Erickson et al v. AmeriCold Logistics, LLC et al
ORDER denying #7 Motion to Remand to State Court(Written Opinion) Signed by Senior Judge David S. Doty on 8/31/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-1176(DSD/DTS)
R. Thomas Erickson, Richard L.
Fredrick, Troy D. Gustafson, and
William C. Wedebrand, as Union
Trustees of the Minneapolis Food
Distributing Industry Pension Plan,
Jon Born, Tracy McDonald,
Sabin Peterson and William
Seehafer, as Employer Trustees
of the Trust,
Thomas C. Atmore, Esq. and Leonard, O’Brien, Spencer, Gale &
Sayre, Ltd, 100 South 5th Street, Suite 2500, Minneapolis, MN
55402, counsel for plaintiffs.
Michael G. Congin, Esq. and Littler Mendelson, 80 South 8th
Street, Suite 1300, IDS Center, Minneapolis, MN 55402, counsel
This matter is before the court upon the motion for remand by
Gustafson, and William C. Wedebrand, as Union Trustees of the
Minneapolis Food Distributing Industry Pension Plan Trust (Union
Based on a review of the file, record, and proceedings
herein, and for the following reasons, the court denies the motion.
Plaintiffs captioned the petition In the matter of the
Minneapolis Food Distributing Industry Pension Plan, a Trust
created under Amended and Restated Trust Agreement effective
January 1, 1975, as further amended. On removal, defendants recaptioned the case as set forth above.
This dispute arises out of a trust agreement governing the
pension plan for the Minneapolis Food Distributing Industry (Trust
The Trust Agreement, created in 1969 and amended
several times since, was established to provide pension benefits
Pet. Ex. 1, at 1; id. ¶¶ 1-2.
Under its terms, four
participants (Employer Trustees) and four trustees are appointed to
represent the unions participating in the pension plan (Union
Pet. ¶ 4; id. Ex. 1 § 4.8.
Employer Trustees are
Id. Ex. 1
selected by “Employers of a majority of Participants.”
§ 4.8; id. Ex. 1, Amendment Nos. 2, 3.
“Participants” are defined
as “[a]ny Employee or former Employee who is eligible for benefits”
under the Trust Agreement.
Id. § 1.4.
By amendment in February
2015, the Union Trustees are selected by “Teamsters Local 120
pursuant to its internal appointment procedures.”
Amendment No. 3.
Id. Ex. 1,
The trustees “have authority to control and
manage the operation and administration” of the underlying pension
Id. Ex. 1 § 1.8.
Further, the Trustees are
fiduciaries of the Trust and shall have the power to
control the Trust and to perform all such acts, to take
all such proceedings, and to exercise all such rights and
privileges ... as the Trustee may deem necessary or
advisable to administer the Trust or to carry out the
purposes of [the Trust] Agreement.
construction [of the Trust Agreement] not otherwise preempted by
federal law shall be determined in accordance with the laws of the
State of Minnesota.
Pet. ¶ 1; id. Ex. 1 § 12.12.
SuperValu Inc. “removed” the Employer Trustees not employed by
SuperValu and replaced them with SuperValu employees.
Pet. ¶ 20.
SuperValu claimed that it had a right to do so because it employs
a majority of the Participants in the pension plan.
On March 15, 2017, the Union Trustees filed a petition in
Hennepin County District Court seeking judicial interpretation and
construction of the Trust Agreement under Minn. Stat. Chapter 501C.
Specifically, the Union Trustees allege that SuperValu appointed
the “purported” Employer Trustees without following the methodology
required by the Trust Agreement. Pet. ¶¶ 19-20. They seek a
declaration that the “purported Employer Trustees were not and are
[Agreement]” and an order directing (1) removal of the Employer
Trustees and (2) the appointment of Employer Trustees using the
Id. at 7 ¶¶ 3-4.
On April 14, 2017, defendants and Employer Trustees Jon Born,
Tracy McDonald, Sabin Peterson, and William Seehafer timely removed
the petition to this court.
The Employer Trustees argue the Union
Trustees’ claims, although pleaded under Minnesota law,
exclusively under the Employee Retirement Income Security Act of
1974 (ERISA) and are therefore preempted.
The Union Trustees now
move to remand.
A defendant may remove any case, pursuant to 28 U.S.C. § 1441,
that invokes the court’s original jurisdiction to hear all cases
that arise under the Constitution or laws of the United States. 28
U.S.C. § 1331.
Under the well-pleaded complaint rule, a complaint
that does not contain a federal cause of action cannot be removed
to federal court in anticipation of a federal defense. Metro. Life
Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Lyons v. Philip Morris
Inc., 225 F.3d 909, 912 (8th Cir. 2000). However, if Congress
complaint rule does not apply and “any claim purportedly based on
that pre-empted state law is considered, from its inception, a
Lyons, 225 F.3d at 912 (quoting Caterpillar, Inc.
v. Williams, 482 U.S. 386, 393 (1987)).
The Union Trustees’ complaint does not expressly plead a
According to the removal papers, however, the
complaint sets forth a standard claim under ERISA § 502(a)(3), 29
U.S.C. § 1132(a)(3).
ECF No. 1 ¶ 9.
Thus, the court must consider
whether the allegations in substance raise an ERISA claim.
Hull v. Fallon, 188 F.3d 939, 943 n.5 (8th Cir. 1999) (holding that
the “district court properly looked beyond the four corners of
Hull’s pleadings and considered the defendants’ notice of removal
to determine whether Hull, by artful pleading, sought to deny the
defendants’ right to a federal forum.”).
Trustees here, to file an action to “enjoin any act or practice
which violates any provision of this title” and to seek redress for
There is no dispute that the pension plan is an
“employee welfare benefit plan” under ERISA and that the Trust
Agreement is governed by ERISA’s fiduciary provisions.
U.S.C. §§ 1002(1), 1103. Rather, the parties’ disagreement centers
on whether the conduct at issue constitutes a fiduciary or settlor
When “employers adopt, modify, or terminate plans that provide
analogous to the settlors of a trust.’”
Schultz v. Windstream
Commc’ns, Inc., 600 F.3d 948, 951 (8th Cir. 2010) (quoting Lockheed
Corp. v. Spink, 517 U.S. 882, 890 (1996)); see also Hunter v.
Caliber Sys., Inc., 220 F.3d 702, 718 (6th Cir. 2000) (“[E]mployers
who are also plan sponsors wear two hats: one as a fiduciary in
administering or managing the plan for the benefit of participants
and the other as employer in performing settlor functions such as
establishing, funding, amending, and terminating the trust.”). If,
as the Union Trustees argue, the removal and appointment of
trustees is a purely settlor function, ERISA is not implicated and
remand may be appropriate.
This is not the case here, however,
because the petition centers on fiduciary obligations set forth in
the Trust Agreement.
The management of trustees does not involve one of the
enumerated settlor functions - adopting, modifying, or terminating
the pension plan.
Shultz, 600 F.3d at 951.
The dispute instead
involves the removal and appointment of plan fiduciaries.
e.g., Pet. ¶¶ 11, 21, 22.
It is well settled in this district that
“[a] person with discretionary authority to appoint, maintain and
remove plan fiduciaries is himself deemed a fiduciary with respect
to the exercise of that authority.” In re Xcel Energy, Inc., Sec.,
Derivative & “ERISA'” Litig., 312 F. Supp. 2d 1165, 1176 (D. Minn.
2004); see also Hickman v. Tosco Corp., 840 F.2d 564, 566 (8th Cir.
1988) (“Tosco is a fiduciary within the meaning of ERISA, and thus
subject to the fiduciary standard of care, because it appoints and
administers the pension plan.”).
Here, no one appears to dispute
that SuperValu has the authority to remove and appoint Employer
Trustees; the issue is whether it acted consistent with the Trust
Agreement in doing so and, thus, met its fiduciary obligations.
Under these circumstances, the court is satisfied that this matter
is preempted by ERISA and that remand is inappropriate.
The Union Trustees also argue that removal was improper
because not all interested parties joined in or consented to the
Although there are third parties that may be interested
in this matter, there are no actual parties who have not consented
to the removal.
Indeed, the non-parties identified by the Union
Trustees, e.g., Employers including SuperValu, were served with the
petition and related documents in March 2017, but have apparently
chosen not to involve themselves in these proceedings.
Aff. Ex. C.
The court will not find removal improper based on
absent non-parties’ failure to consent to such removal.
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion to remand [ECF No. 7] is denied.
Dated: August 31, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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