Hook v. Morrison Milling Co., No. 93-4115

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore JONES and DeMOSS; DeMOSS; EDITH H. JONES
Citation38 F.3d 776
Parties, 18 Employee Benefits Cas. 2485 Roxanne HOOK, Plaintiff-Appellee, v. The MORRISON MILLING COMPANY, Defendant-Appellant.
Decision Date14 November 1994
Docket NumberNo. 93-4115

Page 776

38 F.3d 776
63 USLW 2326, 18 Employee Benefits Cas. 2485
Roxanne HOOK, Plaintiff-Appellee,
v.
The MORRISON MILLING COMPANY, Defendant-Appellant.
No. 93-4115.
United States Court of Appeals,
Fifth Circuit.
Nov. 14, 1994.
Rehearing and Suggestion for Rehearing
En Banc Denied Dec. 13, 1994.

Page 778

Steven W. Sloan, Bennett W. Cervin, Thompson & Knight, Dallas, TX, for appellant.

Diane Barlow Sparkman, Angela Melina Raab (lead counsel), David C. Mattax, Asst. Atty. Gen., and John M. Hohengarten, Div. Chief, Fin. Litigation Div., Austin, TX, Marcia Bove, Associate Sol. of the Plan Benefits Sec. Div., U.S. Dept. of Labor, Washington, DC, amicus.

Roxanne Hook, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES and DeMOSS, Circuit Judges, and COBB, * District Judge.

DeMOSS, Circuit Judge:

The Morrison Milling Company ("MMC") appeals a district court's remand of Roxanne Hook's negligence action against the company. MMC argues that Hook's negligence claim is preempted by the Employment Retirement Income Security Act of 1974 ("ERISA"). 29 U.S.C. Secs. 1001-1461. Because we conclude that Hook's claim does not relate to MMC's ERISA plan, and therefore is not preempted, we affirm the district court's decision to remand Hook's suit to state court.

I.

Texas' workers' compensation scheme resembles the workers' compensation schemes of many other states. The Texas Workers' Compensation Act ("TWCA"), for example, provides that any benefits distributed pursuant to the TWCA are an employee's exclusive remedy for any work-related injuries or death. TEX.REV.CIV.STAT.ANN. art. 8308-4.01(a) (Vernon Supp.1993). 1 Texas' scheme, however, differs from most states' in one important respect: employers may choose not to carry insurance coverage under the TWCA. Id. art. 8308-3.23(a). 2 But the state makes that choice an unattractive one. Specifically, the TWCA vests employees of non-subscribing employers with the right to sue their employers for work-related injuries or death. Id. art. 8308-3.04. Furthermore, in any such action, the TWCA deprives the non-subscribing employer of traditional common law defenses such as contributory negligence, assumption of the risk and the fellow servant rule. Id. art. 8308-3.03(a)(1)-(3).

Notwithstanding the risks associated with "opting out," MMC in March 1989 elected to discontinue workers' compensation insurance and began offering the Interim Employee Welfare Benefit Plan. The Plan pays enrollees:

certain benefits for personal injuries suffered in the course of their employment, or for death resulting from such injuries, without the necessity of showing negligence on the part of the Company, and to provide for the continuation or partial continuation of their weekly salary or wages that would otherwise be lost as a result of their inability to work because of injury or illness incurred on the job.

The parties do not dispute that the Plan is governed by ERISA. See 29 U.S.C. Sec. 1002(1). While participation in the plan is voluntary, MMC requires employees who elect to participate to sign an enrollment and waiver form, which is an entirely separate document. Paragraph 3 of the form states:

In consideration of my election to enroll in, and thus become eligible to receive benefits under, the Interim Plan, I hereby waive my rights under TEX.REV.CIV.STAT.

Page 779

ANN. art. 8306, Sec. 4, 3 to bring suit and recover judgment against the Company and its directors, officers, agents, and employees for any damages sustained by reason of any personal injury received in the course of my employment by the Company, or by reason of death resulting from such injury. By electing to enroll in the Interim Plan, I agree that benefits payable under the Interim Plan shall be the exclusive remedy for me or my legal beneficiaries arising from any such personal injury or death.

Hook began working for MMC in October 1990 after she elected to participate in the Plan and completed the enrollment and waiver form. In December 1990, Hook fell down a staircase at work and was injured. Hook filed for benefits under the Plan with MMC, the Plan's administrator. The Plan paid her a total of $5,383.03: $4,749.28 for medical expenses and $633.75 for salary continuation benefits. Hook then left her job with MMC in July 1991.

In February 1992, Hook filed a wrongful discharge and negligence action in Texas state court against MMC. MMC removed the case to federal court, arguing that the wrongful discharge claim was preempted by ERISA. Hook then filed her first motion to remand the case back to state court, which the federal district court denied in July 1992 on the grounds that ERISA preempted her wrongful discharge claim. Hook amended her petition to omit the wrongful discharge claim, leaving the negligence claim as the sole basis for her suit. She again moved to remand the case, claiming that the negligence action was governed by state law.

In December 1992, the district court granted Hook's second motion to remand. The court addressed two possible grounds for preemption and rejected them. First, the court held that Hook's negligence action is not preempted because it does not relate to MMC's ERISA Plan. Second, the court concluded that the waiver does not independently trigger preemption because it is incidental to her negligence action and that, alternatively, such waivers are void under Texas law. 4 MMC then appealed the court's decision to remand Hook's negligence action. Hook did not file a brief on appeal and instead chose to rely on the district court's opinion as her brief. After oral argument, we requested 5 the United States and the State of Texas to submit amicus curiae briefs to address the significant issues raised in this case, particularly because Hook did not file a brief. Amici's briefs were thorough and helpful, and we thank the United States and Texas for their assistance.

II.

Before analyzing our appellate jurisdiction over this appeal, we first note that the district court's subject matter jurisdiction was proper at all times. To begin with, this case was properly removed pursuant to 28 U.S.C. Sec. 1446. Hook's original petition alleged, inter alia, that she was wrongfully discharged in retaliation for filing a workers' compensation claim. MMC removed the suit to federal district court, whereupon Hook filed her first motion to remand. The district court treated Hook's allegation as a claim that she was fired in retaliation for filing a claim under MMC's ERISA plan. 6

Page 780

Accordingly, the court concluded that her wrongful discharge claim was preempted because the Supreme Court has established that ERISA preempts a Texas wrongful discharge claim to the extent that that claim is dependent upon the existence of an ERISA plan. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-41, 111 S.Ct. 478, 482-84, 112 L.Ed.2d 474 (1990) (ERISA expressly preempts a Texas wrongful discharge claim that is premised on the existence of an ERISA plan); see also Anderson v. Electronic Data Sys. Corp., 11 F.3d 1311, 1313-14 (5th Cir.1994) (same). Because allegations of retaliation for filing a claim under an ERISA plan necessarily assert a claim that is dependent upon the existence of such a plan, MMC's removal of Hook's claims was unquestionably proper. Furthermore, Hook's subsequent deletion of her wrongful discharge claim does not render MMC's removal improper. We have stated on several occasions that a post-removal amendment to a petition that deletes all federal claims, leaving only pendent state claims, does not divest the district court of its properly triggered subject matter jurisdiction. Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1254 (5th Cir.1990); In re Carter, 618 F.2d 1093, 1101 (5th Cir.1980). In a jurisdictional inquiry, we look at the complaint as it existed at the time the petition for removal was filed, regardless of any subsequent amendments to the complaint. Anderson, 11 F.3d at 1316 n. 8.

The issue of whether we have appellate jurisdiction arises from the district court's decision to remand the case to state court. On the one hand, we do not have jurisdiction to review a remand order if it is made pursuant to 28 U.S.C. Sec. 1447(c). In particular, if a district court remands a case because of either a defect in removal procedure or lack of subject matter jurisdiction, we are powerless to review that remand order. 28 U.S.C. Sec. 1447(d); see also Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 350-52, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542 (1976); Burks v. Amerada Hess Corp., 8 F.3d 301, 303-04 & n. 4 (5th Cir.1993). On the other hand, if the court provides a reason unrelated to Sec. 1447(c), such as pendent jurisdiction, then we may properly review that order. We have stated that "a federal district court has discretion to remand a properly removed case to state court when all federal-law claims have been eliminated and only pendent state-law claims remain." Jones v. Roadway Express, Inc., 936 F.2d 789, 792 (5th Cir.1991) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)). If the court exercises its discretion to remand pursuant to this doctrine, then we may review the remand order. Carnegie-Mellon, 484 U.S. at 343 n. 11, 108 S.Ct. at 621 n. 11 ("the remand authority conferred by the removal statute and the remand authority conferred by the doctrine of pendent jurisdiction overlap not at all"). The district court below made clear that it was remanding Hook's state law negligence claim, i.e., her only remaining claim, pursuant to its discretion. We therefore may review the court's remand order. Burks, 8 F.3d at 303-04.

III.

A.

We begin by establishing the appropriate standard of review. If a district court's decision to remand a case to state court is based on its discretion, then we obviously review that decision for abuse of discretion. In Re Wilson Indus., 886 F.2d 93,...

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129 practice notes
  • Doddy v. Oxy USA, Inc., No. 95-21023
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 18, 1996
    ...statute and the remand authority conferred by the doctrine of pendent jurisdiction overlap not at all."); Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.1994) (noting that we may review court's decision to remand pendent state claims). Here, the district court had discretion to ret......
  • McClelland v. Gronwaldt, No. 97-40592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 9, 1998
    ...it had federal question jurisdiction, is a determination of original jurisdiction subject to de novo review. Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.1994); Carpenter v. Wichita Falls Indep. School Dist., 44 F.3d 362, 365 (5th Cir.1995). Second, we review the district court's......
  • Salameh v. Provident Life & Acc. Ins. Co., Civil Action No. H-96-2874.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 24, 1998
    ...515 U.S. 1122, 115 S.Ct. 2276, 132 L.Ed.2d 280 (1995)); accord Cypress Fairbanks Med. Ctr., 110 F.3d at 283; Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir.1994). A suit by a participant or beneficiary to recover benefits from a covered plan falls directly within the civil enforcem......
  • Washington v. Occidental Chemical Corp., No. CIV. A. G-97-525.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 6, 1998
    ...to exist despite being stripped of its link to the plan, it is not preempted. See Rokohl, 77 F.3d at 130; Hook v. Morrison Milling Co., 38 F.3d 776, 782-84 (5th The critical question is thus whether Plaintiff would have a fraud claim if Defendant's benefit plan was not implicated at all. Pl......
  • Request a trial to view additional results
129 cases
  • Doddy v. Oxy USA, Inc., No. 95-21023
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 18, 1996
    ...statute and the remand authority conferred by the doctrine of pendent jurisdiction overlap not at all."); Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.1994) (noting that we may review court's decision to remand pendent state claims). Here, the district court had discretion to ret......
  • McClelland v. Gronwaldt, No. 97-40592
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 9, 1998
    ...it had federal question jurisdiction, is a determination of original jurisdiction subject to de novo review. Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.1994); Carpenter v. Wichita Falls Indep. School Dist., 44 F.3d 362, 365 (5th Cir.1995). Second, we review the district court's......
  • Salameh v. Provident Life & Acc. Ins. Co., Civil Action No. H-96-2874.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • September 24, 1998
    ...515 U.S. 1122, 115 S.Ct. 2276, 132 L.Ed.2d 280 (1995)); accord Cypress Fairbanks Med. Ctr., 110 F.3d at 283; Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir.1994). A suit by a participant or beneficiary to recover benefits from a covered plan falls directly within the civil enforcem......
  • Washington v. Occidental Chemical Corp., No. CIV. A. G-97-525.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 6, 1998
    ...to exist despite being stripped of its link to the plan, it is not preempted. See Rokohl, 77 F.3d at 130; Hook v. Morrison Milling Co., 38 F.3d 776, 782-84 (5th The critical question is thus whether Plaintiff would have a fraud claim if Defendant's benefit plan was not implicated at all. Pl......
  • Request a trial to view additional results

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