Gnamien Momou v. Dean Health Plan, Inc.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 4, 2021*
Decided August 9, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1039
GNAMIEN MOMOU,
Plaintiff-Appellant,
v.
DEAN HEALTH PLAN, INC., et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Western
District of Wisconsin.
No. 20-cv-14-wmc
William M. Conley, Judge.
Order
After Gnamien Momou’s wife was diagnosed with ovarian cancer, Dean Health
Plan, Momou’s insurer, decided to pay for chemotherapy but not surgery. (Momou’s
wife was a beneficiary of his policy.) Momou contends that this decision, coupled with a
poorly performed biopsy at St. Mary’s Hospital in Madison, Wisconsin, accelerated his
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

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No. 21-1039 Page 2
wife’s death. He filed this suit in federal court seeking damages from Dean, the hospi-
tal, and affiliated entities. The district court dismissed the suit for lack of subject-matter
jurisdiction. 2020 U.S. Dist. LEXIS 229668 (W.D. Wis. Dec. 8, 2020).
All litigants are citizens of Wisconsin, so diversity jurisdiction under 28 U.S.C. §1332
is unavailable. (Momou’s proposal in the district court to add some additional defend-
ants could not cure this problem, as citizens of Wisconsin would remain on each side.
Momou has not moved to dismiss any of the defendants that have Wisconsin citizen-
ship. Cf. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989).) That leads Momou
to rely on the federal-question jurisdiction of 28 U.S.C. §1331. He observes that all de-
fendants are subject to many federal statutes. But, as the district judge informed
Momou, 2020 U.S. Dist. LEXIS 229668 at *7, §1331 supplies jurisdiction only when the
claim arises under one of these statutes, which Momou’s breach-of-contract and medi-
cal-malpractice claims do not.
In this court Momou relies on the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b), 1402(b), 2401(b), 2671–80, and the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. §§ 1001–1461. His brief rattles off the names of some other federal
statutes but does not make an argument based on them, so we limit our attention to the
FTCA and ERISA.
Momou treats the FTCA as a source of federal jurisdiction over all tort claims. It is
not. It concerns only tort claims against the United States, and then only claims that
arise out of conduct by a federal agency or a federal employee acting within the scope
of employment. See §§ 1346(b), 2401(b), 2671. Momou has not sued the United States,
and he does not contend that any of the defendants (or any of their agents) is a federal
employee acting within the scope of that employment. The FTCA has nothing to do
with this suit.
Nor does ERISA. True, health insurance offered as a fringe benefit of employment
can be part of a welfare benefit plan regulated by ERISA, and when that is so a claim
that a plan’s fiduciary has departed from the plan’s language may be litigated in federal
court. 29 U.S.C. §1132; Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). Momou’s
health insurance is a fringe benefit of employment—but his employer is the University
of Wisconsin Hospital and Clinics Authority. The Authority is part of the State of Wis-
consin, see Rouse v. Theda Clark Medical Center, Inc., 735 N.W.2d 30 (Wis. 2007), which
means that its plan is outside ERISA’s coverage. See 29 U.S.C. §§ 1002(32), 1003(b)(1)
(excluding plans operated by an “agency or instrumentality” of a state).

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No. 21-1039 Page 3
None of Momou’s other arguments requires discussion. His suit belongs in state
court, just as the district judge held.
AFFIRMED

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