                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0422n.06

                                        Case No. 18-2385                                FILED
                                                                                  Aug 14, 2019
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JEFFREY FRIED and NANCY GUCWA, Full                     )
Co-Guardians of Mark Marusza,                           )
                                                        )
       Plaintiffs-Appellants,                           )   ON APPEAL FROM THE UNITED
                                                        )   STATES DISTRICT COURT FOR
v.                                                      )   THE EASTERN DISTRICT OF
                                                        )   MICHIGAN
DONNA    PARHAM   SANDERS   and                         )
ACCIDENT     FUND    INSURANCE                          )
COMPANY OF AMERICA,                                     )
                                                        )
       Defendants-Appellees.                            )




BEFORE: COLE, Chief Judge; SILER and CLAY, Circuit Judges.

       SILER, Circuit Judge. Jeffrey Fried and Nancy Gucwa, both co-guardians of Mark

Marusza, appeal an order of the district court dismissing with prejudice their claim for intentional

infliction of emotional distress (“IIED”) and remanding their remaining state law claims to Wayne

County Circuit Court. Because the district court lacked jurisdiction, its order is REVERSED and

the case is REMANDED to the district court with instructions to dismiss all claims without

prejudice.

                                                 I.

       Marusza was hit by a vehicle while on the job in 2011. He sustained a traumatic brain

injury, broken bones, and damage to his shoulders and spine. Following the accident, he was no
Case No. 18-2385, Fried et al. v. Parham Sanders et al.


longer able to work, required attendant care, and took on a pseudobulbar affect, often manifesting

in aggressive or inappropriate behavior toward other people.

       Accident Fund Insurance Company of America insured Marusza’s employer for Michigan

workers’ compensation benefits. Accident Fund has paid for some, but not all, of Marusza’s

treatment since the accident. Defendant Donna Parham Sanders is the principal adjuster of

Marusza’s claim at Accident Fund.

       In 2015, Marusza and Gucwa sued Accident Fund and its employees. They alleged that

the insurance company defrauded them in violation of the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act; that doctors hired by Accident Fund tortiously interfered with

Marusza’s contractual relationship with Accident Fund; that Accident Fund falsely imprisoned

Marusza by requiring him to attend an examination with a neuropsychologist; and that they were

entitled to double damages under the Medicare Secondary Payer Act. Gucwa v. Lawley, 731 F.

App’x 408, 410 (6th Cir. 2018). This court upheld the district court’s dismissal of that complaint.

Id.

       Meanwhile, Marusza also sought help from the Michigan Workers’ Compensation Agency.

In 2016, the Agency issued an “open award” of benefits to Marusza. The award entitled him to

four hours of attendant care per day, case management, and medication prescribed by his doctors

for mental and physical injuries.

       In 2017, the guardians brought this lawsuit in Wayne County Circuit Court against

Accident Fund and Sanders (collectively, “Accident Fund”). The complaint alleges three claims:

(1) IIED under Michigan law, based in part on violations of federal law, (2) failure to timely pay

under Michigan Compiled Law § 500.2006, and (3) for enforcement of a final order of the workers’

compensation agency. Accident Fund removed the case to federal court, alleging federal question



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jurisdiction. It argued the first amended complaint “alleg[ed] liability against defendants and

entitlement to relief and damages pursuant to federal law, including 18 U.S.C. §§ 1341 and 1343

(mail and wire fraud), and 18 U.S.C. § 1960, et seq. ([RICO]).”

        Once in federal court, plaintiffs twice attempted to amend their complaint, once to delete

reference to federal law violations, and again to strengthen their allegations of IIED. Plaintiffs

also argued the district court had no jurisdiction and the case should be remanded. The district

court denied leave to amend the complaint, dismissed with prejudice plaintiffs’ IIED claim, and

remanded the remaining two claims to state court. Plaintiffs appeal.

                                                   II.

        A defendant who removes a case pursuant to 28 U.S.C. § 1441(b) must demonstrate that

“the case as pled falls within the federal question jurisdiction of the district court.” Warthman v.

Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1061 (6th Cir. 2008). Decisions of the district court

concerning its subject-matter jurisdiction that raise pure questions of law are reviewed de novo;

when jurisdictional decisions are based on resolution of factual disputes, those findings are

reviewed for clear error. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007).

                                                  III.

        In the absence of diversity jurisdiction, which is not applicable, Accident Fund may remove

this case to federal court if it could have been brought there originally. Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). That is: the case may be removed

to federal court if the plaintiffs’ allegations “aris[e] under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331. This is most obviously satisfied when litigants proceed under

a federal cause of action. Grable, 545 U.S. at 312.




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       But the Supreme Court has recognized “another longstanding, if less frequently

encountered, variety of federal ‘arising under’ jurisdiction”—claims that arise under state law, but

nonetheless implicate a substantial federal issue. Id. This is a “special and small category” of

claims. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006). To qualify,

a state law claim must contain a federal issue that is “(1) necessarily raised, (2) actually disputed,

(3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state

balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013); Mikulski v. Centerior

Energy Corp., 501 F.3d 555, 568 (6th Cir. 2007).

       The district court found that plaintiffs’ allegations regarding federal law were at the “core”

of plaintiffs’ IIED claim but did not explicitly analyze the multi-part test set out by the Supreme

Court. On appeal, Accident Fund argues plaintiffs’ IIED claim satisfies the test. Plaintiffs argue

it does not and must be remanded to state court along with the other claims. Plaintiffs are correct.

       A. Necessarily Raised and Actually Disputed

       It is not clear whether the federal issues in the complaint are actually disputed. After all,

plaintiffs have requested leave to amend their complaint to eliminate all allegations that Accident

Fund violated federal law. And after removal in this case, the underlying RICO claim was litigated

and dismissed in a separate suit in federal court. Gucwa v. Lawley, 731 F. App’x 408, 412 (6th

Cir. 2018).

       But even assuming dispute, the federal issues are not necessary to plaintiffs’ IIED claim.

To prove IIED under Michigan law, plaintiffs must show: (1) extreme and outrageous conduct;

(2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v. Auto-Owners

Ins. Co., 374 N.W.2d 905, 908 (Mich. 1985). Plaintiffs’ complaint alleges these elements are met

by a number of actions by Accident Fund, most of which are not related to federal law:



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       •   “Defendants at times in 2012 refused to pay for attendant care though they had
           no medical evidence Marusza did not need care . . . This was an intentionally
           wrongful act inflicting severe emotional distress on Marusza.”
       •   “Defendants refused to pay for treatment by Meythaler, refused to pay for
           Neudexta or propranolol, and refused to pay for attendant care.”
       •   “Defendants acted dishonestly or with reckless disregard of the truth, and or
           willful blindness to the truth” concerning the reports of Dr. Baker and Dr. Ager,
           including failing to the give the doctors relevant medical records, failing to
           review inconsistencies in the reports after the errors were made known, and
           continuing to deny benefits after incidents showed Marusza to be a danger
           absent treatment.
       •   “Defendants continuously refused to admit that [Marusza] suffered from TBI
           [and] needed treatment and medication” despite receiving Dr. Meythaler’s
           regular reports confirming the need each year from 2012 through 2016.
       •   “Defendants[’] refusal to pay for nurse case management in 2016 and 2017 was
           an outrageous and reckless act . . . .”
       •   “[Defendants’] refusal month after month and year after year before the hearing
           to pay for Nuedexta, for other medications and treatment for Mark Marusza’s
           TBI and other injuries, and for attendant care and nurse case management, was
           outrageous, intentional, reckless and or the product of willful blindness, as was
           their refusal to pay for increased attendant care and nurse case management
           after the magistrate’s decision . . . Defendants’ acts inflicted severe emotional
           distress on Mark Marusza.”

       It is only after recitation of these allegations and beginning on page twenty-four of the

complaint that plaintiffs touch on federal law. The complaint states “[t]he commission of mail and

or wire fraud which inflicts severe emotional distress is the commission of the tort of intentional

infliction of emotional distress.” And the complaint alleges “Defendants committed mail and wire

fraud in a pattern of racketeering which violated [RICO], 18 U.S.C. § 1960, et seq, [and the

violation] inflicted severe emotional distress on Mark Marusza.”

       According to the complaint, violations of federal law are proof of certain elements of

plaintiffs’ IIED claim. But they are not the only proof—the complaint details numerous actions

by defendants having nothing to do with federal law, but which are alleged as a basis for their IIED

claim. The federal issue is therefore not a necessary element of the claim. After all, plaintiffs may


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win or lose regardless of whether defendants violated federal law; such a connection is more

tenuous than what has previously made a federal issue necessarily raised. Gunn, 568 U.S. at 259

(causation element of state malpractice claim required application of federal patent law to prevail);

Grable, 545 U.S. at 315 (whether IRS gave adequate notice as defined by federal law was “the

only legal or factual issue contested in the case”); Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.

804, 807 (1986) (“Because the jury could find negligence on the part of Merrell Dow without

finding a violation of the FDCA, the plaintiffs’ causes of action did not depend necessarily upon a

question of federal law.”) (quoting Sixth Circuit opinion below); Mikulski, 501 F.3d at 569 (“The

plaintiffs have certainly staked their [state law] claim on this federal [tax accounting] issue.”).

       B. Substantial

       Nor are the federal issues substantial. This court has previously explained that four aspects,

among others, affect an embedded federal issue’s substantiality:

       (1) whether the case includes a federal agency[;] (2) whether the federal question
       is important (i.e., not trivial); (3) whether a decision on the federal question will
       resolve the case (i.e., the federal question is not merely incidental to the outcome);
       and (4) whether a decision as to the federal question will control numerous other
       cases (i.e., the issue is not anomalous or isolated).

Mikulski, 501 F.3d at 570.

       Here, these aspects weigh against federal jurisdiction. There is no federal agency in the

case. Nor is the federal issue particularly important. To frame importance, “[t]he substantiality

inquiry under Grable looks . . . to the importance of the issue to the federal system.” Gunn, 568

U.S. at 260. Accident Fund has identified no such issue. It is true that Congress created a private

cause of action under RICO and the federal courts have some interest in delineating its contours.

But that alone does not show substantiality. The Supreme Court has “disclaimed the adoption of

any bright-line rule[s]” in this area of the law, instead emphasizing the importance of tailored,


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careful considerations. Grable, 545 U.S. at 317. Here, plaintiffs have already tried and failed

under the RICO statute in federal court—this court has already weighed in on the contours of the

private cause of action as it relates to these facts. Gucwa, 731 F. App’x 408. According to

Accident Fund and the district court, all that remains is to apply preclusion principles. There is no

reason to believe such application is important to the federal system or will control numerous other

cases going forward.

       Finally, and as discussed previously, the alleged federal violations offer only some support

for plaintiffs’ IIED claim and deciding the federal issues will not resolve the claim. The elements

required for the federal violations are not the same as those required for IIED, and a decision in

favor of plaintiffs will not end their proof. Compare Roberts, 374 N.W.2d at 908, with Sedima,

S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). If, on the other hand, the issues are decided

in favor of Accident Fund, plaintiffs will presumably continue forward, attempting to prove IIED

from the multiple pages of other allegations in their complaint.

       C. Capable of Resolution Without Disruption

       As this court has said previously: “[b]oth Grable and Merrell Dow noted that allowing

federal jurisdiction over typical negligence claims that implicated issues of federal law could

dramatically increase the volume of federal litigation over state-law claims.” Mays v. City of Flint,

871 F.3d 437, 450 (6th Cir. 2017). Plaintiffs’ IIED claim sounds in state tort law. In addition,

Michigan’s role in policing its workers’ compensation scheme and delineating the contours of its

IIED cause of action is significant. See, e.g., Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731

F.3d 556, 568 (6th Cir. 2013) (noting that workers’ compensation schemes “supplant a body of

law that has always been within the domain of the states’ police powers”). This court has

previously noted that IIED claims implicate complex aspects of Michigan law, IIED claims have



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been ruled on differently by Michigan courts, and the Michigan Supreme Court has been hesitant

to recognize it as a formal cause of action. Moon v. Harrison Piping Supply, 465 F.3d 719, 728

(6th Cir. 2006). Finally, to the extent federal law arises on remand, Michigan courts are competent

to apply it. Mikulski, 501 F.3d at 574 (citation omitted).

       For good reason, this court has been hesitant to federalize state workers’ compensation

disputes in the past, and this is another attempt we must avoid. See, e.g., Jackson, 731 F.3d at 568

(“The plaintiffs’ reading of RICO would dramatically alter the proper distribution between state

and national governments of police authority . . . by making federal courts an alternative forum for

workers’ compensation disputes.” (citation omitted)).

                                                IV.

       Because the district court lacked jurisdiction, its order is REVERSED. The case is

REMANDED to the district court with instructions to dismiss all claims without prejudice.




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