Parrino

Stephen Parrino subscribed to an HMO plan administered by FHP, Inc. and secured by his employer, Parrino Trucking Co. Friendly Hills acted as the plan’s primary health care provider. Parrino was diagnosed with a brain tumor, and Friendly Hills referred him to Loma Linda University Medical Center for treatment. Loma Linda physicians removed the brain tumor, and prescribed immediate proton beam therapy to reduce the chance of recurrence. FHP initially refused to authorize payment for the therapy, claiming it was experimental and unnecessary. Upon further review, FHP approved the therapy, but Parrino was diagnosed with a reoccurring tumor two days later. A second round of surgery failed to arrest the spread of the cancer, and Parrino ultimately succumbed to his illness.

Parrino filed suit in state court against FHP and Friendly Hills, alleging they improperly denied his initial claim for proton beam therapy. FHP and Friendly Hills removed the action to federal court on the ground that Parrino’s state law causes of action were completely preempted by ERISA. The district court denied Parrino’s motion to remand, and eventually dismissed each of his claims pursuant to Federal Rule of…

Dissenting.

I am unable to agree with the majority because in my opinion the removal of this case was improper. Friendly Hills was required to join in the removal request within a thirty-day period. See 28 U.S.C. § 1446 (a)-(b). It did not do so. That failure made removal improper, the case should have been remanded, and it should be remanded now. Thus, I do not actually reach the ultimate merits or join in any part of the majority opinion, although I would be inclined to agree that Parrino should not ultimately prevail.

FHP argues that Caterpillar Inc. v. Lewis, 519 U.S. 61 , 117 S.Ct. 467 , 136 L.Ed.2d 437 (1996), stands for the proposition that as long as the removal defect was cured sometime before the district court reached its final decision to dismiss, the ease should not be remanded. I disagree. Caterpillar dealt with a situation where a jurisdictional defect was cured and a case proceeded through the long pretrial process and into a full blown jury trial. See id. at -, 117 S.Ct. at 470-71 . The Court recognized the arguments against permitting the result of that trial to stand. As it said, the “arguments are hardly meritless.” Id. at -, 117 S.Ct. at 476 . But, it…