Opinion
No. 1:99CV249-B-A.
September 18, 2000.
MEMORANDUM OPINION
This cause comes before the court on the plaintiff's motion to remand. The notice of removal alleges federal question jurisdiction on the ground that, inter alia, the plaintiff's state law claims are completely preempted by the Employee Retirement Income Security Act [ERISA], 29 U.S.C. § 1001, et seq. The threshold jurisdictional issue is whether the complaint raises an issue of federal law under the well-pleaded complaint doctrine. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L.Ed.2d 55, 63 (1987). Under the complete preemption doctrine, "a statute's preemptive force may `convert an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Kramer v. Smith Barney, 80 F.3d 1080, 1082-83 (5th Cir. 1996) (quoting Taylor, 481 U.S. at 65, 95 L.Ed.2d at 64). The complete preemption doctrine does not operate "unless federal law also supplants state law with a federal claim." Cook-Fort Worth Children's Medical Center v. Wal-Mart Associates Group Health Plan, 823 F. Supp. 418, 420 (N.D.Tex. 1993).
The notice of removal further asserts that the reference in the complaint to medical certifications "required by the United States" involves federal law. The reference pertains to the defendants' alleged breach of contract with respect to the plaintiff's scheduled work hours:
It was understood that Plaintiff had certifications required by the United States, and that a failure to have a person with Plaintiff's certifications and qualifications as an employee . . . would jeopardize the quality of care being afforded. . . .This asserted jurisdictional ground is not addressed by the defendants in opposition to the instant motion. The court finds that the plaintiff does not seek to recover for noncompliance with certification requirements; the alleged failure to schedule the plaintiff for an agreed number of work hours is the crux of this claim and does not invoke federal question jurisdiction.
Under the well-pleaded complaint rule, a federal question must appear on the face of the plaintiff's properly pleaded complaint to establish federal question jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L.Ed.2d 318, 327 (1987). Under the rule, the plaintiff is "the master of the claim" and "may avoid federal jurisdiction by exclusive reliance on state law." Id.
Under 29 U.S.C. § 1132(a)(1)(B), a civil action may be brought by a participant or beneficiary 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. ERISA's civil enforcement provisions under section 1132(a)(1)(B) displace and, thus, completely preempt state law claims that fall within their scope. Taylor, 481 U.S. at 66-67, 95 L.Ed.2d at 65 (causes of action within ERISA's civil enforcement provisions under 29 U.S.C. § 1132(a)(1)(B) are necessarily federal in character and therefore arise under federal law), construed in McClelland v. Gronwaldt, 155 F.3d 507, 517-18 n. 34 (5th Cir. 1998).
The complaint on its face alleges state law claims for breach of an employment contract. Count I alleges that the defendants failed to schedule the plaintiff the agreed upon number of work hours. The parties' employment agreement provides in pertinent part:
RMS agrees to schedule Taylor and Taylor agrees to be available for an average of twenty (20) hours per week.
The complaint further alleges that the work schedule reduced her compensation by $86,250 based on the contractual hourly rate, thereby reducing the amount paid into the plaintiff's retirement account. The plaintiff's claim to retirement income derives from her contractual right to compensation for the agreed number of work hours. The complaint alleges in pertinent part:
Reducing the pay due Plaintiff . . . also reduced the amount Defendants were obligated to pay into Plaintiff's retirement account.
(Emphasis added). The court finds that this derivative claim is not a claim to recover retirement benefits due under the terms of the parties' ERISA plan. The plaintiff seeks consequential damages in the form of lost salary and retirement benefits arising from the alleged breach of employment contract.
Count II alleges that the defendants failed to purchase health insurance for the plaintiff in violation of the parties' employment agreement. Under the terms of the parties' employment agreement, defendant Regional Medical Services, P.A. [RMS] is obligated to provide the plaintiff fringe benefits, including "[p]ayment of One Hundred percent (100%) of Taylor's health and dental insurance premiums, including family coverage." The complaint seeks to recover 80% of the medical costs for her son's mental health and substance abuse treatment that allegedly would have been covered under promised health insurance. Cf. Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir. 1990) ("a claim that an insurance agent fraudulently induced an insured to surrender coverage under an existing policy, to participate in an ERISA plan which did not provide the promised coverage, `relates to' that plan only indirectly").
The complaint alleges that the limited "Health Link" benefits under the ERISA plan "are not comparable to health insurance."
ERISA preemption was raised as a defense to the state law claims in Perkins. 898 F.2d 470, 472-73 (5th Cir. 1990). 29 U.S.C. § 1144(a) preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." "Because ordinary preemption [as opposed to the more stringent standard of complete preemption] almost invariably arises as a defense, and thus does not appear on the face of the plaintiff's well-pleaded complaint, section 514(a) [1144(a)] preemption typically cannot serve as the basis for removal jurisdiction." McClelland v. Gronwaldt, 155 F.3d 507, 516 n. 26 (5th Cir. 1998) (citing Taylor, 481 U.S. at 63, 95 L.Ed.2d at 63).
The court finds that the plaintiff does not seek to expand the health benefits available under the terms of the parties' ERISA plan; she seeks to enforce the parties' employment contract. The issue is whether the contractual provision for the payment of health insurance premiums constitutes an agreement to procure comprehensive health insurance coverage that would have covered the subject insurance claim. The defendants even assert that the plaintiff seeks an expansive interpretation of the insurance term in the subject employment contract. The complaint places the parties' rights and duties under the employment contract in issue. The terms of the ERISA plan are not in dispute. Since the plaintiff does not seek any relief within the purview of 28 U.S.C. § 1132(a)(1)(B), her state law claims are not completely preempted by ERISA and, therefore, do not confer federal question jurisdiction.
The defendants contend that the plaintiff has waived her right to remand by participating in discovery and pretrial litigation matters and filing the motion to remand after the defendants moved for summary judgment. The defendants rely on cases that could have been originally brought in federal court but are statutorily nonremovable. E.g., Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117-18 (5th Cir. 1987) (removal of a Jones Act case, nonremovable under 28 U.S.C. § 1445(a), is a nonjurisdictional and, thus, a waivable defect). The plaintiff moved to remand solely on the ground of lack of subject matter jurisdiction. It is well settled that "parties can never consent to federal subject matter jurisdiction, and lack of such jurisdiction is a defense which cannot be waived." Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). 28 U.S.C. § 1447(c) reads in pertinent part:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
(Emphasis added). The statutory language makes it clear that the court's lack of subject matter jurisdiction over the instant cause cannot be waived and mandates remand to state court.
The plaintiff seeks an award of costs and expenses, including attorney fees, incurred as a result of the removal. See 28 U.S.C. § 1447(c) ("An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."). The decision whether to award costs and expenses is discretionary. Teer v. Upjohn Co., 741 F. Supp. 1242, 1244 (M.D.La. 1990) ("when removal was obviously legally defective, an award of costs is within the court's discretion"). The court is not required to find that the removing party acted in bad faith or in a "vexatious, wanton, or oppressive" manner. Penrod Drilling Corp. v. Granite State Ins. Co., 764 F. Supp. 1146, 1147 (S.D.Tex. 1990). Since the jurisdictional defect was not obvious to the plaintiff's attorney at the time of removal, the court, in its discretion, declines to award costs and expenses to the plaintiff. See C. Wright, A. Miller, E. Cooper, 14A Federal Practice and Procedure § 3739 (2d ed. 1985) (courts "will be [more] inclined to [award costs and expenses] when the nonremovability of the action is obvious").
An order will issue accordingly.
THIS, the day of September, 2000.