Opinion
Civil Action No: SA-04-CA-138-XR.
April 1, 2004
ORDER
On this date, the Court considered Plaintiff's Opposed Motion for Remand, filed March 16, 2004, and Defendant's Response, filed March 26, 2004. After careful consideration, the Court DENIES the motion to remand
Plaintiff filed this lawsuit in state court on December 31, 2003. Defendant was served with process on January 20, 2004, and removed the case on February 13. Defendant alleged that removal jurisdiction was appropriate under 28 U.S.C. § 1441(a) and (b) because this Court would have had original federal question jurisdiction. Defendant stated that Plaintiff's allegation that Defendant terminated her employment to avoid paying benefits states a cause of action under ERISA, Section 510, 29 U.S.C. § 1140. In response, Plaintiff filed the instant motion to remand, contending that this Court lacks jurisdiction because she did not intend to bring a cause of action under ERISA and did not mention ERISA in her Petition.
A case may be removed to federal court if it is "founded on a claim or right arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1441(b). The complaint governs the jurisdictional determination, and if, on its face, the complaint contains no issue of federal law, then there is no federal question jurisdiction. Aaron v. Nat'l Union Fire Ins. Co., 876 F.2d 1157, 1160-61 (5th Cir. 1989). Even if a Plaintiff has not cited a federal statute in the complaint, the preemptive force of some federal statutes is so great that they convert otherwise ordinary state law claims into federal claims. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). ERISA is one such statute. Id. The preemption clause in ERISA preempts all state laws that "relate to" ERISA plans. In addition, section 510 of ERISA provides that "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which the participant may become entitled under the plan. . . ." 29 U.S.C. § 1140.
In her Petition, Plaintiff alleges that she was terminated from her employment with Exxon Mobil for allegedly stealing a clock/cd player that had been provided to Exxon by a vendor as a free gift. Exxon had allegedly received the alarm clock/radio but had expressed no plan to dispose of it for several weeks. Plaintiff alleges that, when her alarm clock at home broke, she told the acting manager that she was going to take the free clock/cd player because hers had broken, and the manager nodded. Shortly thereafter, she was terminated for theft of company property. She alleges that, as a result, she lost her retirement benefits, medical benefits, and other employment benefits. The only cause of action set forth under an independent heading in the Petition is a cause of action for defamation. In the section entitled "Damages," she alleges that "[a]s a direct and proximate result of the Defendants' aforementioned acts, omissions and conduct, Plaintiff CHERYL CARVIN has missed work, lost her job, lost her benefits, has been denied other employment opportunity, has been underemployed and suffered a loss of earning capacity. In the last paragraph of the "Damages" section, just before the prayer, the Petition states in all capital letters that "CHERYL CARVIN HEREBY SUES FOR ALL CAUSES OF ACTION WHICH SHE IS ENTITLED TO BRING FOR WRONGFUL TERMINATION AND DISCRIMINATION, SELF COMPELLED DEFAMATION AND TERMINATION TO AVOID PAYING BENEFITS." Her prayer for relief further seeks "[r]ecovery of an amount for each of the causes of action in excess of the minimum jurisdiction of this Court."
Thus, the question is whether the complaint fairly states a claim that is pre-empted by ERISA. Plaintiff asserts that it does not, and that she "seeks damages arising from wrongful employment termination and defamation." Federal courts have drawn a distinction between a complaint that alleges that the employer wrongfully terminated an employee to avoid paying benefits and a complaint in which loss of benefits is merely an element of damages for wrongful conduct. The first is preempted by ERISA; the second is not. See, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (holding that ERISA preempts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA); Rozzell v. Security Servs., Inc., 38 F.3d 819, 823 (5th Cir. 1994); Flowerette v. Heartland Healthcare Ctr., 903 F. Supp. 1042 (N.D. Tex. 1995). The words, in all capital letters, that Plaintiff "sues for . . . termination to avoid paying benefits" alleges such an illegal motive on the part of Exxon to terminate Plaintiff to avoid paying benefits. It does not simply allege that Plaintiff lost benefits as a result of Exxon's otherwise allegedly wrongful conduct.
Although the Fifth Circuit in Rozzell v. Security Services, Inc. concluded that a Plaintiff's allegation in the punitive damages portion of his complaint that he was fired "in an attempt to willfully deprive [him] of compensation and benefits of [his] job," that case is distinguishable. In Rozzell, the Court concluded that the complaint clearly alleged only one cause of action — wrongful discharge for filing a worker's compensation claim. It concluded:
[I]t remains patently clear that the substance of his claim is limited to the state law retaliatory discharge cause of action. He included the word "benefits" in his accusation of the requisite malice for punitive damages, not as a separate claim for relief. Rather, the allegation of lost "benefits" related back to the retaliatory discharge in order to punctuate that wrongful conduct. Therefore, the substance of Rozzell's complaint alleges only one cause of action that is governed exclusively by state law.Rozzell, 38 F.3d at 821.
In this case, in contrast, although Plaintiff also placed the statement in the damages portion of the Petition, she clearly alleges a separate cause of action for termination to avoid paying benefits. She expressly "sues for all causes of action which she is entitled to bring for wrongful . . . termination to avoid paying benefits." The next sentence is, "All conditions precedent to bringing these causes of action have been met." Thus, on the face of the complaint, Plaintiff alleges a cause of action for wrongful termination to avoid paying benefits. This claim is preempted by ERISA and thus removal jurisdiction exists.
Accordingly, Plaintiff's Motion to Remand (docket no. 4) is DENIED.