Swenson v. Eldorado Casino Shreveport Joint Venture et al

Filing 60

MEMORANDUM ORDER granting 37 Motion to Dismiss. Plaintiff's claim for denial of benefits and her claims for violation of COBRA against Lincoln National Life Insurance Co are DISMISSED WITHOUT PREJUDICE for failure to exhaust, and her claims f or equitable relief and breach of fiduciary duty against Lincoln National are DISMISSED WITH PREJUDICE. United of Omaha Life Insurance Co's Motion to Dismiss 45 and Eldorado's Motion to Dismiss 51 are DENIED with the right to reurge the ir motions within 60 days of the date of this order. If no new motions to dismiss are filed within 60 days of the date of this order, the Clerk of Court is directed to remand this case, for lack of subject matter jurisdiction, to the First Judicial District, Caddo Parish, where it was pending as suit number 585387-B. Signed by Judge Elizabeth E Foote on 10/19/2016. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

KATHERYN SWENSON

CIVIL ACTION NO. 15-CV-2042

VERSUS

JUDGE ELIZABETH ERNY FOOTE

ELDORADO CASINO SHREVEPORT
JOINT VENTURE

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the Court are three motions to dismiss, filed by Lincoln National Life
Insurance Company (“Lincoln National”) [Record Document 37], United of Omaha Life
Insurance Company (“United of Omaha”) [Record Document 45], and Eldorado Casino
Shreveport Joint Venture (“Eldorado”) [Record Document 51]. This is the second round
of motions to dismiss by these defendants. Plaintiff’s original complaint alleged only
state law causes of action, Record Document 1, and the Court found that those state
law claims against defendant Lincoln National were completely preempted by ERISA.
Record Document 35. Plaintiff was granted leave to amend her complaint to expressly
include a claim for benefits under ERISA. Id., p.2. The Court did not consider United of
Omaha’s or Eldorado’s motions to dismiss the original complaint because the Court
lacked sufficient evidence of the applicability of ERISA to United of Omaha’s benefit
plan. Plaintiff then filed her First Supplemental & Amended Complaint (“amended
complaint”). Record Document 36. All Defendants now move to dismiss the amended
complaint. Record Documents 37, 45, and 51.
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For the reasons that follow, Lincoln National’s Motion To Dismiss [Record
Document 37] is GRANTED. Plaintiff’s claim for denial of benefits and her claims for
violation of COBRA are DISMISSED WITHOUT PREJUDICE for failure to exhaust,
and her claims for equitable relief and breach of fiduciary duty are DISMISSED WITH
PREJUDICE.
United of Omaha’s Motion To Dismiss [Record Document 45] is DENIED, with
the right to reurge its motion within 60 days of the date of this order to assert the facts
necessary for a determination of jurisdiction under ERISA. Eldorado’s Motion To Dismiss
[Record Document 51] is DENIED, with the right to reurge its motion within 60 days of
the date of this order to assert the facts necessary for a determination of jurisdiction
under ERISA. If no motions are filed by within 60 days of the date of this order, the
Clerk of Court is directed to remand this case, for lack of subject matter jurisdiction, to
the First Judicial District, Caddo Parish, where it was pending as suit number 585387-B.
I. Factual and Procedural Background
The facts of this case were set out in detail in the Court’s first memorandum
order on the motions to dismiss. Record Document 35. Only a brief restatement is
necessary here. Katheryn Swenson, the Plaintiff, is the widow of Donald Swenson, who
was employed by Eldorado Casino. Record Document 36, p.2. Plaintiff states that Mr.
Swenson took a leave of absence from his employment at Eldorado, for, it appears, just
over a year, from January 1, 2013, to January 27, 2014, for medical treatment. Record
Document 36, pp. 2-3. According to Plaintiff, Mr. Swenson remained on the Eldorado

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payroll during this time, but Eldorado never scheduled him to return to work after he
returned from leave. Id., pp. 2-4. Mr. Swenson passed away in April 2014.
Eldorado purchased group life insurance policies through two companies, Lincoln
National, the insurer through the end of 2013, and United of Omaha, the insurer
beginning in 2014. Id. at p.5. After Mr. Swenson’s death, Plaintiff brought this suit
alleging state law claims against Eldorado and both insurers for life insurance benefits
she asserts she is owed under their respective policies. This Court found that Plaintiff’s
state law claims against Lincoln National were preempted by ERISA, and granted
Plaintiff leave to file an amended complaint stating claims under ERISA. Id. Plaintiff did
so. Record Document 36. The Court did not rule on United of Omaha’s or Eldorado’s
first motion to dismiss because the Court lacked sufficient information from which to
determine ERISA applicability. Record Document 35.
Plaintiff’s amended complaint alleges seven state law claims against all three
defendants: negligence, equitable estoppel, detrimental reliance, “negligence in
law/negligence per se,” bad faith, “waiver by Lincoln National,” and breach of contract.
Record Document 36, p. 10-17. Plaintiff further alleges fourteen “federal causes of
action,” entitled: breach of fiduciary duty under ERISA,
Conversion/Portability/Continuation/Eligibility Waiting Period rights, detrimental reliance,
promissory estoppel or equitable estoppel, futility of administrative appeals, violations of
COBRA, reformation, breach of fiduciary duty by misrepresentation of plan terms,
injunctive relief, declaratory judgment relief, attorney fees, unjust enrichment,

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discovery sought for complete administrative record, and an uninsured status claim
against Eldorado. Id., pp. 18-46.
II. Analysis
Defendants move to dismiss Plaintiff’s claims under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. Record
Documents 37, 45 and 51.
At the outset, the Court notes that some of Plaintiff’s alleged “federal causes of
action” are not, in fact, causes of action. A cause of action is the legal theory on which
basis the Plaintiff asserts she is entitled to relief. Plaintiff’s tenth1 federal cause of
action, “injunctive relief,” is a form of relief, not a cause of action. Accordingly, the
Court will consider this request as part of Plaintiff’s prayer for relief, and not a standalone cause of action.
Plaintiff’s twelfth cause of action is “attorney fees.” Record Document 36, p. 40.
ERISA allows courts to award attorneys’ fees to either party. 29 U.S.C. § 1132(g)(1). As
with injunctive relief, attorneys’ fees are another form of relief a court may award. Once
again, the Court will consider this claim to be a part of Plaintiff’s prayer for relief rather
than its own cause of action.
Finally, Plaintiff’s fourteenth federal cause of action is styled “discovery sought
for complete administrative record.” Record Document 36, p. 41. Seeking discovery is

1

The Court will use Plaintiff’s numbering of her claims for clarity, although the
Court notes that this numbering appears to omit a “Third” cause of action, and instead
jumps from “Second” to “Fourth.”
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not a cause of action, but rather a mechanism for obtaining facts to prove a cause of
action. The Court will consider discovery requests at the appropriate time.
A. Standard of Review under Rule 12(b)(6)
A plaintiff’s complaint must “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. at 678. In determining
whether the plaintiff has stated a plausible claim, the court must construe the complaint
in the light most favorable to the plaintiff, see In re Great Lakes Dredge & Dock Co.
LLC, 624 F.3d 201, 210 (5th Cir. 2010), and accept as true all of the well-pleaded
factual allegations in the complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct. 1955, 1965 (2007); In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2009). However, "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
Thus, the Court does not have to accept as true "conclusory allegations, unwarranted
factual inferences, or legal conclusions." Plotkin v. IP Axess Inc., 407 F.3d 690, 696
(5th Cir. 2005).
B. Lincoln National
i. State Law Claims
The Court previously held that Plaintiff’s state law claims against Lincoln National
were preempted by ERISA and dismissed those claims with prejudice. Record Document

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35, p.9. Plaintiff cannot re-assert them.
One of Plaintiff’s purported “federal causes of action” is also, in reality, a
repetition of her state law claims. In her eleventh federal cause of action, “declaratory
judgment relief,” Plaintiff seeks a declaratory judgment that “the Louisiana life
insurance claims are not preempted by ERISA.” Record Document 36, p. 40. Plaintiff
essentially asks the Court to reconsider its previous finding. The Court declines to do so.
Plaintiff’s claim for declaratory judgment must be dismissed with prejudice.
ii. Denial of Benefits under ERISA
As this Court has previously noted, Plaintiff’s suit is fundamentally a claim for
benefits, although she does not set this out in a specific cause of action. Record
Document 35, p. 1. Throughout her amended complaint, Plaintiff alleges that Lincoln
National wrongfully denied a claim for benefits under its life insurance plan. Record
Document 36, p. 18 (“[P]laintiff is seeking...to redress violations of the policies and
denial of benefits owed [and] to enforce any provisions of the terms of the plans.”), p.
21 (“defendants unlawfully denied coverage. Plaintiff has been denied ERISA
benefits...”), p. 29 (“Plaintiff is entitled to benefits under the policies...”), p. 38 (“Lincoln
National unlawfully denied coverage...”), p. 39 (“Plaintiff seeks injunctive relief
prohibiting [United of Omaha] and Lincoln National from denying coverage under their
policies.”). Construing the complaint liberally, the Court reads Plaintiff’s complaint to
allege, under 29 U.S.C. § 1132(a)(1)(B), that Lincoln National wrongfully denied life
insurance plan benefits.

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ERISA provides a plan participant or beneficiary with a cause of action to recover
benefits allegedly due to her under the terms of the plan, to enforce her rights under
the plan, or to clarify her rights to future benefits under the terms of the plan. 29 U.S.C.
§ 1132(a)(1)(B). However, a plaintiff claiming benefits owed under an ERISA plan “must
first exhaust available administrative remedies under the plan before bringing suit to
recover benefits.” Bourgeois v. Pension Plan for Employees of Santa Fe Intern. Corps.,
215 F. 3d 475, 479 (5th Cir. 2000). When attempts to exhaust the administrative review
process would be futile, exhaustion is not required. Id. Plaintiff argues that
administrative exhaustion would be futile in this case because “Eldorado, the
administrator of both relevant life insurance plans, actively participated in the claims
process and advocated as the plan administrator on behalf of plaintiff for benefits.”
Record Document 36, p. 30. Essentially, this is an argument that if Eldorado could not
succeed in the claims process, no one could.
Plaintiff cites no authority that supports this definition of futility, relying only on a
single case in which the exhaustion doctrine was found to be inapplicable because there
was no cause of action relating to an ERISA plan. Chailland v. Brown & Root, 45 F.3d
947, 950-51 (5th Cir. 1995). The plaintiff in that case was fired by his employer and
brought suit alleging that he was fired to prevent him from obtaining increased pension
benefits, in violation of ERISA. Id. at 948. The pension plan itself took no action against
the Plaintiff, nor could it give him what he wanted – back pay and reinstatement. Id. at
949. The Fifth Circuit found that because “this lawsuit...does not involve any action of a

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plan covered by ERISA...[and] the [retirement plan] is not capable of providing the
remedy that [Plaintiff] seeks...we hold that our exhaustion doctrine is simply
inapplicable in this case.” Plaintiff’s reliance on Chailland is misplaced. Plaintiff’s claim
here does involve an action of a plan covered by ERISA – the denial of benefits by
Lincoln National -- and the plan is capable of giving Plaintiff what she seeks – life
insurance benefits. Chailland is simply inapplicable.
In a case considering the futility question at length, a plaintiff brought suit
against an ERISA plan but failed to first exhaust his administrative remedies. Bourgeois,
215 F.3d at 478-79. The plaintiff argued that exhaustion was futile because he
corresponded with the chairman of the board of his employer’s parent company, who,
after several letters back and forth, told him his claim would receive no additional
consideration, and he never submitted the claim to the plan’s review committee. Id. The
Fifth Circuit found that these facts did not excuse the exhaustion requirement because
the Plaintiff offered no evidence that it would have been futile to present his claims to
the committee. Id. at 480. In a similar case, the Fifth Circuit again found no futility in
administrative exhaustion, although the plaintiff argued that only insurance company
personnel would be involved in the review process, all but assuring she would not
succeed. Davis v. AIG Life Ins. Co., 85 F.3d 624 (5th Cir. 1996). “Exhaustion is to be
excused only in the most exceptional circumstances.” Id.
Plaintiff filed a claim with Lincoln National that was denied. Record Document 361, p. 4-6. Lincoln National informed Plaintiff of its appeals process at that time, but

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Plaintiff has offered no evidence that she pursued the appeal. Instead, Plaintiff
concludes that because the original claim was denied, the appeal would certainly have
been too. Whatever the probability of this outcome, this argument could be made for
any insurance company review process, and therefore cannot be the sort of exceptional
circumstances required by the Fifth Circuit to excuse the exhaustion requirement.
Plaintiff’s denial of benefits claim against Lincoln National must therefore be dismissed
without prejudice as premature.
iii. Violations of COBRA
Plaintiff alleges that defendants violated COBRA, although she does not give
details about how each defendant allegedly did so. Construing the complaint liberally,
Plaintiff appears to assert that defendant Lincoln National violated COBRA’s notification
requirement. Lincoln National does not specifically address COBRA’s application.
COBRA, the Consolidated Omnibus Budget Reconciliation Act, allows beneficiaries
of a group health plan to continue paying for insurance after a “qualifying event” occurs
that would otherwise terminate the coverage. Kidder v. H&B Marine Inc., 932 F.2d 347,
356 (5th Cir. 1991). COBRA imposes notification requirements at two different times:
when coverage begins, and when a qualifying event occurs. Id. When coverage begins,
all the individual parties to the group plan, including the insurer, must notify
beneficiaries of their rights to continue coverage should some qualifying event occur
down the line. Id. When a qualifying event occurs, the employer must notify the plan
administrator. 29 U.S.C. § 1166(a)(3). Qualifying events include the death of a covered

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employee, the termination or reduction of hours of the covered employee, and the
covered employee becoming entitled to Social Security benefits. 29 U.S.C. § 1163.
Lincoln National provided the required notification when coverage began. In the
policy it provided to Eldorado, there is a section titled “Continuation of Coverage” that
explains the circumstances under which insurance coverage may be continued, and the
requirements for doing so. Record Document 9-2, p. 26. This section goes on to say
that coverage cannot be continued “when Policy coverage terminates solely because:
(1) an Insured Person’s Employer ceases to be a Participating Employer; or (2) this
Policy terminates.” Id. Plaintiff does not assert that she never received this policy.
Lincoln National therefore satisfied its notification requirement under COBRA.
To the extent that Plaintiff is alleging that Lincoln National violated a notification
requirement because it did not send a “qualifying notice” before the policy’s termination
on December 31, 2013, or at the time of Mr. Swenson’s leave of absence, this is a
misunderstanding of the notification requirements. Record Document 36, p. 35. COBRA
requires the employer to notify the plan administrator of the occurrence of a qualifying
event. 29 U.S.C. § 1166(a)(3). Nowhere does COBRA require an insurer to notify a
beneficiary that the plan has been terminated because the employer ended participation
in the plan. Nor is the insurer required to notify the employee of a qualifying event; in
fact, this notification requirement flows in the opposite direction. Id. Moreover, Lincoln
National’s policy explicitly states that continuation coverage is not available when the
employer ends its participation in the plan or when the policy terminates. Lincoln

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National satisfied all notification requirements imposed by COBRA, and Plaintiff’s claim
must therefore be dismissed.
Plaintiff argues a related point in her claim for violation of her conversion and
other related rights because Mr. Swenson was not given the opportunity to convert his
group policy to an individual policy when the Lincoln National policy ended. Record
Document, p. 22-27. This is a claim Plaintiff previously asserted under state law. Record
Document 1-1, p. 6. As with Plaintiff’s other state law claims, a claim relating to the
right to convert from an ERISA plan is preempted by ERISA. The Magistrate Judge’s
well-reasoned Report and Recommendation analyzed a number of cases considering
whether conversion rights are preempted by ERISA. Record Document 30, p. 7-10.
After an independent review of those cases, the Court finds that Plaintiff’s claim for
conversion rights is a claim for rights under an ERISA plan, and is therefore preempted.
Wright v. Anthem Life Ins. Co., 2000 WL 870807, at *7 (N.D. Miss. June 14, 2000)
(“Claims arising from the right to convert to an individual policy are grounded in ERISA
and are to be decided by reference to the terms of the ERISA plan.”).
Plaintiff points to no provision of federal law in her attempt to restate this claim
as a federal claim. However, to the extent that this cause of action is intended to assert
a claim under federal law, it is governed by ERISA, and it too must be dismissed for
failure to exhaust administrative remedies before bringing this action.
iv. Equitable Relief
Plaintiff’s amended complaint also seeks various forms of equitable relief. ERISA

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permits a plaintiff to bring equitable claims under § 1132(a)(3), but only when she has
no available remedy at law. In Varity Corp. v. Howe, the Supreme Court concluded that
§ 1132(a)(3) is a “safety net, offering appropriate equitable relief for injuries caused by
violations that [§ 1132] does not elsewhere adequately remedy.” 516 U.S. 489, 512
(1996). As the First Circuit explained, federal courts interpreting this language “have
uniformly concluded that, if a plaintiff can pursue benefits under the plan pursuant to [§
1132(a)(1)], there is an adequate remedy under the plan which bars a further remedy
under [§ 1132(a)(3)].” LaRocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002).
The Fifth Circuit agrees. In Tolson, the court prohibited a plaintiff’s claims for
breach of fiduciary duty under ERISA because the plaintiff had adequate redress
through a claim for benefits. Tolson v. Avondale Indus., 141 F.3d 604, 610 (5th Cir.
1998) (“Because [plaintiff] has adequate relief available for the alleged improper denial
of benefits through his right to sue the Plans directly under section 1132(a)(1), relief
through the application of Section 1132(a)(3) would be inappropriate.”). In a similar
case, the plaintiff alleged wrongful denial of medical benefits under an ERISA plan, and
the Fifth Circuit held that the plaintiff could not also maintain a claim for breach of
fiduciary duty under ERISA. Hollingshead v. Aetna Health Inc., 589 Fed. App’x. 732, 737
(5th Cir. 2014) (“[T]he simple fact that [plaintiff] cannot prevail on his claim under
section 1132(a)(1) does not make his alternative claim under section 1132(a)(3)
viable.”); see Musmeci v. Schwegmann Giant Super Markets, Inc., 332 F.3d 339, 349 n.
5 (5th Cir. 2003) (“Because we have found a remedy is available at law under Section

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[1132](a)(1)(B), the Plaintiffs are foreclosed from equitable relief under Section
[1132](a)(3)].”).
Plaintiff brings equitable claims for detrimental reliance, promissory estoppel or
equitable estoppel, reformation, and unjust enrichment, as well as two claims of breach
of fiduciary duty. As discussed above in section B.ii, because Plaintiff’s claim is
fundamentally that she was wrongfully denied benefits, she has an adequate remedy
under § 1132(a)(1). Therefore, she is not permitted to bring alternative equitable
claims. Plaintiff’s equitable claims must be dismissed with prejudice.
Finally, Plaintiff argues that if Mr. Swenson “was not eligible for coverage under
the plan,” then he was not “a participant or beneficiary in an ERISA” plan, and Plaintiff’s
claims would not be governed by ERISA. Record Document 36, p. 10. This is both a
misunderstanding of the cases and a mischaracterization of Plaintiff’s own claims.
Plaintiff cites for support a Fourth Circuit case in which the court found that ERISA did
not preempt claims when a plaintiff was not a participant in an ERISA plan. Gardner v.
E.I. DuPont De Nemours and Co., Inc., 165 F.3d 18 (4th Cir. 1998). The plaintiff’s
employer offered employees who retired after more than 15 years at the company the
opportunity to continue their life insurance plan after retirement. Id. Employees who
retired with less than 15 years employment had no such option. Id. The plaintiff retired
after 9 years at the company, making him unquestionably ineligible to continue his life
insurance plan. Id. The court found that because he was clearly not a participant in the
plan, and had no colorable claim that he was a participant in the plan, ERISA did not

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preempt his state-law claims. Id.
This case is different for two reasons. First, as the Court has repeatedly noted,
the essence of Plaintiff’s complaint is that she was wrongfully denied life insurance
benefits by defendants. Plaintiff cannot both claim benefits are owed and also claim she
has no colorable claim to benefits. Second, the facts here are not so inarguable as in
Gardner. Mr. Swenson took a leave of absence from his employment at Eldorado, for, it
appears, just over a year, from January 1, 2013, to January 27, 2014. Record
Document 36, p.2-3. Plaintiff asserts that he remained on Eldorado’s payroll during this
time, and after his doctor cleared Mr. Swenson to return to work, an Eldorado human
resources employee wrote to Plaintiff that Mr. Swenson was “not terminated.” Record
Document 36, p. 4. The state of Mr. Swenson’s employment is unclear to the Court, but
it need not be resolved here. These facts are enough to establish that Plaintiff has a
colorable claim to benefits. Her claims are, therefore, governed by ERISA.
C. United of Omaha
United of Omaha asserts that Plaintiff’s state law claims should be dismissed
because they are preempted by ERISA. Record Document 51-1, p. 8. The Court has not
previously considered any of Plaintiff’s claims against United of Omaha, because no
copy of the United of Omaha policy or other evidence of the applicability of ERISA was
presented. Record Document 35, p.9.
ERISA establishes an exclusive federal regulatory regime over employee benefit
plans. When an employee benefit arrangement is an ERISA plan, ERISA preempts any

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state law claims that relate to the plan. Aetna Health, Inc. v. Davila, 542 U.S. 200, 208
(2004). The Fifth Circuit applies a three-factor test to determine whether an employee
benefit arrangement is an ERISA plan. Shearer v. Southwest Serv. Life Ins. Co., 516
F.3d 276, 279 (5th Cir. 2008). The employee benefit arrangement must be: “(1) a plan,
(2) not excluded from ERISA coverage by the safe-harbor provisions established by the
Department of Labor, and (3) established or maintained by the employer with the intent
to benefit employees.” Id.
The Supreme Court distinguishes between stand-alone benefits and full-fledged
plans; only the latter are governed by ERISA. Peace v. Am. Gen. Life Ins. Co., 462 F.3d
437, 440 (5th Cir. 2006). A plan exists under ERISA when the employer maintains an
ongoing administrative scheme to provide employee benefits. Id. The purchase of
insurance, by itself, “does not conclusively establish a plan.” Memorial Hosp. Sys. v.
Northbrook Life Ins. Co., 904 F.2d 236, 242 (5th Cir. 1990).
In Peace, the Fifth Circuit found that an employer had no ongoing administrative
scheme when its role was limited to choosing a funding mechanism, calculating the
required contributions to the annuity, shopping for the annuity, and ensuring the
eventual payment of benefits. Id. In Shearer, the Fifth Circuit found that there was no
ERISA plan in a case where the employer paid premiums on two policies for two
employees, but did not provide insurance for any other employees. Shearer, 516 F.3d at
280. Even in this case, the Court relied on a declaration presented by Lincoln National,
stating the facts of the policy and the details of the administrative tasks performed by

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Eldorado, in order to determine whether Lincoln National’s plan qualified as an ERISA
plan. Record Document 30, p. 5-6.
United of Omaha has, for a second time, submitted no facts in support of its
claim that the plan it issued to Eldorado is an ERISA plan. Despite stating that it “hereby
submits a copy of the policies issued by United of Omaha” to Eldorado, no such
submission is attached to its motion, or contained in any other of its filings to date.
Record Document 45-1, p. 4. Instead, United of Omaha argues only that “[t]his Court
had already determined that Plaintiff’s state law claims were preempted by ERISA and,
as such, the state law causes of action asserted in the Amended Complaint should again
be dismissed,” wholly failing to note that those claims were dismissed only as to Lincoln
National. Record Document 45-1, p. 4.
The only evidence relating to United of Omaha’s plan comes from Plaintiff, who
submitted the United of Omaha policy with her amended complaint. Record Documents
36-7, 36-8, and 36-9. However, the policy, standing alone, does not conclusively
establish the existence of an ERISA plan. The policy sets out various benefits,
procedures, and requirements, but it does not address the policy’s administration or
implementation by Eldorado. Plaintiff asserts that Eldorado was the United of Omaha
plan administrator (Record Document 36, p. 30), and neither defendant disagrees. No
further detail of this administration is provided. United of Omaha has not offered the
sort of facts which would allow the Court to determine whether United of Omaha,
through Eldorado, provided a plan within the meaning of ERISA, whether ERISA safe-

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harbor provisions apply, and whether Eldorado established or maintained the plan with
the intent to benefit its employees. Without these facts, the Court cannot determine
whether the United of Omaha plan is an ERISA plan. If ERISA does not apply, the Court
may lack jurisdiction over this case, as no other basis for jurisdiction has been asserted.
Given this lack of information, United of Omaha’s motion must be denied. United
of Omaha is granted leave to reurge its motion within 60 days of the date of this order
to state sufficient facts from which the Court may determine the applicability of ERISA
to its plan. Plaintiff may, of course, oppose any reurged motion. If no motion is timely
filed, Plaintiff’s state law claims must be remanded for lack of subject matter
jurisdiction.
D. Eldorado
Eldorado, like United of Omaha, argues that Plaintiff’s state law claims are
preempted by ERISA. Record Document 51-1, p. 13. Eldorado argues that when a
plaintiff brings suit “complaining of a denial of coverage,” and when the plaintiff “is
entitled to such coverage only because of the terms of an ERISA-regulated employee
benefit plan...then the suit falls within the scope of ERISA.” Id. at 12. This statement of
preemption doctrine assumes an important fact: that the employee benefit plan at issue
is in fact an ERISA plan. In many cases, the parties all agree that the employee benefit
plan is an ERISA plan, and so the court is not required to consider the issue. This was
the case, for example, in Cefalu v. B.F. Goodrich Co., 871 F.2d 1290 (5th Cir. 1989), on
which Eldorado relies. It was undisputed that the employee benefit plan at issue in that

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case was covered by ERISA, and the Court was therefore not required to determine
whether the plan was an ERISA plan. Id. at 1291 n.1.
Here, Plaintiff disputes that the United of Omaha plan is an ERISA plan. In order
to succeed on its preemption argument, Eldorado must first establish that the United of
Omaha plan is an ERISA plan. As discussed above, the Fifth Circuit uses a three-factor
test to determine whether an employee benefit arrangement is an ERISA plan. Shearer,
516 F.3d at 279. To that end, Eldorado’s motion to dismiss is denied, and Eldorado is
granted leave to reurge its motion to dismiss within 60 days of the date of this order to
state sufficient facts from which the Court may determine the applicability of ERISA to
the United of Omaha plan. Plaintiff may, of course, oppose any reurged motion. If no
motion is timely filed, the Plaintiff’s state law claims must be remanded for lack of
subject matter jurisdiction.
III. Conclusion
In light of the light of the analysis above, Lincoln National’s Motion To Dismiss
[Record Document 37] is GRANTED. Plaintiff’s claim for denial of benefits and her
claims for violation of COBRA against Lincoln National are DISMISSED WITHOUT
PREJUDICE, and her claims for equitable relief and breach of fiduciary duty against
Lincoln National are DISMISSED WITH PREJUDICE.
United of Omaha’s Motion To Dismiss [Record Document 45] and Eldorado’s
Motion To Dismiss [Record Document 51] are DENIED, with the right to reurge their
motions by within 60 days of the date of this order to assert the facts necessary for a

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determination of jurisdiction under ERISA. If no new motions to dismiss are filed by
within 60 days of the date of this order, the Clerk of Court is directed to remand this
case, for lack of subject matter jurisdiction, to the First Judicial District, Caddo Parish,
where it was pending as suit number 585387-B.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 19th day of October,
2016.

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