Opinion
Civil Action No. SA-04-CA-0406 FB (NN).
January 14, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is a case arising out of defendant's allegedly unlawful and discriminatory termination of plaintiff. Plaintiff's current petition seeks relief for discrimination under Texas Labor Code § 21.051(1), et seq., and, alternatively, for a Sabine Pilot discharge. The motion currently before the court is plaintiff's second motion to remand. Plaintiff's first motion to remand was granted by this court and defendant subsequently removed the action.
Docket Entry 1, Exhibit 1, Plaintiff's First Amended Original Petition.
On November 8, 2002, plaintiff Chester Hammann filed his first petition against defendant United Services Automobile Association in the 150th Judicial District Court, Bexar County, Texas, Cause Number 2002-CI-16250 (the "2002 Complaint"). Plaintiff's 2002 Complaint sought relief for discrimination under Texas Labor Code § 21.051(1), et seq., and intentional or reckless infliction of emotional distress.
See Hammann v. United Services Automobile Association, 02-CA-1168 FB, Docket Entry 1.
Plaintiff served defendant with the 2002 Complaint on November 12, 2002. Defendant then filed its original answer on December 2, 2002. On December 11, 2002, defendant filed its notice of removal pursuant to 28 U.S.C. § 1446(b). Defendant removed the action, asserting in pertinent part, that plaintiff's claims, at their core, seek to recover benefits under various plans governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. As such, defendant argued, plaintiff's claims were "preempted and completely displaced by ERISA's civil enforcement provisions."
Id.
Id.
Hammann v. United Services Automobile Association, 02-CA-1168 FB, Docket Entry 1, ¶ 7, at 3.
After defendant removed the action to this court, plaintiff filed a motion to remand on the basis that the action was improvidently removed. Plaintiff asserted that the action was not preempted by ERISA because plaintiff's claims did not seek recovery on the basis that plaintiff was terminated in order to deny him ERISA benefits. Because denial of ERISA benefits was not a motivating factor for the termination, plaintiff contended that the action was not preempted and was improvidently removed.
On July 15, 2003, I entered a Memorandum and Recommendation. Therein, I concluded that the denial of ERISA benefits was pled as a consequence of, not a motivating factor for, plaintiff's termination. I further found that, "plaintiff's discrimination action seeks recovery for plaintiff's alleged termination based on age discrimination. Therefore, the discrimination claim is not preempted by ERISA." Because the discrimination and emotional distress claims were not preempted by ERISA, I recommended that plaintiff's motion to remand be granted and the action remanded to the 150th Judicial District Court of Bexar County, Texas. On July 30, 2003, Honorable Judge Fred Biery issued an order accepting the Memorandum and Recommendation and remanded the case.
Hammann v. United Services Automobile Association, 02-CA-1168 FB, Docket Entry 43, at 19.
Id. , at 21.
Hammann v. United Services Automobile Association, 02-CA-1168 FB, Docket Entry 45.
When the action returned to state court, plaintiff filed his First Amended Original Petition on January 29, 2004. In his amended petition, plaintiff alleged "that USAA terminated him because of his age." Plaintiff deleted his state-based causes of action for emotional distress. He then asserted his original claim for discrimination under the Texas Labor Code, as well as a claim for Sabine Pilot discharge.
See Docket Entry 1, Exhibit 1. See also Docket Entry 1, ¶ 1, at 2.
Docket Entry 1, Exhibit 1, ¶ 6.2, at 3.
Docket Entry 1, Exhibit 1, ¶¶ 7.1, 8.1, at 3-4.
On April 8, 2004, defendant took plaintiff's deposition. At his deposition, plaintiff testified, inter alia, to his belief that a "significant part of the decision to let [him] . . . go" was that he was only a few years away from vesting in post-retirement benefits. Based on this deposition testimony, defendant again removed the action on May 7, 2004.
See Docket Entry 1, Exhibit 2.
Docket Entry 1, Exhibit 2, at 277.
Docket Entry 1.
Plaintiff now moves to remand the case to where it was originally filed, the 150th Judicial District of Bexar County, Texas, on the grounds that the case was improvidently removed to federal court. Plaintiff asserts that the removal was improvident on both procedural and substantive grounds. Specifically, plaintiff contends: that the notice of removal was filed more than thirty days after the First Amended Original Petition was filed in state court; that plaintiff has pled only state-based claims which are not preempted by ERISA; and, finally, that defendant is precluded from re-litigating the ERISA preemption issues based on the law of the case doctrine.
Docket Entry 5.
Id. See also Docket Entry 8.
In opposition, defendant argues that successive removals are permitted by the applicable legal authorities, and, consequently, the law of the case doctrine is inapplicable. Defendant further asserts that deposition testimony can provide a viable basis for removal, and, therefore, plaintiff's procedural (time limitation) argument does not apply. Defendant contends that plaintiff's deposition testimony conclusively establishes that plaintiff's claims seek relief on the basis that plaintiff was terminated in order to deny him ERISA-governed benefits and are preempted by ERISA. Finally, defendant avers that the questions plaintiff's counsel posed to defendant's high-level employees tacitly asserted a federal claim.
After having considered the motion to remand, the responsive pleadings, and the applicable law in this case, it is my recommendation that plaintiff's motion to remand be GRANTED. This court does not have jurisdiction, and the instant action was improvidently removed from state court.
Docket Entry 5.
Docket Entries 7, 8, 11.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 4.
II. Federal Court Jurisdiction
This case is not within the removal jurisdiction conferred to district courts under 28 U.S.C. §§ 1441, et seq. This court lacks federal question jurisdiction because this action is not preempted by ERISA. See 28 U.S.C. § 1331; 29 U.S.C. § 1001, et seq.III. Issue Presented
Whether the case was improvidently removed to federal court?IV. Applicable Legal Standards
Plaintiff moves to remand the case to state court on the grounds that federal question jurisdiction is lacking. Specifically, plaintiff maintains that his First Amended Original Petition does not allege any claims preempted by ERISA. As such, plaintiff argues that the case was — once again — improvidently removed.
Actions involving removal and remand based on ERISA preemption are inherently difficult, as they present a "Clash of the Titans" with respect to public policy considerations. On the one hand, ERISA preemption is very broad in order to further Congress' intention to have a uniform body of law interpreting, and providing relief under, ERISA. Thus, the force and reach of ERISA is great and any complaint that primarily seeks enforcement of ERISA is properly removable to federal court.
On the other hand, however, there are other strong public policies. The first is that federal courts are inherently limited and, consequently, may only assert jurisdiction under very specific circumstances. The second is that the plaintiff is the master of his complaint. These policies require that any doubts regarding federal jurisdiction must be resolved in favor of remanding the action to state court. In order to understand the appropriate weight to be accorded the aforementioned public policies, a more detailed discussion of both the standard for removal and of ERISA preemption follows.
Owens Equip. Erection Co. v. Kroger, 437 U.S. 365, 377 (1978); Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996), cert. denied, 117 S.Ct. 1349 (1997).
A. Removal Standard
An overriding principle in the area of removal is that federal courts have no inherent subject matter jurisdiction. They are courts of limited jurisdiction by origin and design. As a result, there is an initial presumption that federal courts lack subject matter jurisdiction to resolve a particular suit. It is also well established that the party removing the case (the defendant) has the burden to present facts showing that federal subject matter jurisdiction exists. Whether a case may be removed is a question of federal law to be decided by federal courts. The removal statute is strictly construed. Any doubt about the propriety of removal is construed against removal. The removal jurisdiction of the court is determined by examining the record as it stands at the time the notice of removal is filed without consideration of subsequent pleadings.
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211, 215 ("Federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress."); Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986).
Kokkonen v. Guardian Life Ins. Co., 114 S.Ct. 1673, 1675 (1994); In re Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995); Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994).
Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
Kansas Pub. Employees Retirement Sys. v. Reimer Koger Assoc. Inc., 4 F.3d 614, 618 (8th Cir. 1993), cert. denied, 511 U.S. 1126 (1994).
Shamrock Oil Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941); Healy v. Ratta, 292 U.S. 263, 270 (1934).
Owens Equip. Erection Co. v. Kroger, 437 U.S. 365, 377 (1978); Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996), cert. denied, 117 S.Ct. 1349 (1997).
B. Federal Question Jurisdiction and Removal Predicated on Federal Preemption
1. Federal Question Jurisdiction and Preemption — Generally
The existence of federal question jurisdiction — such that removal to federal court is appropriate — is governed by the "well-pleaded complaint rule." The well-pleaded complaint rule provides that federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The well-pleaded complaint rule makes the plaintiff "master of his claim," allowing the plaintiff to avoid federal jurisdiction by exclusively relying on state law in forming his bases for relief.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Id.
Generally, a defendant raises federal preemption as a defense to one or more of the allegations contained in the plaintiff's complaint. When preemption is raised as a defense, the case
may not be removed to federal court . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.
Id.
Id, at 363 (emphasis in original).
Preemption raised as an affirmative defense is also known as "ordinary preemption."
Heimann v. National Elevator Industry Pension Fund, 187 F.3d 493, 500 (5th Cir. 1999).
However, there are instances in which federal preemption is not a defense.
One corollary of the well-pleaded complaint rule developed in case law . . . is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in nature.
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
When preemption arises in a manner which is not defensive in nature, but is, rather, jurisdictional, it is known as "complete" preemption.
Heimann, 187 F.3d, at 500.
2. Federal Question Jurisdiction and Preemption — ERISA
The various provisions of ERISA establish both ordinary preemption and complete preemption. For instance, Section 514 provides ordinary "conflict" preemption to the extent that state laws conflict with, or potentially conflict with, ERISA. The Act mandates
Roark v. Humana, Inc., 307 F.3d 298, 305 (5th Cir. 2002).
the provisions of this subchapter and subchapter III of this chapter shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . .
In interpreting this statutory language, the Supreme Court has held that a
law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983).
Furthermore, a law may "relate to" a benefit plan "even if the law is not specifically designed to affect such plans, or the effect is only indirect," or if the law "is consistent with ERISA's substantive requirements."
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990).
Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir. 1994).
In addition to the ordinary conflict preemption established in Section 514, the enforcement provisions of ERISA completely preempt certain claims. Section 502, the enforcement portion of ERISA, authorizes a participant in, or beneficiary of, an ERISA plan to bring a civil action,
Roark., 307 F.3d, at 305.
to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan . . .
When the action is brought under Section 502, the claims are completely preempted and the exercise of federal jurisdiction is mandated.
Roark., 307 F.3d, at 305.
The breadth of ERISA's preemptions was intentionally created to serve an important public policy. Congress specifically wanted to develop a unified federal system regarding the enforcement of, and remedies available under, ERISA. To that end, it is necessary that any claim under an ERISA plan be construed as an exclusively federal issue.
`[T]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.'
Metropolitan Life Ins. Co., 481 U.S. 58, 64-65 (internal citations omitted).
Thus, when "the existence of a pension plan is a critical factor in establishing liability," the "action relates not merely to pension benefits, but to the essence of the pension plan itself" and will be removed to federal court.
Ingersoll-Rand Co., 498 U.S., at 139-140.
Although ERISA preemption is broad, it is not without limits. For example, when the claim at issue
fundamentally affects [the] employee-employer relations . . . and only incidentally affects [the] beneficiary-administrator relationship with the plan . . . the connection between [the] claim and [the] ERISA-qualified plan is too remote and tenuous to warrant preemption.
Rokohl v. Texaco, Inc., 77 F.3d 126, 130 (5th Cir. 1996).
Thus, in assessing whether a claim or action is preempted by ERISA, the court must determine whether the claim ceases to exist when stripped of its link to the ERISA plan.
Id. , at 130.
V. Analysis
A. The Parties' ArgumentsIn this case, plaintiff argues that the action should be remanded because: (1) defendant did not timely file the notice of removal within thirty (30) days of the filing of plaintiff's First Amended Original Petition; (2) defendant's second removal is precluded by the law of the case doctrine; and (3) plaintiff's complaint did not allege any claims that give rise to ERISA preemption.
See Docket Entries 5, 8.
In opposition to the motion to remand, defendant asserts that the applicable legal authority clearly authorizes a subsequent removal after an unsuccessful (improvident) removal and that such a removal can be predicated on deposition testimony — as opposed to an amended complaint. Because subsequent removals predicated on deposition testimony are permitted by the applicable legal authorities, defendant further argues that plaintiff's timeliness and law of the case arguments have no merit. Finally, defendant contends that plaintiff's deposition testimony establishes that plaintiff's claims seek recovery on the theory that plaintiff was wrongfully terminated in order to deprive him of his ERISA benefits — claims which are, without question, preempted by ERISA.
The issues before the court, then, are: (1) can a previously unsuccessful defendant make a subsequent attempt at removal and base such an attempt on deposition testimony as a general matter; and, if so, (2) was plaintiff's deposition testimony in the instant case a sufficient basis for removal under ERISA?
B. Issue One: Can a previously unsuccessful defendant make a subsequent attempt at removal based on deposition testimony?
The threshold issue before the court is whether a defendant is permitted to attempt a second removal to federal court based on deposition testimony. If such a subsequent removal is authorized by the applicable legal authorities, plaintiff's timeliness and law of the case arguments have no merit. In contrast, if subsequent removals predicated on deposition testimony are not permitted, this court need not assess the issue further, as the parties agree that no ERISA-based claims appear on the face of the First Amended Original Petition.
See Morrow v. Dillard, 580 F.2d 1284, 1289-1290, 1292 (5th Cir. 1978). The law of the case doctrine "preclud[es] relitigation or reconsideration of issues of law previously decided . . ." Id. , at 1292. See also Alpha/Omega Insurance Services, Inc. v. Prudential Ins. Co. of America, 272 F.3d 276, 279 (5th Cir. 2001), explaining that the law of the case doctrine "is premised `on the salutary and sound public policy that litigation should come to an end (internal citations omitted).'"
The general authority for removal is conferred by 28 U.S.C. § 1446. 28 U.S.C. § 1446(b) requires that a notice of removal
be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . .
Thus, a notice of removal may clearly be filed within thirty days of defendant's receipt of a plaintiff's initial petition.
In addition, 28 U.S.C. 1446(b) further provides:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Notably, 28 U.S.C. § 1332 conveys original jurisdiction to federal courts based on diversity.
As a general matter, the Fifth Circuit has recognized that a defendant has the "right to seek subsequent removals after remand" under 28 U.S.C. § 1446(b) but is precluded "from seeking a second removal on the same ground." Importantly,
the prohibition against removal `on the same ground' does not concern the theory on which federal jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather the pleading or event that made the case removable.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996) (emphasis in original; internal citations omitted).
Id.
For this reason,
a remand order that expressly addresses the theory of federal jurisdiction does not have res judicata effect on subsequent removals based on the same theory, provided that the subsequent removal petitions allege a different factual basis for seeking removal. If the defendant raises a new factual basis, the new factual basis is not deemed adjudicated with the remand order and, therefore, is not barred by res judicata.
Id., at 493.
In assessing what constitutes a "new factual basis" for removal, particularly in light of 28 U.S.C. § 1446(b), the Fifth Circuit has concluded `that the `other paper' conversion [provided in 28 U.S.C. § 1446(b)] requires a voluntary act by the plaintiff." Moreover, the Fifth Circuit and "the majority of courts" have held that deposition testimony — when elicited by a voluntary act of the plaintiff — may constitute "other paper," as contemplated by 28 U.S.C. § 1446(b). For example, in Brinkley v. Universal Health Services, the court held that when plaintiffs' attorney devoted several pages of deposition testimony to questioning plaintiffs' own expert witness about the defendants' failure to comply with a federal statute, plaintiffs "tacitly asserted a federal claim against the Defendants." The Brinkley court further reasoned,
Id., at 494 (emphasis in original).
Id., at 494; Peters v. The Lincoln Electric Co., 285 F.3d 456, 466 (6th Cir. 2002).
Brinkley v. Universal Health Serv., 194 F.Supp.2d 597, 599 (S.D. Tex. 2002).
the Plaintiffs did elicit testimony regarding facts in this case which would invoke EMTALA . . . This Court holds that drawing out testimony from their own expert witness constitutes a voluntary act of the Plaintiffs.
EMTALA is the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. See also Brinkley, 194 F.Supp.2d 597.
Id.
Similarly, the Sixth Circuit upheld a trial court's finding that a plaintiff's deposition testimony — even upon questioning by opposing counsel — created a federal, and ERISA-preempted, claim when said testimony clarified previously vague claims. In the Peters v. Lincoln Elec. Co. case, the Court stated
See Peters v. Lincoln Elec. Co., 285 F.3d 456 (6th Cir. 2002).
the District Court reasoned that the statement clarifies his Complaint allegations of unspecified `broken promises' . . . The court further reasoned that because it must read the SERP plan, judge the validity of Plaintiff's claims, and resolve any issues concerning the interpretation of the plan, this ultimately constituted more than a mere determination of incidental damages.
We agree with the District Court. Peters' testimony clearly showed that he was claiming Defendant wrongfully denied him continued participation in SERP in `breach of its promises and representations.'
Peters, 285 F.3d, at 467.
However, several courts have noted that a plaintiff's deposition testimony does not always qualify as a "voluntary act by the plaintiff" which triggers the "`other paper' conversion" provided by 28 U.S.C. § 1446(b). For instance, the court in Campos v. Housland, Inc., "determined that the deposition of the plaintiff, which was taken by the defendant, was not a completely voluntary act." Thus, the legal authorities hold that deposition testimony can constitute "other paper," as contemplated by 28 U.S.C. § 1446(b), so long as the testimony was given by way of a plaintiff's voluntary act. Thus, plaintiff's timeliness and law of the case arguments — that the second removal is untimely because of its proximity to the filing of plaintiff's First Amended Original Petition, and that the second removal is barred by the law of the case doctrine — are without merit so long as plaintiff's deposition testimony was a voluntary act that established ERISA preemption.
See, generally S.W.S. Erectors, Inc., 72 F.3d, at 494.
Campos v. Housland, Inc., 824 F.Supp. 100 (S.D. Tex. 1993).
Brinkley, 194 F.Supp.2d, at 600, citing Campos, 824 F.Supp.100. The Campos decision was issued three years before the Fifth Circuit held that deposition testimony could constitute "other paper" in the S.W.S. Erectors case. Because the Campos court was unable to find any authority from the Fifth Circuit regarding the same, it declined to hold that deposition testimony, as a general matter, could fulfill the "other paper" provision of 28 U.S.C. § 1446(b). However, its broader holdings — which reinforce the long-standing, and unchanged, policy that removal must be predicated on a voluntary act of the plaintiff — can usefully be applied to the instant case. See Campos, 824 F.Supp., at 102. See also Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547-549 (5th Cir. 1967), discussing Powers v. Chesapeake O. Ry., 169 U.S. 2 (1898), and Whitcomb v. Smithson, 175 U.S. 635 (1900).
C. Issue Two: Did plaintiff's deposition testimony constitute a voluntary act of the plaintiff and establish that plaintiff's claims are preempted by ERISA such that the removal was proper?
The broad issue before the court is whether plaintiff's specific deposition testimony both constituted a voluntary act by the plaintiff and established that plaintiff's claims are preempted by ERISA. Since the issue of preemption depends on plaintiff's deposition testimony, it is necessary to review the same. During the deposition, plaintiff gave the following responses to questions posed by defendant's counsel:
Q. Do you believe that you were terminated because you were three years away from vesting in retirement?
A. Yes.
Q. Is that part of your claim in this suit? MR. FIGUEROA: Objection to the form of the question.
Docket Entry 1, Tab 2, at 276.
When asked by defendant's counsel on what he based his conclusion that his proximity to vesting in retirement was part of his claim in the lawsuit, plaintiff answered:
A. Well, if you read that back, if I said I thought it was because I was going to vest in retirement, I misheard the question. I was and still am vested in retirement benefits. I would have gotten more retirement benefits. What I was talking about is post-retirement and medical benefits.
Q. Okay.
A. Which would not have vested until I was age 55. Yes, I think those would have been substantial over my lifetime and I think that was a significant part of the decision to let me and others similarly situated go.
Docket Entry 1, Tab 2, at 277.
The aforementioned deposition testimony is an insufficient basis for removal under both the removal statute and ERISA for the reasons which follow.
1. The deposition testimony does not constitute a "voluntary act by the plaintiff."
Plaintiff's deposition testimony cannot constitute a basis for removal under the removal statute because it was not a "voluntary act of the plaintiff" as that statutory provision has been interpreted by the case law. Our sister court, the United States District Court for the Southern District of Texas, has consistently noted that the deposition of a plaintiff, when taken by the defendant, is "not a completely voluntary act." Consequently, absent additional circumstances, a plaintiff's deposition testimony, when procured by examination from the defendant's counsel, is not a sufficient basis for removal.
Brinkley, 194 F.Supp.2d, at 600; Campos, 824 F.Supp., at 102.
The primary cases upon which defendant relies — S.W.S Erectors, Inc. v. Infax, a Fifth Circuit case, and Peters v. Lincoln Elec. Co., a Sixth Circuit case — involved the kind of special circumstances that allow a plaintiff's deposition testimony, even though obtained by the defendant, to create a basis for removal. In both S.W.S. Erectors, Inc. and Peters, the plaintiffs' complaints were vague such that the plaintiffs' statements in their depositions clarified their claims. Specifically, the S.W.S. Erectors, Inc. complaint failed to allege the amount in controversy. Similarly, the Peters complaint alleged "unspecified `broken promises.'" Those courts held that the plaintiffs' deposition statements supplemented their pleadings, thereby establishing that those plaintiffs' claims were federal in nature. Because the plaintiffs were orally amending their pleadings, the courts held that the testimony satisfied the "voluntary act by the plaintiff" requirement.
S.W.S. Erectors. Inc., 72 F.3d, at 491, "the complaint did not allege a specific amount of damages claimed by Southwest."
Peters, 285 F.3d, at 467.
Likewise, in Brinkley, the court held that the actions of plaintiffs' counsel constituted a "voluntary act by the plaintiffs" sufficient to trigger the other paper conversion. In that case, plaintiffs' counsel deposed plaintiffs' own expert witness, Dr. Weihl. Dr. Weihl had previously been deposed by defendants' counsel. During this previous deposition, defendants' counsel elicited no testimony regarding the federal Emergency Medical Treatment and Active Labor Act. For several pages worth of deposition testimony, however, plaintiff's counsel "elicit[ed] testimony regarding facts . . . which would invoke EMTALA." Because plaintiffs were interrogating their own witness at length about a federal claim, the Brinkley court held that "Plaintiffs' counsel tacitly asserted a federal claim against the Defendants."
Brinkley, 194 F.Supp. 2d 597.
Id.
Id. , 194 F.Supp. 2d, at 599.
Id.
The instant case is devoid of such special circumstances. In this case, the claims asserted in plaintiff's First Amended Original Petition are very specific. Moreover, the allegations supporting the state age discrimination claim are the very same allegations pled in the 2002 complaint — allegations which this court has already found to be sufficiently specific to create a state age discrimination claim, not a federal (ERISA) claim. Thus, it cannot be said that plaintiff's deposition testimony elucidated his claims, nor can it be deemed to have supplemented his complaint. In accordance with the applicable case authority, therefore, plaintiff's deposition testimony did not constitute a voluntary act by the plaintiff and did not trigger the removal statute's "other paper" conversion.
See Docket Entry 1, Tab 1, ¶¶ 6.1-7.1, at 3.
Id ; Hammann v. United Services Automobile Association 02-CA-1168 FB, Docket Entries 1, 43, 45.
2. The deposition testimony does not establish that the claims are preempted by ERISA.
Even if plaintiff's deposition testimony were found to be a "voluntary act of the plaintiff," however, it is still an insufficient basis for removal under ERISA. Plaintiff's deposition testimony does not establish that plaintiff's claims primarily seek enforcement of, or relief under, ERISA.
Time, and again, courts have held that "no ERISA preemption occurs when the loss of pension benefits is a mere consequence, but not a motivating factor behind, the termination of benefits." In certain cases, even though the complaint alleged that the termination was motivated, in part, by a desire to avoid the payment of benefits, or by a pension-defeating motive, the courts have still held that ERISA did not preempt the state action. The complaint in Rokohl v. Texaco, Inc., for example, pled that the plaintiff was wrongfully discharged
Nowoc v. Rheem Manufacturing Co., 772 F.Supp. 977, 979 (S.D. Tex. 1991). See also Rozzell v. Security Services, Inc., 38 F.3d 819, 823 (5th Cir. 1994), holding that the wrongful termination action was not preempted by ERISA because, "the loss of benefits is `merely an element in damages related to a claim for wrongful discharge (internal citations omitted);'" Samuel v. Langham, 780 F.Supp. 424, 427 (N.D. Tex. 1992) ("No ERISA cause of action lies when the loss of employee benefits is a mere consequence of, but not a motivating factor behind, the termination of employment.").
because of his disability, in violation of the Texas Commission on Human Rights Act . . . and that [defendant] discharged him to avoid paying him maximum retirement benefits, in violation of the Employee Retirement Income Security Act (ERISA).
Rokohl v. Texaco, Inc., 77 F.3d 126, 127 (5th Cir. 1996).
Despite the express allegation that the discharge was fueled, in part, by a pension-defeating motive, the Fifth Circuit ruled that the
heart of Rokohl's claim is that he was wrongfully discharged by Texaco on the basis of his disability . . . Indeed, Rokohl's cause of action would pertain even if Texaco had not maintained an ERISA plan at all . . . As such, the connection between Rokohl's claim and Texaco's ERISA-qualified plan is too remote and tenuous to warrant preemption.
Id. , at 130.
As in Rokohl, plaintiff's testimony in the instant case does not establish that his wrongful termination claim ceases to exist when stripped of its link to the ERISA plan. Stated another way, plaintiff's testimony fails to support the notion that plaintiff seeks relief on the basis that deprivation of ERISA benefits was the motivating for, as opposed to the consequence of, his wrongful termination. Similarly, plaintiff's deposition testimony does not establish that his termination cause of action is primarily concerned with the plan administrator/beneficiary relationship, as opposed to the employer/employee relationship. In line with the Fifth Circuit's ruling in Rokohl, the connection between plaintiff's wrongful termination claim and defendant's ERISA-qualified plan is too "remote and tenuous to warrant preemption." Here, as in Rokohl, the "heart" of plaintiff's claim is that he was wrongfully discharged on the basis of his age.
Id. , at 130.
Id. , at 130.
Rokohl, 77 F.3d, at 130.
Id.
Defendant attempts to dismiss the analysis and holding from Rokohl on the ground that the plaintiff in that case filed two actions — one which sought relief on the basis that the plaintiff was wrongfully terminated on the basis of his disability, in violation of state law, and one which sought relief on the basis that the plaintiff was wrongfully terminated in violation of ERISA. Specifically, defendant argues:
Rokohl, however, does not govern the preemption analysis in this case. Rokohl expressly brought two separate claims in his suit: that he had been discharged in violation of the TCHRA because of his disability and that he had been discharged to avoid paying maximum retirement benefits under ERISA. Id. at 127. Thus, unlike the Plaintiff herein, Rokohl did not try to avoid federal jurisdiction by disguising his ERISA claim as a state law discrimination claim. Moreover, in Rokohl, the Fifth Circuit did not consider the propriety of removal at all. The case was already in federal court.
Docket Entry 7, at 8.
Although defendant is correct that plaintiff Rokohl filed two separate actions — a wrongful termination action under Texas' anti-disability discrimination statute and a wrongful termination action ERISA — that fact is an insufficient basis upon which to dismiss the Fifth Circuit's thorough analysis of ERISA preemption in Rokohl. At the trial court level in Rokohl, the district court "concluded that Rokohl's [state discrimination] claim was sufficiently connected to the Texaco LTD plan to warrant a holding that the claim is preempted by ERISA." In reversing the district court's grant of summary judgment, the Fifth Circuit explained, in pertinent part:
Rokohl, 77 F.3d, at 130.
The heart of Rokohl's claim is that he was wrongfully discharged by Texaco on the basis of his disability. As such, Rokohl's claim would have arisen whether Texaco had terminated his employment through the use of the LTD plan or in some other manner. Indeed, Rokohl's cause of action would pertain even if Texaco had not maintained an ERISA plan at all. Accordingly, the claim does not "cease to exist" when "`stripped of [its] link'" to the plan . . . Moreover, Rokohl's claim fundamentally affects his employee-employer relationship with Texaco, and only incidentally affects his beneficiary-administrator relationship with the plan . . . As such, the connection between Rokohl's claim and Texaco's ERISA-qualified plan is too remote and tenuous to warrant preemption . . . Indeed, if we were to accept Texaco's argument that ERISA preempts Rokohl's TCHRA claim, we would effectively permit Texaco to hide behind its ERISA plan in avoidance of state anti-discrimination laws. To do that would be to allow an employer to disguise its firing decisions — even decisions to dismiss an employee because of his or her race, gender, age, or disability — as benefits decisions, in avoidance of state anti-discrimination statutes, simply by adopting an ERISA-qualified plan and awarding each discharged employee benefits under that plan. A human resources director would not have to be the proverbial rocket scientist to devise, for example, an ERISA early retirement severance plan that could evade state age discrimination laws. Congress could not have intended for ERISA — a statute "`designed to promote the interests of employees . . . in employee benefit plans . . .'" — to operate so as to "vest employers with such authority." That would turn ERISA preemption on its head, putting the cart of disability benefits under ERISA before the horse of employment termination decisions. First comes discharge and then comes determination of benefits, not vice versa as Texaco contends. Thus the district court erred in concluding that Rokohl's TCHRA claim was preempted by ERISA.
Rokohl, 77 F.3d, at 130 (internal citations omitted).
The Fifth Circuit assessed Rokohl's state termination claim as if his ERISA claim did not exist. Rather, the Fifth Circuit thoroughly assessed ERISA preemption of state termination claims. Defendant's attempt to render the holding in Rokohl inapposite is without merit and should be disregarded.
Moreover, the holding and analysis in Rokohl is instructive for the instant case. Rokohl advises district courts that a state based wrongful termination/discrimination claim is only preempted by ERISA when that claim "ceases to exist" when stripped of its link to the ERISA plan. Stated another way, the claim is only preempted when the court must construe the ERISA plan in order to adjudicate the wrongful termination claim.
In the instant case, plaintiff's deposition testimony does not establish that his wrongful termination claim is viable only in relation to defendant's ERISA plan(s). Existence of an ERISA plan is not a "critical factor" in establishing liability on plaintiff's wrongful termination claim. Rather, plaintiff merely testified to his belief that his proximity to retirement and, consequently, to retirement benefits — i.e. his age — motivated his termination. Such testimony does not create an ERISA claim. If it did, virtually every state-based age discrimination claim would be preempted by ERISA so long as an employer maintained an ERISA-qualified benefits plan. As the Fifth Circuit explained in Rokohl, such an overly broad interpretation of ERISA runs contrary to Congress' intent in enacting ERISA and turns ERISA preemption "on its head." For all the foregoing reasons, defendant has failed to establish that plaintiff's deposition testimony created a federal, ERISA claim.
Ingersoll-Rand, 498 U.S., at 139-140.
See Rokohl, 77 F.3d, at 130.
See Rokohl, 77 F.3d, at 130.
Finally, defendant has also argued that plaintiff-counsel's questions to USAA's Chief Financial Officer, Josue Robles, and USAA's General Counsel, Brad Rich, establish that plaintiff is asserting an ERISA claim. During the deposition of CFO Robles, plaintiff's counsel asked three general questions about whether defendant USAA gave any consideration to any individual's proximity to retirement age when deciding whether or not to include that individual in the reduction in force and about the kind of benefits to which a laid-off employee might be entitled based on their age. At General Counsel Rich's deposition, plaintiff's counsel asked the following question: "Did the fact that Mr. Hammann's continued employment with USAA would mean an increased payment of future benefits, for example, health benefits, did that play any part in terminating Mr. Hammann's employment?" Defendant argues that the Brinkley holding, discussed above, supports the conclusion that the aforementioned questions create a federal claim.
See Docket Entry 7, at 7-8; Docket Entry 11, at 2-3.
Specifically, the three questions directed at Mr. Robles were:
(1) Were there any — Was there any consideration given to whether or not somebody happened to be so many years away from the age of 55 in terms of — of what type of benefits they might be entitled to?
(2) Do you know whether or not — if somebody separates from employment at age 55, whether or not they are entitled to receive certain retiree medical benefits that others that are not 55 would not get?
(3) And was any consideration given at all as to where any particular employee was in relationship to that age and whether or not they might be entitled to receive retiree medical benefits.
Docket Entry 7, at 7, quoting Docket Entry 7, Tab 2, at 225:15-20, 226:14-227:3.
Docket Entry 11, at 3, quoting Docket Entry 11, Tab 1, at 172:21-25.
Plaintiff-counsel's questions did not create an ERISA claim, nor do they support defendant's assertion that plaintiff's action is — at its core — an action to recover benefits under, or seek enforcement of, ERISA. As discussed, above, the Brinkley court held that the plaintiffs tacitly asserted a federal claim when their counsel elicited "detailed testimony" based on "several pages" of questioning regarding the defendants' violations of a federal statute (the EMTALA). From the Court's recitation of the facts, it appears that plaintiffs' attorney specifically asked plaintiffs' expert about his familiarity with the EMTALA and his opinions as to whether defendants' actions constituted violations of the Act. The Brinkley court concluded
Brinkley, 194 F.Supp.2d, at 599.
Id.
that drawing out testimony giving rise to an EMTALA claim from their own expert witness constitutes a voluntary act of the Plaintiffs.
Id.
This case is importantly distinguishable from Brinkley. While the plaintiffs' counsel in Brinkley was deposing his own expert, this plaintiff was, in essence, deposing the defendant — as defendant is a corporation and the deponents were high ranking corporate officials. Where the plaintiffs' counsel in Brinkley devoted several pages to establishing (albeit unknowingly) a federal claim, this plaintiff asked only four questions — three of which (the questions posed to Mr. Robles) — were very general and not aimed at establishing a claim on behalf of Mr. Hammann. Moreover, in Brinkley, plaintiffs' counsel was asking about violations of a named federal statute — the EMTALA — whereas the instant plaintiff did not ask about violations of ERISA. Thus, unlike in Brinkley, plaintiff-counsel's questioning of defendant did not constitute a voluntary act of the plaintiff which triggered the removal statute's "other paper" conversion.
For all the foregoing reasons, defendant has failed to meet its burden of establishing that plaintiff's wrongful termination claim is preempted by ERISA. As such, this case was improvidently removed and should be remanded.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's motion to remand (Docket Entry 5) be GRANTED because the District Court does not have subject matter jurisdiction over this case. Accordingly, this case should be REMANDED to the 150th Judicial District Court of Bexar County, Texas, from where it was improvidently removed. In light of this recommendation, I further recommend that all pending motions be DENIED AS MOOT.