Swink v. Hartford Life & Accident Insurance Company

Filing 11

ORDER denying 5 Motion to Dismiss for Failure to State a Claim; granting 7 Motion for Leave to File second amended complaint by October 28, 2013. Signed by Judge D. P. Marshall Jr. on 10/24/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

PLAINTIFF

DAVID SWINK

v.

No. 1:13-cv-90-DPM

HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY

DEFENDANT

ORDER
Having removed the case because Swink asserts an ERISA claim, NQ 1,
Hartford now moves to dismiss Swink's amended complaint- saying it fails
to state an ERISA claim, NQ 5. Swink's state-law claim pursuant to ARK. CODE
ANN.§ 23-79-208 is preempted. Fink v. Dakotacare, 324 F.3d 685, 689 (8th Cir.
2003). But Swink has adequately pleaded an ERISA claim for long-term
disability benefits from Arkansas Steel Associates, LLC' s plan. A plaintiff's
short and plain statement of his claim need not cite the governing statute.
FED. R. CIV. P. 8; 5 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE§ 1219
at 277-78 (3d ed. 2004). As shown conclusively by the removal, Hartford has
notice of exactly what this case is about. And Swink has now moved for leave
to amend his complaint again to substitute an ERISA claim for his state-law

claim. NQ 7. The clarifying amendment is helpful, though not essential to
preserving the case. Motion to amend, NQ 7, granted.

FED.

R. Crv. P. 15(a)(2).

Second amended complaint due by 28 October 2013. Motion to dismiss, NQ
5, denied. The case needs to move forward on the merits.

So Ordered.

D.P. Marshall Jr.
United States District Judge
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