Opinion
EP-05-CA-276-PRM.
July 28, 2005
ORDER
On this day, the Court sua sponte considered the above-captioned cause. Defendant Convalescent Enterprises, Inc. ("Convalescent") filed its "Notice of Removal" on July 19, 2005, removing the case from the 327th District Court, El Paso County, Texas. In its removal notice, Convalescent alleges that Plaintiff Delia Portillo's ("Portillo") state law negligence claims arising from an on-the-job injury are completely preempted by the Employee Retirement Income Security Act ("ERISA"), thus conferring removal jurisdiction. After due consideration, the Court is of the opinion that the above-captioned cause should be remanded to the state court from which it came.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Delia Portillo ("Portillo") is an employee of Convalescent, a non-subscriber to the Texas Worker's Compensation Act. Portillo alleges that on September 21, 2004 she was injured while working for Convalescent when she attempted to lift a patient. She complains of injuries to her neck, right shoulder, right upper extremity, and right hand and wrist. Portillo also alleges a similar injury at work while trying to lift another patient on March 19, 2005. On June 10, 2005, Portillo filed suit in the 327th District Court, El Paso County, Texas claiming Convalescent was negligent in its (1) "fail[ure] to provide a safe place to work," (2) "fail[ure] to provide proper equipment with which to lift patients," (3) fail[ure] to properly train and instruct Plaintiff," and (4) unspecified "other acts of negligence." Def.'s Notice of Removal, Ex. A, Pl.'s Original Pet., at 2.
Convalescent removed the case to federal court on July 19, 2005. Convalescent contends that Portillo asserts a claim for an on-the-job injury that is covered by its self-administered Employee Safety Benefit Program ("the Program"). It further asserts that the Program is a self-funded employee welfare benefit plan as defined by ERISA. Therefore, Convalescent reasons, Portillo's claims are claims for benefits under an ERISA plan that are completely preempted by ERISA, resulting in exclusive jurisdiction in federal court.
The Court will assume arguendo that Convalescent's Program qualifies as an employee benefit plan within the meaning of ERISA.
II. DISCUSSION
"It is a settled principle that, before proceeding with a case, federal trial and appellate courts have the duty to examine the basis for their subject matter jurisdiction, doing so on their own motion if necessary." Dominguez-Cota v. Cooper Tire Rubber Co., 396 F.3d 650, 652 (5th Cir. 2005) (internal quotations and citations omitted). Furthermore, "there is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court." Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citations omitted). Thus, Convalescent bears the burden of demonstrating that the Court has subject-matter jurisdiction over the above-captioned cause.
ERISA is a "federal scheme designed to protect the participants and beneficiaries of employee benefit plans. . . ." Hernandez v. Jobe Concrete Prods., Inc., 282 F.3d 360, 362 (5th Cir. 2002). ERISA includes "expansive pre-emption provisions" designed to ensure that "employee benefit plan regulation would be exclusively a federal concern." Aetna Health, Inc. v. Davila, 124 S. Ct. 2488, 2495 (2004) (citations omitted).
There are two types of ERISA preemption. Ellis v. Liberty Life Assurance Co., 394 F.3d 262, 276 n. 34 (5th Cir. 2004). First, ERISA supercedes any and all state laws that relate to a plan governed by ERISA. 29 U.S.C. § 1144(a) (2005). Where state law and ERISA provisions conflict, state law is displaced. Bullock v. Equitable Life Assurance Soc'y of the U.S., 259 F.3d 395, 399 (5th Cir. 2001) (citations omitted). This is known as ordinary, or conflict, preemption. Id. (citations omitted). Conflict preemption can be asserted as an affirmative defense to state law causes of action, but cannot operate as a basis for removal jurisdiction. Ellis, 394 F.3d at 276 n. 34 (citation omitted).
Second, ERISA may wholly occupy a particular field, resulting in what is referred to as complete preemption. Title 29 U.S.C. § 1132(a), ERISA's civil enforcement mechanism, authorizes a cause of action in several enumerated instances, including an action 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." 29 U.S.C. 1132(a)(1) (1)(B). "[A]ny state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted." Davila, 124 S. Ct. at 2495 (citations omitted). State law causes of action that fall within the civil enforcement provisions of § 1132 are converted into federal claims for purposes of the well-pleaded complaint rule. Id. at 2496 (citations omitted). Therefore, causes of action that are within the scope of § 1132 can be removed to federal court. Id.
The sole issue before the Court is whether Portillo's negligence causes of action fall within the scope of § 1132 and are therefore completely preempted. Convalescent cites 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(3), and 1144 in support of removal jurisdiction, explaining that Portillo's "action is founded on claims or rights arising under the laws of the United States in that it is based upon and requires the application of ERISA[.]" Def.'s Notice of Removal, at 1-2 ¶ 2. It further asserts that "Plaintiff's claims relate to benefits provided to Plaintiff under the terms of the [ERISA] [p]lan." Id. at 2 ¶ 2. The Court finds Convalescent's representations unconvincing.
Bare citation to § 1132 is insufficient to meet Convalescent's burden to show that removal is proper. Carnes v. Data Return, LLC, No. 3:04-CV-2475-D, 2005 U.S. Dist. LEXIS 1502, at *5 (N.D. Tex. Feb. 1, 2005) (citation omitted). Also, the contention that federal question jurisdiction is present simply because Portillo's claims "relate to" benefits provided under the terms of the plan also fails. Whether a claim "relates to" an ERISA plan concerns a question of conflict, not complete, preemption, and therefore is irrelevant to the issue of the propriety of removal. Id.
In this regard, Convalescent's citation to § 1144, ERISA's conflict preemption provision, is similarly ineffectual.
Convalescent also states that resolution of Portillo's claims would require the Court to construe the rights and responsibilities of the parties under the terms of the ERISA plan. However, some state law claims implicate an ERISA plan in too peripheral a manner to be preempted, regardless of whether the ERISA plan is in some way affected by the claim. Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir. 1994) (citation omitted). The test for determining whether a state law claim is preempted by ERISA is two-pronged. Id. A state law claim is preempted if "(1) the claim addresses areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan, and (2) the claim directly affects the relationship among the traditional ERISA entities (i.e., plan administrators/fiduciaries and plan participants/beneficiaries)." Id.
The Court notes that the panel in Hook operated under then-controlling law that required a finding of both conflict and complete preemption in order to find the presence of federal question jurisdiction. Arana v. Ochsner Health Plan, 338 F.3d 433, 439 (5th Cir. 2003) (en banc) (citations omitted). The standard was recently changed by the Fifth Circuit and now only complete preemption is required to support subject-matter and removal jurisdiction. Id. at 440. However, Hook remains good law, and the two-pronged test described above is applicable to post- Arana complete preemption analysis. Holloway v. Avalon Residential Care Homes, Inc., 107 Fed. Appx. 398, 400-01 (5th Cir. 2004) (unpublished opinion). Though Holloway is an unpublished opinion, the Court finds that its reasoning and logic persuasively apply to the instant case. 5TH CIR. R. 47.5.4 (stating "[a]n unpublished opinion may . . . be persuasive").
Under the first prong, plainly, Portillo's claims do not seek benefits under Convalescent's ERISA plan, nor do they seek resolution of a dispute over administration of an ERISA plan. For the second prong of the test, the ultimate question is whether, "if the [plaintiff's] claims were stripped of their link to the [ERISA] plan, they would cease to exist." Rokohl v. Texaco, Inc., 77 F.3d 126, 129 (5th Cir. 1996) (citations omitted). Furthermore, "ERISA does not preempt state law claims when the claims affect only [an employee's] employer/employee relationship with [an employer] and not her administrator/beneficiary relationship with the company." Id. (internal quotations and citation omitted).
Many cases in this Circuit hold that claims against a non-subscriber employer for negligent failure to maintain a safe workplace, and related negligence claims, are not preempted by the employer's ERISA plan, primarily because such a claim affects only the employer/employee and not the administrator/beneficiary relationship between the parties. Holloway, 107 Fed. Appx., at 400 (holding that a plaintiff's claim for negligent failure to maintain a safe workplace "affect[ed] only [Plaintiff's] employer/employee relationship and [was] wholly independent from [Defendant's] insurance plan." Thus, the plaintiff's claim was not preempted by ERISA.); Hernandez, 282 F.3d at 362 n. 3 (noting in dictum that the Fifth Circuit has previously held that "negligence claims against employers do not relate to ERISA plans"); Hook, 38 F.3d at 784 (holding the plaintiff's unsafe workplace claim was totally independent from the existence and administration of the defendant employer's ERISA plan. "Numerous federal district courts in Texas have concluded that a tort claim alleging an unsafe workplace does not relate to an ERISA plan."); Westbrook v. Beverly Enters., 832 F. Supp 188, 191 (W.D. Tex. 1993) (holding that the plaintiff's claim seeking damages for injuries attributed to the employer's failure to provide a safe place to work was not preempted by ERISA. "The Court is of the opinion that these types of claims clearly arise from the `employer-employee relationship,' and not from the administration or operation of the [ERISA] plan.").
Portillo's claim for negligent failure to provide a safe workplace, and her related claims of negligence, implicate only Portillo's employer/employee relationship with Convalescent and not her administrator/beneficiary relationship with Convalescent. Therefore, Portillo's negligence causes of action would exist regardless of whether Convalescent had, or did not have, an ERISA plan. See David P. Coldesina, D.D.S., P.C. v. Estate of Simper, 407 F.3d 1126, 1137 (10th Cir. 2005) ("a claim only falls within ERISA's civil enforcement scheme when it is based solely on legal duties created by ERISA or the plan terms, rather than some other independent source") (citing Davila, 124 S. Ct. at 2496). Thus, the Court concludes that Portillo's negligence claims are not completely preempted by ERISA and as a result the Court lacks subject-matter jurisdiction over the above-captioned cause.
III. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that Portillo's negligence claims are not preempted by ERISA. Therefore, Convalescent's Notice of Removal was deficient. The Court is of the opinion that it lacks subject-matter jurisdiction over the above-captioned cause and as a result determines that the case was improvidently removed.
Accordingly, IT IS ORDERED that the above-captioned cause is REMANDED to the 327th District Court of El Paso County, Texas.
IT IS FURTHER ORDERED that the Clerk shall close this matter.