at 1347
(citations omitted). The Eleventh Circuit has held, however, that “a healthcare provider is barred
from bringing claims under § 502(a) based on an assignment from a plan participant or
beneficiary” where “a plan contains an unambiguous anti-assignment provision.” Griffin v. United
Healthcare of Ga., Inc., 754 F. App’x 793, 796 (11th Cir. 2018) (citing Physicians Multispecialty
Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291, 1296 (11th Cir. 2004)); see also
Richard W. Kaplan, DDS, MD, PA v. United Healthcare Servs., Inc., No. 19-81185-CIV, 2019
WL 13255597, at *4 (S.D. Fla. Dec. 31, 2019).
Florida Blue argues that Plaintiff has derivative standing to sue by virtue of Assignments
of Benefits executed between Plaintiff and the 38 Patients to whom Plaintiff provided emergency
services. (ECF No. 9 at 8–9). Defendants attached to their Notice of Removal, (ECF No. 1), the
Declaration of Juanisha Jones, a litigation management consultant for Defendants. (ECF No. 1-2).
Included as internal exhibits to the Declaration are the ERISA plans of Patients 13 and 21,
respectively, upon whose plans Defendants’ removal was premised. See (ECF No. 1 at 13). Each
plan contains an express anti-assignment provision that prohibits a plan beneficiary from assigning
benefits under the plan to a medical-care provider without Defendant BCBS of Florida’s written
consent. See (Ex. A, ECF No. 1-2 at 25) (providing that Patient 13 “may not assign, delegate or
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otherwise transfer this Policy and the obligations hereunder without [Defendant’s] written
consent” and that “[a]ny assignment, delegation, or transfer made in violation of this provision
shall be void”); (Ex. B, ECF No. 1-2 at 285) (same, with respect to Patient 21). Because the Plans
provided by Defendants contain explicit anti-assignment provisions, this Circuit’s precedent
dictates that Plaintiff lacks standing to bring the § 502(a) claims Defendants perceive Plaintiff to
be bringing. Kaplan, 2019 WL 13255597, at *4; cf. de la Pedraja v. Neighborhood Health P’ship,
Inc., No. 10-cv-21679, 2010 WL 11504338, at *4 (S.D. Fla. Jul. 23, 2010) (finding that healthcare
provider had derivative standing to sue under ERISA where the Court was “not aware of any anti-
assignment provision in the relevant plans”).
C. 	An Independent Legal Duty Exists
Plaintiff maintains that the Third Amended Complaint’s claims have an independent basis
in the form of Florida Statutes, sections 641.513(5) and 627.64194(4). “Section 641.513(5) is
aimed at protecting non-participating providers who must provide emergency medical services to
HMO subscribers, ensuring they are compensated fairly.” Merkle v. Health Options, Inc., 940 So.
2d 1190, 1196 (Fla. 4th DCA 2006). The statute imposes a duty on HMOs to reimburse out-of-
network emergency medical providers, who may sue thereunder, and that is independent of any
ERISA plan, participant, or fiduciary. See Orthopaedic Care Specialists, No. 12-81148-CIV, 2013
WL 12095594, at *2 n.5; Emergency Servs. of Zephyrhills, P.A. v. Coventry Health Care of Fla.,
Inc., 281 F. Supp. 3d 1339, 1346, 1348 (S.D. Fla. 2017) (collecting cases) (finding that plaintiffs’
claims “plainly” did not fall within the scope of section 502(a) where the claims “[did] not seek to
recover, clarify, or enforce rights under” ERISA plans).
Section 627.64194 states that “[a]n insurer is solely liable for payment of fees to a
nonparticipating provider of covered emergency services provided to an insured in accordance
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with the coverage terms of the health insurance policy,” and “must reimburse a nonparticipating
provider of services” as specified in section 641.513(5). As with section 641.513(5), courts have
found that claims brought under section 627.64194 impose a legal duty “that is not tied in any way
to a patient’s healthcare benefits under an ERISA plan.” See, e.g., Fla. Emergency Physicians
Kang & Assocs., M.D., Inc. v. United Healthcare of Fla., Inc., 526 F. Supp. 3d 1282, 1300 (S.D.
Fla. 2021) (citing Kaplan, 2019 WL 13255597, at *4); see also Emergency Servs. of Zephyrhills,
P.A., 281 F. Supp. 3d at 1348.
There remains the matter of Plaintiff’s breach of contract count. Defendant maintains that
“Plaintiff brings an ERISA claim because Florida Blue (and Unserved Defendants) breached the
at issue insurance contracts (the plans) by failing to reimburse Plaintiff after it allegedly provided
‘covered’ services under those plans[.]” (ECF No. 9 at 17). In asserting that “[e]ach BCBS Entity
is obligated to pay the usual and customary rates of compensation,” Plaintiff does indeed allege
that those entities’ “failure and refusal to make the monetary payments here at issue constitutes a
breach of the INSURANCE POLICIES which have by law incorporated the [Florida] statutory
provisions therein.” (ECF No. 1-1 at 274 ¶ 429–30). Defendants perceive Plaintiff to be suing to
redress a breach of its thirty-eight patients’ respective insurance policies, including the ERISA
plans. See (ECF No. 9 at 6).
As recounted above, Plaintiff lacks standing to sue for breach of the insurance policies held
by Patients 13 and 21, because those insurance policies included explicit anti-assignment
provisions. See Physicians Multispecialty Grp., 371 F.3d at 1296; Kaplan, 2019 WL 13255597, at
*4. Additionally, it is unclear whether Plaintiff’s breach of contract claim seeks to enforce the
insurance policies of Plaintiff’s patients or a contract implied in fact. In Emergency Services of
Zephyrhills, for instance, the district court found that healthcare provider plaintiffs’ claims were
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supported by an independent legal duty where the plaintiffs sued the defendant “on their own
behalf for its violation of independent statutory and quasi-contractual obligations owed to
Plaintiffs under Florida law[.]” 281 F. Supp. 3d at 1347–48 (emphasis added). On a motion to
remand, ambiguity as to what contract Plaintiff purports to sue under must be construed in
Plaintiff’s favor, Orthopaedic Care Specialists, P.L., 2021 WL 389130, at *1, particularly where
Plaintiff lacks standing to bring a claim of breach of Patients 13 and 21’s insurance policies. Upon
review of the applicable precedent and the record, the undersigned finds that ambiguity as to
Plaintiff’s breach of contract claim supports remand.
IV. 	CONCLUSION
Per the Third Amended Complaint, and as Plaintiff has maintained throughout the briefing
on the Motion to Remand, Plaintiff attempts to remedy Defendants’ alleged failure to pay the
appropriate rate of reimbursement under Florida state law—a claim falling outside of section
502(a)’s ambit. Defendants have not met their burden to demonstrate that Plaintiff’s claims “are
all facially ERISA claims masquerading as Florida state law claims,” (ECF No. 9 at 8), such that
this case should proceed in federal rather than state court.
Accordingly, the undersigned respectfully RECOMMENDS that the Motion to Remand,
(ECF No. 8), be GRANTED, and that this case be REMANDED to the Circuit Court of the
Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. The Court should direct the
Clerk of Court to take all necessary steps and procedures to effect remand of the above-captioned
action.
Pursuant to Local Magistrate Rule 4(b), the parties have FOURTEEN (14) days from the
date of this Report and Recommendation to serve and file written objections, if any, with the
Honorable Ed Artau, United States District Judge. Failure to timely file objections will bar a de
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novo determination by the District Judge of anything in this recommendation and shall constitute
a waiver of a party’s “right to challenge on appeal the district court’s order based on unobjected-
to factual and legal conclusions.” 11th Cir. R. 3-1 (2016); 28 U.S.C. § 636(b)(1)(C); see also
Harrigan v. Metro-Dade Police Dep’t Station #4, 977 F.3d 1185, 1191–92 (11th Cir. 2020).
RESPECTFULLY SUBMITTED in Chambers, in Miami, Florida, this 21st day of January,
2026.
________________________________
LAUREN F. LOUIS
UNITED STATES MAGISTRATE JUDGE
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