Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-1996

Mints v. Ed Testing Ser
Precedential or Non-Precedential:

Docket 96-5067




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"Mints v. Ed Testing Ser" (1996). 1996 Decisions. Paper 27.
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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                            No. 96-5067


                          JEFFREY A. MINTS

                                v.

                   EDUCATIONAL TESTING SERVICE,

                                          Appellant


         On Appeal from the United States District Court
                  for the District of New Jersey
                     (D.C. Civ. No. 95-03446)


            Submitted under Third Circuit LAR 34.1(a)
                         October 10, 1996

         BEFORE:   MANSMANN and GREENBERG, Circuit Judges,
                    and HILLMAN, District Judge*

                    (Filed: November 14, 1996)


                                William S. Greenberg
                                B. John Pendleton, Jr.
                                Mary Ann Mullaney
                                McCarter & English
                                100 Mulberry Street
                                Four Gateway Center
                                Newark, NJ 07101-0652

                                          Attorneys for Appellant


                                Jeffrey A. Mints
                                60 Montague Avenue
                                Ewing, NJ 08628

                                          Appellee pro se




*Honorable Douglas W. Hillman, Senior Judge of the United States
 District Court for the Western District of Michigan, sitting by
 designation.
                       OPINION OF THE COURT

GREENBERG, Circuit Judge.
          Educational Testing Service ("ETS") appeals from an
order entered January 5, 1996, awarding appellee Jeffrey A. Mints
$8,436.78 in attorney's fees and costs pursuant to 28 U.S.C. §
1447(c) ("section 1447(c)"). Mints initiated this action in the
Superior Court of New Jersey, but ETS removed the case to the

district court under 28 U.S.C. § 1441(b). ETS asserted that the
district court had removal jurisdiction because, in its view, the
case arose under the laws of the United States, in particular the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. § 1001, et seq. Mints subsequently moved in the district
court to remand the case to the Superior Court. The district
court granted the motion and then denied ETS's motion for
reconsideration. Thereafter, Mints made a motion for attorney's
fees and costs which the district court granted. ETS then
appealed the order awarding the fees and costs. This appeal
raises procedural questions as to the time when a court may enter
an order requiring payment of attorney's fees and costs when it
remands a case to a state court, as well as substantive questions
regarding the standard governing the consideration of
applications for such fees and costs.




                I. FACTUAL AND PROCEDURAL HISTORY
          Mints's complaint in the Superior Court included six
counts which we describe in detail. In the first count, he
alleged that ETS terminated his employment on May 17, 1993, "by
reason of his age" and thus violated the New Jersey Law Against
Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. (West
1993). He also alleged that the discrimination continued when
ETS subsequently refused to rehire him. He claimed that when ETS
notified him that his employment was terminated, he was "within
two years of vesting his eligibility for early retirement,
including, but not limited to, pension, medical and other
benefits." He asserted that he suffered pain, emotional
distress, and humiliation as a result of ETS's practices and that
he "has suffered and continues to suffer substantial losses in
earnings, job experience, retirement benefits, medical benefits
and other employee benefits that he would have received" but for
his termination or otherwise would receive in the future. Mints
sought reinstatement, compensatory and punitive damages, and
attorney's fees pursuant to N.J. Stat. Ann. § 10:5-27.1 (West
1993). Significantly, the count did not indicate that ETS's
actions violated the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq., nor did it allege that ETS's actions
violated ERISA, or even that ETS discharged him so that he would
not obtain rights vested under ERISA.
          In the second count, Mints claimed that ETS discharged
him by reason of his sex and that its actions constituted
unlawful sex discrimination under the New Jersey Law Against
Discrimination. He alleged that he suffered the same losses from
sex discrimination as he suffered from age discrimination.
Significantly, Mints did not allege that ETS's action violated
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., or
ERISA, or that it discharged him so that he would not
obtain rights vested under ERISA. In the third count, Mints
charged that ETS terminated his employment because he suffered a
disability. He brought this count under the New Jersey Law
Against Discrimination and stated that he suffered the same
losses as he suffered from the age discrimination. Once again,
Mints did not bring his action under the federal statute
paralleling the state discrimination claim, the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq., or under ERISA, and
he did not assert that ETS discharged him so that he would not
obtain rights vested under ERISA.
          In Mints's fourth, fifth, and sixth counts he asserted
common law claims for breach of contract, wrongful discharge, and
defamation. Mints alleged in the breach of contract and wrongful
discharge counts that he suffered the same losses as he set forth
in the three discrimination counts, but in the defamation count
he set forth only general losses and did not assert that he
suffered the employment related losses he claimed in the other
counts. Mints did not allege that he had a right to recovery
under ERISA or any other federal law in any of these three
counts.
          Mints's omission of federal statutory causes of action
under the ADEA, Title VII, and the ADA clearly was intentional,
for at the time he filed his Superior Court action he also filed
an action in the district court which tracks his state case but
adds these three federal statutes as bases for relief. Thus, he
made a strategic decision to file parallel actions in the federal
and state courts, but to limit his state action to claims founded
under state law.
          On July 13, 1995, ETS filed a timely notice of removal
of the Superior Court action to the district court. In the
notice, ETS quoted the portion of the Superior Court complaint in
which Mints alleged that ETS discharged him "within two years of
vesting his eligibility for early retirement, including, but not
limited to, pension, medical and other benefits." In addition,
ETS set forth in the notice of removal that Mints was seeking
benefits pursuant to a group employee welfare benefit plan. In
view of these allegations, ETS asserted that the district court
had jurisdiction under 28 U.S.C. § 1331 and ERISA, and it cited
Ingersoll-Rand Co. v. McClendon, 

, 

(1990), and Metropolitan Life Ins. Co. v. Taylor, 

,

(1987), in support of its position.
          Mints then moved in the district court to remand the
case to the Superior Court. On September 19, 1995, the district
court granted the motion to remand in an order and accompanying
opinion. In its opinion, the district court pointed out that
under 28 U.S.C. § 1441 a defendant could remove an action started
in a state court to a federal district court if the action is
founded under federal law. The court noted that ordinarily a
district court has removal jurisdiction only if the federal cause
of action appears on the face of the plaintiff's well-pleaded
complaint. See Franchise Tax Board v. Construction Laborers
Vacation Trust, 

, 9-12, 

, 2846-47 (1983).
Thus, the plaintiff is the master of the complaint and "may, by
eschewing claims based on federal law, choose to have the cause
heard in state court." Caterpillar Inc. v. Williams, 

, 399, 

, 2433 (1987).
          The district court indicated, however, that in
Metropolitan Life Ins. Co. v. Taylor, which ETS cited in its
notice of removal, the Supreme Court recognized that "Congress
may so completely pre-empt a particular area that any civil
complaint raising this select group of claims is necessarily
federal in 

, 107 S.Ct. at 1546.
The district court then indicated that ERISA would preempt an
action completely only if the defendant established "that the
underlying state action involves the recovery of benefits due
under the terms of a plan, the enforcement of rights under a plan
or the clarification of the right to future benefits under the
plan." Mints v. Educational Testing Serv., No. 95-3446, slip op.
at 6 (Sept. 19, 1995). See Metropolitan v. 

, 107 S.Ct. at 1547-48; 29 U.S.C. § 1132(a)(1)(B).
          The court noted that ETS claimed that the case was
removable because the complaint called into question Mints's
rights under ERISA. The court said that while Congress under
ERISA has preempted state law claims "related to" employee
pension and benefit plans, 29 U.S.C. § 1144(a), the fact that a
plaintiff's claims might be deemed preempted does not establish
that they are removable. See Dukes v. U.S. Healthcare, Inc., 

, 355 (3d Cir.), cert. denied, 

(1995);
Warner v. Ford Motor Co., 

, 535 (6th Cir. 1995). Here
the court found that Mints's claim did not trigger federal
jurisdiction. Thus, it remanded the case to the state court
where ETS could advance any preemption issue.
          On September 19, 1995, the clerk of the district court
mailed a certified copy of the remand order to the clerk of the
Superior Court. On September 29, 1995, ETS moved for
reconsideration. On November 9, 1995, the district court entered
an order and accompanying opinion denying the motion for
reconsideration. Notwithstanding Trans Penn Wax Corp. v.
McCandless, 

, 225 (3d Cir. 1995), and Hunt v. Acromed
Corp., 

, 1081-82 (3d Cir. 1992), which indicate that
once the district court mails a certified copy of the remand
order to the state court the federal court is divested of
jurisdiction, the district court denied the motion for
reconsideration on the merits.
          On December 8, 1995, Mints moved for an award of
attorney's fees and costs to compensate him for moving for the
remand and opposing ETS's motion for reconsideration. On January
5, 1996, the district court entered an order and accompanying
opinion granting $8,437.68 in fees and costs. In its opinion,
the court pointed out that ETS argued that the court lacked
jurisdiction to grant the fees and costs and that ETS argued that
fees and costs should not be assessed against it as it did not
act in bad faith in removing the action. The district court
ruled that it did have jurisdiction inasmuch as the Supreme Court
in Cooter & Gell v. Hartmarx Corp., 

, 

(1990), held that a court could award attorney's fees under Fed.
R. Civ. P. 11 after a plaintiff voluntarily dismissed a suit
because "[i]t is well established that a federal court may
consider collateral issues after an action is no longer 

, 110 S.Ct. at 2455. The district court pointed
out that courts have applied this jurisdictional approach under
section 1447(c) which provides that "[a]n order remanding the
case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal."
See Miranti v. Lee, 

, 927 (5th Cir. 1993); Moore v.
Permanente Medical Group, Inc., 

, 445 (9th Cir.
1992).
          The district court next considered the standard
governing whether attorney's fees and costs should be assessed
against a defendant who has removed a case from the state to the
federal court when the court remands the case. The court pointed
out that prior to its amendment in 1988, section 1447(c)
authorized the award of fees when a case was "removed
improvidently." Under that standard there was authority that a
court could assess fees only if the defendant acted in bad faith
in removing the action. See Schmitt v. Insurance Co. of N.A.,

, 1552 (9th Cir. 1988). The court indicated that
the basis for awarding the plaintiff fees when a case is remanded
now may be broader, as the court has broad discretion to award
fees since the "removed improvidently" language has been removed
from section 1447(c). See Gotro v. R & B Realty Group, 

, 1487 (9th Cir. 1995); Morgan Guar. Trust Co. v. Republic of
Palau, 

, 923-24 (2d Cir. 1992). The court
nevertheless indicated that the propriety of the removal still
may be a consideration in a determination of whether to require
the party removing the action to pay costs and fees. See Miranti
v. 

. The court, however, did not set forth
definitively the basis for awarding fees, as it held that even
under the pre-1988 standard, ETS improvidently removed the case.
Thus, it entered the order for $8,437.68 in fees and costs. ETS
then appealed.

                         II. DISCUSSION
          ETS makes both procedural and substantive arguments to
support a reversal. Citing Trans Penn Wax v. 

, and Hunt v. 

, ETS initially
makes the procedural argument that the district court lost
jurisdiction when the district court clerk sent the certified
copy of the order of remand to the clerk of the Superior Court of
New Jersey. It then points out that section 1447(c) provides
that an order remanding a case "may require payment of just costs
and any actual expenses, including attorney fees, incurred as a
result of the removal." It notes that under Fed. R. Civ. P.
54(d)(2)(B), a motion for attorney's fees must be filed and
served no later than 14 days after the entry of judgment
"[u]nless otherwise provided by statute or order of the court."
In its view, this case comes within the "otherwise provided by
statute" provision because section 1447(c) provides that the
order of remand may require the payment of attorney's fees.
Thus, ETS argues that any order for payment of attorney's fees
had to be entered in the order of remand and not thereafter. ETS
also points out that even if section 1447(c) permitted a motion
for attorney's fees to be filed after the entry of the order of
remand, Mints's application was late under Rule 54(d)(2)(B).
          ETS makes the substantive argument that the court
abused its discretion in awarding fees. This argument has three
component parts: (1) ETS properly removed the case; (2) the case
was not obviously nonremovable; (3) ETS did not act in bad faith
in removing the case. Of course, ETS does not seek to reverse
the order remanding the case, as under 28 U.S.C. § 1447(d)
("section 1447(d)") we do not have jurisdiction to review that
order because the district court remanded the case for lack of
subject matter jurisdiction, a cause for remand within section
1447(c).
          We address ETS's procedural claims first, exercising
plenary review, as these claims raise only issues of law. We
agree with the district court that it did not lose jurisdiction
to award fees and costs when the clerk of the district court
mailed a certified copy of the order of remand to the clerk of
the Superior Court. While there is no doubt that under Hunt v.Acromed

, the district court should not
have reconsidered the order of remand after the clerk of the
district court sent the certified copy of the order to the clerk
of the Superior Court, the principles underlying our opinion in
that case are not applicable with respect to the fee application.
In Trans Penn Wax v. 

, we explained
that the Hunt v. Acromed holding was predicated in part on "the
need to establish a determinable jurisdictional event after which
the state court can exercise control over the case without fear
of further federal interference." If the district court
entertains a post-remand application for fees and costs, it does
not interfere with or even affect the proceedings in the state
court. Thus, we see no reason why a district court cannot
entertain a request for attorney's fees and costs in a remanded
case merely because the clerk of the district court has mailed a
certified copy of the order of remand to the state court.
          Of course, a holding that the divesting of jurisdiction
by the mailing of a certified copy of the order of remand does
not preclude the award of attorney's fees and costs is consistent
with Cooter & Gell v. Hartmarx Corp., 

, 

, which held that a district court could impose sanctions
under Fed. R. Civ. P. 11 after a plaintiff voluntarily dismissed
an action. While we recognize that Cooter & Gell is
distinguishable because it did not implicate the special
jurisdictional problems presented when a case is remanded to a
state court, and because it involved an application under Rule 11
rather than under section 1447(c), the case still guides us. As
the district court noted, other courts have followed Cooter &
Gell and have allowed an award of attorney's fees under 28 U.S.C.
§ 1447(c) after a case has been remanded. See, e.g., Moore v.

. We are convinced that those courts
are correct, as a post-remand application for fees and costs is
collateral to the decision to remand and cannot affect the
proceedings in the state court.
          Even though Hunt v. Acromed does not bar the post-
remand award of fees and costs, there understandably is support
for ETS's argument that an award of attorney's fees under section
1447(c) must be included in the body of the order itself, since
section 1447(c) states that an order remanding a case "may
require payment of just costs and any actual expenses, including
attorney's fees, incurred as a result of the removal."   SeeUnited
Broadcasting Corp. v. Miami Tele-Communications, Inc., 

, 14 (S.D. Fla. 1991) ("This court is of the opinion
that the plain language of the statute controls and clearly
provides that if the court is going to award costs and expenses,
including attorneys' fees pursuant to 28 U.S.C. § 1447(c), it
must be taken care of in the order of remand."); Casal v. Casal,

, 150 (D.N.J. 1989) ("Section 1447(c) is
inappropriate because the statute states only that the remand
order of the Court may require the costs enumerated in the
statute. The moving parties should have moved for costs under
this provision at the time of remand."). This argument,
predicated on the language of section 1447(c), is distinct from
ETS's contention that the district court lost jurisdiction when
the clerk of the district court mailed a certified copy of the
remand order to the Superior Court.
          Other courts, however, do not regard section 1447(c)
itself as a bar to a post-remand award of fees and costs. In
Moore v. Permanente, 

, the court of appeals affirmed
an order assessing attorney's fees against a defendant after the
court remanded the matter. In the course of its opinion, the
Moore court explained that: "[w]hile we have not addressed the
specific question whether a district court retains jurisdiction
to award costs and fees pursuant to section 1447(c) after remand,
it is clear that an award of attorney's fees is a collateral
matter over which a court normally retains jurisdiction even
after being divested of jurisdiction on the merits." 

          In our view, section 1447(c), by providing that a court
"may require payment" of costs and attorney's fees incurred as a
result of the removal does not imply that the court cannot enter
an order for payment of such costs and fees at some later time.
In this regard, we observe that section 1447(c) provides that
"[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall
be remanded." The duty of the district court to remand the case
for lack of subject matter jurisdiction is not dependent on
either party moving for a remand. Accordingly, while undoubtedly
the appropriate practice for a district court which proposes
remanding a removed matter for lack of subject matter
jurisdiction would be to invite the parties to submit their views
before it enters the order for remand, particularly inasmuch as
the court probably will not be able to reconsider its order after
the clerk sends a copy of it to the state court, see Hunt v.

n.6, still it is possible that the
district court might remand the case without seeking the parties'
views. In fact, that is what happened in Hunt v. Acromed Corp.,

, where the court remanded the case on its own
motion without seeking the views of the parties.
          If the district court remanded the matter on its own
motion, a conclusion that the order for remand must include any
provision for costs and attorney's fees would deprive the
plaintiff of the opportunity to seek to recover its fees and
costs. While we recognize that in some cases those fees and
costs would be limited to proceedings with respect to a motion to
remand, so that the plaintiff would not have any costs and fees
to recover in a case that the court remanded on its own motion,
section 1447(c) does not provide that the court may require the
defendant to pay only the plaintiff's costs and attorney's fees
incurred in a motion to remand. Rather, section 1447(c) provides
that the court may require payment of the costs and fees
"incurred as a result of the removal." Such costs and fees could
include items distinct from those incurred on a motion to remand.
Accordingly, though we acknowledge that sometimes language such
as "may require" can be deemed mandatory, we find that this is
not such a situation.
          In fact, we think that Congress used the "may require"
language not to direct that an order for payment of costs and
fees must be made, if at all, in the order of remand, but to make
clear that the district court has discretion whether to order
such payment. Our conclusion is supported by the courts'
recognition that when remanding a case they are not required to
order the payment of costs and fees. See, e.g., Moore v.

. So understood the "may require"
language in section 1447(c) is not temporal and does not govern
when a motion for costs and attorney's fees can be made or when
an order for the payment of costs and fees can be entered.
          We realize that it might be argued that by not limiting
entry of an order for fees and costs to the time the order for
remand is entered we would leave an open-ended period for a
party, usually the plaintiff, to move for fees and costs after a
remand. Such a fear, however, would not be well grounded. Fed.
R. Civ. P. 54(d)(2)(B) directs that unless otherwise provided by
statute or order of the court, a motion for attorney's fees and
related nontaxable expenses must be filed and served "not later
than 14 days after entry of judgment." We believe that an order
of remand would be regarded as a judgment under Rule 54(d)(2)(B),
even though it is not appealable, since the entry of the order
would terminate the matter in the district court. Thus, although
Fed. R. Civ. P. 54(a) provides that a judgment "includes a decree
or any order from which an appeal lies" it does not preclude an
order of remand from being regarded as a judgment within Rule
54(d)(2)(B) because a remand order, though not appealable, has
the same indicia of finality as an appealable order. Therefore,
we do not read "includes" in Rule 54(a) as in all cases limiting
a judgment to an appealable order.
          ETS also argues that if section 1447(c) was not
applicable in determining when Mints had to make his fee
application, then Rule 54(d)(2)(B) was applicable, and under that
rule Mints's motion for fees and costs was late. This argument
certainly seems to be correct because Mints filed his motion on
December 8, 1995, which was more than 14 days after November 9,
1995, when the district court entered its order denying
reconsideration of its order of remand. Thus, even if we measure
the 14 days from the denial of the motion for reconsideration
rather than from the entry of the order of remand, Mints's motion
was untimely.
          Mints responds that ETS did not argue in the district
court that Mints's motion was untimely under Rule 54(d)(2)(B).
He thus contends that we should not entertain the argument, as
ETS is raising the issue on appeal for the first time. We have
examined the brief ETS filed in the district court on Mints's
motion and have concluded that Mints's assertion is accurate.
ETS did not cite Rule 54(d)(2)(B) in that brief. Rather, in the
district court brief it made the procedural arguments that (1)
section 1447(c) requires that an order for costs and attorney's
fees must be included in the order of remand and (2) that once
the clerk sent the certified copy of the order of remand to the
Superior Court the district court lost jurisdiction.
          We see no reason to entertain ETS's Rule 54(d)(2)(B)
argument on appeal. Under Fed. R. Civ. P. 6(b)(2), if ETS had
raised the Rule 54(d)(2)(B) contention in the district court,
Mints could have asked the district court to extend the time for
him to file and serve his motion. While Rule 6(b)(2) does list
certain rules with time constraints that the court ordinarily
cannot extend, Rule 54(d)(2)(B) is not one of them. Thus, if we
entertained ETS's argument now that the motion was untimely, the
most relief we reasonably could grant would be a remand for the
district court to consider whether to extend the time for Mints
to file the motion for fees and costs so that the December 8,
1995 motion would be deemed timely. At this late date, after the
protracted proceedings in the district court and on this appeal,
we will not remand the matter for reconsideration. Rather,
inasmuch as the time constraint provision in Rule 54(d)(2)(B) is
not jurisdictional, as the district court can extend the time for
motions under that rule, we adhere to our usual practice of not
entertaining arguments initially raised on appeal. See United
Parcel Serv., Inc. v. United Bhd. of Teamsters, etc., 

, 140 n.5 (3d Cir. 1995).
          We now address the merits of ETS's appeal. We review
the award of counsel fees on an abuse of discretion standard.
See Deisler v. McCormack Aggregates Co., 

, 1087 (3d
Cir. 1995); Moore v. 

(abuse of
discretion standard used in fee award under section 1447(c)).
The district court in its opinion granting fees and costs
indicated that prior to 1988, section 1447(c) provided that the
court could order payment of costs and fees on remanding a case
if the party against whom the costs and fees are sought
improvidently removed the case. In 1988, Congress amended
section 1447(c), deleting the improvidently removed language and
simply providing that on remanding a case the court could require
the payment of costs and fees. Congress, however, did not
establish a standard governing when a court should require the
payment of fees and costs to substitute for the improvidently
removed standard.
          Like the district court, we see no need to establish
definitive criteria against which costs and attorney's fee
applications under section 1447(c) must be judged. ETS argues
that it did not remove the case in bad faith. While we will
assume that this contention is correct, this assumption does not
control our result, as we agree with the other courts of appeals
which have held that the district court may require the payment
of fees and costs by a party which removed a case which the court
then remanded, even though the party removing the case did not
act in bad faith. See Morris v. Bridgestone/Firestone, Inc., 

, 240 (6th Cir. 1993); Moore v. 

; Morgan Guar. Trust Co. v. Republic of 

. Rather, a district court has broad discretion and may be
flexible in determining whether to require the payment of fees
under section 1447(c). See Moore v. 

;
Morgan Guar. Trust Co. v. Republic of 

.
          We note that in Moore v. 

,
the court indicated that even though a remand order is
unreviewable under section 1447(d), "some evaluation of the
merits of the remand order is necessary to review an award of
attorney's fees, regardless of the test applied." While we do
not go so far as to hold that an evaluation of the merits of a
remand order is always necessary to review an award of fees under
section 1447(c), we agree that section 1447(d), in precluding an
appeal from an order of remand for a reason provided for remand
in section 1447(c), does not preclude all evaluation of a remand
order. Section 1447(d) is intended to avoid the delays attendant
upon appeal from an order of remand. See Liberty Mut. Ins. Co.
v. Ward Trucking Corp., 

, 745 (3d Cir. 1995). An
evaluation of an order of remand in the context of the review of
an award of fees under section 1447(c) does not raise the
concerns regarding delay that section 1447(d) seeks to avoid, as
that evaluation will not interfere with the proceedings in the
state court. We also point out that a court of appeals might be
reluctant to uphold an award of fees under section 1447(c) if it
concluded that the district court erred in remanding the case for
a reason enumerated in section 1447(c) even though it could not
reverse the order of remand.
          In some cases there are very difficult issues raised
when a party removes a case filed in a state court to the
district court and another party moves to remand. See, e.g.,
Goepel v. National Postal Mail Handlers Union, 

(3d
Cir. 1994), cert. denied, 

(1995). But this case
is not difficult as there was no colorable basis for the removal.
Mints brought this action under state law. He made no claim that
ETS's actions in terminating him and in failing to rehire him
violated any federal employment discrimination statute or ERISA.
Furthermore, to prove his case Mints either must establish that
ETS violated the New Jersey Law Against Discrimination or that he
can recover against ETS by proving that it is liable on one or
more of his common law counts. While Mints did plead that he
lost rights protected by ERISA when ETS terminated his employment
and he pointed out that ETS terminated him within two years of
the time he would have become eligible for benefits upon taking
early retirement, he did not assert that ETS fired him to avoid
an obligation to pay benefits. Rather, he merely set forth the
loss of his ERISA protected rights as a consequence of ETS's
actions which allegedly violated state law. Furthermore, in many
employment termination cases in which a plaintiff claims that the
employer terminated him or her for discriminatory reasons, the
employee will have lost ERISA benefits so that the employee's
reinstatement will restore the benefits or a damages award may
compensate the employee for their loss.
           While this case is not the vehicle in which to set
forth in detail when state causes of action will be deemed
completely preempted by ERISA so that regardless of how the
plaintiff pleads them they are of federal character and thus
arise under federal law, we do state that this case is not even
close to being in that category. See Dukes v. U.S. Healthcare,
Inc., 

. Thus, the assertion in the removal
petition that the district court had jurisdiction was, if not
frivolous, at best insubstantial. In the circumstances, we
cannot possibly conclude that the district court abused its
discretion in ordering ETS to pay Mints's attorney's fees and
costs with respect to the motion to remand and for
reconsideration.
           Mints has made a motion under Fed. R. App. P. 38 for
the imposition of sanctions against ETS on the grounds that this
appeal is frivolous. We will deny that motion because ETS has
raised substantial procedural arguments on the appeal. SeeLiberty Mut.
Ins. Co. v. Ward Trucking 

.
While we reject these arguments, we cannot regard them as
frivolous.
           The order of January 5, 1996, will be affirmed.