THOMAS C. MUMMERT, III, Magistrate Judge.
This case began when a complaint was filed in the St. Louis County Circuit Court for the State of Missouri by Melissa Hughes against K-V Pharmaceutical Company (K-V) in August 2011. After K-V prevailed on a motion to dismiss, the complaint was amended and then removed by K-V to federal court on the grounds of federal question jurisdiction. Specifically, K-V contended that Plaintiff's allegations that she is owed damages arising from her inability to exercise her stock purchase options under K-V's incentive stock option plan are claims under the Employer Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461.
Moving to remand, Plaintiff argued that her claims do not arise under, or require an interpretation of, ERISA. In its memorandum opposing the motion, K-V "expressly denie[d] that the disputed stock options are ERISA benefits and that they are subject to an ERISA plan." (Def. Mem. at 6, ECF No. 11.) Rather, the stock options are governed by the Internal Revenue Code. (
Noting that Plaintiff had failed to file a memorandum in support of her motion, as required by Local Rule 7-401(A), the Court granted Plaintiff up to and including February 27, 2012, within which to do so. Instead, Plaintiff filed a motion to amend her complaint and to remand, again failing to file a supporting memorandum. Plaintiff argues in her motion that her proposed amended complaint complies with K-V's proffered stipulation and "dispenses with the suggestion that Plaintiff's stock option claims is [sic] a claim under ERISA." (Pl. Mot. ¶ 3, ECF No. 18.)
K-V counters that, based on Plaintiff's representations, it does not oppose Plaintiff's motion if an order remanding the case makes it clear that, by requesting a remand, Plaintiff is stipulating to the three concessions outlined by K-V. (Def. Mem. at 2-3, ECF No. 19.)
Plaintiff has requested a remand on the grounds that her allegations do not implicate any ERISA rights and that her amended complaint complies with the conditions K-V has placed on its consent to a remand. As noted by K-V, Plaintiff has not unambiguously stipulated to those conditions. Absent a clear indication by Plaintiff that she is stipulating to the conditions, the Court declines to include them in an order of remand. On the other hand, Plaintiff will not be permitted to seek a remand on one position and then alter that position to K-V's detriment when again in state court.
Accordingly, Plaintiff will be granted seven days, up to and including
Should Plaintiff fail to withdraw her motion to amend her complaint and for remand on or before April 2, 2012, her motion will be granted and her case will be remanded on the basis that she has agreed to K-V's three conditions.
SO ORDERED.