The opinion of the court was delivered by: Foschio, United States Magistrate Judge.
This is a motion for remand under 28 U.S.C. § 1447(c) to the
New York State Supreme Court. Plaintiff urges that defendant's
removal, based upon the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1001 et seq., ("ERISA") was improper because
her complaint alleges only state law based causes of action and
that the defendant-employer's disability benefits, which are the
subject of plaintiff's claims, are outside the protection of
ERISA. For the reasons developed below, the motion is denied.
Plaintiff's action alleging violations of New York Executive
Law § 296(1)(a) (McKinney, 1990) and New York Labor Law § 198
(McKinney, 1990), was commenced December 12, 1990 in New York
State Supreme Court, Erie County. On January 10, 1991 the action
was removed to this court. All pretrial proceedings, including
non-dispositive motions, were referred to this magistrate judge
by order of District Court Judge William M. Skretny on February
2, 1991. Plaintiff moved on February 8, 1991 to remand and to
assess costs and expenses including attorney's fees. Following
the filing of their respective memoranda of law, the parties
orally argued the motion on March 5, 1991, and thereafter
submitted additional materials for the court's consideration.
A magistrate judge has, under 28 U.S.C. § 636(b)(1)(A) and Rule
72(a) of the Federal Rules of Civil Procedure, authority to hear
and determine non-dispositive pretrial motions. A motion to
remand is not dispositive since a decision on the motion decides
only the question of whether there is a proper basis for federal
jurisdiction to support removal, and neither reaches nor
determines the merits of a plaintiff's claims or a defendant's
defenses or counterclaims. Following the decision on removal the
parties may prosecute such claims or defenses, including related
dispositive motions, if any, in whichever court the decision may
direct the action to proceed. A remand motion also is not among
those motions which are specifically excluded from a magistrate
judge's authority to hear and determine any pretrial matter
pending before the court. Accordingly, a magistrate judge has
authority to hear and determine this motion under Rule 13(a) of
the Local Rules of this district. See, McDonough v. Blue Cross of
Northeastern Penn., 131 F.R.D. 467, 472 (W.D.Pa. 1990); Acme
Electric Corp. v. Sigma Instruments, Inc., 121 F.R.D. 26
(W.D.N.Y. 1988); North Jersey Savings & Loan v. Fidelity &
Deposit Co., 125 F.R.D. 96 (D.N.J. 1988); Jacobsen v. Mintz, et
al., 594 F. Supp. 583 (D.Me. 1984). A contrary holding in Giangola
v. Walt Disney World Company, 753 F. Supp. 148 (D.N.J. 1990), is
not persuasive, and, in view of the decision in Acme Electric,
supra, is not likely to be followed in this district.
A civil action filed in a state court may be removed to a
district court of the United States for the place where the
action is pending if the action is one over which the district
courts of the United States have original jurisdiction. 28 U.S.C. § 1441(a).
Since state and federal courts are granted concurrent
jurisdiction over actions to recover benefits due a participant
under ERISA, 29 U.S.C. § 1132, the district court would acquire
jurisdiction if the requirements of 28 U.S.C. § 1441(a) are met.*fn*
District courts have ". . . original jurisdiction of all civil
actions arising under the . . . laws of the United States."
28 U.S.C. § 1331. A claim arises under federal law if it appears on
the face of a well-pleaded complaint that a ". . . right or
immunity created by the Constitution or laws of the United States
must be an element, and an essential one, of the plaintiff's
cause of action." Gully v. First National Bank in Meridian,
299 U.S. 109, 112-113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Taylor
v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218
(1914); Travelers Indemnity Company v. Sarkisian, 794 F.2d 754,
758 (2d Cir. 1986), cert. denied, 479 U.S. 885,
107 S.Ct. 277, 93 L.Ed.2d 253 (1986).
Even if state law creates a plaintiff's cause of action,
". . . its case might still `arise under' the laws of the United
States if a well-pleaded complaint established that its right to
relief under state law requires resolution of a substantial
question of federal law in dispute between the parties."
Franchise Tax Board v. Construction Laborers Vacation Trust,
463 U.S. 1, 13, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983). However,
". . . a case may not be removed to federal court on the basis of
a federal defense, including the defense of pre-emption, even if
the defense is anticipated in the plaintiff's complaint, and even
if both parties admit that the defense is the only question truly
at issue in the case." Franchise Tax Board v. Construction
Laborers Vacation Trust, supra, 463 U.S. at 14, 103 S.Ct. at
Although, "the party who brings the suit is master to decide
what law he will rely upon. . . .", The Fair v. Kohler Die &
Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716
(1913), in certain circumstances ". . . a plaintiff may not
defeat removal by clothing a federal claim in state garb, or as
it is said, by use of `artful pleading'." Travelers Indemnity
Company v. Sarkisian, supra, 794 F.2d at 758. This is
particularly true where, as in the instant case, ". . . [i]f the
only remedy available to plaintiff is federal, because of
pre-emption or otherwise, and the state court necessarily must
look to federal law in passing on the claim, the case is
removable regardless of what is in the pleading." 14A C. Wright,
A Miller & E. Cooper, Federal Practice and Procedure § 3722, at
268-275 (2d ed. 1985). It is also clear that ". . . if a federal
cause of action completely preempts a state cause of action any
complaint that comes within the scope of the federal cause of
action necessarily `arises under' federal law." Franchise Tax
Board v. Construction Laborers Vacation Trust, supra, 463 U.S. at
24, 103 S.Ct. at 2854; Avco Corp. v. Aero Lodge, 390 U.S. 557, 88
S.Ct. 1235, 20 L.Ed.2d 126 (1968); Cahall v. Westinghouse
Electric Corp., 644 F. Supp. 806, 810 (E.D.Pa. 1986). See, Gilbert
v. Burlington Industries, Inc., 765 F.2d 320, 328 (2d Cir. 1985),
aff'd mem., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986).
ERISA makes it ". . . unlawful . . . 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 welfare benefit plan, . . .
or for the purpose of interfering with the attainment of any
right to which such participant may become entitled under the
plan . . ." 29 U.S.C. § 1140 (emphasis added). An employee
welfare benefit plan subject to ERISA is broadly defined to
include ". . . any plan, fund or program . . . established or
maintained by an employer for the purpose of
providing . . . benefits in the event of sickness, accident,
disability, death or unemployment . . .", to an employee.
29 U.S.C. § 1002(1), (2), (7). (emphasis added). Section 502 of
ERISA also provides to an employee a cause of action to recover
benefits due the employee under a welfare benefit plan, and gives
United States district courts jurisdiction over such actions
without regard to the amount in controversy or citizenship of the
parties. 29 U.S.C. § 1132. The provisions of ERISA
". . . supersede any and all State laws . . . as they
may . . . relate to any employee benefit plan. . . ." 29 U.S.C. § 1144.
In Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107
S.Ct. 1542, 95 L.Ed.2d 55 (1987) the Court considered whether
state causes of action for compensatory damages and mental
anguish caused by a breach of contract, wrongful discharge, and
retaliation, ". . . as well as immediate reimplementation of all
benefits and insurance coverage Plaintiff is entitled to . . .",
under the defendant-employer's disability benefit plan, were
removable to federal court. The Court held that, notwithstanding
the well-pleaded complaint rule, plaintiff's contract and tort
claims related to an employee welfare benefit plan and were
pre-empted by ERISA. The Court also held that plaintiff's suit
was one to recover benefits from a plan covered by ERISA and
therefore fell "directly" within
the ". . . exclusive federal cause of action for resolution of
such disputes . . .", provided under § 502 of ERISA. 481 U.S. at
62-63, 107 S.Ct. at 1545-46. (emphasis added). Accordingly, the
Court held that, regardless of the asserted state law based
claims, the action was, because of a "clearly manifested"
Congressional intent, "necessarily federal in character". and
properly removed to federal court. 481 U.S. at 66-67, 107 S.Ct.
In Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct.
478, 112 L.Ed.2d 474 (1990), the Court reversed the state court's
refusal to apply ERISA to an employee's claims related to his
wrongful discharge because of the employer's alleged desire to
avoid contributing to the employee's pension fund. To determine
whether the plaintiff's claims were related to a benefit plan and
thereby pre-empted by ERISA, the Court applied the test it had
established in Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103
S.Ct. 2890, 77 L.Ed.2d 490 (1983) 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
Airlines, Inc., supra, 463 U.S. at 96-97, 103 S.Ct. at 2899. The
Court concluded that the plaintiff's claims did relate to an
employee benefit plan because under the elements of the cause of
action, plaintiff would be required to prove that the principal
reason for his discharge ". . . was the employer's desire to
avoid contributing to or paying benefits under the employee's
pension fund." Ingersoll-Rand, supra, 498 U.S. at ___, 111 S.Ct.
The Court further held that the state claim was also preempted
because the complaint alleged conduct made actionable under the
exclusive remedy provided by ERISA in § 510, 29 U.S.C. § 1140.
498 U.S. at ___, 111 S.Ct. at 485. Although the specific type of
plan in Ingersoll-Rand, supra, was a pension plan, the Court made
clear that its holding also applied to similar claims related to
other types of employee benefit plans covered by ERISA. 498 U.S.
at ___, 111 S.Ct. at 486.
For example, unfunded severance pay policies have been held
subject to ERISA as employee benefit plans. See, Reichelt v.
Emhart Corp., 921 F.2d 425 (2d Cir. 1990); Gilbert v. Burlington
Industries, Inc., supra. Both decisions also held state causes of
action which attempted to enforce such benefits pre-empted.
Reichelt, supra (contract based claims); Gilbert, supra (failure
to pay wages and benefits under N.Y. ...