Ard v. Transamerica Life Insurance Company et al

Filing 11

OPINION and Order granting without leave to amend 6 Motion to Dismiss. Because the claim on which federal question jurisdiction depends has been dismissed, the remaining claims are remanded to the Iowa District Court for Linn County, pursuant to 28 U.S.C. §§ 1367(c) and 1447(c). Signed by Judge Mark W Bennett on 11/14/2017. (certified copy of the order and entire docket mailed to Iowa District Court for Linn County) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ANDREA LYNN ARD,
No. C 17-107-MWB
Plaintiff,
vs.
TRANSAMERICA LIFE INSURANCE
COMPANY and MICHAEL KUTCHER,
Defendants.

OPINION AND ORDER
REGARDING DEFENDANTS’
MOTION TO DISMISS AND ORDER
REMANDING ACTION TO STATE
COURT

___________________________
Andrea Lynn Ard filed this action in the Iowa District Court for Linn County on
May 17, 2017, against her former employer, Transamerica Life Insurance Company, and
her former supervisor, Michael Kutcher. She filed an Amended Petition At Law, also in
state court, on July 21, 2017, asserting four causes of action apparently governed by state
law: (1) retaliatory discharge in violation of public policy; (2) intentional infliction of
emotional distress; (3) defamation; and (4) breach of agreement to reinstate and failure
to pay wages due, consisting of wages due from the date of her termination until July 1,
2015, as well as lost personal time off and a contractual bonus. On August 31, 2017,
while still in state court, the defendants filed a Motion To Dismiss challenging Ard’s
wrongful discharge and intentional infliction of emotional distress claims. Ard filed her
Resistance on September 15, 2017. On October 6, 2017, the defendants filed their Notice
Of And Petition For Removal, removing this action to this federal court, based on federal
question jurisdiction, pursuant to 28 U.S.C. §§ 1441 and 1446. They argued that removal
was timely, because Ard’s Resistance was the first notice that she was seeking benefits

under Transamerica’s Separation Pay Plan, an ERISA welfare benefit plan governed by
federal law. Ard has not challenged the removal. See 28 U.S.C. § 1447(c).
On October 13, 2017, the defendants filed the Motion To Dismiss now before me.
In their Motion, the defendants assert that Ard failed to exhaust the administrative
remedies available under the Separation Pay Plan, so that Ard’s fourth cause of action,
for breach of agreement and failure to pay wages due, and all parts of any other cause of
action in which she claims a wrongful denial of severance benefits, must be dismissed
with prejudice and without leave to amend. By Order, filed October 20, 2017, I granted
Ard’s request for an extension to and including November 7, 2017, to respond to the
defendants’ Motion. Despite the request for an extension of time to do so, Ard filed no
timely response, nor has she filed a notice that she will not resist the motion. N.D. IA.
L.R. 7(f) (providing, in part, “If a party does not intend to resist a motion, the party is
encouraged promptly to file a statement indicating the motion will not be resisted.”).
Local Rule 7(f) provides, in part, “If no timely resistance to a motion is filed, the
motion may be granted without notice.” N.D. IA. L.R. 7(f). Thus, I may grant the
defendants’ Motion To Dismiss without further notice to Ard. Furthermore, a claim for
ERISA plan benefits may be dismissed for failure to exhaust administrative remedies.
Angevine v. Anheuser-Busch Companies Pension Plan, 646 F.3d 1034, 1037-38 (8th Cir.
2011). Ard has made no attempt to show that she exhausted administrative remedies on
an ERISA claim or that there is any ground for excusing her failure to exhaust such a
claim. Id.; see also Brown v. J.B. Hunt Transp. Serv., Inc., 586 F.3d 1079, 1085-86
(8th Cir. 2009). Thus, Ard’s fourth cause of action and any other claims for benefits
under the Severance Pay Plan are also subject to dismissal on these grounds. The defect
in Ard’s ERISA claim cannot be removed by repleading that claim, so that dismissal
without leave to amend is appropriate. See, e.g., Hawks v. J.P. Morgan Chase Bank,

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591 F.3d at 1043, 1050 (8th Cir. 2010). The defendants’ Motion To Dismiss is granted
and leave to amend to address the deficiency in the pleadings is denied.
As the result of the dismissal of any claims for ERISA plan benefits, the only
remaining claims are state-law claims subject to this court’s supplemental jurisdiction
pursuant to 28 U.S.C. § 1367. Indeed, the defendants asserted removal only on the basis
of federal question jurisdiction, and neither party has ever timely asserted any other basis
for federal jurisdiction. See 28 U.S.C. § 1446(b); Lindsey v. Dillard’s, Inc., 306 F.3d
596, 600 (8th Cir. 2002). Thus, even though no party has requested a remand if the
defendants’ Motion To Dismiss the federal claim is granted, I must consider whether
remand to state court is appropriate.
Even in a case removed to federal case, “[u]nder 28 U.S.C. § 1367, a district
court may decline jurisdiction over supplemental claims if it ‘has dismissed all claims
over which it has original jurisdiction.’” Lindsey, 306 F.3d at 598 (quoting 28 U.S.C.
§ 1367(c)(3)). The federal district court may remand an action to state court pursuant to
§ 1367(c)(3), even after the issues have been briefed and discovery completed. See
D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 767 (8th Cir.
2011) (holding the district court did not abuse its discretion in remanding, and “[t]hat it
did so after the issues had been briefed and discovery completed does not affect our
conclusion”). Indeed, “[i]f the claim giving original jurisdiction is dismissed early in the
action, ‘before any substantial preparation has gone into the dependent claims, dismissing
or remanding the [state claims] upon declining supplemental jurisdiction seems fair
enough.’” Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000) (quoting 28 U.S.C.
§ 1367 cmt. at 835 (1993)). In this case, the dismissal of the federal claim is “early in
the action” and “before any substantive preparation has gone into the dependent claims.”
Id. In these circumstances, remand of the state law claims is appropriate.

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THEREFORE,
1.

The defendants’ October 13, 2017, Motion To Dismiss (docket no. 6) is

granted without leave to amend; and
2.

Because the claim on which federal question jurisdiction depends has been

dismissed, the remaining claims are remanded to the Iowa District Court for Linn
County, pursuant to 28 U.S.C. §§ 1367(c) and 1447(c).
IT IS SO ORDERED.
DATED this 14th day of November, 2017.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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