JOSEPH R. GOODWIN, Chief Judge.
Pending before the court is the plaintiff's Motion to Remand this action to the Circuit Court of Kanawha County, West Virginia [Docket 5]. For the following reasons, the court
The plaintiff, William David Richards, worked as a union employee for the defendant Appalachian Power Company ("APCO"), which is part of American Electric Power Company ("AEP"), for just under 37 years. In early March 2010, as his 62nd birthday approached, Richards considered retirement. Accordingly, Richards approached an APCO human resources representative and asked whether the defendants contemplated offering any severance packages to retirees. The representative told Richards that no severance programs were contemplated and that no negotiations between AEP and/or APCO and the union were pending concerning severance programs for union employees. Richards alleges that he relied on this information in electing to retire, and did so effective March 31, 2010. Shortly thereafter, on April 14, 2010, AEP announced a severance program, available to employees who had been actively employed as of April 1, 2010, one day after Richards's retirement. Consequently, Richards was not eligible for the severance benefits package. Richards avers that the defendants should have told him about the impending severance program, and that, had they done so, he would have delayed his retirement in order to be eligible for the severance benefits.
On February 1, 2011, Richards filed suit against APCO and AEP in the Circuit
Because federal courts are courts of limited jurisdiction, the burden of establishing jurisdiction rests on the party seeking to invoke the court's jurisdiction. Barbour v. Int'l Union, 640 F.3d 599, 604-05 (4th Cir.2011) (en banc). In a removed case, such as this one, that burden falls on the party seeking removal. See id. Moreover, removal jurisdiction is to be strictly construed, "inasmuch as the removal of cases from state to federal court raises significant federalism concerns." Id. Thus, any doubts as to the existence of federal jurisdiction must be resolved in favor of remanding the action to state court. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (en banc).
An action filed in state court can only be removed to federal court if the "the district courts of the United States have original jurisdiction" over the matter. 28 U.S.C. § 1441(a). In other words, the question is whether the action could have originally been brought in federal district court. See King v. Marriott Int'l, Inc., 337 F.3d 421, 424 (4th Cir.2003). Typically, that occurs in one of two circumstances: where the requirements for diversity jurisdiction are met or where the face of the complaint raises a federal question. See Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir.2005). The defendants do not contend that this case implicates the court's diversity jurisdiction. Thus, the only issue is whether the action falls within the ambit of federal question jurisdiction.
Under the well-pleaded complaint rule, which applies equally to original and removal jurisdiction, a federal question must appear from the face of the plaintiff's well-pleaded complaint. Louisville & Nasvhille R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); see Discover Bank v. Vaden, 489 F.3d 594, 609 (4th Cir.2007) (Goodwin, J., dissenting), maj. op. rev'd, 556 U.S. 49, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009). In short, a federal right must be an essential element of the plaintiff's claim; the mere existence of a federal defense will not suffice. See Lontz, 413 F.3d at 439. Thus, as a general matter, the plaintiff may avoid federal jurisdiction by exclusively relying on state law in the complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
There is, however, a "narrow exception" to the well-pleaded complaint rule — the doctrine of "complete preemption." Lontz, 413 F.3d at 439. A careful distinction must be drawn between complete preemption and ordinary, or "conflict," preemption. Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 370 (4th Cir.2003). Because conflict preemption is simply a defense to a state-law claim, the Supreme Court has ruled that it does not
Complete preemption, by contrast, "is not a distinct type of preemption at all, but rather is a jurisdictional rule positing that all claims on a given topic arise under federal law, thereby paving the way for removal of an action to federal court pursuant to 28 U.S.C. § 1441(b)." Smith v. BAC Home Loans Servicing, LP, 769 F.Supp.2d 1033, 1039 n. 7 (S.D.W.Va.2011). Thus, "the doctrine of complete preemption has but one purpose — that is, the recharacterization of a plaintiff's state complaint so that it may be considered federal for the purposes of the well-pleaded complaint rule." Vaden, 489 F.3d at 611 (Goodwin, J., dissenting) (emphasis omitted); see Sonoco Prods., 338 F.3d at 371 ("[W]hen complete preemption exists, the plaintiff simply has brought a mislabeled federal claim ...." (internal quotation marks omitted)). Complete preemption is rarely applied. Because the Supreme Court presumes that Congress did not intend to displace a whole panoply of state law, it has been "reluctant" to find complete preemption. See Lontz, 413 F.3d at 440-41.
The distinction between the defense of ordinary preemption and the jurisdictional doctrine of complete preemption is often confused in the context of ERISA. Section 514 of ERISA defines the scope of ordinary preemption under the Act: state law claims are preempted insofar as they "relate to" any employee benefit plan governed by ERISA. 29 U.S.C. § 1144(a). The fact that a claim may be preempted under § 514 of ERISA, however, does not provide a basis for removal of an action to federal court. See Sonoco Prods., 338 F.3d at 371 ("[C]onflict preemption under § 514 does not provide a basis for federal jurisdiction."). Rather, complete preemption under ERISA — and thus a proper basis for removal — only arises if a state-law claim can be recharacterized as a claim under ERISA's civil enforcement provision, § 502(a). Id.; see also Darcangelo v. Verizon Commc'ns, Inc., 292 F.3d 181, 187 (4th Cir.2002) (observing that § 502(a) converts all claims coming within its scope into federal claims).
The "threshold requirement" for determining whether a claim falls within the scope of § 502(a) of ERISA is whether the plaintiff possesses standing to assert a claim under that provision. Sonoco Prods., 338 F.3d at 372. Section 502(a) empowers a "participant or beneficiary" of an ERISA-governed plan to bring a civil action to recover benefits due under the terms of a plan or to enforce rights under the terms of a plan, 29 U.S.C. § 1132(a)(1)(B) (emphasis added), and authorizes a "participant, beneficiary, or fiduciary" to bring a civil action to "obtain other appropriate equitable relief," id. § 1132(a)(3) (emphasis added). Because the defendants in this case do not maintain that Richards is a "beneficiary" or "fiduciary" of an ERISA-covered plan, the question is whether he has standing as a "participant" to bring a claim under
The defendants maintain that Richards is a "participant" under ERISA because he "is a former employee of APCO who may become eligible to receive a benefit of some kind from the Plan." (Defs.' Notice of Removal [Docket 1] ¶ 6.) I disagree with the defendants' analysis.
Richards alleges in the Complaint that the defendants informed him that he was not eligible for the severance plan because he retired one day before the cut-off date for eligibility. Moreover, Richards does not seek through the Complaint to obtain benefits under the plan or membership in it. He does not assert any claims against the plan itself,
The Tenth Circuit has considered a nearly identical set of claims and concluded that complete preemption did not apply because the plaintiffs lacked standing to
The only possible basis for recharacterizing Richards's claims as falling within the ambit of § 502(a) of ERISA would be for the defendants to argue that his claim boils down to the assertion that "but for" their wrongful conduct, he would have been entitled to benefits under the plan. The Fourth Circuit, however, has explicitly rejected the notion of "but for" standing under § 502(a) of ERISA. See Stanton v. Gulf Oil Corp., 792 F.2d 432, 435 (4th Cir.1986).
The fact that Fourth Circuit precedent would foreclose Richards from pursuing a claim under § 502(a) of ERISA proves that complete preemption has no bearing here. A "vital feature of complete preemption is the existence of a federal cause of action that replaces the preempted state cause of action." King, 337 F.3d at 425 ("Where no discernable federal cause of action exists on a plaintiff's claim, there is no complete preemption...."). In sum, Richards is not a "participant" of an ERISA plan such that his state-law claims can be reclassified as actually falling within § 502(a). Because this "threshold requirement for complete preemption" has not been satisfied, Sonoco Prods., 338 F.3d at 372, and there is no federal question on the face of the well-pleaded complaint, this action was improperly removed to federal
Finally, Richards requests that the court award him costs and fees. See 28 U.S.C. § 1447(c) (providing that, in remanding a case, the court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal"). "Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). While I conclude that the defendants have not carried their burden of establishing a proper basis for removal, I nevertheless
Pursuant to the foregoing, the court
The court