Woods v. Carter & Cooley

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-21102 Summary Calendar _____________________

CONNIE WOODS,

Plaintiff-Appellant,

versus

CARTER & COOLEY, A TEXAS CORPORATION; NEIL M. SACKHEIM; G. RANDLE PACE,

Defendants, and

REPUBLIC BANKERS LIFE INSURANCE COMPANY,

Defendant-Appellee.

________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-95-3245) ________________________________________________

June 20, 1996 Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.

PER CURIAM:*

Connie Woods contends that the district court erred in

granting summary judgment to Republic Bankers Life Insurance Co.

We VACATE and REMAND.

I.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Woods filed this action in state court in May 1995 against

Republic, her employer Carter & Cooley, and its managers Sackheim

and Pace for breach of contract, fraud, negligence, and violations

of the Texas Insurance Code and Texas Deceptive Trade Practices-

Consumer Protection Act. She alleged that, when she began work at

Carter & Cooley, it insisted she have a catastrophic major medical

coverage policy for which it would pay half of the premium and

deduct the other half from her pay; that, after she was diagnosed

with cancer and presented to the hospital, she was informed that

her insurance had been cancelled for non-payment; that she did not

receive notice that her policy had been cancelled; and that Carter

& Cooley continued to deduct for the premiums from her pay without

informing her that it had ceased payment.

In June, this action was removed by Carter & Cooley, Sackheim,

and Pace on the ground that Woods' claims are governed exclusively

by the Employee Income Security Act of 1975 (ERISA), 29 U.S.C. §

1001, et seq. That July, Woods moved to remand for lack of

jurisdiction on the basis, inter alia, that even if the policy

could be considered an ERISA plan, it terminated before her claims

arose, thus precluding ERISA preemption according to Callaway v.

G.S.P., Inc., 793 F.Supp. 133 (S.D. Tex. 1992). Shortly

thereafter, Republic filed (1) a notice of joinder in removal, to

which it attached 14 exhibits including the affidavit of Patt

Gersh, a vice president for Republic who had personal knowledge of

2 Woods' policy, (2) its answer, to which it attached a copy of the

benefits provisions of the policy, and (3) a Rule 12(b)(6) motion

to dismiss for failure to state an ERISA claim, which incorporated

evidence including the Gersh affidavit from Republic's removal

exhibits.

In late August, Republic responded to Woods' remand motion;

and, on September 13, Woods responded to Republic's motion to

dismiss, claiming, inter alia, that its reliance on the Gersh

affidavit converted the motion into one for summary judgment, which

would be premature because there had been insufficient time for

discovery. The record, however, does not reveal a Rule 56(f)

motion for a continuance. On September 15, the joint discovery/

case management plan was filed, in which it was agreed, inter alia,

that discovery would take one year.

The district court held a hearing on October 2, and the

handwritten minute entry reflects the following: this "case will

not be remanded" (no explanation was given as to whether the court

found ERISA preemption or would exercise supplemental jurisdiction,

and no order was entered denying Woods' motion to remand);

Republic's motion to dismiss was continued until October 5, by

which date Woods was to "submit a brief, succinct statement of why

notice of Woods' policy termination was required"; Woods,

Sackheim, and the bookkeeper were to be deposed before November 6,

1995; Republic was to "furnish everything it has about Woods'

3 policy from its inception to its death, including attempts at

resurrection"; Woods was to "furnish her W-2's and any documents

about the insurance policy & benefits"; and Carter & Cooley was to

"produce a list of its employees' names & addresses for the 6

months before & after the date Woods discovered she had no

insurance".

As ordered, Woods filed the statement and supplemental

evidence on October 5, which addressed her state law claim against

Republic regarding notice of cancellation; and on October 13,

Republic filed its response and supplemental evidence on that

issue. Then on October 23, Woods filed a reply to Republic and two

deposition notices. However, on October 24, the district court

entered a one-sentence summary judgment for Republic with no

explanation, dated October 18.

Woods voluntarily dismissed Carter & Cooley, Sackheim, and

Pace on November 27; and the district court dismissed the action.

(Republic wrongly asserts that we do not have jurisdiction over

this appeal, claiming it was included in the voluntary dismissal;

but Republic was not included, because its counsel did not sign the

stipulation. FED. R. CIV. P. 41 (a)(1)(ii).)

II.

We recognize that, under Rule 52(a), findings of fact and

conclusions of law are not necessary for decisions on Rule 56

motions, and that we conduct a de novo review of summary judgments.

4 However, we cannot discern from the record what exact issues were

before the district court, how part or all of them related to ERISA

preemption and Woods' state law claim against Republic, or whether

Woods was to have received additional time for discovery on some or

all of these issues. Accordingly, this case is remanded for such

additional discovery as may be necessary, and for the district

court to enter findings of fact and conclusions of law as to why it

has dismissed this action, including findings and conclusions

concerning its jurisdiction, vel non, under ERISA and concerning

the issues presented by Republic's motion to dismiss (summary

judgment motion).

III.

For the foregoing reasons, the judgment is VACATED, and this

case is REMANDED for further proceedings consistent with this

opinion.

VACATED and REMANDED