The opinion
TALLMAN, Circuit Judge,
dissenting:
I respectfully disagree with the majority’s conclusion that federal subject matter jurisdiction is lacking. This is nothing more than a dispute over medical necessity for an extra day of hospitalization — a typical claim for benefits due under an ERISA plan covering the patient. I believe that the underlying dispute falls squarely within the test articulated by the Supreme Court in Aetna Health Inc. v. Davila, 542 U.S. 200 , 124 S.Ct. 2488 , 159 L.Ed.2d 312 (2004), and would conclude that the Hospital’s claims are subject to complete preemption under § 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132 (a)(1)(B). Therefore, I dissent.