
    EMERGENCY SERVICES OF ZEPHYRHILLS, P.A., et al., Plaintiffs. v. COVENTRY HEALTH CARE OF FLORIDA, INC., Defendant.
    CASE NO. 16-25193-CIV-ALTONAGA/O’Sullivan
    United States District Court, S.D. Florida.
    Signed April 5, 2017
    
      Felice Kirzner- Schonfeld, Hollywood, FL, Harvey W. Gurland, Jr., Miami, FL, for Plaintiffs.
    David J. DePiano, Richard Philip Her-mann, II, Shapiro, Blasi, Wasserman & Hermann, P.A., Boca Raton, FL, Dimitri Zgourides, Andrews Kurth LLP,' Houston, TX, for Defendant.
   ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Plaintiffs, Emergency Services of Zephyr-hills, P.A.; Inphynet Contracting Services, LLC; Inphynet South Broward, LLC; IPN Emergency Physicians of North Florida, P.A.; Paragon Contracting Services, LLC; Paragon Emergency Services, LLC; and Southwest Florida Emergency Management, Inc.’s Motion for Remand [ECF No. 19], filed January 13, 2017. Defendant, Coventry Health Care of Florida, Inc. filed a Response [ECF No. 22]; to which Plaintiffs = filed a Reply [ECF. No. 29]. The Court has carefully considered the parties’ written submissions, the record, and applicable law.

I. BACKGROUND

A. The Dispute

Plaintiffs, providers of emergency medical services, bring this dispute about the underpayment of certain ■ medical claims, against Defendant Coventry, a licensed health maintenance organization (“HMO”). (See generally Complaint [ECF No. 1-2] 7-30). Defendant is a “managed care company that provides ... various claims ad: ministrative services to benefit plans established and maintained by employers for the purpose of providing health care coverage .... ” (Resp., Ex. A, Affidavit of Felicia Gude, [ECF No. 22-1] ¶ 3 (alterations added)). As part of the administrative services, Defendant “process[es] and adjudicates] medical claims submitted for reimbursement” on behalf of certain benefit plans.. (Id. ¶7 (alterations added)). Among those benefit plans, Coventry administers at least one self-funded “employee welfare benefit plan” (the “Graham ■ Plan” or “Plan”). (Resp. 8-9). The Graham Plan is regulated by the Employee Retirement Income Security Act of 1974 (“ERISA”). (See Resp. 9); see also 29 U.S.C. §§ 1002(1), 1003(a).

Plaintiffs provide emergency medical services in emergency departments at numerous hospitals in the South Florida area. (See Mot,. 2). All seven Plaintiffs are considered “out-of-network” or “non-participating” providers with respect to Defendant, meaning they have not' signed contracts outlining the terms of reimbursement for treatment provided to Defendant’s plan subscribers. (See Compl. ¶ 22).

Florida law requires emergency medical service providers to' deliver emergency services to anyone requiring treatment, regardless of insurance status or ability to pay. See Fla, Stat. § 395.1041(3)(a). Florida law further requires HMOs to reimburse out-of-network emergency medical service providers at particular rates for such treatment. See id.' § 641.513(5); (Compl. ¶-3). Under the statute, the reimbursement rate must be the lesser of (1) the provider’s charges; (2) local customary rates for similar services; or (3) the rate mutually' agreed to by the provider and HMO within 60 days of claim submission. See Fla. Stat, § 641.513(5). The Graham Plan contains a provision addressing the reimbursement rate for out-of-network emergency services, using language nearly identical to that of the Florida statute (“Allowed Amount Language”). (See Resp., Ex. A-l, Certificate of Coverage [ECF No. 22-1] 71).

■According to the Complaint, originally filed in state court, Plaintiffs provided professional emergency medical services to Defendant’s plan subscribers and thereafter submitted claims for those services. (See Compl. ¶21). Each claim submitted was “adjudicated by Coventry and determined to be covered[.]” (Id. ¶ 30 (alteration added)). Indeed, Defendant has consistently reimbursed Plaintiffs for emergency medical services provided to Defendant’s plan subscribers. (See id ¶ 37).

Nevertheless, these payments were made at “amounts .inappropriately below” what is ordinarily required by Florida law. (Id). As a result, the Complaint contains three state-law. causes of action alleging Coventry: (1) underpaid Plaintiffs for emergency medical services (Count 1) (see id. ¶¶ 49-62); (2) breached an implied-in-fact contract (Count 2) (see id. ¶¶- 63-78); and (3) was unjustly enriched (Count 3) (see id. ¶¶ 79-87)—all in violation of Florida Statute section 641.513(5). Despite the fact some claims were submitted on behalf of patients covered by the Graham Plan, the Complaint expressly disclaims ERISA relief: “[T]his action concerns only the rate of payment and not the right to payment. This action does not include any claims in which benefits' were denied nor does it challenge any coverage determinations under an ERISA plan.” (Compl. ¶ 2 (alteration added; emphases in original)).

B, Procedural Posture

Plaintiffs filed their Complaint in state court oh May 13, 2016. (See Mot. 3). The case progressed through September 2016, at which time the parties agreed to suspend discovery and explore the possibility of settlement. (See id. 4).

In November 2016, Plaintiffs produced a spreadsheet listing a sample of the claims at issue from which Defendant ascertained, allegedly for the first time, the case involved claims billed to ERISA plans, i.e., the Graham Plan. (See id. 5; Resp. 8-9). Defendant removed this action on December 14, 2016, (See Notice of Removal [ECF No. 1]). The Notice invokes federal subject matter jurisdiction on the ground Plaintiffs’ causes of’action arise under federal law by virtue of the broad preemptive power of the ERISA. (See id. 3). Plaintiffs now argue (1) removal was untimely under 28 U.S.C. section 1446, and (2) their claims are not preempted by the ERISA. (See generally Mot.). Plaintiffs also seek to recover their attorney’s fees incurred in having had to request a remand, while providing no discussion regarding their entitlement to fees. (See Mot. 12; Reply 10).

II. LEGAL STANDARD

“On a motion to remand, the removing party bears the burden of showing the existence of federal subject matter jurisdiction.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009) (citation omitted). To determine whether a claim “arises under” federal law, courts must look to “whether a federal question appears on the face of the plaintiffs well-pleaded complaint.” Id. (alteration added) (citing Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). “ ‘As a general rule, a case arises under federal law only if it is federal law that creates the cause of action.’ ” Id. (quoting Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996)). Where, as here, a complaint alleges exclusively state law claims, “there is no jurisdiction under the well-pleaded complaint rule.” Id.

One exception to the well-pleaded complaint rule . is complete . preemption, which “exists where the preemptive force of a federal statute is so extraordinary that it converts an ordinary state law claim into а, statutory federal claim.” Id. (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). The congressionally designed remedial scheme in the ERISA has such extraordinary power. See id. at 1344.

III. ANALYSIS

A. Introduction: Complete Preemption under the ERISA

“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, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). To promote its goal of uniformity, Congress included “expansive pre-empition provisions! [at] ERISA [section] 514[] .,. which are intended to ensure that employee benefit plan regulation [is] ‘exclusively a federal concern.’ ” Id. (alterations added; citation omitted). Part of the ERISA’s comprehensive legislative scheme is codified in section 502(a), which provides “an integrated system of procedures for enforcement.” Id. (alteration added; citation omitted).

Under section 502(a),

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[.]

29 U.S.C. § 1132(a)(1)(B) (alterations added). The enforcement provisions laid out in section 502(a) are “strong evidence ... Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Davila, 542 U.S. at 208-09, 124 S.Ct. 2488 (alterations added; emphasis in original; citation and internal quotation marks omitted). And so it is that state law causes of action which “duplicate[], supplement ], or supplant! ] the ERISA civil enforcement remedy” are in conflict with Congress’s “intent to make the ERISA remedy exclusive” and are completely preempted. Id. at 209,124 S.Ct. 2488 (alterations added; citation omitted). As such, causes of action “within the scope of the civil enforcement provisions of § 502(a) [are] removable to federal court,” Id. (alteration in original).

In Davila, the U.S. Supreme Court further explained the contours of ERISA complete preemption:

[I]f an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls “within the scope of’ ERISA § 502(a)(1)(B).... In other words, if an individual ... could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted!.]

542 U.S. at 210, 124 S.Ct. 2488 (alterations added) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). In Davila, two ERISA plan beneficiaries brought suit against their HMOs, alleging the denial of certain benefits breached the Texas Health Care Liability Act’s (“THCLA[’s]”) duty of ordinary care. 542 U.S. at 205, 124 S.Ct. 2488. The Court held those tort claims were completely preempted because: (1) the ERISA plans, and not the HMOs, were responsible for the denial of plaintiffs’ benefits and consequently plaintiffs’ injuries; and (2) the statute explicitly stated HMOs were not liable under the THCLA for denying treatment that was not covered by the plan. See id. at 212-14, 124 S.Ct. 2488. The Court reasoned, “interpretation of the terms of respondents’ benefit plans form[ed] an essential part of their THCLA claim, and THCLA liability [existed] only because of petitioners’ administration of ERISA-regulated benefit plans.” Id. at 213, 124 S.Ct. 2488 (alterations added).

The Eleventh Circuit has described the proper two-part analysis under Davila as inquiring: “(1) whether the plaintiff could have brought its claim under § 502(a); and (2) whether no other legal duty supports the plaintiffs claim.” Conn. State Dental, 591 F.3d at 1345. This test is conjunctive, requiring both conditions “be satisfied for a claim to be completely preempted.” Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1304 (11th Cir. 2010).

Plaintiffs, focusing on the judicially-drawn distinction between “rate of payment” and “right to payment” disputes, contend their causes of action are not completely preempted under the ERISA. (See Mot. 9-10). Plaintiffs also maintain theirs are independent state law claims, which “do not require an interpretation of an ERISA plan.” (Id. 11). For its part, Defendant insists (1) the existence of the Allowed Amount Language in the Plan, in combination with the assignments of benefits from ERISA plan members to Plaintiffs, proves Plaintiffs could have brought the same claims under the ERISA; (2) Plaintiffs’ case law discussing the “rate of payment” versus “right to payment” distinction is inapposite; and (3) the similarity of the language in the Florida statute to that of the Allowed Amount Language destroys the independence of any state law. duty. (See generally Resp.).'

For the following reasons, the Court concludes the two-part Davila test is not satisfied.

B. Prong One: Whether Plaintiffs Could Have Brought the Claims under § 502(a)

With regard to the first prong, Defendant argues Plaintiffs are able to seek relief identical to that which they allege but under the Plan, because the Plan contains Allowed Amount Language that mirrors section 641.513(5) of the Florida Statutes. (See Resp. 16-17). This, according to Defendant, brings Plaintiffs’ claims “within the scope” of ERISA section 502(a). In addition, Defendant asserts because the subscribers assigned their rights under the Plan to Plaintiffs, Plaintiffs have derivative standing to assert their claims under ERISA section 502(a). (See id. 17-18). Plaintiffs rely on the fact their Complaint contests the rate of, and not the right to, payment for services rendered in urging the Court find their claims fall outside of the scope of ERISA section 502(a). (See Mot. 9-10). Plaintiffs further argue because their claims are independent of the subscribers’ rights under the Plan; the assignment of benefits is irrelevant. (See id. H).

In evaluating this first prong of the Davila test, the Court examines whether (1) Plaintiffs’ claims fall within the scope of the ERISA, and (2) Plaintiffs have standing to sue under the ERISA. See Borrero, 610 F.3d at 1303 (citation and internal quotation marks omitted) (citing Conn. State Dental, 591 F.3d at 1350). As with the principal Davila test, both elements must be satisfied for the claims to be preempted. See Conn. State Dental, 591 F.3d at 1350. The Court considers each element in turn.

1. Plaintiffs’ Claims Do Not Fall Within the Scope of the ERISA

Governing Circuit precedent distinguishes between claims challenging the rate at which providers are reimbursed pursuant to a provider agreement (“rate of payment” disputes) and those challenging providers’ right to payment (“right to payment” disputes), in determining whether providers’ claims fall within the scope of ERISA section 502(a). See Conn. State Dental, 591 F.3d at 1350. A rate of payment claim challenges the amount already paid, but a right to payment claim challenges the insurer’s denial of payment, which is based on a coverage determination under an ERISA plan. See id. at 1350-51. “The distinction between rate of payment and right to payment, therefore, is whether the claims are payable at all.While a rate of payment challenge, does not necessarily implicate an ERISA plan, a challenge to the right to payment under an ERISA plan does.” Gables Ins. Recovery v. United Healthcare Ins. Co., 39 F.Supp.3d 1377, 1384 (S.D. Fla. 2013) (citing Borrero, 610 F.3d at 1302).

As Defendant correctly points out, the decisions in Connecticut State Dental and its progeny involved claims for reimburse-raent under a provider agreement. {See Resp. 20 n.31). Those cases found such claims were “based upon a breach of an agreement separate from an ERISA plant,]” and therefore fell outside the scope of ERISA section 502(a). Conn. State Dental, 591 F.3d at 1350. Defendant insists, in the absence of such an agreement, any claims for reimbursement necessarily fall within the scope of section 502(a). (See Resp. 19-21). This is generally true where no other contractual or statutory basis for a provider’s reimbursement claim exists. See, e.g., Torrent & Ramos, M.D., P.A. v. Neighborhood Health P’ships, Inc., Case No. 04-20858-CIV-PCH, 2004 WL 7320735 (S.D. Fla. July 1, 2004) (finding unjust enrichment claim preempted where parties did not have a contract and plaintiff could rely only on assignment of ERISA plan rights to assert a claim).

Plaintiffs’ causes of action, however, have such' an independent basis. Prosecution of Plaintiffs' claims does not require interpretation of the Plan terms, but instead interpretation and application of an existing state statute. Other courts have similarly determined section 641.513(5) claims do not implicate ERISA plans. See Rocky Mountain Holdings, LLC v. Blue Cross and Blue Shield of Fla., Inc., Case No. 6:08-cv-686-Orl-19KRS, 2008 WL 3833236, at *5 (M.D. Fla. Aug. 13, 2008) (“The issue is whether Defendants reimbursed the providers at a rate consistent with Florida law.... ‘What is at issue is the amount of payment, and the source for that determination is the statutes, not the ., .■ plans.’ ” (quoting Med. & Chirurgical Faculty of Md. v. Aetna U.S. Healthcare. Inc., 221 F.Supp.2d 618, 621 (D. Md. 2002) (alterations added))). The claims do not seek to recover, clarify, or enforce rights under the Plan and so plainly do not fall within the scope of ERISA section 502(a). See 29 U.S.C. § 1132(a); Orthopaedic Care Specialists, P.L. v. Blue Cross and Blue Shield of Fla., Inc., Case No. 12-81148-CIV-DMM, 2013 WL 12095594, at *2 (S.D. Fla. Mar. 5, 2013) (“The issue here is whether Plaintiff has been reimbursed by Defendant as required [by section 641.513(5)], and because the cause-of action is predicated on a right to reimbursement created by Florida law, Plaintiffs claims, therefore, fall outside the scope of ERISA § 502(a).” (alteration added)). That Plaintiffs are assignees of the Plan.subscribers does not change the analysis with respect to this point.

2. Plaintiffs’ Derivative Standing under the ERISA is Irrelevant

Defendant explains Plaintiffs submitted these claims as assignees of the Plan subscribers and contends “absent such assignments, [Plaintiffs] lacked any right to file medical claims seeking plan benefits.” (Resp. 13 (alteration added)). These assignments, according to Defendant, granted Plaintiffs “derivative standing to pursue relief under § 502(a)(1)(B).” (Resp. 17). Defendant takes the position because Plaintiffs have standing to sue under the Plan, and the Plan contains provisions imposing on it duties similar to the Florida statutory duties, Plaintiffs’ claims could have been brought under section 502(a). {See Resp. 16-18). Defendants’ arguments are unavailing for two reasons.

First, because ERISA plan members would not. have standing to assert the state law claims brought in this action, Plaintiffs’ ability to “stand in the. shoes” of plan members is of no moment. See, e.g., Rocky Mountain Holdings, 2008 WL 3833236, at *4 (“[E]ven if this evidence is sufficient to prove an assignment of.benefits, such an assignment would be insufficient to make Plaintiffs ‘beneficiaries’ in this case.... [T]hey are not attempting ,to stand in the shoes of the patients, and their claims are um-elated to the rights of the patients.” (alterations added)). Plaintiffs point out the obvious—they are not attempting .to stand in the shoes of any subscribers. (See Reply 7-8). It is impossible for benefit assignments under the Elan to confer standing upon providers to assert these claims under a state statute.

Second, while the assignments confer standing on an out-of-network provider to sue under an ERISA plan, they do not—as Defendant apparently contends— convert every possible claim into one under the ERISA. In general, provider claims do not satisfy the first prong of Davila, because “they do not ‘duplicate! ], supplement [], or supplant! ] the ERISA civil enforcement remedy.” Conn. State Dental, 591 F.3d at 1346-47 (alterations in original) (quoting Davila, 542 U.S. at 209, 124 S.Ct. 2488). It is firmly established “a healthcare provider may acquire derivative standing to sue under ERISA by obtáining a written assignment from a ‘participant’ ... of his right to payment of medical benefits.” Id. (alteration added) (citing Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1241 (11th Cir. 2001)). A provider may still, however, “hold!] two separate claims” after receiving an assignment of benefits if the provider “has a state law claim independent of the'claim arising under the assignment.” Id. at 1347 (alteration added) (citing Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 598 (7th Cir. 2008)); see also Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 949 (9th Cir. 2009) (“[E]ven though the Providers had received an assignment of the patient’s medical rights and hence could have brought a suit under ERISA, there was no ‘basis to conclude that the mere fact of assignment converts the- Providers’ claims ... into claims to recover benefits under the terms of an ERISA plan.’ ” (alterations added) (quoting Blue Cross of Cal. v. Anesthesia Care Assocs. Med.. Grp., Inc., 187 F.3d 1045, 1052 (9th Cir. 1999))).

“Thus, so long as the provider’s state law claim does not fall within § 502(a), the existence of the assignmént is irrelevant to complete preemption if the provider asserts no claim under the assignment.” Conn. State Dental, 591 F.3d at 1347 (citing Sheridan Healthcorp., Inc. v. Neighborhood Health P’ship, Inc., 459 F.Supp.2d 1269, 1274 (S.D. Fla. 2006)); see also C.N. Guerriere, M.D., P.A. v. Aetna Health, Inc., No. 8:07-cv-1444-T-23MAP, 2007 WL 3340596, at *2 (M.D. Fla. Nov. 8, 2007) (finding assignment of benefits was irrelevant to plaintiffs section 641.513(5) claim, because “plaintiff does not rely - on the assignment and does not need to ... to prosecute his state law claim.” (alteration added; footnote call number omitted)). While the. Court. agrees Plaintiffs might have brought a nearly identical “rate of payment” dispute under the Allowed Amount provision as assignees of the Plan, that does not automatically bring their state law claims within the scope of ERISA section 502(a). Because Plaintiffs’ claims fall outside the scope of 502(a) and Plaintiffs’ standing to-assert their claims derives exclusively from state law, .these claims could not have been brought under the ERISA civil enforcement scheme.

C. Prong Two: Whether the Claims Are Supported by an Independent Legal Duty ,

Prong two of the Davila inquiry requires courts determine whether a legal duty, independent of any duties arising out of the ERISA, .supports the- state-law cause or causes of action. See Conn. State Dental, 591 F.3d at 1345. While Plaintiffs’ Motion-does not differentiate the two Da-vila prongs, Plaintiffs explain they “are suing Coventry on their own behalf for its violation of independent statutory and quasi-contractual obligations owed to Plaintiffs under Florida law[.]” (Mot. 11 (alteration added)). Defendant contends because Florida law and the ERISA Plan “require essentially the same thing with regard to compensation for emergency care” (Resp. 23), any cause of action under Florida Statute section 641.513(5) “would either duplicate or supplement remedies already provided by the terms of [the patients’] ERISA-regulated plans.” (Resp. 24 (alteration in original; internal quotation marks omitted) (quoting DeVito v. Aetna, Inc., 536 F.Supp.2d 523, 531 (D.N.J. 2008))). The Court agrees with Plaintiffs. The claims arise from independent legal duties.

The Florida statutes confer a private right of action exclusively on out-of-network emergency medical providers. See Merkle v. Health Options, Inc., 940 So.2d 1190, 1196 (Fla. 4th DCA 2006) (“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.”). This right of action imposes an independent duty on HMOs to reimburse providers and is not tied to any ERISA plan, participant, or fiduciary. See, e.g., Orthopaedic Care Specialists, P.L., 2013 WL 12095594, at *2 n.5 (“[T]he statute is expressly disconnected from the terms and provisions of any particular ERISA plan, as it mandates reimbursement to non-participating emergency medical providers. Similar relief is not available under ERISA.”).

Unlike Davila, the source of Plaintiffs’ rights is completely independent of any ERISA plans. No interpretation of the terms of an ERISA benefit plan is necessary to prosecute Plaintiffs’ claims. Whether Defendant is liable to Plaintiffs depends entirely on an analysis under Florida statute section 641.513(5), without reference to an ERISA plan. See generally Rocky Mountain Holdings, LLC, 2008 WL 3833236 (holding claims brought under Florida Statute section 641.513(5) were not preempted because plaintiffs were clearly not seeking relief under any plan, or challenging a denial of benefits under a plan). Because Defendant has already made its coverage determination regarding these claims under the plans (see Mot. 2; Resp. 11-12), and the rate of reimbursement is established by state law. Plaintiffs’ claims are supported by an independent legal duty.

Defendant relies on a New Jersey district court case, DeVito, to argue the Florida Statute imposes no independent duty. 536 F.Supp.2d 523. In DeVito, plaintiffs were ERISA plan participants who brought suit to recover benefits under both state law and their plans. See generally id. The distinct court explained because “the ... language in Plaintiffs’ policies gives rise to the same rights as those arguably available under [state law], no legal duty (state or federal) independent of ... the plan terms [has been] violated.” Id. at 530 (internal quotation marks and citation omitted; first and second alterations added).

Defendant’s reliance on DeVito is misplaced for two reasons. First, the plaintiffs in DeVito were ERISA plan participants, not out-of-network providers, upon whom both their plans and state law conferred an identical benefit. Under Florida Statute section 641.513(5), a plan participant would not have a right of action to recover for underpayment because the statute, as discussed, is designed to protect providers.

Second, to adopt Defendant’s suggested approach would effectively eliminate the second prong of the Davila test. The requirement courts verify the existence of an independent duty implies similar duties may arise under both ERISA plans and under statute or contract. In this vein, other courts have found overlapping duties arising from contracts or statutes and ERISA plans, and still upheld the independence of the non-ERISA plan duty. See. e.g., Sheridan Healthcorp., Inc. v. Aetna Health, Inc., 161 F.Supp.3d 1238, 1246 (S.D. Fla. 2016) (“[Wjhether claims for denial of benefits could have been brought is irrelevant; [plaintiff] is in fact suing [djefendants solely for breach of its agreement, and in so doing, does not assert allegations of any ERISA violations.” (alterations added)); UPMC Presby Shadyside v. Whirley Indus., Inc., No. 1:05-CV-68, 2005 WL 2335337, at *7-8 (W.D. Pa. Sept. 23, 2005) (despite finding a “ ‘convergence’ ... between the [pjlaintiffs breach of contract claims and a claim for benefits under § 502(a)(1)(B),” the court determined the legal duties defendant allegedly breached arose out of a separate contract, and not the ERISA plan (alterations added and citation omitted)).

In sum, while Defendant’s duties to Plaintiffs under both the Plan and Florida law are nearly identical, Plaintiffs are free to raise only their state law claims if they wish. See, e.g., Borrero, 610 F.3d at 1303 (“[The case] demonstrates that plaintiffs may choose to exclusively pursue their state law claims in state court, even against the backdrop of another set of potentially preempted claims.” (discussing Caterpillar, 482 U.S. 386, 107 S.Ct. 2425)); Rocky Mountain Holdings, 2008 WL 3833236 at *4 n.7 (“Plaintiffs may plead their claims in a way that purposefully avoids federal jurisdiction.... ‘[T]he plaintiff is the master of the complaint, free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available.” (second alteration in original; first citation omitted) (quoting Hill v. BellSouth Telecomms., Inc., 364 F.3d 1308, 1314 (11th Cir. 2004))). Plaintiffs seek to enforce their rights under state statute— which they are entitled to do.

The Court concludes the Complaint asserts independent state law claims exclusively. This case does not present a federal question and, accordingly, the Court lacks subject matter jurisdiction.

D. Attorney’s Fees

“Absent unusual circumstances, courts may award attorney’s fees under [the removal statute] only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (alteration added). And where such objectively reasonable basis exists, courts should deny the award of fees. See id. Despite the undersigned’s finding removal was improper, Defendant had an objectively reasonable basis to remove the action. Accordingly, Plaintiffs’ request for attorney’s fees is denied.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that the Motion [ECF No. 19] is GRANTED. This case is remanded to the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, with the parties bearing their respective fees and costs.

DONE AND ORDERED in Miami, Florida, this 5th day of April, 2017. 
      
      , Citations to page numbers in docket entries refer to the numbers generated by CM/ECF appearing as a header on all court filings.
     
      
      . Defendant offers this particular plan as an example of one employee welfare benefit plan "established and maintained by an employer” at issue in this case, but states there are others. (Resp. 9 n.3). The Court’s analysis is based on the Graham Plan example.
     
      
      .29 U.S.C. §§ 1001-1461.
     
      
      . Plaintiffs spend a significant portion of the Motion arguing Defendant’s Notice of Removal was untimely under 28 U.S.C. section 1446. (See Mot. 6-9). Generally, a defendant has 30 days after the date it becomes apparent a case is removable to file its notice of removal. See 28 U.S.C. § 1446(b). The parties disagree about the kinds of records Defendant may rely on to "start the clock," as well as whether Defendant has a responsibility to investigate the removability of an action when the complaint asserts only state law claims. (See Mot. 6-9; Resp. 13-15), Because this case is not removable, the Court does not address these timeliness arguments,
     
      
      . Unlike complete preemption, defensive preemption does not provide a basis for removal to federal court; therefore, this Order does not address whether Plaintiffs’ claims under Florida Statute section 641.513(5) are defensively preempted by the ERISA. See, e.g., In re Managed Care Litig., 298 F.Supp.2d 1259, 1287-88 (S.D. Fla. 2003) (“‘[Defensive’ preemption does not provide independent federal subject matter jurisdiction. Rather, it provides an affirmative defense to state law claims.” (alteration added) (citing Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999))).
     
      
      . 29 U.S.C. § 1144.
     
      
      
        .Id. § 1132(a).
     