                                   United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 91-5571.

                        David R. RODRIGUEZ, et al., Plaintiffs-Appellants,

                                                  v.

        PACIFICARE OF TEXAS, INC., Michael Heistand, M.D., Defendants-Appellees.

                                            Jan. 12, 1993.

Appeal from the United States District Court for the Western District of Texas

Before KING, JOHNSON, and DUHÉ, Circuit Judges.

       DUHÉ, Circuit Judge:

       David Rodriguez ("Rodriguez") appeals from a summary judgment entered against him and

his two minor children on their claims against Pacificare of Texas, Inc. ("Pacificare"), and Dr. Michael

Heistand ("Heistand"). These claims stem from Pacificare's refusal to reimburse Rodriguez for

medical expenses he incurred. Finding no reversible error, we affirm.

                                Background and Procedural History

       Rodriguez's employer provided health insurance benefits to its employees through Pacificare,

a health maintenance organization (HMO). After being involved in an automobile accident,

Rodriguez sought medical attention for himself and his children from Dr. Heistand, their primary care

physician. Rodriguez believed that the attention of an orthopedic specialist was needed, but was

stymied in his efforts to obtain a referral letter from Heistand or Pacificare. A referral letter is

necessary for the HMO to reimburse the cost of the treatment. Dissatisfied with the response he was

receiving from Pacificare and Heistand, Rodriguez went outside his HMO's channels and consulted

an orthopedist who placed him in therapy.

         Pacificare declined to cover the unapproved expenses. Bypassing the administrative

procedures for contesting claim denials,1 Rodriguez, acting pro se, filed suit in Texas state court

   1
    Normally, failure to exhaust the administrative remedies provided for in an ERISA plan
forecloses judicial review of the claim denial. See Denton v. First Nat'l Bank, 765 F.2d 1295,
1300-03 (5th Cir.1985). The deadline for Rodriguez to use Pacificare's grievance procedures has
against Pacificare and Heistand for failing to "provide prompt and adequate medical care and

coverage." The Appellees removed this action to the district court, and moved for summary

judgment. Heistand's motion was supported by his own affidavit, given as a medical expert.

Although instructed to identify a medical expert who would contradict Heistand's affidavit, Rodriguez

instead filed deposition testimony of a physician given in a worker's compensation action Rodriguez

was pursuing in state court. The district court granted summary judgment in the Heistand's favor on

the basis of his uncontroverted affidavit. The state law claims against Pacificare were held preempted

by federal statute.

                                               Discussion

        On appeal, Rodriguez challenges removal jurisdiction and alleges error in the procedures the

district court used in granting summary judgment.

A. Subject-Matter Jurisdiction and Removal.

1. ERISA Preemption.

         Rodriguez has continually challenged the district court's exercise of jurisdiction over his

lawsuit after it was removed from Texas state court. Removal is proper for "any civil action of which

the district courts have original jurisdiction founded on a claim or right arising under the Constitution,

treaties or laws of the United States...." 28 U.S.C. § 1441(b) (1986). While the claims in the present

case are couched in terms of state law, the cause of action against Pacificare, as an HMO and health

insurance benefits provider, is preempted by the Employee Retirement Income Security Act of 1974

(ERISA), 29 U.S.C. §§ 1001-1461 (1985 & Supp.1992).2 See id. at § 1144(a) (Except as otherwise


long since passed, and to remand this case now would be futile. See Offutt v. Prudential Ins. Co.,
735 F.2d 948, 950 (5th Cir.1984) (A reviewing court will not remand to allow a plaintiff to
exhaust remedies "when it would be a useless formality.").
   2
    The Pacificare plan provided to Rodriguez by his employer, Culligan Water Conditioning,
clearly meets the requirements to qualify as an ERISA welfare benefits plan. To make this
determination, we focus on the employer's involvement in the plan. See Memorial Hosp. Sys. v.
Northbrook Life Ins. Co., 904 F.2d 236, 242-43 (5th Cir.1990). This inquiry has been codified
into a four-step process:

                The terms "employee welfare benefit plan" and "welfare plan" shall not include a
                group or group-type insurance program offered by an insurer to employers ...
                under which
provided, ERISA's provisions "shall supersede any and all St ate laws insofar as they relate to any

employee benefit plan....").

        Removal is not possible unless the plaintiff's "well pleaded complaint" raises issues of federal

law sufficient to support federal question jurisdiction. Louisville & N.R. Co. v. Mottley, 211 U.S.

149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Generally, federal preemption is a defense to a claim, and

"does not appear on the face of a well pleaded complaint, and therefore does not authorize removal

to federal court." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95

L.Ed.2d 55 (1987).

       An exception to the well pleaded complaint rule has been carved out for those areas in which

Congress has "so completely pre-empt[ed] a particular area that any civil complaint raising this select

group of claims is necessarily federal in character." Id. at 63-64, 107 S.Ct. at 1546. Such a niche has

been carved o ut by Congress for claims for benefits brought by participants and beneficiaries of

ERISA-regulated employee benefit plans. See 29 U.S.C. § 1144(a); Metropolitan Life Ins. Co., 481

U.S. at 66, 107 S.Ct. at 1547; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 55-56, 107 S.Ct.

1549, 1557-1558, 95 L.Ed.2d 39 (1987) (Congressional intention is clear "that all suits brought by

beneficiaries asserting improper processing of claims under ERISA-regulated plans be treated as

federal questions governed by [ERISA's civil enforcement mechanisms].").



                       (1) No contributions are made by an employer or employee organization;

                       (2) Participation in the program is completely voluntary for employees or
                       members;

                       (3) The sole functions of the employer or employee organization with
                       respect to the program are ... to permit the insurer to publicize the program
                       ..., to collect premiums ..., and to remit them to the insurer; and

                       (4) The employer or employee organization receives no consideration in
                       the form of cash or otherwise in connection with the program[.]

       29 C.F.R. § 2510.3-1(j) (1992) (emphasis added). All four of these criteria must be met in
       order for a plan to be exempt from ERISA. Gahn v. Allstate Life Ins. Co., 926 F.2d
       1449, 1452 (5th Cir.1991). In the present case, Culligan's employees contributed, through
       payroll deductions, a portion of the insurance premiums; Culligan paid the balance. Such
       an arrangement sufficed for the necessary employer relationship to the plan in Memorial
       Hosp. Sys., see 904 F.2d at 243, and we likewise find this sufficient here.
         ERISA regulates employee benefit plans that " "through the purchase of insurance or

otherwise,' provide medical, surgical, or hospital care, or benefits in the event of sickness, accident,

disability, or death." Pilot Life Ins. Co., 481 U.S. at 44, 107 S.Ct. at 1551 (quoti ng 29 U.S.C. §

1002(1)). The Pacificare HMO plan provided to Rodriguez by his employer clearly meets this test.

State law claims are "related to" employee benefit plans, and hence are preempted, if the state law

has a "connection with or reference to such a plan." Shaw v. Delta Air Lines, 463 U.S. 85, 96-97,

103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Rodriguez's state law claims, at bottom, result from

dissatisfaction over Pacificare's handling of his medical claims. Consequently, his state law causes

of action are sufficiently related to the employee benefit plan, in that they clearly have a "connection

or reference to such a plan," to be pre-empted by ERISA. Id.; see Pilot Life Ins. Co., 481 U.S. at

55-57, 107 S.Ct. at 1557-1558; Metropolitan Life Ins., 481 U.S. at 62-63, 107 S.Ct. at 1545-1546;

Lee v. E.I. Du Pont de Nemours & Co., 894 F.2d 755, 758 (5th Cir.1990); Boren v. N.L. Indus.,

Inc., 889 F.2d 1463, 1465-66 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3283, 111 L.Ed.2d

792 (1990).

2. Supplemental Jurisdiction.

        The claims against Pacificare supported removal based on the existence of a federal question,

albeit one not apparent on the face of Rodriguez's complaint. The state law causes of action against

Heistand were properly before the district court via its exercise of supplemental jurisdiction.3

        Traditionally, state claims against a defendant in a federal forum could be adjudicated if they


   3
     More accurately, the district court exercised pendent jurisdiction over the claim against
Heistand. This area of federal jurisdiction has long been the subject of puzzlement among jurists
and commentators. However, this is "for the most part, a matter of unhappy history." Charles
Alan Wright Et Al., Federal Practice and Procedure § 3567.2 (Supp.1992). As part of the
Judicial Improvements Act of 1990, Congress has granted to the courts the power of
supplemental jurisdiction. 28 U.S.C. § 1367 (Supp.1992). In any civil action over which the
district courts have original jurisdiction, courts now have the power to hear

                [A]ll other claims that are so related to the claims in the action within such original
                jurisdiction that they form part of the same case or controversy under Article III of
                the United States Constitution. Such supplemental jurisdiction shall include claims
                that involve the joinder or intervention of additional parties.

        28 U.S.C. § 1367(a). See discussion infra on applicability of § 1367.
were appended to a federal claim against that defendant, and derived from the same nucleus of

operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16

L.Ed.2d 218 (1966); Grinter v. Petroleum Operation Support Serv., Inc., 846 F.2d 1006, 1008 (5th

Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 498, 102 L.Ed.2d 534 (1988). This pendent claim

jurisdiction spawned pendent party jurisdiction, in which federal claims are levied against one

defendant, while state law claims are alleged against a different, nondiverse defendant. If the factual

basis for both of these claims was "sufficiently intertwined," a federal court could adjudicate the state

law claims against the pendent party. See Feigler v. Tidex, Inc., 826 F.2d 1435, 1439 (5th Cir.1987).

        Pendent party jurisdiction was sharply curtailed by the Supreme Court's decision in Finley v.

United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989). The Finley Court assumed

that pendent party jurisdiction was constitutional, but that such a power must first be animated by

Congressional directive. 490 U.S. at 552, 109 S.Ct. at 2009. Lower courts were directed to look

to the federal statutes to ascertain if pendent party jurisdiction was expressly granted in a particular

instance. Id. Following this guidance, we held that ERISA did not provide for pendent party

jurisdiction. Iron Workers Mid-South Pension Fund v. Terotechnology Corp., 891 F.2d 548, 551

(5th Cir.) (no pendent jurisdiction over Louisiana property owner against whom plaintiffs asserted

state law lien claim), cert. denied, --- U.S. ----, 110 S.Ct. 3272, 111 L.Ed.2d 782 (1990).

        Iron Workers was correctly operating under the principle announced in Finley that "pendent

party jurisdiction does not exist, unless Congress has expressly spoken to allow it." Sarmiento v.

Texas Bd. of Veterinary Medical Examiners, 939 F.2d 1242, 1247 (5th Cir.1991). Congress has now

spoken. As part of the Judicial Improvements Act of 1990, 104 Stat. 5089 et seq., district courts are

now granted "supplemental jurisdiction" over claims so related to a federal question "that they form

part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C.

§ 1367(a). This is a broad grant, and by employing the "case or controversy" language found in

Article III "Congress indicates that it wants supplemental jurisdiction at least in the first

instance—subject to its declination as a matter of judicial discretion under subdivision (c)—to go to

the constitutional limit, to which it appeared to be carried in the Gibbs case." David D. Siegel,
Commentary on 1990 Revision, 28 U.S.C.A. § 1367, at 232 (West Supp.1992).4

         Section 1367 is applicable to actions that were commenced after December 1, 1990. See

Whalen v. Carter, 954 F.2d 1087, 1097 n. 10 (5th Cir.1992). Rodriguez's claims were removed to

the district court in September 1989, and are apparently still governed by Finley and Iron Workers.

The clear intent of Congress, as illustrated in § 1367, prompts us to agree that "[I]t would make no

sense to give an expansive reading to Finley to reach a result that Congress has deliberately

repudiated for future cases." Charles Alan Wright Et Al., Federal Practice and Procedure § 3567.2

(Supp.1992). Since the doctrinal underpinnings of Finley have been abolished by statute, the

continued validity of Iron Workers, a case directly based on the mandate of Finley, is questionable.

We hold that the exercise of jurisdiction over Rodriguez's claim against Heistand was not reversible

error.

B. Summary Judgment Procedures.

1. Standard of Review.

         Summary judgment is appropriate if the record discloses "that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.

56(c). In reviewing the summary judgment, we apply the same standard of review as did the district

court. Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); Moore v. Mississippi

Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989). The pleadings, depositions, admissions, and

answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of

material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986). To that end we must "review the facts drawing all inferences most favorable to the party

opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).

If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,

there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

   4
     We emphasize that supplemental jurisdiction is a matter to be exercised at the discretion of
the district court. There are a myriad of instances where remand of state claims may be
appropriate, for example, where state law claims predominate the suit. See 28 U.S.C. § 1367(c)
for factors that a district court may consider when determining whether or not a remand is in
order.
587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); see Boeing Co. v. Shipman, 411 F.2d 365, 374-

75 (5th Cir.1969) (en banc).

2. Expert's Affidavit.

        Rodriguez challenges the district court's decision allowing Heistand to support his motion

with his own affidavit as an expert. To qualify as a medical expert, Texas law requires that: "[T]he

person is practicing at the time such testimony is given or was practicing at the time the claim arose

and has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the

illness, injury, or condition involved in the claim[.]" Tex.Rev.Civ.Stat.Ann. art. 4590i § 14.01(a)(1)

(Supp.1992). Heistand presented his affidavit with his summary judgment motion, in which he swore

that he was a licensed physician practicing medicine in San Antonio, Texas. He swore that he was

familiar with the standard of care applicable to injuries like those suffered by the Rodriguezes;

Heistand described this standard of care in detail and testified that he did not deviate from it. The

district court found that Heistand met the statutory criteria for qualifying as an expert witness, and

permitted the introduction of his affidavit.

        Nothing in the Federal Rules of Evidence prohibits a party from serving as an expert witness.

The fact that the witness is a party is properly considered when the court assesses the witnesses'

credibility. The Seventh Circuit has indicated that a defendant may serve as his own expert. Tagatz

v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir.1988). Texas state courts al so allow this

procedure in medical malpractice cases.         See, e.g., Milkie v. Metni, 658 S.W.2d 678, 680

(Tex.App.—Dallas 1983, no writ); Gaut v. Quast, 505 S.W.2d 367, 369 (Tex.Civ.App.—Houston

1974, writ ref'd n.r.e.).

        The decision to qualify an expert is within the sound discretion of the trial judge. See In re

Delta Towers, Ltd., 924 F.2d 74, 79 (5th Cir.1991). We find no abuse of discretion and hold that a

party may testify as an expert in his own case, provided that the relevant qualifying criteria (statutory

or otherwise) are met.

3. Failure to Contradict Expert's Affidavit.

        Heistand's affidavit set forth the applicable standard of care, and also opined that this standard
was not breached in his treatment of the Rodriguezes. The fact that Heistand was not a specialist in

orthopedics is unavailing as a challenge to this testimony. See Simpson v. Glenn, 537 S.W.2d 114,

116-117 (Tex.Civ.App.—Amarillo 1976, writ ref'd n.r.e.).

        Rodriguez based his state law claims against Heistand on the failure of the doctor to provide

prompt and adequate medical care. Texas law places the burden of proof on the plaintiff to establish

by expert testimony that the act or omission of the defendant physician fell below the appropriate

standard of care and was negligent. See Ayers v. United States, 750 F.2d 449, 453 (5th Cir.1985);

Gonzalez v. United States, 600 F.Supp. 1390, 1393 (W.D.Tex.1985); Bowles v. Bourdon, 148 Tex.

1, 219 S.W.2d 779, 782 (1949). When state law requires a plaintiff to prove negligence by expert

testimony, summary judgment can be granted where the defendant presents expert affidavits and the

plaintiff presents no such affidavits. See Jones v. Wike, 654 F.2d 1129, 1130 (5th Cir.1981); Reinke

v. O'Connell, 790 F.2d 850 (11th Cir.1986); see also Tex.R.Civ.P. 166a(c) ("A summary judgment

may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness

... if the evidence is clear, positive and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted.").

        Rodriguez was inst ructed by the district court to identify an expert who would offer

testimony to counter Heistand's affidavit. Despite being granted an extension of time in which to

locate an expert, Rodriguez failed to do so. Instead, he filed deposition testimony of a physician

involved in a state court worker's compensation case. Neither Heistand or Pacificare was a party to

Rodriguez's worker's compensation case, nor were they granted any opportunity to cross-examine

the deposed physician. This testimony would be inadmissible against Heistand at trial. See

Fed.R.Evid. 804(b)(1). The trial court did not err in refusing to consider this deposition testimony,

and the grant of summary judgment was properly entered against Rodriguez.

4. Notice Requirements of Rule 56.

        Rodriguez's final point of error centers on the notice, or lack thereof, he was given prior to

the summary judgment hearing. Federal Rule of Civil Procedure 56(c) requires that "The [summary

judgment] motion shall be served at least 10 days before the time fixed for hearing." Rodriguez
maintains that he received a telephone call informing him that a scheduling conference would occur

the following day. The summary judgment motion, which had been pending for over two months,

was argued at that time.

       The Appellant appears to misconstrue Rule 56(c) as requiring that notice be given at least ten

days prior to the time set for hearing. Rule 56(c), ho wever, merely requires that the hearing take

place no less than ten days from the date the moving party serves the motion.

        A court satisfies the notice requirements of Rule 56 if its local rules require that a response

to a summary judgment motion be filed within a specified period of time. See Hamman v.

Southwestern Gas Pipeline, Inc., 721 F.2d 140, 142 (5th Cir.1983). The Local Rules for the Western

District of Texas allow ten days to respond to a summary judgment motion; oral argument is not

granted unless requested. W.D.Tex.R.CV-7(e), (h). These rules are almost identical to ones which

we found gave adequate notice in Howell v. Tanner, 650 F.2d 610, 614 (5th Cir.1981), cert. denied,

456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982). In a similar fact pattern, the Hamman court

surmised: "These rules put appellants on notice that the district court could decide the motion at any

time after 20 days had passed from the time it was filed. Appellants had filed a responsive brief. The

requirements of Rule 56(c) were satisfied." Hamman, 721 F.2d at 142. Rodriguez had filed a brief

in opposition to the summary judgment motions of Pacificare and Heistand. The notice requirements

of Rule 56(c) were met.5

       The judgment of the district court is AFFIRMED. All motions for sanctions are DENIED.




   5
    The present case is not analogous to the "conversion to a summary judgment motion" as
discussed in Hickey v. Arkla Indus., Inc., 615 F.2d 239 (5th Cir.1980). In Hickey, the court had
before it a Fed.R.Civ.P. 12(b)(6) motion to dismiss; however, prior to the hearing on the motion
additional material was filed with the court. When the court considered the information outside of
the pleadings, it effectively converted the 12(b)(6) motion into a summary judgment motion.
Fed.R.Civ.P. 12(b). This triggered the notice requirements of Rule 56, and it was improper to
proceed to the merits of the motion without having given fair warning to the parties. See Hickey,
615 F.2d at 240.

              In the present case, there was before the court a Rule 56 summary judgment
       motion, not a 12(b)(6) motion.
