Opelousas General Hospital Authority, a Public Trust D/B/A Opelousas General Health System v. Louisiana Health Services and Indemnity Company D/B/A Blue cross/blue Shield of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-265 CW 19-179

OPELOUSAS GENERAL HOSPITAL AUTHORITY, A PUBLIC
TRUST, D/B/A OPELOUSAS GENERAL HEALTH SYSTEM

VERSUS

LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY D/B/A
BLUE CROSS/BLUE SHIELD OF LOUISIANA

************
APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, DOCKET NO. 16-C-3647-C
HONORABLE ALONZO HARRIS, PRESIDING

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED; WRIT DENIED.

Gremillion, J., concurs and assigns reasons.

Thomas A. Filo
Cox, Cox, Filo, Camel & Wilson, L.L.C.
723 Broad Street
Lake Charles, LA 70601
(337) 582-8364
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, et al.

Patrick C. Morrow
James P. Ryan
Morrow, Morrow, Ryan, Bassett & Haik
324 West Landry Street
Opelousas, LA 70570
(337) 948-4483
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, et al.

Stephen B. Murray
Stephen B. Murray, Jr.
Arthur M. Murray
Murray Law Firm
Poydras Center, Suite 2150
650 Poydras Street
New Orleans, LA 70130
(504) 525-8100
COUNSEL FOR PLAINTIFF/APPELLEE:
Opelousas General Hospital Authority, et al.

James A. Brown
Liskow & Lewis
701 Poydras St., Suite 5000
New Orleans, LA 70139
(504) 581-7979
COUNSEL FOR DEFENDANT/APPELLANT:
Blue Cross Blue Shield Association

Joseph C. Giglio, Jr.
Michael Ishee
Liskow & Lewis
822 Harding Street
P.O. Box 52008
Lafayette, LA 70503
(337) 232-7424
COUNSEL FOR DEFENDANT/APPELLANT:
Blue Cross Blue Shield Association

Daniel E. Laytin
Zachary Holmstead
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
(312) 862-2000
COUNSEL FOR DEFENDANT/APPELLANT:
Blue Cross Blue Shield Association

COOKS, Judge.

This consolidated appeal and writ application arise from a class action filed

on August 24, 2016 by the Plaintiff, Opelousas General Hospital Authority, a Public

Trust d/b/a Opelousas General Health System (hereafter OGHA), against the

Defendant, Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue

Shield of Louisiana (hereafter BCBS-LA). OGHA alleged that BCBS-LA conspired

with Blue Cross Blue Shield Association (hereafter the Association) and thirty-five

other Blue Cross plans across the United States to allocate markets, monopolize, and

engage in other anticompetitive conduct. OGHA alleged this conduct was in

violation of the Louisiana Anti-Trust Statute. La.R.S. 51:122 et seq.

In the relevant period surrounding the suit filed by OGHA, several anti-trust

class actions were brought against various Blue Cross Blue Shield entities under

both federal and state law. Many of the actions were consolidated in a federal Multi-

District Litigation (hereafter MDL) in the United States District Court for the

Northern District of Alabama. OGHA maintains its lawsuit is different from the

ones in the MDL, in that the suit is tailored only against BCBS-LA and asserts only

monetary claims under Louisiana law.

In accordance with La.Code Civ.P. art. 593, OGHA moved for class

certification on November 3, 2016. On December 22, 2016, BCBS-LA filed an

Exception of Prematurity and Alternative Motion to Compel Arbitration, contending

the claims asserted in the OGHA class action were subject to an arbitration

agreement. The trial court denied the exception and alternative motion on March 8,

2017.

On March 16, 2017, BCBS-LA filed a Notice of Intention to Apply for

Supervisory Writs from the denial of the exception and alternative motion. On April

8, 2017, BCBS-LA filed a Motion for Stay with the district court pending its writ

application on the denial of its exception. On April 24, 2017, the district court

entered a Per Curiam, setting BCBS-LA’s Motion to Stay Proceedings Pending Writ

Application for a hearing on May 12, 2017 and OGHA’s Motion of Class

Certification for hearing on June 29, 2017. On May 15, 2017, the district court

denied the Motion to Stay Proceedings.

On June 14, 2017, BCBS-LA filed a renewed Motion to Stay with the district

court. On June 19, 2017, during a telephone conference, the district court denied the

renewed Motion to Stay and advised the parties the class certification hearing set for

hearing on June 29, 2017, would proceed as scheduled. On that same day, BCBS-

LA filed an Expedited Motion for Stay Pending Writ Application or Alternative

Motion to Continue Class Certification hearing. OGHA opposed the filing.

On June 21, 2017, BCBS-LA filed an opposition to OGHA’s motion for class

certification. On June 27, 2017, two days prior to the class certification hearing, the

Association filed a Motion for Leave to File a Petition for Intervention. That same

day, the Association and BCBS-LA jointly filed a Notice of Removal, asserting the

intervention (which had not yet been granted or denied) created minimal diversity

for purposes of jurisdiction under the Class Action Fairness Act, 28 U.S.C., § 1493

[CAFA]. Also, on June 27, 2017, OGHA filed an Emergency Motion to Remand,

contending until the district court ruled on the Petition for Intervention, there was no

federal jurisdiction. Emergency remand was requested to allow the district court to

rule on the Petition for Intervention. Further, on the same day, the Association and

BCBS-LA sought a transfer of the case to the MDL pending in the Northern District

of Alabama. The Judicial Panel Multi-district Litigation automatically issued a

Conditional Transfer Order.

Counsel for OGHA advised the district court they were seeking an emergency

remand to allow the district court to consider the Petition for Intervention. The

district court then informed the parties that if the emergency remand were granted,

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it would set the hearing on the Petition for Intervention prior to the class certification

hearing scheduled for June 29, 2017.

On June 28, 2017, a phone conference on OGHA’s emergency remand motion

was held with Judge Rebecca Doherty of the Western District of Louisiana. Judge

Doherty stated she would not remand on an emergency basis and advised the parties

to fully brief the remand issue. The Association and BCBS-LA filed a Motion to

Stay pending transfer to the MDL. OGHA opposed the stay and provided additional

briefing, asserting even if leave to intervene was granted, removal was still barred

by the voluntary-involuntary rule.

On July 5, 2017, OGHA filed an Opposition to the Conditional Transfer Order

issued by the MDL Panel on the basis that transfer would do nothing but delay

remand. Over OGHA’s objection, the MDL Panel transferred this matter to the

MDL. Judge R. David Proctor, who presided over the MDL, requested further

briefing on the issue of remand.

Eventually, on April 9, 2018, Judge Proctor rendered judgment remanding the

case back to Louisiana district court under the voluntary-involuntary rule.

Immediately upon receiving the ruling, OGHA moved to reset the class certification

hearing. A status conference was set for July 25, 2018. BCBS-LA filed a motion to

vacate the status conference on the grounds Judge Proctor had only issued Reasons

for Judgment, but not a remand order. On April 25, 2018, the district court granted

the motion to vacate the status conference.

On May 14, 2018, Judge Proctor denied a Motion for Rehearing on Remand

filed by BCBS-LA. On July 22, 2018, the Association and BCBS-LA filed a Petition

for Permission to Appeal the Remand Order with the Eleventh Circuit Court of

Appeal, under CAFA’s discretionary review provision. On January 10, 2019, the

Eleventh Circuit denied permission to appeal, finding that minimal diversity under

CAFA was not present. Judge Proctor’s remand order was rendered final.

3

OGHA again attempted to reset its long-sought class certification hearing.

The Association again opposed this, contending the district court must first rule on

its Motion for Leave to File a Petition for Intervention. A hearing on that motion

occurred on February 7, 2019, after which the district court denied the intervention

on the basis it would result in further needless delay. The district court certified the

order as final and appealable.

The Association and BCBS-LA filed yet another motion to stay on February

13, 2019. At the hearing on the stay motion, the Association acknowledged it would

leverage any intervention as a means to seek removal to federal court. The district

court denied the stay and reset the class certification hearing for May 30, 2019.

The Association sought supervisory writs from the judgment of the district

court denying the Petition for Intervention. The Association also filed an appeal

from the district court’s judgment. The Association acknowledged it filed the

application for writs as a “precautionary measure in the event the direct appealability

of the district court’s Reasons for Judgment and Final Judgment [was] challenged or

denied on any grounds.” On March 8, 2019, the Association filed a Motion to

Temporarily Stay Application for Supervisory Writs and Consolidate Application

with Direct Appeal. On March 14, 2019, this court granted the writ application “for

the limited purpose of ordering the consolidation of the writ application with the

appeal to be lodged in this court.” Opelousas General Hospital Authority, a Public

trust, D/B/A Opelousas General Health System v. Louisiana Heath Services &

Indemnity Company D/B/A Blue Cross/Blue Shield of Louisiana, 19-179 (La.App. 3

Cir. 3/14/19), ___ So.3d ___. On appeal, the Association asserts the following

assignments of error:

1. The district court erred in concluding that, if permitted to intervene,
the Association would not “be able to show the Federal Courts that it
has the minimal diversity to trigger [CAFA] jurisdiction” and thus any
removal would result in remand and retard the progress of the action.
The district court misread the Eleventh Circuit’s decision in this case,

4

which clearly stated than an order granting the Association’s motion to
intervene will trigger CAFA’s minimal diversity jurisdiction, making
the case properly removable.

2. The district court erred in denying intervention based upon a belief that
the case would not be removable, in contravention of controlling
Louisiana Supreme Court and United States Supreme Court precedent
holding that such a determination is the purview of the federal courts
alone, and that a court may not thwart removal because the court
anticipated removal will cause delay.

3. The district court erred in finding that intervention by the Association
would retard the progress of the action when the case remains in a
preliminary, pretrial phase and the clear weight of authority holds that
intervention before judgment does not retard the case.

4. The district court erred in denying the Association’s petition to
intervene on the basis that “[e]ven if [the Association] is not allowed to
intervene in this action, it still has a right to appeal” because a third-
party appeal is not a substitute for intervention.

ANALYSIS

The question before this court is whether the district court’s denial of the

Associations’ Petition for Intervention under the circumstances of this case is an

abuse of discretion. This court in Phillips v. G & H Seed Co., Inc., 09-1102 (La.App.

3 Cir. 3/10/10), 32 So.3d 1137, 1137, writ denied, 10-822 (La. 6/18/10), 38 So.3d

325, stated, “the trial court has broad discretion in determining whether to allow an

intervention to be filed after the answer and in determining if the intervention will

retard the progress of the suit.” As OGHA notes, this is well settled in Louisiana.

In Charia v. Allstate Ins. Co., 93-1230 (La.App. 4 Cir. 3/29/94), 635 So.2d 370, 372

the fourth circuit set forth that “[a] court has broad discretion in deciding whether to

allow an intervention after the answer to the principal demand has been filed.” In

Volume Shoe Corp. v. Armato, 341 So.2d 611 (La.App. 2 Cir.1977), the second

circuit stated a trial court has broad discretion in deciding whether to allow an

intervention after the answer to the principal demand has been filed. Similarly in

Madere v. Lennix, 535 So.2d 1290, 1292 (La.App. 5 Cir. 1988), the fifth circuit

5

stated “[t]he trial court has great discretion in deciding whether to allow an

intervention if such intervention will not retard the progress of the main demand.”

Louisiana Code of Civil Procedure Article 1033 permits intervention in a

lawsuit after the answer to the principal demand, with leave of court, if it “will not

retard the progress of the principal action.” Therefore, if the court determines an

intervention will retard the progress of the action, it is mandated to deny the

intervention.

The Association spends a great majority of its brief arguing it has a right to

intervene in this action. Albeit, the Association still must demonstrate that the

district court abused its vast discretion in refusing to grant the intervention based on

its finding that such intervention will cause needless delay. The district court, after

noting in its reasons for judgment that the Association “made it clear . . . it will file

a Motion to Remove this case back to Federal Court if the intervention is granted,

specifically found “the intervention would retard the progress of the main demand.”

We find the situation in the present case is strikingly similar to the factual

scenario presented to the court in Heaton v. Monogram Credit Card Bank of

Georgia, 01-1415 (La.App. 4 Cir. 04/10/02), 818 So.2d 240. In that case, a class

action lawsuit was filed in state court, alleging the defendant charged late fees on

credit cards in excess of the limit provided under the Louisiana Consumer Credit

Law. The FDIC sought to intervene and remove the action to federal court, after

two prior attempted removals resulted in remand to the state court. The district court

then denied the FDIC’s motion to intervene and the FDIC appealed, contending the

district trial court abused its discretion in denying the FDIC the right to intervene.

The district court, in its reasons for judgment, noted that counsel for defendant

admitted that it would seek a third removal to federal court if the intervention was

granted. The district court concluded “[p]ermitting the FDIC to intervene at this

6

point and remove the case would severely disrupt the proceedings.” Id. at 243. The

appellate court affirmed the district court’s judgment, holding as follows:

Based on our review of the entire record, we conclude that the
facts found by the trial court and set forth in its reasons for judgment
were reasonable and are neither manifestly erroneous nor clearly
wrong. The trial court determined that based on those facts, the
intervention of the FDIC would retard the progress of the principal
action. Therefore, under the rule of law set forth in the Charia case and
in accordance with the plain language of [La.Code Civ.P. art.] 1033,
the trial court’s decision that the FDIC should not be allowed to
intervene in this case was reasonable. . . . Because the FDIC’s
intervention in this case would retard its progress, it should not be
allowed to intervene even if it does have a “justiciable right”.

Id. at 245-46.

The Association contends this case is distinguishable from Heaton, because

there the prospective intervenor knew about the suit long before intervening. The

Association asserts it only learned about the class action suit filed against BCBS-LA

a few days before it filed the Petition to Intervene, which was approximately ten

months after the class action was filed and five days before the class certification

hearing was to be held. Regardless of the veracity of this contention, we agree with

OGHA that when the Association learned of the case is immaterial. As stated,

La.Code Civ.P. Art. 1033 mandates a denial of an intervention after an answer has

been filed if it will “retard the progress of the principal action.” As set forth in

Heaton, the pertinent issue is whether the proposed intervention would delay the

action. We agree with OGHA that under article 1033, the district court is mandated

to deny the intervention “even if it accepted the dubious assertion that neither the

Association, nor any of the army of lawyers it has representing it in the national

antitrust actions were aware of this case until the eve of the class certification

hearing.”

We note in its reply brief, the Association points out the US Fifth Circuit Court

of Appeals, in Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416

(5TH Cir. 2002), nullified all state proceedings and allowed the FDIC to intervene.

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However, the federal appellate court at no point in its opinion addressed La.Code

Civ.P. art. 1033 and the below finding that the FDIC’s intervention would

unnecessarily delay the action. Instead, the federal appellate court reversed the

denial of intervention “[b]ecause of the important role that the FDIC plays in

enforcing federal banking laws, as evidenced by its broad jurisdictional statute[.]”

Id. at 419.

The Association also contends the US Eleventh Circuit Court of Appeals,

although denying permission to appeal, implied that removal would have been

proper under the voluntary-involuntary rule if the motion to intervene had been

granted. It contends this effectively reversed Judge Proctor’s remand order. We

note the Eleventh Circuit observed in its opinion that “removal would have been

appropriate if the motion to intervene had been granted.” However, we agree with

OGHA that the Eleventh Circuit, in making that observation, was noting that had the

Association and BCBS-LA not prematurely removed the action before the petition

to intervention could be ruled on by the district court, removal may have been

appropriate if the district court had granted the motion to intervene. The Eleventh

Circuit was never able to reach that question and declined discretionary review

without discussing the merits presented in the petition. The referenced comment

was an explanation of why the Eleventh Circuit was declining to exercise

discretionary jurisdiction, which rendered Judge Proctor’s remand order final and

non-appealable.1

1
OGHA also maintains, even if the Eleventh Circuit would or could revisit its decision on
remand, the case would still require remand under the home state exception. OGHA noted the
Eleventh Circuit expressly noted it had not considered remand under the home state exception,
stating:

We have not considered whether the local-controversy or home-state exceptions
or both, might apply, as that is a question for the district court to consider in the
first instance.
8

The Association also asserts the district court’s denial of the Petition for

Intervention should be reversed because it improperly determined questions of

federal jurisdiction. OGHA counters that the district court did not address

jurisdiction at all, but only the Association’s continuing pattern of dilatory tactics.

We agree with OGHA that the district court did not abuse its broad discretion in

making a factual determination that a removal (which the Association acknowledged

it would seek if allowed to intervene) would cause further, needless delay.

Moreover, we note Judge Proctor decided jurisdiction in his April 9, 2018 decision,

which the Eleventh Circuit declined to review, rendering it final. Thus, the district

court simply followed Judge Proctor’s final order on jurisdiction.

The Association also contends the “district court committed independent legal

error in denying intervention on the basis that ‘[e]ven if [the Association] is not

allowed to intervene in the action, it still has a right to appeal.’” Clearly, the basis

for the denial of the Association’s Petition for Intervention was not the fact that the

Association would still maintain a right to appeal, but that the proposed intervention,

and professed intention of the Association to try and remove the case again if it were

allowed to intervene, would result in needless delay in contravention of La.Code

Civ.P. art.1033. Therefore, we find no merit in this argument.

It is imperative to note the undisputed facts that this case has already

undergone a two-year delay because the Association and BCBS-LA improperly

removed the case to federal court two days before the district court was scheduled to

hear the class certification hearing and before it could rule on the motion to

intervene. After two years of delay, the Association again asked the district court to

consider its Petition for Intervention and admitted it would immediately seek to

remove the case to federal court if it were allowed to intervene. We find no abuse

of the trial court’s broad discretion in finding that a grant of intervention would result

9

in further, needless delay in violation of La.Code Civ.P. art. 1033. Thus, the trial

court did not err in denying the Association’s Petition for Intervention.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed. All

costs of this appeal are assessed to appellant, Blue Cross Blue Shield Association.

AFFIRMED; WRIT DENIED.

10

COURT OF APPEAL, 3 RD CIRCUIT
STATE OF LOUISIANA

19-265 CW 19-179

OPELOUSAS GENERAL HOSPITAL AUTHORITY, A
PUBLIC TRUST, D/B/A OPELOUSAS GENERAL
HEALTH SYSTEM

VERSUS

LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY
D/B/A BLUE CROSS/BLUE SHIELD OF LOUISIANA

GREMILLION, Judge, concurs and assigns reasons.
I concur in the result. While I agree with the majority that the trial court did

not abuse its great discretion in deciding whether the intervention should be allowed,

it and the majority erred in failing to address the merits of the application of La.Code

Civ.P. art. 1091.