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December 18, 2006


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Before the Court is plaintiff Barbara Cary's motion (# 5) to remand this action back to New York State Supreme Court because she claims that this Court is without jurisdiction. Defendant interpleaded Linda Coleman, formerly known as Linda Cary, who now opposes remand. Defendant TIAA-CREF describes itself as merely an impartial stakeholder*fn1 and has not taken a position on plaintiff's motion to remand, and counsel for TIAA-CREF did not appear at oral argument. For the reasons stated below, the Court denies the application.


Plaintiff is the surviving spouse of Thomas Cary, who died September 19, 2005, leaving behind an account with defendant TIAA-CREF worth approximately $500,000. (Cary Aff. (Mar. 8, 2006) Ex. L, Ex. O.) Thomas Cary married Linda Coleman on August 22, 1964, and the marriage ended in a divorce on December 30, 1991. (Cary Aff., at 1.) The judgment of divorce included an award of approximately fifty percent of Thomas Cary's TIAA-CREF accounts*fn2 to Linda Coleman, but made no mention of her beneficiary rights to the portion retained by Thomas Cary. (Cary Aff. Ex. C.) The judgment was served by mail on TIAA-CREF, which acknowledged its receipt and sent paperwork for Thomas Cary to sign to execute the division ordered by the State divorce court. (Cary Aff. Ex. E.) On March 18, 1992, Linda Coleman signed a waiver with regard to any portion of Thomas Cary's TIAA-CREF accounts not awarded to her in the divorce decree. (Bandych Aff. Ex. N.)

Thomas Cary married plaintiff Barbara Cary on September 23, 1995. (Cary Aff. Ex. I.) However, he never changed his beneficiary form on file with TIAA-CREF to reflect Barbara Cary as the beneficiary instead of Linda Coleman. In his will, executed in 1997, Thomas Cary left all his property to his then wife, Barbara Cary. (Cary Aff. Ex. K.) Upon his death, Barbara Cary made a claim to TIAA-CREF. (Cary Aff. Ex. M.) TIAA-CREF responded stating that because of the beneficiary designation naming Linda Coleman on file with them, Barbara Cary would only be entitled to approximately fifty percent of the more than half-million dollars in Thomas Cary's accounts. (Cary Aff., at 5.)

Barbara Cary commenced a lawsuit against TIAA-CREF in New York State Supreme Court. In her State court complaint, Barbara Cary alleged that she "is the only beneficiary of the retirement funds of Thomas P. Cary held in trust by TIAA-CREF in a [sic] retirement funds annuities." (Compl., Cary v. TIAA-CREF, No. (Sup. Ct. N.Y. Mar. 10, 2006, ¶ 30.) She sought in that complaint a "declaration that TIAA-CREF is obligated to pay Barbara Cary any and all retirement funds and annuities held in trust for Thomas P. Cary." (Id. Wherefore clause ¶ 2.) TIAA-CREF interpleaded Linda Coleman, who then removed*fn3 the suit to this Court, alleging federal question jurisdiction under the Employee Retirement Income Security Act ("ERISA").


Where, as in this case, a defendant relies on federal question jurisdiction pursuant to 28 U.S.C. § 1331 as the source of the receiving court's purported original jurisdiction, it must satisfy the requirements of the well-pleaded complaint rule. As the Supreme Court explained in Caterpillar, Inc. v. Williams , 482 U.S. 386 (1987):

The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-113 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

Caterpillar, Inc., 482 U.S. at 392. The Court also explained that, it is now settled law that 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 concede that the federal defense is the only question truly at issue.

Id., at 393 (footnote omitted).

A limited exception to the well-pleaded complaint rule arises, however, where Congress has mandated the "complete preemption" of a specific area of law, such that any civil complaint raising a state law claim in that area "is of necessity so federal in character that it arises under federal law . . . and permits removal to federal court under 28 U.S.C. § 1441." Plumbing Indus. Bd., Plumbing Local Union No. 1 v. E.W. Howell Co., Inc. , 126 F.3d 61, 66 (2d Cir. 1997) ( citing Metropolitan Life Ins. Co. v. Taylor , 481 U.S. 58, 63 (1987)). As the Second Circuit further explained in Plumbing Indus. Bd. , ERISA preemption provides a valid basis for removal jurisdiction only if (1) the state law cause of action is preempted by ERISA, and (2) that cause of action is "within the scope" of the civil enforcement provisions of ERISA § 502(a), 29 U.S.C. § 1132(a).

Plumbing Indus. Bd.,126 F.3d at 66 (citations omitted). The Court of Appeals also stated that, state laws of general application that merely impose some burdens on the administration of ERISA plans but are not "so acute" as to force an ERISA plan to adopt certain ...

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