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March 22, 1991


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 2848-49.

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. (emphasis added).

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. at 1547-48.

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. at 483.

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. ...

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