Chesterfield Spine Center, LLC & Orthopedic Surgery Center v. Cigna Healthplan of Kansas/Missouri Inc. et al

Filing 47

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants Motion to Dismiss Counts I-III of Plaintiffs Third Amended Complaint and Motion to Strike Jury Demand is GRANTED, in its entirety (Doc. 35 ); IT IS FURTHER ORDERED that Plaintiffs jury dem and is DENIED (Doc. 30 ); and IT IS FINALLY ORDERED that Plaintiff shall have 15 days from the date of this Memorandum and Order to file a fourth amended complaint. ( Response to Court due by 8/14/2015.) Signed by Magistrate Judge Noelle C. Collins on 7/30/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHESTERFIELD SPINE CENTER, LLC,)
d/b/a ST. LOUIS SPINE AND
)
ORTHOPEDIC SURGERY CENTER, )
)
Plaintiffs,
)
)
V.
)
)
CIGNA HEALTH AND LIFE
)
INSURANCE COMPANY and
)
CONNECTICUT GENERAL LIFE
)
INSURANCE COMPANY,
)
)
)
Defendants.
)

Case No. 4:14CV2047NCC

MEMORANDUM AND ORDER
Before the court is the Motion to Dismiss Counts I-III of Plaintiff’s Third
Amended Complaint and Motion to Strike Jury Demand filed by Defendants.
(Doc. 35). Plaintiff filed a Memorandum in Opposition (Doc. 43), and Defendants
filed a Reply to Plaintiff’s Response (Doc. 46). The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28
U.S.C. § 636(c). (Doc. 13).

I.
LEGAL STANDARD FOR A MOTION TO DISMISS
Federal Rule of Civil Procedure 8(a)(2) requires Aa short and plain statement
of the claim showing that the pleader is entitled to relief.@ Fed. R. Civ. P. 12(b)(6)
provides for a motion to dismiss based on the Afailure to state a claim upon which
relief can be granted.@ To survive a motion to dismiss a complaint must show
A>that the pleader is entitled to relief,= in order to >give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.=@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). See also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
AThreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice@ to defeat a motion to dismiss. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A[O]nly a
complaint that states a plausible claim for relief survives a motion to dismiss.@
Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). The pleading standard
of Rule 8 Adoes not require >detailed factual allegations,= but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.@ Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555).
“When ruling on a defendant’s motion to dismiss, a judge must accept as
true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 94 (2007). All reasonable references from the complaint must be
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drawn in favor of the nonmoving party. Schaaf v. Residential Funding Corp., 517
F.3d 544, 549 (8th Cir. 1999). Thus, the factual background to the pending Motion
To Dismiss must be drawn from the factual allegations in Plaintiff Chesterfield
Spine Center, LLC, d/b/a St. Louis Spine and Orthopedic Surgery Center’s Third
Amended Complaint, unless other matters are also incorporated by reference,
integral to its claims, subject to judicial notice, matters of public record, orders, or
in the record of the case. Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928,
931 n.3 (8th Cir. 2012) (citing 5B CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2007)).
II.
FACTUAL BACKGROUND
Plaintiff Chesterfield Spine Center, LLC, d/b/a St. Louis Spine and
Orthopedic Surgery Center initially filed its Petition For Damages in Missouri state
court to recover payment for a procedure performed on a patient. (Pl.’s Petition for
Damages, Doc. 1-1 at 2). Plaintiff attached several exhibits to its original Petition
For Damages, which included a copy of the patient’s medical plan and a Financial
Agreement between the patient and Plaintiff. (Doc. 1-1 at 15; Doc. 1-3 at 1-75).
The patient, who is identified as BH, was a participant in a healthcare plan
governed by the Employee Retirement and Income Security Act (ERISA), 29

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U.S.C. § 1001 et seq.1 Defendants provided health insurance coverage to BH, who
is not a party to this lawsuit. Prior to the procedure, Plaintiff sought and obtained
preauthorization from Defendants Cigna Health and Life Insurance Company and
Connecticut General Life Insurance Company (“Defendants”) to perform anterior
lumbar interbody fusions.

As is the custom and practice in the health care

industry, Plaintiff did not provide medical care to BH until after Defendants
confirmed insurance coverage, authorized the medical care, and verified that
Plaintiff would be paid for BH’s medical care in the amount of $204,128. Plaintiff
performed the procedure on December 10, 2012. Plaintiff thereafter submitted a
bill to Defendants for $204,128. Defendants made a payment of $52,463.69 to
Plaintiff and retained Viant Payment Systems, Inc., (VPS) to negotiate a discount
payment regarding the remaining balance of Plaintiff’s bill. VPS communicated
that Defendant would pay $82,796.57. Plaintiff refused to accept this payment as
satisfaction of Defendants’ promise to pay the “fair and reasonable charge for the
Medical care.” (Doc. 30, ¶¶ 8-25). As of the filing of the Third Amended
Complaint, the outstanding amount is $110,838.79.

Plaintiff alleges, in the Third Amended Complaint, that the Plan is a separate
document from the EISAI PLAN, which is sponsored and administered by EISAI
Corporation of North America and which is BH’s employee benefit plan that
included Defendants as health insurers of BH. (Doc. 30, ¶ 45). The EISAI PLAN
is not attached as an exhibit to the pleadings and is not before the court.

1

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Defendants removed the matter to federal court prior to Plaintiff’s filing the
Third Amended Complaint. In its removal pleadings, Defendants contended both
that ERISA preempted Plaintiff’s claims, which triggered an automatic removal
and that the requirements for diversity jurisdiction permitted removal. Plaintiff did
not oppose removal. Subsequently, Plaintiff filed a Third Amended Complaint
with no exhibits attached. The Third Amended Complaint does refer to the Plan
that was attached as an exhibit to the original state Petition For Damages, along
with a Provider Explanation of Medical Benefits Report. (Doc. 30, ¶¶ 45, 51). In
addition, the Third Amended Complaint alleges that Plaintiff has derivative
standing to bring Count IV (ERISA) pursuant to a financial agreement called the
“Assignment” between Plaintiff and BH regarding BH’s medical insurance claim
for Plaintiff’s performance of the December 10, 2012 procedure. (Doc. 30, ¶ 50).
Counts I through III of the Third Amended Complaint are brought pursuant to
Missouri law and allege negligent misrepresentation, equitable estoppel, and
promissory estoppel, respectively.

Count IV is brought pursuant to ERISA,

although Plaintiff argues that Count IV is pled in the alternative.
Defendants have now moved to dismiss Counts I, II and III on the same
grounds as they raised in the removal, arguing that Count IV (ERISA) preempts
Plaintiff’s state law claims, which are Counts I through III. In opposition to the
pending Motion, Plaintiff argues that Counts I through III are not preempted by

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ERISA because the state law claims asserted in those Counts I through III are
independent of the ERISA claim in Count IV, and because Plaintiff is not a Plan
participant or beneficiary under 29 U.S.C. § 1132. As set forth below, the court
agrees with Defendants that Counts I through III are preempted by ERISA. The
court will give Plaintiff an opportunity to amend it Third Amended Complaint and
plead any additional claims under ERISA.
III.
DISCUSSION
A. Federal Rule of Civil Procedure 12(b)(6) and 12(d)
As a threshold matter, the parties dispute whether Defendants can refer back
to exhibits filed with Plaintiff’s original Petition For Damages in support of their
Motion To Dismiss the Third Amended Complaint. Defendants have attached as
Exhibit A the Assignment between Plaintiff and BH to their Memorandum Of Law
In Support Of Defendants Motion to Dismiss Counts I-III Of Plaintiff’s Third
Amended Complaint and Strike Jury Demand. (Doc. 36). They also ask the court
to consider the Plan, in ruling on the instant Motion To Dismiss. Plaintiff counters
that the Third Amended Complaint is “complete on its face and doesn’t incorporate
the prior state law Petition or complaints,” and any “exhibits … cannot be used,”
by Defendants in support of their Motion to Dismiss. (Pl.’s Memo in Opposition,
Doc. 41 at 4). Plaintiff moves to strike any reference by Defendants to “matters
raised in the state court Petition or the prior complaints,” even though Count IV
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(ERISA) of the Third Amended Complaint refers back to the Plan that “can be
found at ECF No. 1-3, Pages 1-75, the State Petition for Damages.” (Doc. 30, ¶
45).
“If on a motion under Rule 12(b)(6) …, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in [Federal] Rule of [Civil
Procedure] 56.” Fed. Rule Civ. P. 12(d); Gorog v. Best Buy Co., Inc., 760 F.3d
787 (8th Cir. 2014) (citations omitted). A district court does not convert a motion
to dismiss into a motion for summary judgment when, for example, it does not rely
upon matters outside the pleadings in granting the motion. BJC Health Sys. v.
Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003).
In assessing “plausibility,” as required by Iqbal and Twombly, the Eighth
Circuit Court of Appeals has explained that courts “consider[] only materials that
are ‘necessarily embraced by the pleadings and exhibits attached to the
complaint,’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012)
(quotation omitted), and “ ‘materials that are part of the public record or do not
contradict the complaint.’” Miller, 688 F.3d at 931 n.3. “Though matters outside
the pleadings may not be considered in deciding a Rule 12 motion to dismiss,
documents necessarily embraced by the complaint are not matters outside the
pleadings.” Gorog, 760 F.3d 787 at 791 (8th Cir. 2014) (recognizing that contract

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documents attached to defendant’s motion to dismiss were necessarily embraced
by the pleadings and appropriately considered) (citations omitted).

“[T]he

contracts upon which [a] claim rests … are evidently embraced by the pleadings.”
Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). “In a case
involving a contract, the court may examine the contract documents in deciding a
motion to dismiss.” Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir.
2003). See also, Ruttenberg v. U.S. Life Ins. Co. in the City of New York, 413
F.3d 652 (7th Cir. 2005) (applying normal principals of contract interpretation to
an ERISA-related insurance policy). With these standards in mind, the court finds
that the Plan and Assignment are “necessarily embraced” by the Third Amended
Complaint. Gorog, 760 F.3d at 791. The parties have relied on these exhibits and
that they can be considered for ruling Defendants’ Motion To Dismiss.
B. ERISA preemption
Next, the parties dispute whether Plaintiff is a proper assignee of BH to
bring the claims of negligent misrepresentation and both promissory and equitable
estoppel under ERISA. Defendants contend that Plaintiff is a proper party. If so,
Defendants contend that Plaintiff’s state claims must be dismissed because they are
preempted by ERISA. Plaintiff, however, seeks to escape this characterization as
to Counts I through III, while embracing this status as to Count IV. Section
502(a)(1)(B) of ERISA provides that “a civil action may be brought by the

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participant or beneficiary to recover benefits due to him under the terms of his
plan, to enforce his rights under the plan, or to clarify his rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132. ERISA defines a beneficiary as
“a person designated by a participant, or by the terms of an employee benefit plan,
who is or may become entitled to a benefit thereunder.” 29 U.S.C. § 1002.
In addition, Defendants invoke both complete and express preemption as
separate grounds in support of their argument in the pending Motion to Dismiss.
The doctrines are distinct. Plaintiff argues that neither type of preemption applies.
The parties also dispute what ERISA-preemption test applies, if any. This court
will address the complete preemption argument first and will follow the Supreme
Court’s ERISA jurisprudence and the law of this Circuit.
1. ERISA’s civil enforcement provision
The Supreme Court explained in Aetna Health Inc. v. Davila, 542 U.S. 200,
208 (2004), that the purpose of ERISA is to provide a “uniform regulatory regime
over employee benefit plans” and to “protect . . . the interests of participants in
employee benefit plans and their beneficiaries.”

ERISA contains “expansive

preemption provisions,” that are intended to ensure that employee benefit plan2
regulation is “exclusively a federal concern.” Id.

ERISA, 29 U.S.C. § 1002(1) defines an Aemployee welfare benefit plan@ as: Aany
plan, fund, or program which . . . is [] established or maintained by an employer . .
. to the extent that such plan . . . was established or is maintained for the purpose of
2

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In Davila, the Supreme Court established a two-part test with respect to how
courts should resolve the pull of a plaintiff’s state law theories away from ERISA’s
preemptive force. The test is straightforward. “If an individual, at some point in
time, could have brought his claim under ERISA [], and “where there is no other
independent legal duty that is implicated by a defendant's actions, then the
individual’s cause of action is completely pre-empted by ERISA § 502(a)(1)(B)”
Davila, 542 U.S. at 210.
To the extent Plaintiff argues that Counts I through III are not preempted by
ERISA because Plaintiff did not and could not step into the shoes of BH, the Third
Amended Complaint claims that “Plaintiff has derivative standing to bring this
Count IV by virtue of Plaintiff’s status as a third party creditor beneficiary because
[BH] intended to confer the benefit of the performance of [BH’s] contract with
Defendants upon Plaintiff, thereby creating an obligation or duty on Defendants to
discharge the obligation and duty [BH] owed to Plaintiff.”

(Doc. 30, ¶ 50).

Plaintiff held itself out to receive direct payments from BH’s insurers and did
providing for its participants or their beneficiaries, through the purchase of
insurance@ certain benefits including those for medical, surgical, or hospital care in
the event of sickness. ATo qualify as a >plan, fund, or program= under ERISA, a
reasonable person must be able to >ascertain the intended benefits, a class of
beneficiaries, source of financing, and procedures for receiving benefits.=@ Nw.
Airlines, Inc. v. Fed. Ins. Co., 32 F.3d 349, 354 (8th Cir. 1994) (quoting Donovan
v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982); Harris v. Arkansas Book Co.,
794 F.2d 358, 360 (8th Cir. 1986)). Additionally, an employee welfare plan must
be established or maintained by an employer. 29 U.S.C. § 1002(3).
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receive partial payment for BH’s procedure. (Doc. 30, ¶ 21). Accepting these
allegations as true, this court finds that Plaintiff’s has the right to stand in the shoes
of BH as a designee or beneficiary under the Plan. Erickson, 551 U.S. at 94. See
also Lutheran Med. Ctr. Of Omaha, Neb. v. Contractors, Laborers, Teamsters and
Eng’rs Health and Welfare Plan, 25 F.3d 616, 619 (8th Cir. 1994) (holding as a
matter of first impression in this Circuit that health-care providers, who are
assignees of a plan participant, have standing to sue under ERISA) abrogated on
other grounds by Martin v. Ark. Blue Cross and Blue Shield, 299 F.3d 966 (8th
Cir. 2002). Thus, the court concludes that Plaintiff’s allegations can be construed
as an admission that the law of this Circuit supports the finding that Plaintiff is an
ERISA beneficiary. Lutheran Medical Center, 25 F.3d at 619. The Eighth Circuit
has reasoned that without such a finding, Plaintiff’s right to sue would revert back
to BH and cause needless delay and costs to the litigants and the matter would have
to be presented again in the future. Id. at 619-620.
To the extent Plaintiff additionally argues that it could not have brought
Counts I through III pursuant to ERISA, Plaintiff’s argument is belied by the
alleged same relevant operative facts applicable to Counts I through IV, and by the
fact that, as discussed above, the damages Plaintiff claims are those recoverable
under ERISA. Moreover, the Court explained in Davila, 542 U.S. at 208-209, that
“[t]he policy choices reflected in the inclusion of certain remedies and the

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exclusion of others under the federal scheme would be completely undermined if
ERISA-plan participants and beneficiaries were free to obtain remedies under state
law that Congress rejected in ERISA.” (quoting Pilot Life Ins. Co. v. Dedeaux,
481 U.S. 41, 54 (1987)). As emphasized by the Eighth Circuit, “[u]nder ERISA §
502, any suit by a plan participant to enforce benefits wrongfully denied that
participant would be completely preempted.” Prudential Ins. Co. of Am. v. Nat’l
Park Med. Ctr., 413 F.3d 897, 914 (8th Cir. 2005) (internal citations and quotation
marks omitted).
Finally, to the extent Plaintiff argues that, because Defendant Connecticut
General Life Insurance Company (Connecticut General) is not the plan
administrator, ERISA preemption does not apply, Plaintiff is mistaken.
Connecticut General’s being the claim administrator and insurer of the Plan, as
appointed by the Plan sponsor, does not change the outcome. The relevant issue
under the first part of Davila is whether there is a nexus between Plaintiff, the Plan,
and the issues raised in the Third Amended Complaint. The nexus is self-evident.
Plaintiff alleges in Count IV of the Third Amended Complaint, and Defendants
admit, that the employee benefit plan at issue is an ERISA plan as defined by 29
U.S.C. § 1002(1) and that BH was a beneficiary under the ERISA plan. (Doc. 30
at 9; Doc. 37 at 9-10). Thus, Plaintiff’s argument that there can be no preemption

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when it did not allege, in Counts I through III, that payment is due under an ERISA
plan is misplaced.
Plaintiff’s claims in Counts I through III are, in fact, based on Defendants’
failure to pay benefits under an ERISA plan. In Davila, 542 U.S. at 211, the
Supreme Court emphasized that to determine whether a cause of action falls
“within the scope” of ERISA preemption, a court must examine the complaint, the
statute upon which the claims are based, and the relevant plan documents. Where
“the only action complained of” is the failure of an ERISA plan administrator to
pay benefits under the ERISA plan, a cause of actions falls within the scope of
ERISA and is preempted. See id. (emphasis added). See also Ibson v. United
Healthcare Servs., Inc., 776 F.3d 941, 945 (8th Cir. 2014) (where plaintiff argued
that “state-law claims concern[ed] [insurer’s] improper cancellation,” court held
that plaintiff’s argument “ignore[d] the essence of her claim - that [the insurer]
should have paid medical benefits under the ERISA-regulated plan and failed to do
so - a claim that could be brought under ERISA”); Johnson v. U.S. Bancorp, 387
F.3d 939, 942 (8th Cir. 2004). In other words, the essence of Plaintiff’s claims is
premised on a failure to pay benefits, and BH might have brought the same claim
had he been billed directly. Further, in order for the court to determine whether
Plaintiff is entitled to recover pursuant to the state law theories of Counts I through
III, the court would have to interpret the Plan.

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The court finds that the allegations of Counts I through III, as set forth
above, demonstrate that the “essence” of Plaintiff’s state law claims is that
Defendants “should have [] paid medical benefits under an ERISA-regulated plan
and failed to do so,” see Ibson, 776 F.3d at 945, and that the allegations of Counts I
through III duplicate the allegations of Plaintiff’s ERISA claim in Count IV, see
Davila, 541 U.S. at 209. As such, the claims of Counts I through III could have
been brought under ERISA. Id. (noting that where the essence of the claims was
that benefits were not paid under an ERISA plan, the claims could have been
brought under ERISA; therefore the claims were completely preempted by
ERISA).
2. Independent legal duty
Under the second part of the Davila test, the court must determine whether
Defendants’ actions implicate a legal duty independent from any arising under
ERISA. Davila, 542 U.S. at 210. Defendants argue that Plaintiff’s claims arise
from the agreement to pay for services under the Plan and that no independent
legal duty is implicated. Plaintiff argues that the legal duty was that Defendants be
truthful in their dealings with Plaintiff; and it cites to several pre-Davila cases
including Shea v. Esensten, 208 F.3d 712 (8th Cir. 2000), for the proposition that
ERISA does not necessitate preemption of a negligent misrepresentation claim.
(Doc. 43 at 6). Shea is distinguishable from this case. In that case, the court

14

determined that the ERISA plan was peripheral to the ethical question of whether
financial incentives for physicians violated a state ethical duty. Shea, 208 F.3d at
718. Moreover, the Shea plaintiff’s state law claim that the defendant violated an
ethical duty could not have been brought under ERISA. See Davila, 542 U.S. at
209-211. By contrast, Defendants’ agreement to pay Plaintiff for BH’s procedure
is at the heart of this case. The state-law theories alleged in Counts I through III
are each based on facts encompassing the Plan, the Assignment, and the oral
representations made to Plaintiff regarding payment.
The Court is not persuaded that the actions complained of in this case give
rise to an independent legal duty. See Regency Hosp. Co of Northwest Ark., LLC
v. Arkansas Blue Cross Blue Shield, 2009 WL 5174246, at *6 (Dec. 21, 2009)
(noting that the Eighth Circuit has rejected the remedy of equitable estoppel to vary
or contradict the language of an ERISA plan) (citing Slice v. Sons of Norway, 34
F.3d 640 (8th Cir. 1994)); Grandcolas v. Healthy Alliance Life Ins. Co., 2009 WL
3698433, at *3 (E.D. Mo. Nov. 3, 2009) (holding that state claims including
negligent misrepresentation were preempted by ERISA and granting defendants’
motion to dismiss); Morris v. UNUM Provident Life Ins. Co., 2008 WL 4378431,
at *1 (E.D. Mo. Sept. 23, 2008) (holding the same). It follows that Plaintiff’s state
law claims are likewise preempted because: (1) Plaintiff could have only brought
its cause of action pursuant to ERISA, and (2) there is no other independent legal

15

duty that is implicated by Defendants’ actions. Davila, 542 U.S. at 210. Most
significantly, the state law claims of Counts I through III do not raise a legal duty
independent of ERISA; rather, the legal duties asserted in Counts I through III are
derived entirely from the “particular rights and obligations established by the
benefit plan” at issue. Id. at 213. See also Prudential, 413 F.3d at 914 (“[A] statelaw cause of action need not duplicate an ERISA provision to be preempted.
Rather, a state-law cause of action is preempted if it arises from a duty created by
ERISA or the terms of the relevant health benefit plan.”) (internal citations
omitted).
To the extent Plaintiff also argues that Defendants cannot assert the defense
of express preemption, the law of the Eighth Circuit states that a plaintiff=s state
law claims Arelate to@ an employee benefit plan, as provided in § 1144, if they have
a “connection with” or “reference to such a plan.” Estes v. Fed. Express Corp.,
417 F.3d 870, 871 (8th Cir. 2005). See generally, Prudential, 413 F.3d at 907-15
(defining the two types of ERISA preemption). An essential element of ERISA’s
comprehensive regulatory scheme for the regulation of employee benefit plans is
ERISA’s supersedure clause, 29 U.S.C. § 1144(a), which provides:
Except as provided in subsection (b) of this section, the provisions of this
subchapter and subchapter III of this chapter shall supersede any and all
State laws insofar as they may now or hereafter relate to any employee
benefit plan described in section 1003(a) of this title and not exempt under
section 1003(b) of this title.

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(emphasis added).
Consequently, “any state-law cause of action that duplicates, supplements,
or supplants the ERISA civil enforcement remedy conflicts with the clear
congressional intent to make the ERISA remedy exclusive and is therefore preempted” pursuant to ERISA. Davila, 542 U.S. at 209 (citations omitted). ERISA’s
regulatory mechanism “converts an ordinary state common law complaint into one
stating a federal claim” where the state claims conflict with ERISA’s supersedure
clause. Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987)).
Finally, to the extent Plaintiff argues that Defendants cannot rely on the
original Petition for Damages to support their argument that Counts I through III
should be dismissed, the court finds that Defendants appear to rely on the
allegations of the Third Amended Complaint and the court’s conclusions regarding
ERISA preemption are based on the allegations of the Third Amended Complaint.3
See Iqbal, 556 U.S. at 679; Twombly, 550 U.S. at 556.

Even if Plaintiff had not amended the Complaint to include Count IV, alleging a
violation of ERISA, complete preemption would apply in this matter. See Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 66-67 (1987) (finding state court action
which alleged only state claims was pre-empted by ERISA and was removable to
federal court; “[T]is suit, though it purports to raise only state law claims, is
necessarily federal in character by virtue of the clearly manifested intent of
Congress. It, therefore, “arise[s] under the . . . laws . . . of the United States,” 28
U.S.C. § 1331, and is removable to federal court by the defendants, 28 U.S.C. §
1441(b).”). See also Tovey v. Prudenial Ins. Co. of America, 42 F. Supp. 2d 919
(W.D. Mo. 1999) (removal was proper where state complaint did not explicitly
3

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The court finds, therefore, that the claims made in Counts I through III of
Plaintiff=s Third Amended Complaint are preempted by ERISA, see 29 U.S.C. §
1144; Davila, 542 U.S. 200; Prudential, 413 F.3d at 914; Estes, 417 F.3d at 871,
and that Counts I through III of Plaintiff=s Third Amended Complaint should be
dismissed, see Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556.
3. Dismissal
Plaintiff has asked for the opportunity to amend its Third Amended
Complaint if the court grants Defendants’ Motion To Dismiss.

Therefore,

consistent with this Memorandum and Order, the court will grant this request and
permit Plaintiff to file a fourth amended complaint.
IV.
MOTION TO STRIKE JURY DEMAND
Defendant asks the court to strike the jury demand in Plaintiff’s Third
Amended Complaint. Rule 39(2) of the Federal Rules of Civil Procedure provides
that when a jury trial is demanded, “[t]he trial must be on all issues so demanded
unless . . . the court, on motion or on its own, finds that on some or all of the issues
there is no federal right to a jury trial.” “A motion to strike a jury demand is
properly made under” Fed. R. Civ. P. 39.

Hellman v. Catalado, 2013 WL

4482889, at *2 (8th Cir. Aug. 20, 2013) (unreported).
present a federal question and claims fell within the scope of ERISA; complete
preemption applied).
18

It is well settled that a plaintiff seeking benefits under ERISA is not entitled
to a jury trial. See e.g., Ibson, 776 F.3d at 947 (district court properly struck
plaintiff’s jury demand on the basis that claims were preempted by ERISA); In re
Vorpahl, 695 F.2d 318 (8th Cir. 1982) (holding that no jury trial is required under
ERISA and striking plaintiff's jury demand); Langlie v. Onan Corp., 192 F.3d
1137, 1141 (8th Cir. 1999) ("there is no right to a jury trial under ERISA"). As the
court has found that Counts I through III of Plaintiff’s Third Amended Complaint
should be dismissed, the only remaining claim is Plaintiff’s ERISA claim in Count
IV, for which Plaintiff is not entitled to a jury trial. The court finds, therefore, that
Plaintiff is not entitled to a jury trial and that its demand for a jury trial should be
denied.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Counts IIII of Plaintiff’s Third Amended Complaint and Motion to Strike Jury Demand is
GRANTED, in its entirety (Doc. 35);
IT IS FURTHER ORDERED that Plaintiff’s jury demand is DENIED
(Doc. 30); and

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IT IS FINALLY ORDERED that Plaintiff shall have 15 days from the date
of this Memorandum and Order to file a fourth amended complaint.
Dated this 30th day of July 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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