Walker v . Thibco 08-CV-39-JD 04/28/08
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kim Walker, et a l .
v. Civil N o . 08-cv-39-JD
Opinion N o . 2008 DNH 091
Thibco, Inc. and
Gerard L . Thibodeau
O R D E R
The plaintiffs brought suit in state court against their
current and former employer, Thibco, Inc., and Gerard L .
Thibodeau, principal owner and president of Thibco, alleging that
the defendants agreed to provide compensation in the form of
pension and annuity benefits under their employment contract but
failed to do s o . The defendants removed the case to this court,
asserting that it arises under the Employee Retirement Income
Security Act (“ERISA”). The plaintiffs move to remand.
The defendants removed the case to this court based on
federal question jurisdiction, asserting that the plaintiffs were
alleging a claim arising under federal law, ERISA.1 28 U.S.C. §
1
According to the writ of summons filed in state court,
Thibco, Inc. does business in Manchester, New Hampshire. The
writ does not include information about the state citizenship of
the other parties. Therefore, as presented, the record does not
support federal jurisdiction based on diversity of citizenship.
1331; 28 U.S.C. § 1441(a). The plaintiffs contend that because
neither of their claims arose under ERISA, subject matter
jurisdiction is lacking. An action removed from state court with
improper procedure or without subject matter jurisdiction must be
remanded.
28 U.S.C. § 1447(c).
Background
The plaintiffs, Kim Walker, Colin Pilcher, Adam Teal, and
Scott Long, allege that they are former and current employees of
Thibco, a construction business in Manchester, New Hampshire.
They allege that Thibco and its owner, Gerard Thibodeau, entered
an agreement with the plaintiffs “to include payments toward
annuity and pension fund benefits as part of Plaintiffs’ . . .
compensation for their employment.” Writ of Summons ¶¶ 5,6.
Thibco made payments to the Massachusetts State Carpenters
Pension Fund and Guaranteed Annuity Fund (“CBF”) on behalf of the
plaintiffs.
In April of 2007, the CBF notified the plaintiffs that they
were not eligible to participate in its annuity and pension
programs. CBF refunded to Thibco part of the money paid on
behalf of the plaintiffs and credited the remainder as payments
See 28 U.S.C. § 1332.
2
for other eligible employees. Thibco and Thibodeau refused to
pay the plaintiffs “any part of the pension and annuity
compensation that it agreed to pay on their behalf with the
exception of $23,000 paid to Plaintiff Walker, and $3,000 paid to
Plaintiff Pilcher.” Writ of Summons ¶ 1 1 .
Discussion
In their state writ of summons, the plaintiffs alleged that
the defendants’ failure to pay them compensation that should have
included annuity and pension benefits violated New Hampshire
Revised Statutes Annotated (“RSA”) § 275:43 and breached their
employment contracts. For purposes of removal, the defendants
contended that the plaintiffs’ claims were preempted by ERISA.
The plaintiffs move to remand the case to state court on the
ground that their claims are not preempted by ERISA, with the
result that subject matter jurisdiction is lacking in federal
court.
If ERISA completely preempts a cause of action pled in the
complaint, even if the claim is pled under state law, the claim
arises under federal law for purposes of subject matter
jurisdiction and removal. Aetna Health Inc. v . Davila, 542 U.S.
200, 207-08 (2004). ERISA preempts all state laws and state law
claims that “relate to any employee benefit plan.”
29 U.S.C. §
3
1144(a); Zipperer v . Raytheon Co., Inc.,
493 F.3d 5 0 , 53 (1st
Cir. 2007). A state law cause of action is “related to” an ERISA
plan, and therefore preempted, if it “provide[s] alternative
enforcement mechanisms to ERISA’s own enforcement scheme.”
Id.
ERISA provides a cause of action to ERISA plan participants and
beneficiaries for statutory relief or to recover benefits due
them under the terms of their plans.
29 U.S.C. § 1132(a)(1).
In this case, however, the plaintiffs did not qualify for
participation in the plan chosen by Thibco. As a result they are
neither plan participants nor beneficiaries. The plaintiffs are
not challenging the CBF’s eligibility decision, and they are not
seeking benefits under the CBF pension or annuity plans.
Instead, the plaintiffs allege that Thibco and Thibodeau
violated RSA 275:43 by failing to pay them wages, as promised,
which should have included the contributions made to the CBF.
They also allege that Thibco and Thibodeau breached their
employment contracts by failing to include payments for pension
and annuity benefits as part of their compensation. As damages,
the plaintiffs seek payment from the defendants of the amount of
the contributions made to the CBF on their behalf and liquidated
damages.
Because the plaintiffs are not ERISA plan beneficiaries or
participants and are not seeking benefits from an ERISA plan,
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their claims that the defendants violated RSA 275:43 and breached
their employment contracts are not invoking alternative
enforcement mechanisms under state law. Therefore, their claims
are not preempted by ERISA. In the absence of ERISA preemption,
subject matter jurisdiction is lacking in federal court.2
The plaintiffs ask that they be awarded their reasonable
attorneys’ fees and costs incurred as a result of removal.
Despite their request, the plaintiffs failed to show either that
the defendants lacked an objectively reasonable basis for removal
or unusual circumstances that would justify an award of fees
under 28 U.S.C. § 1447(c). See Martin v . Franklin Capital Corp.,
546 U.S. 1 3 2 , 141 (2005).
2
The party invoking federal jurisdiction bears the burden of
showing that it exists. Johansen v . United States, 506 F.3d 6 5 ,
68 (1st Cir. 2007). The defendants asserted only federal
question jurisdiction under § 1331 and have failed to show that
it exists in the circumstances of this case.
5
Conclusion
For the foregoing reasons, the plaintiffs’ motion to remand
(document n o . 10) is granted. The case is remanded to
Hillsborough County Superior Court, Northern District. The clerk
of court shall remand the state case and close the case that was
entered here upon notice of removal.
SO ORDERED.
V
—'Joseph
^Joseph A. DiClerico, Jr.
United States District Judge
April 2 8 , 2008
cc: David P. Eby, Esquire
H . Jonathan Meyer, Esquire
Vincent A . Wenners, Jr., Esquire
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