Holdren v. Dupont De Nemours E.I. & Company et al

Filing 10

REPORT AND RECOMMENDATIONS that 5 MOTION to Remand be granted & that this case be remanded to the Washington County Court of Common Pleas. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/8/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lisa E. Holdren,

:

Plaintiff,

:

v.

:

Case No. 2:12-cv-428

:

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Kevin S. Holdren,
Defendant.

:
REPORT AND RECOMMENDATION

This matter is before the Court to consider plaintiff Lisa
E. Holdren’s motion to remand.

The motion has been referred to

the Magistrate Judge for a Report and Recommendation.

For the

reasons that follow, the Court recommends that the motion be
granted.
I.

Background

On March 29, 2012, E.I. du Pont de Nemours and Company and
DuPont Pension and Retirement Plan filed a notice of removal in
this Court, pursuant to 28 U.S.C. §1441.

According to the

notice, DuPont and the Plan “have been called to defend against a
motion for indirect civil contempt” which Ms. Holdren filed in
Holdren v. Holdren, Case No. 10 DR 201, a divorce action pending
in the Washington County Court of Common Pleas.

The contempt

motion seeks to enforce a domestic relations order issued by the
common pleas court on November 2, 2010, directing that a portion
of Mr. Holdren’s interest in his DuPont retirement account be
paid to Ms. Holdren.
The Plan did not honor the order because it concluded that
the order did not meet the requirements for a Qualified Domestic
Relations Order.

It so notified Ms. Holdren by letter dated

November 29, 2010.

In addition to citing the various

deficiencies, the Plan stated that it was willing to review an
amended order.

The order was never amended, and Mr. Holdren died

on March 15, 2011.

On February 28, 2012, Ms. Holdren reopened

her divorce action and filed her motion for contempt.
In the removal petition, DuPont and the Plan contend that
Ms. Holdren’s contempt motion seeks to recover annuity payments
and relates to ERISA, 29 U.S.C. §§1000, et seq.

DuPont and the

Plan contend that the motion is the equivalent of a civil action
filed under 29 U.S.C. §1132(a)(1)(B) and they request to be
treated as “involuntary defendants.”

Cf. Fed.R.Civ.P. 19.

They

assert that because the motion to enforce raises a federal
question (i.e. the ERISA claim), the case is removable under 28
U.S.C. §1441(a).
II.

The Parties’ Positions

In her motion to remand, Ms. Holdren contends that the
removal of her divorce action was improper because federal courts
do not have jurisdiction over domestic relations matters.

As Ms.

Holdren explains, the motion she filed in state court merely
sought enforcement by the domestic relations court of its own
valid order.

Relying on Scales v. General Motors Corp. Pension

Adm’r, 275 F.Supp.2d 871, 875 (E.D. Mich. 2003), Ms. Holdren
argues that she is not pursuing a new and separate claim against
DuPont and the Plan but is only seeking relief supplemental or
ancillary to her state divorce action.

She does not view her

contempt motion as the equivalent of a civil action under ERISA.
As she puts it, “DuPont’s ‘claim’ [that the state court order is
not a QDRO] does not qualify as a civil action (29 U.S.C. §1132)
governed by ERISA.”
In response, DuPont and the Plan assert that Ms. Holdren’s
motion for indirect civil contempt is an ERISA action which
places them in the role of defendants as a result of their effort
to comply with ERISA.

They assert that the only issue raised by
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Ms. Holdren’s motion is whether the order at issue is a qualified
domestic relations order under ERISA, and that is a federal
question over which this Court has jurisdiction.

Further, they

argue that the domestic relations exception does not bar this
Court from exercising jurisdiction because neither they nor Ms.
Holdren are asking the Court to grant or modify a domestic
relations order.

They contend that Ms. Holdren’s reliance on the

Scales case is misplaced here because the cases are factually
distinguishable.

Rather, according to DuPont and the Plan, the

controlling case here is Rouse v. DaimlerChrysler Corp. UAW, 300
F.3d 711 (6th Cir. 2002), a case in which a Motion for a Rule to
Show Cause filed in a Michigan state court was removed on federal
question (i.e. ERISA) grounds, and over which the Court of
Appeals commented, in a footnote, that the district court’s
jurisdiction under 28 U.S.C. §1331 was “clear.”
715 n.1.

Rouse, supra, at

Additionally, DuPont and the Plan contend that, rather

than reopen her divorce case in which they are not defendants,
Ms. Holdren could have filed a separate action and named them as
defendants.

They assert that, in effect, they are first party

defendants.
In reply Ms. Holdren argues that Rouse is not dispositive
here because the question of removal jurisdiction was not at
issue in that case and the case is factually distinguishable.
She contends that all she seeks through her contempt motion is
for DuPont to explain why the QDRO was not followed, making this
case much more similar to Scales, a case in which, like this one,
a plan administrator removed a contempt motion filed in a state
domestic relations case, and which was remanded as having been
improperly removed.
III.

Analysis

The underlying state court action which defendants removed
is a domestic relations case.

Ordinarily, federal courts do not
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have jurisdiction over domestic relations matters involving
divorce, alimony, and child custody.
504 U.S. 689, 704 (1992).

Ankenbrandt v. Richards,

This is frequently referred to as the

“domestic relations exception.”

DuPont and the Plan argue that

the domestic relations exception does not apply in this case
because neither party is asking this Court to grant or modify a
domestic relations order.

Rather, as DuPont and the Plan see it,

Ms. Holdren is actually pursuing an action under ERISA’s civil
enforcement provision 29 U.S.C. §1132(a)(1)(B).

On the other

hand, Ms. Holdren contends that her contempt motion is only
supplemental or ancillary to her divorce case and not a new or
separate claim against DuPont and the Plan.

Before it can begin

to consider whether the domestic relations exception applies, the
Court must address Ms. Holdren’s contention that her contempt
motion is only supplemental or ancillary to her domestic
relations case and the fact that DuPont and the Plan are not
named as defendants in the underlying action.

These matters may

not impact the existence of subject matter jurisdiction, but they
do raise a question about whether the statutory requirements for
removal have been satisfied.
Generally, removal statutes are construed narrowly because
removal jurisdiction encroaches on a state court's jurisdiction.
Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534
(6th Cir. 1999); see also Long v. Bando Manufacturing Co. of
America, Inc., 201 F.3d 754, 757 (6th Cir. 2000) (noting that
“because they implicate federalism concerns, removal statutes are
to be narrowly construed”).

The general right to removal is set

forth in 28 U.S.C. § 1441(a), and provides as follows:
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States for the district and division embracing the
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place where such action is pending.
Based on the plain language of the statute, the starting point
for the Court’s analysis is whether the matter which defendants
removed is a “civil action.”

Typically, the Court looks to the

complaint to determine whether removal was proper.
does not have a complaint before it, however.

The Court

Rather, the

petition for removal involves a state court motion for indirect
civil contempt which, as the Court explains below, is not a
“civil action” as the phrase is used in §1441.
The Sixth Circuit Court of Appeals has interpreted the
phrase “civil action” to mean “a separate suit that is not
ancillary, incidental, or auxiliary to a suit in state court.”
Ohio v. Doe, 433 F.3d 502, 506 (6th Cir. 2006).

A contempt

proceeding has been found by at least one other district court
within this Circuit not to be a “civil action.”

See In re Estate

of Lewis, 2006 WL 3542653 (W.D. Mich. December 7, 2006).

In

reaching this conclusion, the Lewis court relied on Scales,
noting that a motion for a show cause order “is supplemental to
the underlying action and is not a civil action under §1441.” Id.
at *4.
At least one federal Court of Appeals has recognized that a
motion for contempt is not removable.

Asher v. A.G. Edwards &

Sons, Inc., 272 Fed.Appx. 357, 358 (5th Cir. 2008), citing
Juidice v. Vail, 430 U.S. 327, 338 (1977).

Further, in Dale v.

Family Guar. Life Ins. Co., 205 F.Supp.2d 620 (S.D. Miss. 2002),
the district court found that because, under Mississippi law, a
contempt proceeding initiated in an underlying action is not a
separate and independent action, remand was required.

The Dale

court distinguished the circumstances of that case from those
present in Levin v. Tiber Holding Co., 1999 WL 649002 (S.D.N.Y.
Aug. 25, 1999), where the court held that because, under New York

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law, contempt proceedings against a non-party must be brought in
a proceeding separate and independent from the underlying action,
federal subject matter jurisdiction could be properly asserted.
Dale, at 622; see also Credit Union One v. Tindall, 2008 WL
1805333 (E.D. Mich. April 11, 2008) (contempt proceedings deemed
not removable).
Under Ohio law, contempt proceedings are not considered to
be civil actions.

Liming v. Damos, 133 Ohio St.3d 509 (2012),

citing Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d
197, 201-202 (1973) (“[p]roceedings in contempt are sui generis
in the law.

They bear some resemblance to suits in equity, to

criminal proceedings and to ordinary civil actions, but they are
none of these”).

As explained by the Ohio Supreme Court in the

Cincinnati case, “[c]ontempt proceedings are means through which
the courts enforce their lawful orders.

The power to punish for

contempt is said to be inherent in the courts and to exist
independently from express constitutional provision or
legislative enactment.”

Id.

Of additional concern to the Court is the fact that DuPont
and the Plan are only the subject of Ms. Holdren’s motion for
contempt, and they are not, as they recognize, parties in the
underlying state case.

Consequently, it is not clear whether

DuPont and the Plan can be considered “defendants” within the
meaning of §1441.

As in Lewis, the event relied on by defendants

in their removal petition was the filing of a motion to hold a
non-party, who is not a federal officer, in contempt of court.
For purposes of removal, it is federal law and not state law that
determines who is a defendant.

Lewis at *3, citing Chicago, R.I.

& P.R. Co. v. Stude, 346 U.S. 574, 580 (1954).

Courts have held

that the terms “defendant” and “defendants,” as used in §1441(a),
should be given their normal meaning.

Rojano v. American Ins.

Co., 2001 WL 1579492 (S.D. Ohio September 4, 2001).
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The

definition does not include, for example, a third-party defendant
even if a claim over which a federal court would have original
jurisdiction had been asserted in the third-party complaint.

Id.

Were this Court to interpret the term “defendant” to include nonparties like DuPont and the Plan, the Court would be construing
§1441(a) broadly, rather than narrowly, and in contravention of
the principles cited above.

Brierly, supra.

It may be that, as DuPont and the Plan contend, Ms. Holdren
could have filed a separate action to determine the order’s
status as a QDRO and named them as defendants.

Such a suit might

well be deemed an action under §1132(a)(1)(B), making it a civil
action which could properly be removed by a named defendant.
Lewis, at *5.

That is not what happened here, however.

See

Instead

DuPont and the Plan, who are not named parties in the underlying
domestic relations action, have removed a motion filed in that
action to federal court.

This they may not do.

The Court finds the reasoning in Scales particularly
applicable to the circumstances here.

In that case, the court

viewed the pension administrator’s attempt to recast the matter
as a case under §1132(a)(1)(B) misplaced because the real issue
was whether the former wife had obtained a QDRO in her divorce
proceeding.

The administrator, as the Plan and DuPont here, had

declined to pay benefits because it did not believe the orders at
issue were QDROs.

As explained by the court in Scales:

Adopting the GM Pension Administrator's position
would create the situation that whenever an individual
seeks enforcement of a QDRO in a divorce action, the
case becomes removable. This would result in the
federal courts becoming involved in numerous divorce
actions, which surely cannot be what Congress intended.
Indeed, finding the case not removable does not run
afoul of ERISA's stated purpose of providing for
uniform national interpretation and administration of
pension plans. See 29 U.S.C. § 1001. See also Fort
Halifax Packing Co. v. Coyne, 482 U.S. 1, 9–11, 107
S.Ct. 2211, 96 L.Ed.2d 1 (1987) (emphasizing that ERISA
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plans should not be subjected to a patchwork of
obligations imposed by differing state laws). State
courts adjudicating whether a particular domestic
relations order is qualified will still have to apply
the statutory criteria set forth in 29 U.S.C. § 1056
and therefore will not be subjecting ERISA plans to the
vagaries of state law.
Scales, 275 F.Supp.2d at 877.
Finally, the Court does not find the Rouse case controlling
here.

As both the Lewis and Scales cases noted, Rouse did not

address issues of removal under §1441; the real issue on appeal
was whether the trial court’s decision to abstain under Burford
v. Sun Oil Co., 315 U.S. 315 (1943) was appropriate.

And it is

certainly the case that there are state court proceedings which,
while they raise issues over which a federal court would have
subject matter jurisdiction, cannot be removed because the
removal statutes do not provide for it.

That is why “[a] defect

in removal procedure authorizes remand,” Matter of Amoco
Petroleum Additives, 964 F.2d 706, 713 (7th Cir. 1992), even if
subject matter jurisdiction is present.
For all of these reasons, and keeping in mind that “[a]ll
doubts as to the propriety of removal are resolved in favor of
remand,” Jacada (Europe), Ltd. v. International Marketing
Strategies, Inc., 401 F.3d 701, 704 (6th Cir. 2005), quoting
Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999),
based on the issues before it, the Court recommends that this
case be remanded to the Washington County Court of Common Pleas.
IV.

Recommended Disposition

For the reasons set forth above, the Court recommends that
the motion to remand (Doc. 5) be granted and that this case be
remanded to the Washington County Court of Common Pleas.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that

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party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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