IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KELLY BIRMELIN, Individually as ; No. 3:24cv1369 Administratrix and Heir of the Estate : of Michael Birmelin, : (Judge Munley) Plaintiff : Vv. : VERIZON PENSION PLAN : FOR ASSOCIATES, : Defendant :
MEMORANDUM ORDER Before the court is a motion to dismiss filed by Defendant Verizon Pension
Plan for Associates pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 4). Rather than address defendant's arguments in support of dismissal at this
time, a ruling on the motion to dismiss will be deferred due to issues involving the
state court judgment obtained before the removal of this action. By way of brief background, Plaintiff Kelly Birmelin’s husband, Michael Birmelin, was a former employee of Verizon. ' (Doc. 1-1, Compl., 4). He
passed away on July 15, 2023. (Id. 9/1). Plaintiff alleges that, as the surviving
spouse, she is entitled to survivor pension benefits under the Mid-Atlantic Plan o'
1 These background facts are derived from plaintiffs eleven-paragraph complaint, (Doc. 1-1), defendant's notice of removal and exhibits, (Doc. 1), and a document filed by plaintiff entitled “Additional Procedural History,” (Doc. 7). The court makes no determination, however, as to the ultimate veracity of these assertions.
the Verizon Pension Plan for Associates. (Id. 9] 4-5). Per plaintiff, defendant
advised her that she could only receive 65% survivor annuity benefits rather than
the full amount. (Id. 9] 5-9). Plaintiff believes that her husband’s accumulated
vacation and sick time should be factored into defendant’s calculations for
benefits. (Id. | 7). According to plaintiff, if such time was factored into
defendant's calculations, she would receive 100% of available benefits. (Id. {[f] 6-
7). Plaintiff seeks a recalculation of her husband's time of employment in Count |
of the complaint and a declaration that 100% of benefits should be paid under the
plan. (Id. 79). In Count Il, plaintiff alleges that defendant breached the
contractual requirements of the plan, entitling her to “past and future 100% benefits.” (Id. J 11). Plaintiff initiated this action in the Wayne County Court of Common Pleas
on April 1, 2024. (Doc. 1-1, Compl. ECF p. 4). According to plaintiff, she served defendant by certified mail, return receipt requested, and the complaint was accepted at defendant's address. (Doc. 7, Proc. History ECF p. 1). Plaintiff
asserts that, following defendant’s failure to respond to the complaint, she filed a
praecipe for entry of a default judgment on June 28, 2024, after which the state court entered a default judgment against the defendant. (Id.) Per plaintiff, she then served the default judgment on defendant by mail. (Id.)
In its notice of removal, Defendant presents a markedly different account
as to service. As asserted by defendant, neither Verizon nor Verizon Pension
Plan for Associates was ever served with the complaint or any other filings in the
state court action. (Doc. 1, Notice of Removal 6). A docket sheet attached to
the notice of removal indicates that defendant filed a petition to strike or open the
default judgment in state court on August 7, 2024. (Doc. 1-2, Ex. B, Docket Shee
ECF p. 2). In its state court petition, defendant contended that service of process
was invalid and facially defective. (Doc. 1-4, Defendant’s Petition J] 10, 15, 21). Defendant then removed this matter on August 14, 2024, prior to any ruling on
the state court petition regarding the default judgment. (Doc. 1, Notice of
Removal; Doc. 8, Def. Reply Br. 2). This unusual procedural posture raises several questions, the first of which
pertains to jurisdiction. Although not explicitly referenced in plaintiff's complaint, defendant asserts that this action seeks benefits under a pension plan governed by and subject to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq. (Doc. 1, Notice of Removal, ff] 1, 11). Defendant furthe
2 In its notice of removal, defendant attached copies of the Wayne County Court of Common Pleas’s docket sheet, (Doc. 1-2, Ex.B, Docket Sheet), plaintiffs praecipe for entry of default judgment, (Doc. 1-3 , Ex. C, Praecipe), and defendant's petition to strike or open default judgment. (Doc. 1-4, Ex. D, Defendant’s Petition). The court will consider these documents since “[a] defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States .. . a notice of removal... together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a).
contends that the claims asserted against it include claims arising under Section
502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). (Id.) Per defendant, subject matter jurisdiction is proper pursuant to the complete preemption doctrine
because plaintiff's cause of action is, in substance, one to recover benefits due
under an ERISA pension plan. (Id. J] 1, 12). Upon review of the plaintiff's complaint, the court concurs with defendant’s position.’ Hence, this action
“arise[s] under the ... laws ... of the United States,” 28 U.S.C. § 1331, and is
removable to federal court by the defendant, 28 U.S.C. § 1441.4
3 “Ordinarily, a defense of federal preemption does not provide a basis for removal because it does not appear on the face of the well-pleaded complaint.” Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 407 (3d Cir. 2021). Nonetheless, “[t]he complete-preemption doctrine provides that a federal question does appear on the face of the complaint when Congress ‘so completely pre-empt[s] a particular area that any civil complaint raising [the] select group of claims is necessarily federal in character.’” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987) (citation altered)). “In other words, a federal statute’s preemptive force can be so great that we treat a displaced state-law claim as if it were a federal claim.” Id. “ERISA’s civil enforcement mechanism, § 502(a), ‘is one of those provisions with such extraordinary pre-emptive power that it converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule,” and permits removal. New Jersey Carpenters & the Trs. Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 303 (3d Cir. 2014) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004)). Section 502(a)(1)(B) of ERISA “creates an exclusive federal cause of action for resolution of... disputes [related to recovery of benefits under a covered plan].” Maglioli, 16 F.4th at 408.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KELLY BIRMELIN, Individually as ; No. 3:24cv1369 Administratrix and Heir of the Estate : of Michael Birmelin, : (Judge Munley) Plaintiff : Vv. : VERIZON PENSION PLAN : FOR ASSOCIATES, : Defendant :
MEMORANDUM ORDER Before the court is a motion to dismiss filed by Defendant Verizon Pension
Plan for Associates pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 4). Rather than address defendant's arguments in support of dismissal at this
time, a ruling on the motion to dismiss will be deferred due to issues involving the
state court judgment obtained before the removal of this action. By way of brief background, Plaintiff Kelly Birmelin’s husband, Michael Birmelin, was a former employee of Verizon. ' (Doc. 1-1, Compl., 4). He
passed away on July 15, 2023. (Id. 9/1). Plaintiff alleges that, as the surviving
spouse, she is entitled to survivor pension benefits under the Mid-Atlantic Plan o'
1 These background facts are derived from plaintiffs eleven-paragraph complaint, (Doc. 1-1), defendant's notice of removal and exhibits, (Doc. 1), and a document filed by plaintiff entitled “Additional Procedural History,” (Doc. 7). The court makes no determination, however, as to the ultimate veracity of these assertions.
the Verizon Pension Plan for Associates. (Id. 9] 4-5). Per plaintiff, defendant
advised her that she could only receive 65% survivor annuity benefits rather than
the full amount. (Id. 9] 5-9). Plaintiff believes that her husband’s accumulated
vacation and sick time should be factored into defendant’s calculations for
benefits. (Id. | 7). According to plaintiff, if such time was factored into
defendant's calculations, she would receive 100% of available benefits. (Id. {[f] 6-
7). Plaintiff seeks a recalculation of her husband's time of employment in Count |
of the complaint and a declaration that 100% of benefits should be paid under the
plan. (Id. 79). In Count Il, plaintiff alleges that defendant breached the
contractual requirements of the plan, entitling her to “past and future 100% benefits.” (Id. J 11). Plaintiff initiated this action in the Wayne County Court of Common Pleas
on April 1, 2024. (Doc. 1-1, Compl. ECF p. 4). According to plaintiff, she served defendant by certified mail, return receipt requested, and the complaint was accepted at defendant's address. (Doc. 7, Proc. History ECF p. 1). Plaintiff
asserts that, following defendant’s failure to respond to the complaint, she filed a
praecipe for entry of a default judgment on June 28, 2024, after which the state court entered a default judgment against the defendant. (Id.) Per plaintiff, she then served the default judgment on defendant by mail. (Id.)
In its notice of removal, Defendant presents a markedly different account
as to service. As asserted by defendant, neither Verizon nor Verizon Pension
Plan for Associates was ever served with the complaint or any other filings in the
state court action. (Doc. 1, Notice of Removal 6). A docket sheet attached to
the notice of removal indicates that defendant filed a petition to strike or open the
default judgment in state court on August 7, 2024. (Doc. 1-2, Ex. B, Docket Shee
ECF p. 2). In its state court petition, defendant contended that service of process
was invalid and facially defective. (Doc. 1-4, Defendant’s Petition J] 10, 15, 21). Defendant then removed this matter on August 14, 2024, prior to any ruling on
the state court petition regarding the default judgment. (Doc. 1, Notice of
Removal; Doc. 8, Def. Reply Br. 2). This unusual procedural posture raises several questions, the first of which
pertains to jurisdiction. Although not explicitly referenced in plaintiff's complaint, defendant asserts that this action seeks benefits under a pension plan governed by and subject to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq. (Doc. 1, Notice of Removal, ff] 1, 11). Defendant furthe
2 In its notice of removal, defendant attached copies of the Wayne County Court of Common Pleas’s docket sheet, (Doc. 1-2, Ex.B, Docket Sheet), plaintiffs praecipe for entry of default judgment, (Doc. 1-3 , Ex. C, Praecipe), and defendant's petition to strike or open default judgment. (Doc. 1-4, Ex. D, Defendant’s Petition). The court will consider these documents since “[a] defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States .. . a notice of removal... together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a).
contends that the claims asserted against it include claims arising under Section
502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B). (Id.) Per defendant, subject matter jurisdiction is proper pursuant to the complete preemption doctrine
because plaintiff's cause of action is, in substance, one to recover benefits due
under an ERISA pension plan. (Id. J] 1, 12). Upon review of the plaintiff's complaint, the court concurs with defendant’s position.’ Hence, this action
“arise[s] under the ... laws ... of the United States,” 28 U.S.C. § 1331, and is
removable to federal court by the defendant, 28 U.S.C. § 1441.4
3 “Ordinarily, a defense of federal preemption does not provide a basis for removal because it does not appear on the face of the well-pleaded complaint.” Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 407 (3d Cir. 2021). Nonetheless, “[t]he complete-preemption doctrine provides that a federal question does appear on the face of the complaint when Congress ‘so completely pre-empt[s] a particular area that any civil complaint raising [the] select group of claims is necessarily federal in character.’” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987) (citation altered)). “In other words, a federal statute’s preemptive force can be so great that we treat a displaced state-law claim as if it were a federal claim.” Id. “ERISA’s civil enforcement mechanism, § 502(a), ‘is one of those provisions with such extraordinary pre-emptive power that it converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule,” and permits removal. New Jersey Carpenters & the Trs. Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 303 (3d Cir. 2014) (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 209 (2004)). Section 502(a)(1)(B) of ERISA “creates an exclusive federal cause of action for resolution of... disputes [related to recovery of benefits under a covered plan].” Maglioli, 16 F.4th at 408. Thus, “[t]he state claim, which fell under the scope of § 502(a)(1)(B) of ERISA, was thus ‘necessarily federal in character’ and removable to federal court.” Id. (quoting Metro. Life ins., 481 U.S. at 67). 4 Additionally, Defendant asserts that the court has diversity jurisdiction over this matter because the controversy exceeds $75,000 and is between citizens of different states. (Doc. 1, Notice of Removal 4 2). Plaintiff is a citizen of the Commonwealth of Pennsylvania. (Doc. 1-1, Compl. § 2). The estate of Michael Birmelin was filed in Wayne County, Pennsylvania. (Id. □□ 1 Nationwide is a Virginia business entity with its principal place of business in Norfolk, Virginia. (Id. 73). Because complete diversity of citizenship exists among the parties and the amount
Although jurisdiction is proper in this court, the instant case was removed with a state court judgment already in place. A second question thus arises as ta ithe proper method of challenging a default judgment in a case removed from
state to federal court. After careful consideration of the issues, the court cannot resolve the
pending motion to dismiss until it addresses the existence of the state court
default judgment. Defendant's state court petition to strike or open the default
judgment is not properly before the court. “The federal rules apply after removal and ‘neither add to nor abrogate what has been done in the state court prior to
removal.’ □ Butner v. Neustadter, 324 F.2d 783, 785 (Sth Cir. 1963) (citation omitted). Upon removal, “the federal court takes the case as it finds it" and
“treats everything that occurred in the state court as if it had taken place in
federal court.” Id. (first citing Duncan v. Gegan, 101 U.S. 810, 812 (1879); then citing Savell v. Southern Ry. Co., 93 F.2d 377, 379 (5th Cir. 1937)). Therefore, a default judgment entered in state court is treated as though it had been validly rendered in federal court. Id. That does not mean, however, that the default judgment must be vacated as a matter of law. Id. Rather, “a motion to set aside
a default may be made in the district court under Federal Rule of Civil Procedure
in controversy exceeds $75,000, the court has jurisdiction over this case. 28 U.S.C. § 1332(a)(1).
60(b)[.]’ Id.; see also Pennsylvania Nat. Bank & Tr. Co. v. Am. Home Assur. Co., 87 F.R.D. 152, 154 (E.D. Pa. 1980) (“The proper procedure respecting the
opening . . . of removed default judgment is to file a motion to set aside or oper the default judgment in federal court, [FED. R. Civ. P.] 60(b), which treats the
default judgment removed from state court ‘as though it had been validly rendered in the federal proceeding.’ ”); Zokaites Props., LP v. La Mesa Racing, LLC, 2012 WL 6015818, at “1 (W.D. Pa. Dec. 3, 2012) (Kelly, M.J.).° Defendant has not yet filed an appropriate motion under the Federal Rules
of Civil Procedure. In its reply brief regarding the motion to dismiss, defendant expressed its intent to supplement its state court petition to strike or open the default judgment by filing a motion pursuant to Federal Rules of Civil Procedure 55 and 60. (Doc. 8, Def. Reply Br. 3). Thus, in addition to deferring a ruling on the motion to dismiss, the court will provide a deadline for defendant to file the appropriate motion.
5 Similar to this case, Zokaites Props., LP raised questions concerning improper service in state court and the validity of a state court default judgment. 2012 WL 6015818, at *2. Consequently, the defendant filed a motion for relief from judgment by default pursuant to Federal Rule of Civil Procedure 60(b)(4). Id.
Accordingly, it is hereby ORDERED that: 1) The court will revisit defendant's motion to dismiss, (Doc. 4), upon disposition of a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b), if necessary; and 2) Defendant shall file the appropriate motion within twenty (20) days of the
date of this order. Oe Date: q [ a | JUDGE JULIA K. MUNTEY United States Dis cy