Walker v. Thibco

2008 DNH 091

• Court: District Court, D. New Hampshire
• Decided: April 28, 2008
• Docket: 08-CV-39-JD
• Status: Published

Opinion

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,

4 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