Samuel v. Langham

Citation780 F. Supp. 424
Decision Date09 January 1992
Docket NumberCiv. A. No. 4-91-652-A.
PartiesDonald R. SAMUEL, M.D., Plaintiff, v. Charles G. LANGHAM, III, M.D., All Saints Episcopal Hospitals of Fort Worth and all Partnerships, Unincorporated Associations, Private Corporations and/or Individuals doing business under the Assumed Names Charles G. Langham, III, M.D., P.A.; Charles G. Langham, M.D., and/or All Saints Episcopal Hospitals of Fort Worth, Defendants.
CourtU.S. District Court — Northern District of Texas

Clifford Bernard Rodgers, Law Office of Clifford B. Rodgers, Fort Worth, Tex., for Donald R. Samuel, M.D.

Randy J. Hall, Decker Jones McMackin McClane Hall & Bates, Fort Worth, Tex., for All Saints Episcopal Hospitals of Fort Worth, and all Partnerships, Unincorporated Associations, Private Corporations.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

Came on for consideration the motions of plaintiff, Donald R. Samuel, M.D. ("Samuel"), to remand and for sanctions. The court, having considered the motions, the responses filed by defendants, Charles G. Langham, III., M.D. ("Langham"), and All Saints Episcopal Hospitals of Fort Worth, Inc., ("All Saints"), the record and the applicable authorities, finds that the action should be remanded and that Samuel should have recovery from All Saints of his costs and actual expenses incurred as a result of the removal.

NATURE OF THE CASE

Samuel instituted this suit in the 348th District Court of Tarrant County, Texas, alleging state law causes of action for recovery of damages growing from an alleged breach of an employment contract1. All Saints filed a notice of removal, asserting diversity jurisdiction and federal question jurisdiction. Both defendants now admit that there was no valid basis for removal grounded in diversity. See All Saints' Response to Samuel's Motion to Remand at 2, and Response and Brief of Defendant Charles G. Langham III, M.D., to Plaintiff's Motion to Remand and Motion for Sanctions at 2. The basis for federal question jurisdiction suggested by All Saints is preemption under the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), 29 U.S.C. §§ 1001-1461 (1973 & Supp.1991).

THERE IS NO ERISA PREEMPTION

For purposes of this opinion, the court will assume that the affidavits of Lyons and Langham establish that employee benefit plans covered by ERISA were maintained by one of the defendants. See Appendix Exs. "B" and "C" to All Saints' response to motion to remand.

ERISA's provisions supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan covered by ERISA. 29 U.S.C. § 1144(a) (1985). ERISA defines "state law" to include "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. § 1144(c)(1) (1985). Therefore, the determinative question in this case is whether Samuel's causes of action "relate to" an employee benefit plan. For the purposes of ERISA preemption, "a law `relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7-8, 107 S.Ct. 2211, 2215-16, 96 L.Ed.2d 1 (1987) (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983)). The breadth of ERISA's preemption clause was recently discussed by the Supreme Court in a case involving the alleged wrongful discharge of an employee purportedly inspired by the employer's desire to deprive the employee of his pension. Ingersoll-Rand Co. v. McClendon, 498 U.S. ___, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). There, the Court stated that causes of action that make specific reference to, and are premised on the existence of, an employee benefit plan necessarily "relate to" such a plan and are, as a result, preempted by ERISA. Id., 111 S.Ct. at 483. Notwithstanding ERISA's broad preemptive effect, however, the Court has indicated that "some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law `relates to' the plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490, 503 n. 21 (1983); Ingersoll-Rand, 111 S.Ct. at 483.

Defendants rely heavily on Ingersoll-Rand. That case is inapposite to the case at bar. In Ingersoll-Rand, the plaintiff, McClendon, brought suit against his former employer, Ingersoll-Rand, in a Texas state court alleging wrongful termination based on the employer's desire to avoid making contributions to his pension fund. Ingersoll-Rand, 111 S.Ct. at 481. The Texas Supreme Court held that "under Texas law a plaintiff could recover in a wrongful discharge action if he establishes that `the principal reason for his termination was the employer's desire to avoid contributing to or paying benefits under the employee's pension fund.'" Id. (quotes from McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69, 71 (Tex.1989)). However, the United States Supreme Court reversed that decision, holding that ERISA explicitly and impliedly preempts a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under a plan covered by ERISA. Id. at 482.

In contrast, Samuel's petition does not allege that the employment contract was breached to prevent him from receiving pension or other plan benefits. There is no suggestion made by Samuel, whatsoever, that "the true purpose of his discharge was to deprive him of pension rights." Rose v. Intelogic Trace, Inc., 652 F.Supp. 1328, 1330 (W.D.Tex.1987). Rather, he expressly alleges that the reason for his discharge was a fact entirely unrelated to the employee benefits he claims he lost because of his discharge.2 No ERISA cause of action lies when the loss of employee benefits is a mere consequence of, but not a motivating factor behind, the termination of employment. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988); Nowoc v. Rheem Mfg. Co., 772 F.Supp. 977, 979 (S.D.Tex. 1991); Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd, 742 F.2d 1441 (2d Cir.1983). The inescapable conclusion is that Samuel's causes of action are, at best, only remotely related to an employee benefit plan. A mere tenuous connection between his claims and a benefit provided under an ERISA plan does not support preemption. Moreover, preemption in this action would not further the purpose of ERISA's preemption provision, that being, to insure that the administrative practices of a benefit plan will be governed by only a single set of regulations. See Fort Halifax Packing Co., 482 U.S. at 11-12, 107 S.Ct. at 2217-18. "Quite clearly, there must be a point beyond which ERISA was not designed to reach." Jaskilka v. Carpenter Technology Corp., 757 F.Supp. 175, 178 (D.Conn.1991) (quoting from Totton v. New York Life Ins. Co., 685 F.Supp. 27, 30 (D.Conn.1987)). The case at bar involves such a point.

FAILURE OF ALL DEFENDANTS TO JOIN IN REMOVAL

Even if ERISA did preempt Samuel's claims, removal nevertheless was improper in this case. As a general rule, all defendants must join in the notice of removal to effectuate proper removal. See Luckett v. Harris Hospital-Fort Worth, 764 F.Supp. 436, 442 (N.D.Tex.1991). When there is a doubt as to the right to removal in the first instance, ambiguities are to be construed against removal. Id.

In its notice of removal, All Saints states "this defendant would show that all the defendants in the State court action which is the subject of this removal agree to this removal." Notice of Removal at 5. Although consent to removal is all that is required under 28 U.S.C. § 1446, a defendant himself must consent to the removal. Id. This does not require each defendant to sign the original notice of removal; however, there must be some timely "written indication" of each served defendant, or from some representative purporting to have authority to formally act on the defendant's behalf in this respect, showing that the defendant has actually consented to such a removal. Id. On November 7, 1991, two months after the notice of removal was filed by All Saints, Langham filed a response to Samuel's motion to remand and stated in the response that he consented to removal of this case. Langham's Response to Plaintiff's Motion to Remand and Motion for Sanctions at 2. Until Langham filed his response, there was nothing in the record, other than the contention made by All Saints in its notice of removal, that Langham consented to removal. Such purported consent, however, was not timely made because all served defendants must join in the notice no later than thirty days from the day on which the first defendant was served. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1263 (5th Cir.1988).

In this case, Samuel did not timely seek remand on the ground that Langham failed to join in the removal notice. See 28 U.S.C. § 1447(c) (Supp.1991). The court may, however, sua sponte remand an improperly removed action after expiration of the thirty-day deadline. Blackmore v. Rock-Tenn Co. Mill Div., Inc., 756 F.Supp. 288, 289 (N.D.Tex.1991). In determining whether to sua sponte remand, the court considers (1) the procedural history of the action, (2) the role of the opposing party in raising the nonremovability question, and (3) whether remand would result in an injustice to a party. Id. In this action, there has been no substantive ruling by the court since the filing of the notice of removal. Furthermore, although Samuel's motion to remand was untimely, the court notes, through the exhibits attached to Samuel's motion, that starting on September 13, 1991, only four days after All Saints filed its notice of removal, the attorney for Samuel repeatedly urged counsel for All Saints and Langham, respectively, to agree to a remand, advising them of the intent of Samuel to file a ...

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