BYE, Circuit Judge.
American Family Mutual Insurance Company ("American Family") appeals the district court's
American Family is a mutual insurance company selling a broad range of commercial and personal lines of insurance. In 1982, Hollander began serving as a licensed insurance agent for American Family, with an office in Dubuque, Iowa. On January 1, 1993, Hollander and American Family entered into an American Family Agent Agreement ("the Agreement"), which was to serve as the governing document for the parties' relationship.
The termination took effect on August 1, 2008. Under section 6(l) of the Agreement,
Initially, American Family began making the extended earnings payments in the intervals specified by the Agreement. After making four such payments, however, American Family informed Hollander of its decision to discontinue "the payment of any and all extended earnings" pursuant to section 6(u) of the Agreement, which provides an agent forfeits his right to extended earnings if he does not comply with the after-termination provisions of section 6(k). Section 6(k), entitled "Your Activity After Termination," does not allow an agent "[f]or a period of one year following termination" of the Agreement to
JA at 1189. Asserting Hollander was in violation of section 6(k), American Family stopped making extended earnings payments as of November 2008.
On November 24, 2008, American Family filed suit against Hollander, seeking compensatory damages, punitive damages, injunctive relief, and a declaratory judgment. In a five-count complaint, American Family alleged computer fraud, misappropriation of trade secrets, breach of contract, intentional interference with contractual obligations, and a request for a declaratory judgment the company had no obligation under the Agreement to pay Hollander extended earnings. American Family also filed a motion for a preliminary injunction, seeking to enjoin Hollander from engaging in activities violative of section 6(k) inasmuch as he was inducing or attempting to induce his former clients to "lapse, cancel, replace or surrender" their existing policies with American Family and purchase insurance through his new agency. Hollander resisted the preliminary injunction motion and filed a partial
On June 2, 2009, Hollander filed his answer to American Family's complaint. In his answer, Hollander included counterclaims for breach of contract, intentional interference with contractual relations, injurious falsehood, and a violation of ERISA. The case was set to proceed to trial on May 2, 2011, and the final pretrial conference was held on April 4, 2011, before the magistrate judge. On April 15, 2011, the district court held a status conference to discuss the upcoming trial. During this conference, Hollander orally advised American Family and the district court of his intention to pursue a claim for unpaid wages under the IWPCL,
The trial court denied Hollander's motion to amend, explaining:
Order Denying Mot. to Amend, April 21, 2011, at 2-3. Finding Hollander's proposed amendment was not based on a change in the law or the emergence of new facts, the district court concluded Hollander has failed to show good cause warranting modification of the schedule. Thus, the case proceeded to trial on the original claims and counterclaims.
At the close of American Family's evidence, Hollander again moved, this time under Rule 15(b)(2) of the Federal Rules of Civil Procedure, to amend his pleadings to conform to the evidence adduced at trial and add the IWPCL claim. American Family resisted, and the court took the issue under advisement. At the close of all the evidence, the district court orally granted Hollander's Rule 15(b)(2) motion and submitted the case to the jury.
Hollander subsequently filed a motion for attorney's fees pursuant to section 91A.8 of the IWPCL. American Family resisted, arguing the jury's finding American Family failed to prove Hollander breached the Agreement was not a finding of liability for purposes of awarding wages under the IWPCL. American Family also moved for judgment as a matter of law or, in the alternative, for a new trial. In support of its motion, American Family asserted the evidence presented at trial established Hollander did in fact breach the Agreement and further asserted it was entitled to a new trial because the district court erred in instructing the jury on the meaning of the term "induce," in granting Hollander's Rule 15(b)(2) motion to amend to add the IWPCL claim, and in admitting irrelevant and prejudicial evidence.
The district court granted Hollander's motion for attorney's fees in the amount of $261,781.53 and explained:
Order Granting Mot. for Att'y Fees & Den. Mot. for J. as a Matter of Law, July 8, 2011, at 2-3, 5. The court denied American Family's motion for judgment as a matter of law or, in the alternative, for a new trial, concluding the jury's verdict for Hollander is not against the clear weight of the evidence presented at trial. This appeal follows.
On appeal, American Family argues it is entitled to a new trial because the district court abused its discretion in: (1) granting Hollander's Rule 15(b)(2) motion to amend to add the IWPCL claim; (2) awarding Hollander attorney's fees; and (3) instructing the jury on contract interpretation principles and the meaning of the term "induce."
We first address American Family's argument the district court's grant of Hollander's Rule 15(b)(2) motion to amend to add the IWPCL claim resulted in a miscarriage of justice, warranting a new trial. "We review the district court's decision to grant or deny a motion to amend for an abuse of discretion." Baker v. John Morrell & Co., 382 F.3d 816, 830 (8th Cir.2004).
Rule 15(b)(2) provides an issue not raised in the pleadings, but tried by the parties' express or implied consent, "must be treated in all respects" as having been raised in the pleadings. Fed.R.Civ.P. 15(b)(2). "A party may move — at any time, even after judgment — to amend the
American Family contends the district court abused its discretion in granting Hollander's Rule 15(b)(2) motion because American Family did not consent, expressly or impliedly, to trying the IWPCL claim. Implied consent exists where a party has "actual notice of an unpleaded issue and ha[s] been given an adequate opportunity to cure any surprise resulting from the change in the pleadings." Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir.1997) (internal quotation marks and citation omitted). Thus, "[c]onsent may be implied when evidence relevant to an unpleaded issue has been introduced at trial without objection." Modern Leasing, Inc. of Iowa v. Falcon Mfg. of Cal. Inc., 888 F.2d 59, 63 (8th Cir.1989) (internal quotation marks and citation omitted). Further, we have held a party will be deemed to have acquiesced in trying an unpleaded issue when the issue is "not inconsistent with" the position taken by the non-moving party earlier in the proceedings. Baker, 382 F.3d at 831; see also IES Indus. Inc. v. United States, 349 F.3d 574, 579 (8th Cir.2003).
We first consider whether American Family had actual notice of the unpleaded IWPCL claim. In Nielson v. Armstrong Rubber Co., 570 F.2d 272 (8th Cir.1978), we examined a district court's decision to allow a plaintiff to amend his pleadings at the close of all the evidence and add strict products liability to the already alleged negligence claim. Noting the defendant had actual notice of the unpleaded, strict products liability claim, yet failed to object to the introduction of evidence relevant to that claim at trial, we found no error in the district court's decision to allow the amendment. Id. at 275. We cited two reasons for our conclusion the defendant had actual notice of the unpleaded, strict products liability claim. First, we stated the defendant received actual notice when the plaintiff submitted a pretrial memorandum on the first day of trial "citing the law of strict products liability." Id. Second, we explained the defendant received actual notice when the district court "announced on the third day of trial it was going to treat the pleadings as amended." Id.
Like the defendant in Nielson, American Family had actual notice of the unpleaded IWPCL claim. American Family first received notice of Hollander's intent to pursue a claim under the IWPCL at the status conference before trial when Hollander orally moved to amend the pleadings under Rule 15(a). Additionally, in his reply to American Family's resistance to his Rule 15(a) motion, Hollander expressly stated he "reasonably believes and anticipates that if the Motion to Amend under Rule 15(a) is not granted, he will be making a subsequent Rule 15(b) motion both during and after trial." JA at 334. Hollander further clarified his intent to litigate the IWPCL claim by submitting as part of his proposed jury instructions a "subject to Rule 15(b) motion" instruction on the IWPCL claim.
To begin, we do not question American Family's argument that evidence bearing on both claims is somewhat overlapping. To prove his IWPCL claim, for example, Hollander had to show he was an "employee" within the meaning of the statute, the extended earnings qualified as "wages," and American Family intentionally failed to pay him extended earnings. See Iowa Code Ann. §§ 91A.8, 91A.2 (providing an employer is liable for intentionally failing to pay wages to an employee, which includes a commissioned salesperson, and stating "`[w]ages' means compensation owed by an employer for ... any payments to the employee ... which are due an employee under an agreement with the employer"). Hollander also had to show he was an "employee" for purposes of the ERISA claim. See 29 U.S.C. § 1002(6) (defining an "employee" as "any individual employed by an employer"); see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (adopting a "common-law test for determining who qualifies as an `employee' under ERISA"). On the other hand, to succeed on his ERISA claim, Hollander had to prove the extended earnings qualified as an "employee pension benefit plan," not "wages." See JA at 254 (Hollander's Answer and Counterclaims); 29 U.S.C. § 1002(2)(A) (defining "employee pension benefit plan" to include a "plan, fund or program ... established or maintained by an employer ... to the extent that ... such plan, fund, or program... results in a deferral of income by employees for periods extended to the termination of covered employments or beyond").
This overlap, however, does not excuse American Family from objecting to evidence relevant to the unpleaded IWPCL. See IES Indus., 349 F.3d at 579 (rejecting the argument "Rule 15(b)'s consent requirement is not met where evidence that is relevant to an issue purportedly tried by consent is also relevant to an issue already in the case" because the argument is "an overstatement, if not a misstatement of the law"). As we stated in IES Industries, "[i]t is axiomatic that evidence bearing on both claims and the defenses to those claims may well overlap in a given case," but this "inevitability does not foreclose amendment under Rule 15(b)." Id. Rather, the dispositive inquiry is whether the non-moving party had actual notice of the unpleaded claim and "an adequate opportunity to cure any surprise resulting from the change of the pleadings." Kim, 123 F.3d at 1063 (internal quotation marks and citation omitted). Here, American Family knew of Hollander's intent to litigate the unpleaded IWPCL claim and had the opportunity at trial to cure any surprise by objecting to evidence relevant to the claim, such as evidence characterizing Hollander as an "employee" or describing the extended earnings as "deferred commissions." It did not. Having failed to object, American Family impliedly consented to trying the unpleaded IWPCL claim and is in no position now to contest the amendment.
Therefore, we conclude that even if American Family did not expressly consent to trying the unpleaded IWPCL claim by contending throughout the litigation it did not owe Hollander extended earnings, it certainly impliedly consented to trying the claim when it failed to object to evidence relevant to the unpleaded claim despite having actual notice of it.
Additionally, as we explained in Baker, a Rule 15(b)(2) amendment should be allowed "if the amendment seeks to raise an issue not inconsistent with the position taken by the non-moving party earlier in the proceedings." 382 F.3d at 831. The only dispute between the parties was whether Hollander was entitled to extended earnings payments.
American Family also contends the amendment should not have been allowed because "the post-eleventh hour addition of the IWPCL" claim deprived American Family of an opportunity to defend against and present evidence relevant to the IWPCL claim, thereby causing prejudice. Appellant's Br. at 20. We recognize an implied amendment should not be allowed if it will result in substantial prejudice to the non-moving party. Am. Fed'n, 513 F.3d at 883; see also Matter of Beaubouef, 966 F.2d 174, 178 (5th Cir.1992) (holding "[a]n implied amendment of the pleadings will not be permitted where it results in substantial prejudice to a party") (internal quotation marks and citation omitted); Cioffe v. Morris, 676 F.2d 539, 542 (11th Cir.1982) (stating implied consent for purposes of Rule 15(b) will not be found if the non-moving party will be prejudiced). We fail to see, however, how American Family was prejudiced by the addition of the IWPCL claim.
To determine if a party has been prejudiced by an amendment, we consider whether the party had "a fair opportunity to defend" and whether it "could offer any additional evidence if the case were to be retried." Nielson, 570 F.2d at 276 (internal quotation marks and citation omitted). Here, American Family certainly had a fair opportunity to defend against the unpleaded claim. As we explained above, American Family knew of Hollander's intent to pursue the IWPCL claim at trial. It was thus free to object to the introduction of any evidence relevant to the claim or offer any evidence in defense against it. Additionally, after Hollander orally moved to amend the pleadings to add the IWPCL claim at the close of American Family's evidence, the court took the issue under advisement, and American Family subsequently submitted a nineteen-page brief in opposition of the motion to amend. We therefore reject American Family's argument the amendment deprived it of an opportunity to defend against the IWPCL claim.
We also fail to see what additional evidence American Family could have offered if the case were to be retried. American Family asserts it could have presented evidence "on the development of the extended earnings program, why it was used, all of the factors that go into its calculation, why it is not a wage, the timing of when it was paid and other additional evidence." Appellant's Br. at 23. The record shows, however, that American Family did present such evidence at trial. In addition to Hollander's extensive testimony on the extended earnings program, American Family offered the testimony of Steve Goldermann, the company's sales manager, and Keith Ryniak, American Family's sales director. Each testified as to the purpose and use of the program, and Ryniak spoke on how extended earnings are calculated.
Moreover, to the extent American Family argues it could have offered evidence
In sum, we conclude the district court did not abuse its discretion in granting Hollander's Rule 15(b)(2) motion to amend the pleadings to add the IWPCL claim because the claim was tried with American Family's implied consent and the amendment did not result in prejudice to American Family.
American Family next asserts the district court erred in awarding attorney's fees to Hollander under the IWPCL and alternatively argues the amount of the award should be reduced. "The decision to award or deny attorney fees and the amount of any award rests within the sound discretion of the district court and we will not disturb the district court's decision absent a clear abuse of that discretion." Wescott Agri-Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1094 (8th Cir.2012) (internal quotation marks and citation omitted). After carefully reviewing the record, we find no abuse of discretion in this case.
Section 91A.8 of the Iowa Code provides "an employer that has intentionally failed to pay an employee wages ... shall be liable to the employee for any wages ... that are so intentionally failed to be paid or reimbursed, plus liquidated damages, court costs and any attorney's fees incurred in recovering the unpaid wages and determined to have been usual and necessary." (Emphasis added.) "The purpose of the statute is to reimburse the employee for the expenses incurred in suing for back wages." Gabelmann v. NFO, Inc., 606 N.W.2d 339, 342 (Iowa 2000). Thus, if an employee prevails on a wage claim under the IWPCL, the district court is required to assess attorney's fees against the employer. Id.; see also Audus v. Sabre Commc'ns Corp., 554 N.W.2d 868, 874 (Iowa 1996) ("The trial court must assess attorney fees when an employee prevails in a suit brought under chapter 91A [of the IWPCL] and requests such attorney fees."). The award of attorney's fees under the IWPCL is mandatory, "irrespective of whether the employer's conduct was intentional." Gabelmann, 606 N.W.2d at 343.
American Family does not dispute the mandate for attorney's fees under section 91A.8 of the IWPCL. Rather, it argues the jury did not find American Family liable for purposes of the IWPCL because the jury's finding "American Family failed to prove a breach of contract did not constitute an affirmative award of wages under the IWPCL." Appellant's Br. at 35-36. We disagree.
The jury found Hollander did not breach the Agreement, entitling him to receive $343,000 in extended earnings from
American Family alternatively argues that even if the award of attorney's fees was proper, the amount awarded was an abuse of the court's discretion. Specifically, American Family asserts the court abused its discretion by awarding Hollander attorney's fees covering the entire period of the litigation, as opposed to limiting the fees to expenses incurred after the court granted Hollander's Rule 15(b)(2) motion to amend the pleadings to add the IWPCL claim. Section 91A.8, however, allows a prevailing employee to recover any "attorney's fees incurred in recovering the unpaid wages and determined to have been usual and necessary." Iowa Code § 91A.8. The district court found Hollander's expenses for recovering the unpaid wages began the moment American Family decided to discontinue the extended earnings payments and file a lawsuit against him. In other words, the court determined all fees incurred from the inception of the lawsuit to be fees "usual and necessary" to the recovery of the unpaid wages, i.e., the unpaid extended earnings. Given the district court's broad discretion in determining the amount of attorney's fees, we cannot say the court's decision to award Hollander fees for the entire period of the litigation was an abuse of that discretion. And because American Family stipulated the hourly rates and overall amount of time claimed by Hollander were fair and reasonable, we affirm the district court's award of $261,781.53 in attorney's fees.
The dissent believes ERISA preemption renders the district court's consideration of Hollander's claims for attorney's fees under the IWPCL erroneous for lack of subject matter jurisdiction. It bases its position on precedent recognizing complete preemption in the context of certain ERISA cases. The dissent fails to note, however, the salient distinction between complete and ordinary preemption in the relevant line of cases: complete preemption has attached to ERISA claims only in the removal context, where an ERISA claim provides the sole basis of federal subject matter jurisdiction. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Schoedinger v. United Healthcare of the Midwest, Inc., 557 F.3d 872, 874-76 (8th Cir. 2009). In contrast, "[w]here preemption involves a choice of law, rather than a choice of forum, it is an affirmative defense." Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1489 (8th Cir.1992).
In Pilot Life Ins. Co. v. Dedeaux, the Supreme Court concluded that because ERISA's preemption clause was modeled after the preemption clause in the Labor
In our own LMRA precedent, we have also drawn a distinction between ordinary preemption, in which the resolution of a state-law claim requires interpretation of a collective bargaining agreement, and complete preemption, in which the LMRA is used to remove a state-law claim to federal court. See Trustees of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 n. 3 (8th Cir.2006) ("The Union thus asserts [LMRA] preemption as a defense, raising the question of whether Superior's [state-law] claim can be litigated in this action. This form of preemption is distinct from the jurisdictional doctrine of complete preemption used to remove state claims to federal court."); Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir.1996) ("Complete preemption provides an exception to the well-pleaded complaint rule and is different from preemption used only as a defense."). Accordingly, ERISA preemption may also be categorized as complete or ordinary — and, therefore, jurisdictional or waivable — depending upon the circumstances of a particular case.
American Family also argues it is entitled to a new trial based on the district
We review for an abuse of discretion a district court's jury instructions. Der v. Connolly, 666 F.3d 1120, 1126 (8th Cir.2012). "Our review is limited to determining whether the instructions, when taken as a whole and in light of the particular issues presented, fairly and adequately presented the evidence and the applicable law to a jury." Lighting & Power Servs., Inc. v. Roberts, 354 F.3d 817, 819 (8th Cir.2004). "Where a party contends that an instruction was improperly given to the jury, reversal is appropriate only where the erroneously given instruction affects substantial rights." Harrell v. Madison Cnty. Miss. Mote Co., Inc., 370 F.3d 760, 762 (8th Cir.2004); see also Fed.R.Civ.P. 61.
Under Wisconsin law, the law governing the parties' Agreement, contract ambiguity is a question of law for the trial court to decide. Kremers-Urban Co. v. Am. Emp'rs Ins. Co., 119 Wis.2d 722, 351 N.W.2d 156, 163 (1984). A contract term is ambiguous if it is fairly susceptible of more than one reasonable interpretation. Mgmt. Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis.2d 158, 557 N.W.2d 67, 75 (1996). If the trial court finds a contract ambiguous, the court can properly submit the question to the jury and instruct the jury on principles of contract interpretation. See U.S. Fire Ins. Co. v. Pressed Steel Tank Co., Inc., 852 F.2d 313, 316 (7th Cir.1988) (applying Wisconsin law). If no ambiguity exists, however, the court is to construe the contract as a matter of law and the jury is not to be given the task of interpreting it. See id.; see also D'Angelo v. Cornell Paperboard Prods. Co., 59 Wis.2d 46, 207 N.W.2d 846, 848 (1973) (stating the rule of interpreting a contract against its drafter is inapplicable where the contract is unambiguous).
The district court made no explicit finding as to whether the Agreement as a whole or any of its terms were ambiguous. The court's decision to define the term "induce" for the jury, however, seems to imply the court found no ambiguity in the meaning of the only arguably disputed term in the Agreement. In the absence of any findings of ambiguity, the district court erred in instructing the jury to interpret any ambiguous language in the Agreement against the drafter, which in this case was American Family.
The court's error, however, is harmless when viewed in light of the charge as a whole. See Roberts, 354 F.3d at 819-20 (stating an instructional error is not a ground for reversal unless it affects the substantial rights of the party challenging the instruction); see also Fed.R.Civ.P. 61 (providing an error may be disregarded unless it affects a party's substantial rights). The court instructed the jury on principles of contract interpretation in Instruction No. 13A. The court then told the
We further conclude the court's definition of the term "induce" is not "overly narrow" and does not warrant reversal. The district court defined "induce" to mean "to persuade or urge." Id. (citing Webster's Dictionary as the authority for the jury instruction). Noting Wisconsin law requires undefined terms in a contract be given their ordinary meaning, see Meyer v. U.S. Fire Ins. Co., 218 Wis.2d 499, 582 N.W.2d 40, 41 (Wis.Ct.App.1998), American Family asserts the court's definition of "induce" is contrary to the ordinarily understood meaning of the term, which includes "to bring something about." Appellant's Br. at 47. Yet, each alternative dictionary definition urged for by American Family includes "to persuade" or "to move by persuasion" as part of the meaning of the term "induce," see id. at 46-47, and at trial, American Family's own witness defined the term to mean "to persuade or convince or cause somebody to do something," Trial Tr., vol. II, at 112. "We do not lightly overturn a district court's choice of words in charging the jury," Kan. City Power & Light Co. v. Ford Motor Credit Co., 995 F.2d 1422, 1429 (8th Cir. 1993), and we decline to do so in a case where the definition provided by the court not only comports with the plain and ordinary meaning of the term, but is essentially the same as the definition provided by the party now challenging it.
For the reasons stated above, the judgment of the district court is affirmed.
BEAM, Circuit Judge, concurring and dissenting.
I concur in the majority's affirmance of the district court's judgment of May 9, 2011, awarding Hollander $343,000 based upon a stipulated amount of unpaid "extended earnings" arising under the American Family Agent Agreement dated January 1, 1993 (1993 Agreement).
By way of a complaint filed in federal district court, American Family Mutual Insurance Company (American) asserted a breach of contract claim (and some other abandoned or voluntarily dismissed claims no longer relevant here) against Hollander based upon the 1993 Agreement. On June 2, 2009, Hollander answered American's complaint and included a counter complaint in which he asserted several state and federal law causes of action purportedly arising under the agreement. But, the Hollander counter pleading that is material to this dissent arises exclusively under federal law and appears as Count IV. In Count IV, Hollander set forth an ERISA claim. In this context he averred that the "extended earnings" plan found in the 1993 Agreement is a "qualified employee pension benefit plan" under ERISA, 29 U.S.C. § 1002(2)(A). Hollander also alleged in his ERISA counterclaim that he "is entitled to damages, including reasonable attorney fees and costs, arising from [American's] wrongful termination of his pension benefits under the 1993 Agreement." Hollander embellished these allegations through his trial brief, wherein he argued extensively that for purposes of his 29 U.S.C. § 1132(a)(1)(B) ERISA benefits due claim he met all the requirements necessary to support such a cause of action. He specifically cited as applicable to his claim Harris v. Arkansas Book Co., 794 F.2d 358, 360 (8th Cir.1986) (adopting the Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982) test for determining whether a plan is an ERISA-qualified plan) and Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (adopting the common law definition of "employee" for purposes of ERISA cases) and set forth a litany of factors from the 1993 Agreement as validation of this ERISA claim. This claim remained in dispute in this litigation until July 27, 2011, when it was voluntarily dismissed by Hollander. Indeed, as late as July 19, 2011, the district court entered an order directing the parties "to submit their positions as to the proposed procedure for resolution of defendant's pending ERISA claim." The district court's IWPCL judgments awarding the disputed attorney fees were, as earlier noted, filed on July 8, 2011, and August 3, 2011.
An IWPCL claim did not enter the picture until some twenty-one months after the expiration of the pleading deadline imposed by the trial court. It came via Hollander's belated motion to amend the pleadings pursuant to Federal Rule of Civil Procedure 15(a). His Rule 15(a) motion sought leave to plead an IWPCL claim based upon the 1993 Agreement, specifically alleging that "[t]he facts and documents upon which [Hollander's] proposed [Rule 15(a) ] amendment is based are the same facts and documents upon which Count IV of [Hollander's] counterclaims, under [ERISA] are based." The ERISA claim, as above indicated, remained actively
As the panel majority correctly explains, such a time-delinquent motion is granted only "when justice so requires," Rule 15(a)(2), and such requirement must be based upon "good cause" resulting from changes in the law or the emergence of new facts, ante at 346. Here, there was no good cause shown for the delay in making the claim. Neither was there evidence of the emergence of new facts or relevant changes in the law. Indeed, in this case, not only were there no "changes in the law," but the attempted assertion of a new state law claim within the contours of the pending ERISA claim, as I will shortly explain in more detail, violated complete preemption precedent established by the Supreme Court twenty-five years ago in Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and by additional precedent regarding subject matter jurisdiction in the face of complete preemption established by this circuit in 1996, Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536 (8th Cir.1996). American contended at every opportunity that such amendments, coming within seventeen days of the commencement of trial, were grossly prejudicial, especially since it had little, if any, chance to prepare to meet the elements of the new claim. Hollander's Rule 15(a) motion was correctly denied, not just because it violated Rule 16(b)(4) (governing pretrial conferences and scheduling), but also because it violated the very essence of Rule 15's fair trial policies and longstanding federal court jurisprudence concerning subject matter jurisdiction in the face of complete preemption.
The trial commenced, evidence was presented and American rested. At this point, Hollander again orally advanced the same IWPCL claim, this time through a Rule 15(b)(2) motion. He sought to insert the IWPCL claim, purportedly to conform the pleadings to the trial evidence that had been adduced. The district court granted this new motion. This was both an abuse of discretion and a violation of well established federal precedent.
In support of this motion, Hollander's lawyer stated as follows:
J.A. at 1079 (emphasis added). In essence, Hollander, after conceding that the ERISA and IWPCL claims were essentially identical except that he could not claim extended damages or an enhanced attorney fee for "willful" conduct under ERISA, requested (and was granted) a Rule 15(b) amendment adding the IWPCL claim based upon the "facts and documents" supporting his Count IV ERISA claim but importing the extended damages and fee remedies found only in the IWPCL. American, in written opposition to the oral 15(b) motion, continued to argue the substance of an ERISA preemption violation given the insertion of the newly minted IWPCL claim. American argued the IWPCL claim was, as Hollander contended, almost the same as but slightly different
Ante at 347 (third and fifth alterations in original).
It is beyond dispute that ERISA presents complete preemption pursuant to the broad and expansive sweep of 29 U.S.C. § 1144(a). Metro. Life, 481 U.S. at 66, 107 S.Ct. 1542. And, at least in this circuit, complete preemption is a jurisdictional doctrine that applies where the federal preemptive power is complete. Gaming Corp., 88 F.3d at 542; Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 677 n. 6 (8th Cir.2009). Accordingly, the proposition that a state law claim is preempted by § 1144(a) is an issue of subject matter jurisdiction that may be raised at any time, including sua sponte by the court. Auto-Owners Ins. Co. v. Tribal Ct. of the Spirit Lake Indian Reservation, 495 F.3d 1017, 1020 (8th Cir.2007); Lundeen v. Canadian Pac. Ry. Co., 447 F.3d 606, 611 (8th Cir. 2006), reversed on other grounds by, Lundeen v. Canadian Pac. Ry. Co., 532 F.3d 682 (8th Cir.2008).
The majority, notwithstanding the almost completely duplicating features of the IWPCL claim when compared with the ERISA claim, rejects ERISA preemption of the IWPCL claim and in doing so erroneously argues that the "scope of ERISA preemption should be analyzed in light of LMRA [the Labor Management Relations Act] precedent." Ante at 354. After purportedly viewing the conclusions of "sister circuits," the majority concludes that in the face of the IWPCL state law claim, the ERISA preemption was waivable, citing cases, and presumably, that ERISA preemption was waived by American. The majority's theory is best described, and perhaps best refuted, by Wolf v. Reliance Standard Life Insurance Co., 71 F.3d 444 (1st Cir.1995),
The Wolf court conceded the argument "that because there is a `compelling policy' in favor of application of federal ERISA law to [a duplicative or similar state law] claim, ERISA preemption is jurisdictional and therefore nonwaivable." Id. at 447. In doing so, it correctly notes that
Id. (second alteration in original) (footnote omitted). Wolf recognized that the above argument is substantially based upon the Supreme Court's "at length" analysis of the legislative history behind ERISA's preemption provision in Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 44-46, 52-57, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), a case filed in federal district court under 28 U.S.C. § 1332's diversity jurisdiction.
Wolf further conceded that
71 F.3d at 447 (some citations omitted). Wolf then went astray. It imported into its analysis of Pilot Life's ERISA preemption decision a waivability theory based upon misuse of separate and distinct labor law jurisprudence unrelated to Pilot Life issues and totally unmentioned in Pilot Life. The Supreme Court in Pilot Life simply used its earlier description of "the powerful preemptive force of § 301 of the LMRA," which "displace[s] all state actions for violation of contracts between an employer and labor organization," 481 U.S. at 55, 107 S.Ct. 1549, as an analogue to compare the § 301 preemption with its Pilot Life characterization of the equally powerful ERISA preemption. Nothing more.
Wolf's improvident mixing of unrelated NLRB forum designation issues with Pilot Life's ERISA choice-of-law concerns, prompts mention of Justice Ginsburg's recent observation for a unanimous Supreme Court rejecting a similarly disjointed government argument. The Justice said:
But of even greater importance, since Pilot Life and Wolf, the Supreme Court has again unequivocally described the focus, breadth, depth and extraordinary preemptive power of ERISA as clearly dictated by congressional intent and policy.
In Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), a case removed from a Texas state forum to federal district court pursuant to 28 U.S.C. § 1441(a), Justice Thomas, speaking for a unanimous court, forcefully lays waste to the majority's ERISA waiver contentions. In Davila, the Supreme Court noted that the Court of Appeals correctly recognized that state causes of action that duplicate or fall within the scope of an ERISA § 502(a) remedy are completely preempted and totally and peremptorily removable from state to federal court, but that the circuit otherwise failed to recognize the power of the ERISA preemption. Id. at 214-16, 124 S.Ct. 2488. Rejecting "form over substance" relabeling of state claims to evade the preemptive scope of ERISA, the Supreme Court again explained the nature of the ERISA preemption and that it provides a remedy for a federal cause of action that is in no way attenuated by the selection or designation of a particular forum. Id. at 214, 124 S.Ct. 2488 (quotation omitted).
Justice Thomas again explained that
As the Court said in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 [107 S.Ct. 1549, 95 L.Ed.2d 39] (1987):
542 U.S. at 208-09, 124 S.Ct. 2488 (citations omitted).
But at no point in Davila did Justice Thomas give any credence to an argument that ERISA's extraordinary preemptive power is in some manner connected to or limited by the forum in which the ERISA claim is asserted. Without attaching the point to any viable precedent, the majority, discussing ordinary preemption, states that "`[w]here preemption involves a choice of law, rather than a choice of forum, it is an affirmative defense.' Piekarski v. Home Owners Sav. Bank, F.S.B., 956 F.2d 1484, 1489 (8th Cir.1992)." Ante at 353 (alteration in original). However, as earlier noted, this case does not involve "ordinary" preemption. Instead, like the litigation in Pilot Life, a case originally filed in federal district court and Davila, a case removed to federal court, it involves complete preemption.
ERISA preempts state causes of action whenever, under an ERISA-regulated employee benefit plan, an individual is entitled to an employee benefit and where, in receiving the benefit, no legal duty (state or federal) independent of ERISA or the plan terms is violated. Davila, 542 U.S. at 210, 124 S.Ct. 2488. "In other words, if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant's actions, then the individual's cause of action is completely preempted by ERISA § 502(a)(1)(B)." Id. The instant case meets Davila's two-part test for complete preemption. Not only could Hollander have brought his claim under
And, this circuit's precedent could not be more clear. We have said:
Schoedinger v. United Healthcare of the Midwest, Inc., 557 F.3d 872, 875-76 (8th Cir.2009) (some internal quotations and citations omitted). Hollander's actions were designed to, and did, inject into his ERISA-based claim at least one additional state law remedy — liquidated damages arising from nonpayment of wages under Iowa Code § 91A.8. ERISA does not sanction such an enhanced damages remedy.
Even more on point is the matter of attorney fees in the district court's order of July 8, 2011, decided under the IWPCL. In Martin v. Arkansas Blue Cross and Blue Shield, we explain that "ERISA's fee-shifting provision unambiguously gives the district court discretion to award attorney fees to `either party.' 29 U.S.C. § 1132(g). In making this determination, a district court abuses its discretion when there is a lack of factual support for its decision, or when it fails to follow applicable law." 299 F.3d 966, 969 (8th Cir.2002) (en banc) (emphasis added). Our court then carefully outlined the elements of an award of attorney fees under ERISA, several of which vary markedly from Iowa precedent arising from interpretations of the IWPCL. For instance, the IWPCL provides a presumption that attorney fees will be paid to a prevailing claimant. Gabelmann v. NFO, Inc., 606 N.W.2d 339, 342 (Iowa 2000) (when employee prevails on wage claim, district court required to assess attorney fees). In Martin, however, this court held that a "presumption [that fees should be awarded] should not be employed in ERISA cases." 299 F.3d at 971-72.
And, it is virtually certain that an attorney fee of $261,783 (an amount equal to 76.3% of the remedial award) could not be awarded given a $343,000 ERISA damages judgment. The additional IWPCL fee award of $34,056.25 made the matter even more egregious. And, if the fee awards are viewed under the district court's calculations, the substantial recompense granted to Hollander's lawyers for the time spent in convincing the court to permit the clearly preempted state law claim would need to be excised from the award under an ERISA elements evaluation. Thus, there can be no doubt that the district court improperly ignored ERISA precedent in considering and entering its fee judgment.
ERISA defines an employee pension plan as follows:
29 U.S.C. § 1002(2)(A). The 1993 Agreement provided both of these benefits to Hollander. J.A. at 1185.
The Supreme Court gives ERISA a broad common-sense meaning. Pilot Life, 481 U.S. at 47, 107 S.Ct. 1549; see also Dakota, Minn. & E. R.R. Corp. v. Schieffer, 648 F.3d 935, 939 (8th Cir.2011). And even a cursory review of the relevant portions of the 1993 Agreement seem likely to support Hollander's pension plan position as a matter of law. There is, however, some precedent that an individual contract providing benefits to a single executive employee is not an ERISA employee welfare benefit plan. Schieffer, 648 F.3d at 938. But, Hollander was not an executive employee of American, the 1993 Agreement (as Hollander alleges) creates a pension plan under 29 U.S.C. § 1002(2)(A), not an employee welfare benefit plan defined in § 1002(1), and it is likely that this same contract provision was used for a broad class of American's agents and not just Hollander.
Schieffer explains further, however, why the district court lacked subject matter jurisdiction under the IWPCL in this case. Schieffer, president of DM & E, was terminated without cause, triggering several severance provisions. When he demanded state law arbitration, DM & E contended that any obligation to arbitrate was preempted by ERISA. The court noted that "Schieffer's arbitration demand included a demand for double damages under South Dakota's failure-to-pay-wages statute, a remedy that clearly is preempted if the Employment Agreement is an ERISA plan." Schieffer, 648 F.3d at 937 (emphasis added). While some of Schieffer's several severance provisions were found not to be ERISA pension plans and were arbitrable, the Schieffer court also noted that a claim concerning a single employee pension arrangement that constituted an ERISA plan, as we have in this case, was not arbitrable under state law. If an ERISA plan, said the court, "all state law remedies are preempted." Id. at 939.
The majority cannot reasonably argue, and I believe it does not, that the district
This makes the waiver argument problematic. American did substantively advance ERISA preemption both at trial and on appeal although, concededly, it could have been more articulate in doing so.
The majority opinion states that I (the dissent) "fail[] to note ... the salient distinction between complete and ordinary preemption in the relevant line of cases: complete preemption has attached to ERISA claims only in the removal context, where an ERISA claim provides the sole basis of federal subject matter jurisdiction." Ante at 353 (emphasis added). This statement reflects an almost complete transmogrification of Supreme Court and Eighth Circuit precedent.
By congressional mandate there are four ways to assert an ERISA claim in two separate judicial forums, state and federal. Under 29 U.S.C. § 1132(e) "[s]tate courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of [ERISA-benefits] actions under [§ 1332(a)(1)(B)]." (Emphasis added). A state forum's jurisdiction is, of course, tentative because 28 U.S.C. § 1441(a) permits removal of an ERISA benefits claim from a state tribunal to a federal district court. E.g., Davila, 542 U.S. at 207, 124 S.Ct. 2488. An ERISA-benefits action may also be asserted directly in the federal district court under either federal question jurisdiction, 28 U.S.C. § 1331, e.g., Emmenegger v. Bull Moose Tube Co., 197 F.3d 929, 931 (8th Cir.1999), or, in a proper case, diversity jurisdiction under, 28 U.S.C. § 1332,
If an ERISA benefits cause of action is filed and litigated to a conclusion in a state court of competent jurisdiction, ERISA totally preempts all state laws that conflict with its provisions or frustrate its objectives. As recently explained in Nitro-Lift Technologies, L.L.C. v. Howard, ___ U.S. ___, 133 S.Ct. 500, 184 L.Ed.2d 328 (2012) (per curiam), a case in which a unanimous Supreme Court held that the State of Oklahoma must not burden the Federal Arbitration Act with "adequate and independent" state policy grounds, the Court explained that federal statutes (such as ERISA) as interpreted by the Supreme Court, are the supreme law of the land and must be followed. Id. at 502-04. Nitro-Lift noted that it is the Supreme Court's responsibility to say what a federal statute means and once the Court has spoken, it is the duty of other courts, federal and state, to respect that understanding of the governing rule of law. Id. at 503. Here, federal ERISA law and its preemptive force has been established by the Supreme Court. So, even if a specific state statute, such as the IWPCL, conflicts with a general federal statute such as ERISA, the federal statute controls. Thus, ERISA preemption would control in state court. Likewise, an ERISA cause of action filed
In this action, the federal district court had jurisdiction to determine its subject matter jurisdiction over the IWPCL cause of action, Kircher v. Putnam Funds Trust, 547 U.S. 633, 644, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006); Atkinson v. Morgan Asset Mgmt., Inc., 658 F.3d 549, 552 (6th Cir.2011), and an obligation to dismiss the action if it had none. Schubert, 649 F.3d at 822. It had none. Thus, in the face of the ERISA cause of action, the late-blooming IWPCL claim should have been deemed "dead on arrival" when it appeared at the federal courthouse door.
Accordingly, the district court had no subject matter jurisdiction over the IWPCL cause of action and erred in its award of attorney fees on July 8, 2011, and August 3, 2011. The majority reaches a result but it does not follow the law. I dissent.
JA at 1189.
