Lewis v. Blue Cross Blue Shield of Georgia et al

Filing 14

OPINION AND ORDER it is ORDERED as follows: (1) Plaintiff Jane Lewis's 9 motion to remand is denied. (2) Defendants Blue Cross Blue Shield of Georgia (d/b/a Greater Georgia Life Insurance Company) and ESG Operations, Inc.'s 3 motion to dismiss is granted to the extent that plaintiff Lewis has 14 days from this date to file an amended complaint that sets forth the claim under ERISA. Should plaintiff Lewis fail to amend within the time allotted, the court will dismiss plaintiff Lewis's complaint with prejudice. Signed by Honorable Judge Myron H. Thompson on 3/31/2015. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
JANE LEWIS,
Plaintiff,
v.
BLUE CROSS BLUE SHIELD
OF GEORGIA d/b/a Greater
Georgia Life Insurance
Company, and ESG
OPERATIONS, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
3:14cv316-MHT
(WO)

OPINION AND ORDER
Plaintiff
Alabama

Jane

state

Lewis

court

filed

asserting

this

lawsuit

state-law

in

an

claims

of

negligent, wanton, and fraudulent misrepresentation and
suppression against the following two defendants: Blue
Cross Blue Shield of Georgia d/b/a Greater Georgia Life
Insurance Company and ESG Operations, Inc.

Greater

Georgia Life, with the consent of ESG, removed the case
to this court under 28 U.S.C. § 1441, asserting that
Lewis’s

claims

are

‘completely

preempted’

by

the

Employee

Retirement

Income

Security

Act

of

1974

(“ERISA”), 29 U.S.C. §§ 1001 et seq., and thus the
court has jurisdiction under 28 U.S.C. § 1331.

The

case is currently before the court on Lewis’s motion to
remand and Greater Georgia Life and ESG’s motion to
dismiss.

The remand motion will be denied, and the

dismissal motion will be granted, albeit with leave to
restate a claim under ERISA.

I.
The

party

LEGAL STANDARDS

seeking

removal

has

establishing federal jurisdiction.

the

burden

of

Diaz v. Sheppard,

85 F.3d 1502, 1505 (11th Cir. 1996), cert. denied, 520
U.S. 1162 (1997).
narrowly,

and

Removal statutes should be construed

all

doubts

resolved in favor of remand.

about

removal

should

be

Allen v. Christenberry,

327 F.3d 1290, 1293 (11th Cir. 2003).

A defendant may

submit affidavits, depositions, or other evidence to
support removal.

Hardy v. Welch, 135 F. Supp. 2d 1171,

1177 (M.D. Ala. 2000) (Thompson, J.).
2

A lawsuit filed in state court may be removed by a
defendant

where

the

district

original jurisdiction.
original
issue

apparent

would

28 U.S.C. § 1441.

federal-question

is

court

on

jurisdiction

the

face

of

have

had

A court has

if

the

a

federal

plaintiff’s

complaint.

Merrell Dow Pharm. Inc. v. Thompson, 478

U.S.

808

804,

complaint

(1986).

rule,

“a

Under

defense

this

that

well-pleaded

raises

a

federal

question is inadequate to confer federal jurisdiction.”
Id.

There

pleaded

is,

however,

complaint

rule

an

in

exception

cases

where

to

the

well-

Congress

“so

completely pre-empt[s] a particular area that any civil
complaint
necessarily

raising
federal

this
in

select

group

character.”

of

claims

Metropolitan

is
Life

Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987); Jones v.
LMR

Intern.,

Inc.,

457

F.3d

1174,

1178

(11th

Cir.

2006).
Should the court find Lewis’s claim is completely
preempted

by

inappropriate,

federal
the

court

law

and,

thus,

remand

will
3

also

address

Greater

Georgia Life’s motion to dismiss.

In considering a

defendant’s motion to dismiss, the court accepts the
plaintiff’s

allegations

as

true,

Hishon

v.

King

&

Spalding, 467 U.S. 69, 73 (1984), and construes the
complaint in the plaintiff’s favor, Duke v. Cleland, 5
F.3d 1399, 1402 (11th Cir. 1993).

“The issue is not

whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support
the claims.”
(1974).

Scheuer v. Rhodes, 416 U.S. 232, 236

To survive a motion to dismiss, a complaint

need not contain “detailed factual allegations,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007), but
rather “only enough facts to state a claim to relief
that is plausible on its face.”

II.
This

case

arises

Id. at 574.

BACKGROUND
out

of

Greater

Georgia

Life’s

denial of Lewis’s life insurance claim following the
death

of

her

late

husband.
4

ESG,

a

Georgia-based

company, contracts with municipalities to manage their
utility

and

public

works

Lewis for over year.
her

husband

Life,

were

Basic

operations.

ESG

employed

During her employment, Lewis and

covered

Accidental

under

“Basic

Group

Term

&

Death

a

Dismemberment

and

Optional Group Term Life Insurance” policy issued by
Greater Georgia Life.
policy

as

part

of

The insurance company issued the
a

group

plan

with

ESG

as

plan

sponsor.
When Lewis decided to leave her employment with
ESG, she contacted an ESG human resources employee to
discuss

her

policy

with

Greater

Georgia

Life.

The

human resources employee represented to Lewis that she
could take her policy with her and that, by paying the
insurance premiums herself, the policies would stay in
full force and effect.

Lewis then contacted Greater

Georgia Life to confirm that she would be allowed to
pay

her

coverage.

insurance

premiums

personally

and

retain

Based on these conversation, Lewis provided
5

the insurance company with her personal mailing address
and set up payment arrangements.
Lewis paid the policy’s premiums from 2007 through
2012.

In December of 2012, her husband had a stroke.

Following her husband’s hospitalization, Lewis notified
Greater Georgia Life of a possible claim for benefits
under

her

policy.

The

insurance

company,

in

turn,

represented to Lewis that the policy was in full force
and effect and that all necessary premiums had been
paid through February 2013.

However, in January 2013,

the insurance company contacted Lewis and informed her
that her policy had been cancelled and all coverage was
terminated.
Lewis’s husband died on May 18, 2013, and Lewis
made a claim for benefits under her policy.

Greater

Georgia Life denied Lewis’s claim, again informing her
that the policy had been cancelled and all coverage
terminated.

Upon receipt of the insurance company’s

denial, Lewis filed suit in an Alabama state court,
6

initially

asserting

breach

of

contract;

later,

she

amended her complaint to assert negligent, wanton, and
fraudulent

misrepresentation

and

suppression

part of Greater Georgia Life and ESG.

on

the

The insurance

company removed the action to this court on April 30,
2014.

III.
A.

DISCUSSION

Motion to Remand

The resolution of Lewis’s motion to remand turns on
the

timeliness

of

Greater

Georgia

Life’s

notice

of

removal and the proper characterization of Lewis’s life
insurance policy.

Lewis puts forth three arguments in

favor

(1)

of

remand:

the

insurance

policy

is

not

governed by ERISA because it was neither established
nor

maintained

organization
insurance

by

on

policy

Lewis’s
her
is

employer

employer’s
statutorily

or

an

behalf;
exempt

employee
(2)

from

the
ERISA

coverage as ESG exists solely to act as a governmental
7

instrumentality

performing

governmental

functions

for

the City of Opelika; and (3) Greater Georgia Life’s
notice of removal was not timely pursuant to 28 U.S.C.
§

1446.

The

insurance

company

disputes

Lewis’s

contentions and maintains that her policy is properly
characterized
accordingly,

as

an

Lewis’s

employee
state-law

benefit
claims

plan,

are

and,

completely

preempted by ERISA and subject to federal jurisdiction.
Congress enacted ERISA to protect “the interests of
participants

in

beneficiaries.”

employee
29

benefit

U.S.C.

§

plans

and

1001(b).

their
Federal

preemption based on ERISA may take one of two forms:
‘defensive’

preemption

and

‘complete

preemption.’

Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207,
1211 (11th Cir. 1999); Whitt v. Sherman Int’l Corp.,
147 F.3d 1325, 1329 (11th Cir. 1998).

Because Lewis

asserts only state-law claims, Greater Georgia Life is
asserting

‘complete

preemption’

removal.
8

as

the

basis

for

The Eleventh Circuit has adopted a two-part test to
determine whether ERISA completely preempts a state-law
claim: “(1) whether the plaintiff could have brought
its claim under [ERISA] § 502(a); and (2) whether no
other

legal

duty

supports

the

plaintiff’s

claim.”

Connecticut State Dental Ass'n v. Anthem Health Plans,
Inc.,

591

F.3d

1337,

1345

(11th

Cir.

2009)

(citing

Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004)).
If an ERISA claim is completely preempted, “state law
claims

that

seek

relief

available

under

ERISA

are

recharacterized as ERISA claims” for the purpose of
jurisdiction

and,

thus,

LMR, 457 F.3d at 1178.

“arise

under

federal

law.”

Lewis’s claims meet both prongs

of the test.

1.

Prong One: Whether Lewis Could Have Brought Her
Claims Under § 502(d)

Lewis could have brought her claims under ERISA,
despite

her

arguments

to

the

alternative.

ERISA

§ 502(a) states that a participant or beneficiary of an

employee insurance plan may bring an action to recover
benefits or to enforce her rights under an employee
benefit welfare plan.

29 U.S.C. § 1132(a).

Lewis

agrees that her policy, when first purchased, was part
of

a

group

employee

benefit

plan.

However,

she

contends that, when she left her employment with ESG,
requested portability of her policy, and began making
premium payments personally, her policy ceased to be
part of ESG’s sponsored group employee benefit plan.
The Eleventh Circuit addressed a situation similar
to Lewis’s in Glass v. United Omaha Life Insurance Co.
33 F.3d 1341 (11th Cir. 1944).

The Glass court held

that ‘conversion’ of a group plan into an individual
plan did not defeat ERISA coverage.

Id. at 1346-47.

While that holding has been narrowed by this court in
situations

where

relationship

with

an

employer
the

opts

insurer,

to

terminate

its

see

McDonald

v.

Professional Ins. Corp., 946 F. Supp. 943, 945 (M.D.
Ala. 1996) (Thompson, J.), Lewis’s claim follows the
10

basic course of conversion by way of his an employee
portability
under

the

1346-47

request
scope

of

(affirming

and,

as

ERISA.
the

such,
See

remains

Glass,

district

properly

33

F.3d

court’s

at

summary

judgment in favor of defendant insurer in part because
the insured’s ability to convert his life insurance
policy following termination of employment arose from
the

initial

group

plan,

“and

the

converted

policy

itself continued to be integrally linked with the ERISA
plan”); see also Griggers v. Equitable Life Assurance
Soc’y of the U.S., 343 F. Supp. 2d 1190, 1195 (N.D. Ga.
2004) (Duffy, J.) (denying plaintiff leave to litigate
her

claims

under

state

law

after

holding

that

the

insurance policy at issue originated under a group plan
and

was

a

continuation

of

the

ERISA-covered

plan

despite plaintiff having “resigned her employment and
assumed responsibility for paying the premium”).
Additionally,

despite

Lewis’s

argument

to

the

contrary, ESG’s work with the City of Opelika does not
11

convert its sponsored group plan into a ‘governmental
plan’ exempt from ERISA under 29 U.S.C. § 1003(b)(1).
“Even if a plan qualifies as an employee benefit plan
under ERISA, the plan can nevertheless evade ERISA’s
broad coverage if it is statutorily exempt.”

Dickerson

v. Alexander Hamilton Life Ins. Co. of Am., 130 F.
Supp.

2d

1271,

1274

Five

categories

of

(N.D.

Ala.

employee

2001)

(Nelson,

benefit

J.).

plans

are

statutorily exempt from ERISA’s scope: (1) governmental
plans; (2) church plans; (3) plans maintained solely
for

complying

with

workmen’s

compensation

laws,

unemployment compensation laws, or disability insurance
laws; (4) plans maintained outside of the United States
primarily for the benefit of nonresident aliens; and
(5)

unfunded,

§ 1003(b).
established

excess

benefit

plans.

29

U.S.C.

A ‘governmental plan’ is defined as “a plan
or

maintained

for

its

employees

by

the

Government of the United States, by the government of
any State or political subdivision thereof, or by any
12

agency or instrumentality of the foregoing.”
§ 1002(32).

29 U.S.C.

Lewis maintains that ESG qualifies as an

‘instrumentality’

of

therefore,

plan

her

the
is

City
a

of

Opelika,

statutorily

and,
exempt

governmental plan.
ERISA does not define the term ‘instrumentality.’
As a result, when charged with determining whether an
entity qualifies as an ‘instrumentality’, courts have
commonly turned to provisions of the Internal Revenue
Code.

See

Dickerson,

130

F.

Supp.

2d

at

1274-75;

Culpepper v. Protective Life Ins. Co., 938 F. Supp.
794, 798 (M.D. Ala 1996) (Albritton, J.) (citing Rose
v. Long Island R.R. Pension Plan, 828 F.2d 910, 918
(2nd Cir. 1987)).

The Internal Revenue Code is an apt

source for guidance as its definition of ‘governmental
plan’ is nearly identical to ERISA’s, and the IRS has
issued a Revenue Ruling to accompany the definition
that provides a six-factor analysis for “determining
whether

an

entity

is

a
13

governmental

agency

or

instrumentality.” Brown v. Reliance Standard Life Ins.
Co.,

No.

2:13-CV-00261-RDP,

2014

WL

4681522,

(N.D. Ala. Sept. 16, 2014) (Proctor, J.).

at

*4

The Revenue

Ruling instructs the court to consider:
“whether it is used for a governmental purpose
and performs a governmental function;
(1) whether
performance
of
its
function is on behalf of a state
or political subdivision;
(2) whether
there
are
private
interests involved, or whether the
states or political subdivisions
involved
have
the
powers
and
interests of an owner;
(3) whether control and supervision of
the organization is vested in a
public authority;
(4) if express or implied statutory or
other authority is necessary for
the creation or use of such an
instrumentality, and whether such
authority exists; and
(5) the degree of financial autonomy
and the source of its operating
expenses.”
Rev. Rul. 57—128, 1957-1 C.B.311.
In evaluating ESG in light of these factors, the
court

finds

instrumentality

that
of

ESG
the

does
City
14

of

not

qualify

Opelika.

as
While

an
it

appears at first blush that two of the IRS factors
(governmental purpose and function) appear to weigh in
favor of construing ESG as an instrumentality of the
city, the court finds that ESG, in managing the city’s
water

and

public

works

operations,

functions

independent contractor for the city.

as

an

This is evident

when considering three of the remaining IRS factors.
First, ESG is a private company, headquartered in
Macon, Georgia.
an

ownership

supervised

or

The City of Opelika does not possess
stake

in

ESG.

controlled

by

Second,
the

ESG

City

of

is

not

Opelika.

Rather, it manages the city’s water and public works
operations

in

accordance

agreement--similar

to

the

with

a

agreements

public-private
it

has

entered

into with various municipalities across the southeast.
Third,

ESG

autonomy.

enjoys

a

largely

unfettered

degree

of

Aside from receiving compensation from the

city for services rendered, ESG is not funded by the
city, the city is not responsible for the debts or
15

obligations of ESG, and ESG is not in a position to
directly levy taxes upon the city’s residents.
In applying the IRS factors to determine ultimately
that

an

Alabama

instrumentality

of

healthcare
the

authority

State,

the

was

court

not
in

an

Brown

explained the importance of financial autonomy, noting
the following:
“[The authority’s] lack of outside
funding,
in
combination
with
its
inability to levy taxes, removes from
the
equation one
of the
primary
factors
that
drove
Congress’s
exemption of ‘governmental plans’ from
ERISA.
Indeed,
despite
ERISA’s
regulatory
and
remedial
sweep,
Congress did not include public or
governmental plans within its reach,
believing in part, state and local
governments’ ability to tax would
enable
them
to
operate
employee
welfare benefit systems that would
avoid the pitfalls of underfunding.”
2014 WL 4681522 at *6 (internal quotations and emphasis
omitted).

Based on ESG’s financial autonomy, private

ownership,

and

private

control,

the

court

concludes

that it does not qualify as an ‘instrumentality’ of the
16

City of Opelika under § 1003(b)(1).

Accordingly, Lewis

could have brought an action for denial of benefits
under § 502(a), in lieu of her state-law claims.

2.

Prong Two: Whether No Other Legal Duty Supports
Lewis’s Claims

The

theories

upon

which

Lewis

bases

“d[o] not arise independently” from her

her

claims

ERISA plan.

Connecticut State Dental Ass'n v. Anthem Health Plans,
Inc., 591 F.3d 1337, 1346 (11th Cir. 2009).

There is

no

case

independent

legal

duty

in

an

ERISA

if

“interpretation of the terms of [the] benefit plan[]
forms an essential part” of the legal claim.

Aetna

Health Inc. v. Davila, 542 U.S. 200, 213 (2004).

Here,

Lewis argues that Greater Georgia Life failed to pay
her

benefits

falsely

under

informing

cancelled.

her
her

life

insurance

that

her

policy

policy

had

after
been

To determine the merits of Lewis’s legal

claims, the court would have to understand the terms of
17

the “Basic Group Term Life, Basic Accidental Death &
Dismemberment and Optional Group Term Life Insurance”
policy, specifically with regards to her coverage under
the policy’s portability provision.

In other words,

the

be

foundation

interpretation

of
of

her
the

claims
plan.

would
As

the

such,

no

court’s
other

independent legal duty supports her claims.
Because Lewis could have brought her legal claims
under § 502(a) and did not have an independent basis
for

the

claims,

they

are

completely

preempted

by

federal law. Therefore, the claims arise under federal
law,

and

the

court

has

proper

federal-question

jurisdiction.

3.

Timeliness of Greater Georgia’s Notice of Removal
Lewis finally argues that her claims are due to be

remanded to state court because Greater Georgia Life’s
notice of removal was not timely pursuant to 28 U.S.C.
18

§ 1446.

A petition for removal must be filed within 30

days after defendant’s receipt of the initial pleading
setting

forth

1446(b)(1).

the

claim

for

relief.

28

U.S.C.

§

However, “if a case stated by the initial

pleading is not removable, a notice of removal may be
filed within thirty days after receipt by the defendant
... Of a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that
the case is one which is or has become removable.”

28

U.S.C. § 1446 (b)(3).
The crucial question is when did Greater Georgia
Life first receive a “paper” from which it could have
“ascertained” that an ERISA-governed plan was at issue,
and thus, that the case was removable.

See Clingan v.

Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1302 (M.D.
Ala. 2003) (Albritton, C.J.); see also Naef v. Masonite
Corp.,
(Howard,

923
J.)

F.

Supp.

(“When

1504,
the

1511

initial

(S.D.

Ala.

pleading

1996)

fails

to

provide at least a clue that the action is removable
19

... The thirty day time limit for notice of removal
begins

at

the

point

when

the

defendant

intelligently

ascertained

that

removable.”).

Removability

can

either

formal

or

informal

could

have

action

was

ascertained

from

the
be

papers.

Clingan,

244

F.

Supp. 2d at 1302 (citing Webster v. Dow United Techs.
Composite Prods., Inc., 925 F. Supp. 727, 729 (M.D.
Ala. 1996) (Albritton, J.)).

It is Greater Georgia

Life’s burden to prove “exactly when the thirty day
time limit of 28 U.S.C. § 1446(b) began to run.” Id. at
1302.
Greater Georgia Life contends that it was first
intelligently

able

removable

March

second

on

amended

to

ascertain

31,

2014,

complaint

and

that

when

the

Lewis

responses

Georgia Life’s discovery requests.

case

was

filed

her

to

Greater

In those filings,

Lewis identified ESG for the first time as her former
employer

through

which

she

insurance policy at issue.
20

established

the

life

Her initial complaint and

first

amended

purchased
Greater

the

complaint
life

Georgia

represent

insurance

Life

and

policy
did

that

she

had

directly

from

provide

any

not

identifying information regarding the policy.
In response to Lewis’s initial complaint and first
amended complaint, Greater Georgia Life indicated on
three separate occasions that it was unable to respond
substantively

to

her

complaint

due

to

a

lack

of

information “regarding the identity of the plaintiff
and the decedent” in the preceding complaints.

Thus,

for Greater Georgia Life to remove this matter prior to
Lewis’s March 31 state-court filings, it would have had
to guess as to removability, which is something courts
have routinely held litigants should not be required to
do.

See, e.g., Webb v. Home Depot, USA, Inc., No.

Civ.A. 00-A-220-N, 2000 WL 351992, at *3 (M.D. Ala.
Mar. 27, 2000) (Albritton, C.J.).
The first date upon which Greater Georgia Life had
enough information to “ascertain” that this case was
21

removable was March 31, when Lewis filed her second
amended

complaint

and

responses

company’s discovery requests.

to

the

insurance

Thus, removal on April

30, 2014, was within the statutory 30-day period, and
Lewis’s motion to remand should be denied.

B.
The

court

now

motion to dismiss.
that
ERISA

Lewis’s

preemption.

turns

is

her
a

to

Greater

Georgia

life’s

The insurance company first argues

complaint

preempts

preemption

Motion to Dismiss

should

be

state-law

separate

(Although

they

dismissed

claims.

inquiry
are

from

separate

because

Defensive
complete
inquiries,

courts have recognized that “[c]omplete preemption is
narrower than defensive preemption.”

Connecticut State

Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1343 (11th Cir. 2009) (internal quotation marks
omitted).

In other words, if a state-law claim is

completely preempted under the narrower test, it will
22

likely also be preempted under the broader defensive
preemption test.)
“Unlike

complete

preemption,

which

is

jurisdictional, defensive preemption is a substantive
defense, justifying dismissal of preempted state law
claims.”

Jones v. LMR Intern., Inc., 457 F.3d 1174,

1179 (11th Cir. 2006).

ERISA preempts “any and all

State” law claims if the claim relates to an ERISA
plan.

29 U.S.C. § 1144(a).

The question of whether a state-law claim relates
to an ERISA plan is one of Congressional intent.

Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983).

In

enacting

to

ERISA,

Congress

did

not

simply

intend

counteract state laws meant to affect employee benefit
plans, but instead created a broad preemption for any
law that “has connection with or reference to such a
plan.”

Id. at 97; LMR, 457 F.3d at 1179-80.

Under

this broad standard, courts have regularly dismissed
fraudulent

misrepresentation
23

and

suppression

claims

based on an employer’s or provider’s failure to pay a
under a policy.

See, e.g., LMR, 457 F.3d at 1180

(dismissing as preempted under ERISA state-law breach
of

contract,

unjust

enrichment,

and

fraud

claims

against employer who failed to fund the benefits plan);
Kirkland v. SSL Americas, Inc., 263 F. Supp. 2d 1326
(M.D.

Ala.

preempted

2003)

under

(Albritton,

ERISA

state

C.J.)
law

(dismissing

as

breach-of-contract,

fraud-by-suppression, unjust-enrichment, fraud, deceit,
and

conversion

claims

against

employer

that

denied

employees claims under a severance plan).
Lewis alleges that Greater Georgia Life and ESG
negligently,

wantonly,

and

fraudulently

made

misrepresentations and suppressed facts concerning her
life-insurance policy.

These claims not only refer to

the plan previously determined to be an ERISA-covered
employee benefit plan, but are based entirely on the
plan.

They are classic examples of state-law claims

24

that relate to an ERISA plan and are thus preempted
under federal law.
Because Lewis’s only claims are state-law claims,
they

are

both

preempted

under

ERISA.

The

court,

however, declines to dismiss Lewis’s complaint at this
time and will, instead, afford Lewis two weeks to amend
her

complaint

to

plead

her

claims

under

ERISA.

***
For

the

foregoing

reasons,

it

is

ORDERED

as

follows:
(1) Plaintiff Jane Lewis’s motion to remand (doc.
no. 9) is denied.
(2) Defendants Blue Cross Blue Shield of Georgia
(d/b/a Greater Georgia Life Insurance Company) and ESG
Operations, Inc.’s motion to dismiss (doc. no. 3) is
granted to the extent that plaintiff Lewis has 14 days
from this date to file an amended complaint that sets
forth the claim under

ERISA. Should plaintiff

25

Lewis

fail to amend within the time allotted, the court will
dismiss plaintiff Lewis’s complaint with prejudice.
This case is not closed.
DONE, this the 31st day of March, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

.