Noel v. Laclede Gas Co., Case No. 4:08CV00817 FRB.

• Decision Date: 31 March 2009
• Docket Number: Case No. 4:08CV00817 FRB.
• Citation: 612 F.Supp.2d 1051
• Parties: Joan NOEL, and Joan Noel as personal representative of the estate of Glennon Noel, Plaintiffs, v. LACLEDE GAS COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

612 F.Supp.2d 1051

Joan NOEL, and Joan Noel as personal representative of the estate of Glennon Noel, Plaintiffs, v. LACLEDE GAS COMPANY, et al., Defendants.

Case No. 4:08CV00817 FRB.

United States District Court, E.D. Missouri, Eastern Division.

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

Christina J. Nielsen, O'Brien Law Firm, St. Louis, MO, for Plaintiffs.

Holly L. Yoakum, Richard J. Pautler, Thompson Coburn, Daniel E. Sakaguchi, Roger K. Heidenreich, Sonnenschein Nath & Rosenthal LLP, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

FREDERICK R. BUCKLES, United States Magistrate Judge.

Plaintiffs Joan Noel, and Joan Noel as personal representative of the estate of Glennon Noel ("plaintiffs") originally filed this nine-count Petition in the Circuit Court for the City of St. Louis, Missouri, against defendants Laclede Gas Company ("Laclede"), and Great-West Life and Annuity Insurance Company ("Great-West"). On June 5, 2008, Laclede removed this action to this Court on the basis of federal question jurisdiction. Presently pending is plaintiffs' Motion to Remand (Docket No. 13/filed July 3, 2008). All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).

Plaintiffs' late husband, Glennon Noel, was employed by Laclede from approximately 1986 to April 10, 2006, and was a participant in an employee benefit plan ("Plan") that included life insurance coverage with a death benefit of $60,000.00. This life insurance policy (also "policy") is the only benefit of the Plan at issue in this case. Plaintiffs were beneficiaries of the policy, and Laclede was the Plan Administrator. Great-West was the insurance company from which Laclede purchased the policy. In their petition, plaintiffs allege, and defendants do not dispute, that the Plan was an "employee benefit plan" subject to the rules and regulations of the Employee Retirement Income Security Program ("ERISA"), 29 U.S.C. § 1001, et seq.

The essence of all counts of the Petition is that both defendants violated certain provisions of federal and state law by failing to furnish a Summary Plan Description ("SPD") and other requested information, and by either failing to advise, or providing wrong advice, regarding Mr. Noel's right to elect continued coverage and/or convert the policy to an individual policy upon termination of his employment. Plaintiffs also allege that, as a result of defendants' wrongdoing, neither they nor Mr. Noel had secured other life insurance for Mr. Noel prior to his death on July 26, 2006, and the policy at issue had lapsed.

More specifically, the instant Petition alleges as follows. In Count I, plaintiffs allege that Laclede violated the Consolidated Omnibus Reconciliation Act ("COBRA"), 29 U.S.C. § 1166, inasmuch as Laclede failed to provide notice to Mr. Noel, within fourteen days of termination of his employment, of the right to elect continued life insurance coverage. In Count II, plaintiffs allege that Laclede violated certain ERISA provisions when it failed to provide Mr. Noel, within thirty days of his request, a copy of the SPD. In Count III, plaintiffs allege that Laclede violated ERISA when it failed to provide Mr. Noel a properly written SPD at certain intervals. In Count IV, plaintiffs allege that Laclede breached its fiduciary duty when it failed to timely notify plaintiffs of their right to elect continued life insurance coverage under the terms of the Plan. In Count V, plaintiffs allege a negligent misrepresentation claim against Laclede, inasmuch as Laclede advised Mr. Noel and plaintiffs, via letter, of their right to continue benefits, but such advice did not pertain to life insurance benefits, as Mr. Noel and plaintiffs believed. In Count VI, plaintiffs allege a fraudulent misrepresentation claim against Laclede, alleging that Laclede "maintained" that Mr. Noel would have the right to convert the policy, and in Count VII, plaintiffs allege a breach of contract claim against Laclede. In Count VIII, plaintiffs allege that Great-West violated Missouri law; specifically Mo.Rev.Stat. § 376.699, inasmuch as Great-West failed to provide notice to Mr. Noel of his right to have an individual policy of life insurance issued to him. In Count IX, plaintiffs allege a breach of contract claim against Great-West, inasmuch as Great-West failed to notify Mr. Noel of his right to have an individual life insurance policy issued to him upon his termination from Laclede, or that the policy would lapse for non-payment of premiums.

In support of the instant Motion to Remand, plaintiffs argue that Laclede's Notice of Removal is defective, inasmuch as Great-West failed to timely file consent to removal. On the issue of jurisdiction, plaintiffs argue that this Court has concurrent jurisdiction over Counts I through III (against Laclede); supplemental jurisdiction over Counts IV through VII (against Laclede), and pendent party jurisdiction over Counts VIII through IX (against Great-West). Plaintiffs argue that this Court should decline to exercise its supplemental jurisdiction over Counts IV through VII, and "accordingly remand those counts to state court." (Docket No. 14 at 6.) Plaintiffs also argue that this Court should decline to exercise jurisdiction over Great-West, "against which there are only state law counts." Id.

In support of their Motion to Remand Counts IV through IX, plaintiffs argue, inter alia, that state law issues substantially predominate the litigation. Plaintiffs do not address the issue of ERISA preemption. In response, Great-West filed a memorandum in opposition, with which Laclede joined. Therein, defendants assert that, before filing the Notice of Removal, Laclede had obtained Great-West's consent, and advised this Court of such consent in the removal notice. Defendants also argue that Great-West unambiguously expressed its consent by filing a Motion to Dismiss based upon federal preemption grounds. On the issue of jurisdiction, defendants argue that this Court has federal question jurisdiction over all nine counts of plaintiffs' Petition, because Counts I through III allege violations of federal law, and because ERISA completely preempts plaintiffs' claims in Counts IV through IX. For the following reasons, defendants' arguments are well-taken.

I. Discussion

As plaintiffs correctly note, defendants, as the parties seeking removal and opposing remand, bear the burden of establishing federal jurisdiction. In re Business Men's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir.1993). This Court must resolve doubts regarding the propriety of removal in favor of remand to state court. Id.

A. Great-West's Consent to Removal

In their Motion to Remand, plaintiffs first argue that Laclede's Notice of Removal is defective because Great-West failed to timely file its consent to removal. Both defendants argue that Great-West's consent was timely and unambiguous, inasmuch as Great-West timely filed a motion to dismiss in which it argued that this Court has federal question jurisdiction over all of plaintiffs' claims. For the following reasons, defendants' arguments are well-taken.

"Under the rule of unanimity, ordinarily all defendants must join in a notice of removal or the case will be remanded." Marano Enterprises of Kansas v. Z-Teca Restaurants, 254 F.3d 753, 755 n. 2 (8th Cir.2001); see also Amteco, Inc. v. BWAY Corp., 241 F.Supp.2d 1028, 1030 (E.D.Mo. 2003). "Removal jurisdiction requires all defendants to join in the removal petition or consent to removal within thirty days of service." Amteco, 241 F.Supp.2d at 1029. In order to satisfy the rule of unanimity, each defendant must provide "some form of `unambiguous consent'" to the court in a timely fashion. Id. at 1030 (quoting Codapro Corp. v. Wilson, 997 F.Supp. 322, 325-26 (E.D.N.Y.1998)).

The purpose of requiring each co-defendant to "independently and unambiguously" file notice of consent is to ensure each co-defendant intends to join in the removal. See Codapro, 997 F.Supp. at 326 (quoting Henderson v. Holmes, 920 F.Supp. 1184, 1187 (D.Kan.1996)). "Accordingly, `there must be some timely filed written indication from each defendant, or some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has actually consented to such action.'" Id. (quoting Getty Oil Corp., Div. of Texaco, Inc. v. Ins. Co. of North America, 841 F.2d 1254, 1262 n. 11 (5th Cir.1988)). Requiring written consent from each defendant prevents one defendant from choosing a forum for all. Id. (citing Production Stamping Corp. v. Maryland Cas. Co., 829 F.Supp. 1074, 1076 (E.D.Wis.1993)).

Courts disagree on the issue of what amounts to acceptable consent to removal. While some courts have refused to accept a motion to dismiss or an answer as a sufficient manifestation of a co-defendant's consent, such decisions noted that the pleading in question was insufficient because it was either untimely, or it did not speak to the issue of removal. Gribler v. Weisblat, 2008 WL 563469, 2 (S.D.N.Y. 2008) (motion to dismiss did not constitute consent to removal because it was untimely and contained no unambiguous manifestation of consent to removal); Henrich v. Falls, 2006 WL 335635, 2 (E.D.Va.2006) (a motion to dismiss filed by an allegedly consenting defendant was insufficient as to consent to remove because it was "completely silent as to whether she consents to removal"); Unicom Systems, Inc. v. National Louis University, 262 F.Supp.2d 638 (E.D.Va.2003) (filing of answer could not serve as consent to removal petition when answer was wholly silent on issue of removal, and thus did not contain requisite affirmative and unambiguous manifestation of consent to removal). Other circuits have recognized the mere filing of an answer as sufficient to manifest consent to removal. Hernandez v. Six Flags Magic Mountain, Inc., 688 F.Supp. 560, 562 (C.D.Cal.1988) (denyin...