Whitman v. Raley's Inc., s. 87-2969
| Decision Date | 03 October 1989 |
| Docket Number | Nos. 87-2969,89-16257,s. 87-2969 |
| Parties | 132 L.R.R.M. (BNA) 2731, 58 USLW 2235, 113 Lab.Cas. P 11,637, 4 Indiv.Empl.Rts.Cas. 1559, 11 Employee Benefits Ca 1999 Cindy WHITMAN, Plaintiff-Appellee, v. RALEY'S INC., Defendant-Appellant. Floyd L. KRENTZ, Plaintiff-Appellee, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Page 1177
113 Lab.Cas. P 11,637,
4 Indiv.Empl.Rts.Cas. 1559,
11 Employee Benefits Ca 1999
v.
RALEY'S INC., Defendant-Appellant.
Floyd L. KRENTZ, Plaintiff-Appellee,
v.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant-Appellant.
Ninth Circuit.
Decided Oct. 3, 1989.
Page 1178
Bruce Laxalt, Monique Laxalt Urza, Laxalt & Nomura, Reno, Nev., for defendant-appellant, Raley's, Inc.
Stephen N. Scheerer, Incline Village, Nev., James A. Stone, Reno, Nev., for plaintiff-appellee, Cindy Whitman.
Christopher H. Whelen, Gold River, Cal., for plaintiff-appellee, Floyd L. Krentz.
Geoffrey Van Loucks and Rob MacDonald, Van Loucks & Hanley, San Jose, Cal., for defendant-appellant, Connecticut Gen. Life Ins. Co.
Appeal from the United States District Court for the District of Nevada, 87-2969.
Appeal from the United States District Court for the Eastern District of California, 89-16257.
Before HUG, BRUNETTI and NOONAN, Circuit Judges.
HUG, Circuit Judge:
We have chosen to resolve these two cases as companions because they present the same legal issue: Does 28 U.S.C. Sec. 1447(d) bar review of remand orders that are based on a finding that federal law does not completely preempt plaintiff's state claims? We hold that it does.
I.
On March 21, 1986, Cindy Whitman filed a complaint against Raley's, her former employer, alleging causes of action for: (1) wrongful termination; (2) defamation; (3) conspiracy; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) reckless, malicious, oppressive and outrageous conduct. On April 25, 1986, Raley's filed a petition to remove the action to federal court on the ground that because the terms and conditions of Whitman's employment were governed by a collective bargaining agreement, federal subject matter jurisdiction existed over the complaint under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185.
On September 23, 1986, defendant filed a motion for summary judgment alleging that, once Whitman's complaint is properly recharacterized, all relief is barred by section 301's six month statute of limitations. Whitman both opposed the motion for summary judgment and filed a counter-motion to remand the case to state court. She contended that her claims were not preempted by section 301 because she was
Page 1179
not a union member and had no knowledge of the collective bargaining agreement.On October 15, 1987, the district court granted Whitman's motion to remand reasoning that: "Because the plaintiff does have a wrongful termination cause of action under state law which is not preempted in any degree by Sec. 301 of the LMRA, there is no federal question presented by the plaintiff's complaint. As such, this action was improperly removed from the state courts, and will be remanded." 1 On November 12, 1987, Raley's appealed from the remand order. On January 14, 1988, the district court granted defendant's motion to stay the remand order pending appeal. 2 Then this court issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction pursuant to 28 U.S.C. Sec. 1447(d). Timely responses to the order to show cause have been filed.
II.
On February 11, 1985, Floyd Krentz filed a complaint against his former employer Nicholas Turkey Breeding Farms, Inc., Connecticut General Life Insurance Company, MONY and Does 1 through 100 for "tortious refusal to pay benefits." The complaint alleged causes of action for violation of California Insurance Code Section 790.03 et seq.; breach of the covenant of good faith and fair dealing; breach of a fiduciary relationship; intentional infliction of emotional distress; intentional misrepresentation; and negligent misrepresentation. On May 5, 1987, Connecticut General Life Insurance Company ("Connecticut General") removed the action to federal court contending that the state law causes of action were actually artfully pled ERISA claims.
Connecticut General then filed a motion to dismiss the complaint arguing that, once the complaint is recharacterized as an ERISA claim, it should be dismissed because ERISA does not grant a private right of action for delay in processing claims and ERISA bars all claims for extracontractual damages and punitive damages. Krentz opposed the motion contending that the plan was a private insurance policy, not an employee benefit plan governed by ERISA and that claims for prospective benefits are not preempted by ERISA. Krentz also filed counter motions for leave to file an amended complaint and to remand the action back to state court.
On February 23, 1988, the district court entered the following order:
1. Plaintiff's Motion to Amend is denied as being moot;
2. Defendant's Motion to Dismiss is granted only on the issue of insurance and prospective relief;
3. Defendants' Motion to Dismiss on the basis of ERISA preemption is denied;
4. Plaintiff's Motion for Remand is granted, but stayed until such time as to allow the Defendants to take an interlocutory appeal on the status of the conversion. 3
On April 15, 1988, the district court amended its order to include:
It is further ordered that the motion of Defendant CONNECTICUT GENERAL LIFE is hereby denied solely due to the determination that there is no ERISA preemption pertaining to the conversion policy involved in this case. I certify that this order involves a controlling question of law...
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