Nichols v. Gordon

Filing 14

MEMORANDUM AND ORDER granting 6 Motion to Remand; taking no position on 10 Motion to Amend Complaint. Signed by Senior District Judge Richard D. Rogers on 12/3/2012. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ESTATE OF JULIE E. GORDON
NICHOLS, DECEASED

)
)
)
Plaintiff,
)
)
v.
)
)
JOHN E. GORDON,
)
)
Defendant.
)
___________________________________________

Case No.12-4098-RDR

MEMORANDUM AND ORDER
This case started with a petition filed in the District
Court for Jefferson County, Kansas.
to

this

court.

This

case

is

Defendant removed the case
now

before

the

court

upon

plaintiff’s motion to remand the case back to state court and
plaintiff’s

motion

for

leave

to

file

an

amended

complaint.

Defendant argues that the case should not be remanded because
plaintiff makes a claim for undistributed ERISA plan benefits.
Because the court finds that plaintiff does not have standing to
make such a claim, the court shall grant the motion to remand.
I.

Allegations in the petition
The

petition

alleges

that,

starting

January

8,

2011,

defendant has been receiving a death survivor benefit from the
retirement account of the deceased Julie E. Gordon Nichols, even
though Julie E. Gordon Nichols and defendant were divorced in
April 2001.
divorce

The petition further alleges that according to the

agreement/property

settlement

defendant

was

only

to

receive payments from the retirement account through September
2003.

Plaintiff contends in the petition that defendant has

breached the agreement and been unjustly enriched by receiving
and retaining funds from the retirement account and prays:
for an order of judgment from the Court that Defendant
has breached the Agreement and a judgment against him
for any and all amounts received stemming from such
breach, including but not limited to a finding by this
Court that a constructive trust is warranted for such
sums previously paid and will be paid in the future
and that Plaintiff be awarded the amount in the
constructive trust in personam against the Defendant .
. . .
II.

Removal standards
Defendant removed the case to this court, pursuant to 28

U.S.C. § 1441(c)1 asserting that this is a civil action over
which this court has original jurisdiction under 28 U.S.C. §
1331 and 29 U.S.C. § 1132(e) – the ERISA statute.

“There is a

presumption against removal jurisdiction.”

Yellow Transp., Inc.

v.

1213,

Apex

Digital,

Inc.,

406

F.Supp.2d

2005)(interior quotation omitted).

1214

(D.Kan.

All doubts regarding removal

jurisdiction are resolved in favor of remand.

Id.

The Tenth

Circuit has stated that to support removal jurisdiction “the
required federal right or immunity must be an essential element
of

the

plaintiff’s

cause

of

action,

and

that

the

federal

controversy must be disclosed upon the face of the complaint,

1

Section 1441(c) provides for removal of a civil action if it includes “a
claim arising under the Constitution, laws, or treaties of the United States
(within the meaning of section 1331 [of Title 28 United States Code]).”

2

unaided by the answer or by the petition for removal.”

Fajen v.

Foundation Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir.
1982)(interior quotation omitted).

Defendant has the burden of

establishing the requisite elements for removal.

See Karnes v.

Boeing Co., 335 F.3d 1189, 1193 (10th Cir. 2003).
III.

Arguments and analysis
Plaintiff

contends

that

remand

back

to

the

state

court

should be ordered because plaintiff is bringing state law claims
of breach of contract and unjust enrichment, not claims arising
under the Constitution and laws of the United States.

Defendant

rejoins that under the complete preemption doctrine the Supreme
Court has recognized that removal may be proper when a complaint
purports to raise only state-law claims if federal legislation
(in this case ERISA) unambiguously intends to treat such actions
as arising under the laws of the United States.

See Beneficial

Nat. Bank v. Anderson, 539 U.S. 1, 7 (2003)(citing Metropolitan
Life Ins. Co. v. Taylor, 481 U.S. 58, 65-66 (1987)).
Section

502(a)

of

ERISA

authorizes

civil

actions

by

a

“participant or beneficiary” to recover benefits due under the
terms of an ERISA-governed plan or to clarify the rights to
future

benefits

1132(a).
be

under

the

terms

of

the

plan.

29

U.S.C.

§

A state-law claim that falls within this section may

removed

preemption.

to

federal
Taylor,

court
481

under

U.S.
3

at

the

doctrine

66-67;

Hansen

of

complete

v.

Harper

Excavating, Inc., 641 F.3d 1216, 1221 (10th Cir.) cert. denied,
132 S.Ct. 574 (2011).
Plaintiff

makes

two

arguments

for

why

the

complete

preemption doctrine does not apply in this instance.
plaintiff

contends

that

it

is

not

bringing

undistributed benefits or future benefits.

a

First,

claim

for

Instead, plaintiff

claims that it is making a claim for money which has already
been

distributed

by

the

retirement

plan

to

defendant.

The

petition, however, states that plaintiff seeks a court order
creating a constructive trust for such sums that will be paid in
the

future

to

defendant.

Thus,

at

the

time

this

case

was

removed to federal court, plaintiff appeared to be making a
claim for, or to clarify the rights to, future undistributed
benefits under the plan.

Under the right circumstances, such

claims are within the exclusive domain of ERISA.

Estate of

Kensinger v. URL Pharma, Inc., 674 F.3d 131, 137-38 (3rd Cir.
2012)(and cases cited therein).
Plaintiff’s second argument for remand is that plaintiff is
not empowered, or is without standing, to bring an ERISA claim.
Thus, plaintiff argues the complete preemption doctrine should
not be applied if plaintiff does not have a colorable ERISA
claim.

This argument has merit in the court’s opinion.

As mentioned previously, under ERISA, a civil suit may be
brought in federal court by a “participant or beneficiary . . .
4

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.”
U.S.C.

§

1132(a).

The

term

“beneficiary”

means

“a

29

person

designated by a participant, or by the terms of an employee
benefit

plan,

thereunder.”

who

is

or

may

become

29 U.S.C. § 1002(8).

entitled

to

a

benefit

No argument has been made

that plaintiff is a “beneficiary” designated by a participant to
receive a benefit under the retirement plan in question now or
in the future.

So, the court will proceed to examine the term

“participant” which means “any employee or former employee of an
employer . . . who is or may become eligible to receive a
benefit of any type from an employee benefit plan which covers
employees of such employer or members of such organization, or
whose

beneficiaries

benefit.”

may

be

eligible

29 U.S.C. § 1002(7).

to

receive

any

such

Plaintiff does not appear to

fit cleanly under this definition either.

Defendant, however,

cites case authority without rejoinder from plaintiff for the
proposition that the estate of a beneficiary or plan participant
has derivative standing to bring suit under ERISA.

E.g., Clarke

v. Ford Motor Co., 220 F.R.D. 568 (W.D.Wis. 2004); James v. La.
Laborers Health & Welfare Fund, 766 F.Supp. 530, 534 (E.D.La.
1991); see also, Scott v. Regions Bank, 702 F.Supp.2d 921, 929
(E.D.Tenn. 2010).

It should be noted, however, that these cases
5

and the other cases cited by defendant involve actions brought
against ERISA plans or their administrators.

This distinction

is important to the issue of standing.
Assuming

that

plaintiff

may

sue

derivatively

as

a

“participant” under an ERISA plan, it is still necessary for
standing

that

plaintiff

have

Hansen, 641 F.3d at 1222.

a

colorable

claim

to

benefits.

In the court’s opinion, plaintiff

does not have a colorable claim to undistributed benefits if it
is not suing the plan or plan administrator.

Here, plaintiff is

suing an alleged plan beneficiary, not the plan or the plan
administrator.

Although the petition seeks a constructive trust

upon future benefits, the named defendant has no control over
undistributed benefits.
colorable

claim

or

Therefore, plaintiff does not have a

standing

to

bring

such

a

claim

against

defendant.
Standing requires a causal connection between the injury
and the conduct complained of and a likelihood that a favorable
decision

will

redress

the

injury.

Lujan

Wildlife, 504 U.S. 555, 561-62 (1992).
against

the

undistributed

named

defendant

benefits

will

because

the

not

v.

Defenders

of

A favorable decision
have

named

any

impact

defendant

authority or control over undistributed benefits.

has

upon
no

See National

Parks & Conservation Ass’n v. Bureau of Land Management, 606
F.3d 1058, 1074-75 (9th Cir. 2009)(no standing to bring action
6

against National Park Service to stop proposed land exchange for
a landfill development project because National Park Service did
not have authority to stop the project – the Bureau of Land
Management did).
The court notes that remand was ordered in a similar case
where the plaintiff estate argued under state law that it was
entitled to pension funds after such funds were distributed by
the pension plan to the rightful beneficiary.

Estate of J.D.

Boss v. Boss, 2011 WL 432874 *4 (W.D.Ky. 2/4/2011).
plaintiff

makes

a

claim

for

undistributed

Although

benefits

in

the

petition in addition to a claim for post-distribution benefits,
plaintiff

does

not

have

standing

to

make

a

claim

for

undistributed benefits against the only defendant named in this
matter.
this

Therefore, the court believes that remand is proper in

case.

Because

the

court

intends

to

grant

remand,

the

motion to amend does not require decision.
IV.

Conclusion
In conclusion, plaintiff’s motion for remand (Doc. No. 6)

is granted.

The court takes no position upon the motion to

amend, Doc. No. 10.
IT IS SO ORDERED.
Dated this 3rd day of December, 2012, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

7