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COSTANTINI v. GUARDIAN LIFE INS. CO. OF AMERICA

July 25, 1994

CHARLOTTE COSTANTINI, Plaintiff,
v.
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA and WILLIAM J. MURPHY, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiff Charlotte Costantini has moved to remand to the Supreme Court of the State of New York this suit brought to recover benefits under a life insurance policy and alleging fraudulent activities connected with sale of the policy. The defendant Guardian Life Insurance Company ("Guardian") removed the case to this court under 28 USC 1441 on the grounds that plaintiff was covered as an employee under an ERISA plan, although plaintiff did not so allege in the complaint. The defendant William J. Murphy ("Murphy") is accused of fraud under state law in plaintiff's complaint and did not join in the notice of removal.

 Plaintiff's motion to remand is granted. Plaintiff's application for sanctions is denied. This case is remanded to the Supreme Court, State of New York, Westchester County.

 II

 An ERISA or other federal claim need not be labelled as such to fall within federal jurisdiction. See Metropolitan Life Ins Co v. Taylor, 481 U.S. 58, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); see Cox Cable New Orleans v. City of New Orleans, 594 F. Supp. 1452 (ED La 1984); Lupo v. Human Affairs International, Dkt No 93-07719, Slip Op 5185, 5189-90 (2d Cir June 30, 1994).

 But the federal nature of the claim actually presented - regardless of its label - must be able to be inferred from the face of the complaint in order for the case to be removed under 28 USC 1441. Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 809 n 6, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986); Avco Corp v. Aero Lodge No 735, 390 U.S. 557, 560 n 2, 20 L. Ed. 2d 126, 88 S. Ct. 1235 (1968); Lupo v. Human Affairs International, Dkt No 93-7719, Slip Op 5185, 5190-91 (2d Cir June 30, 1994).

 Permitting removal to be upheld based solely on a unilateral assertion of jurisdictional facts by the removing party (however correct those facts turn out to be) would run counter to the both the cases cited above and the caution exercised by Congress and the courts in expanding removal jurisdiction beyond traditional limits. Such caution is particularly important because of the self-executing effect of an ex parte filing of a notice of removal. See Ullah v. FDIC, 852 F. Supp. 218, (SDNY 1994). *fn1"

 III

 Removal may be achieved where a claim within federal jurisdiction under 28 USC 1331 is present even if not all claims asserted in the complaint are within federal jurisdiction. See Gallagher v. Donald, 805 F. Supp. 221 (SDNY), 803 F. Supp. 899 (SDNY 1992). A related claim may then be retained under 28 USC 1367 even if it had no independent federal jurisdictional underpinning.

 Although all defendants must ordinarily join in a removal, see Radi v. Travelers Insurance, 1992 U.S. Dist. LEXIS 8426, 1992 WL 131048, (SDNY 1992), this is not required where a case involving a federal claim under 28 USC 1331 is removed and a separate claim not independently within federal jurisdiction is involved. See 28 USC 1441(c).

  IV

 Guardian has attached to its affidavit in opposition to this motion an application form of plaintiff referring specifically to ERISA and limiting eligibility to members of an employee plan. The correctness of this affidavit has not been controverted. Thus it now seems clear that federal ...


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