Zewe v. Law Firm of Adams & Reese, Civ. A. No. 93-2939.

• Decision Date: 03 November 1993
• Docket Number: Civ. A. No. 93-2939.
• Citation: 852 F. Supp. 516
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Jack H. ZEWE v. The LAW FIRM OF ADAMS & REESE, et al.

852 F. Supp. 516

Jack H. ZEWE v. The LAW FIRM OF ADAMS & REESE, et al.

Civ. A. No. 93-2939.

United States District Court, E.D. Louisiana.

November 3, 1993.

Jacques Bezou, Robert Matthews, Jacqueline Daspit, DeRussy, Bezou Law Firm, New Orleans, LA, for plaintiff, Jack H. Zewe.

John Weigel, Edward Koehl, Jones Walker Law Firm, New Orleans, LA, for Law Firm of Adams & Reese.

Daniel Lund, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Shell Oil Co.

ORDER AND REASONS

MENTZ, District Judge.

The plaintiff, Jack Zewe, filed a motion to remand this case to the Civil District Court for the Parish of Orleans in Louisiana. Zewe filed suit in that state court to recover damages from Shell Oil Company (Shell), several Shell employees, the law firm of Adams and Reese, individual attorneys with that firm, and a group of attorneys designated as the Plaintiffs' Legal Committee (PLC)¹. Zewe alleges, among other things, that Shell terminated his employment and employee benefits in retaliation for "blowing the whistle" about environmental violations allegedly committed by Shell.²

Shell removed this case from state court under 28 U.S.C. § 1441(a), (b), and (c) on the basis of federal question jurisdiction. Shell asserts that federal question jurisdiction exists because Zewe's state law claim for wrongful termination is preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq.³

Zewe's motion to remand is opposed by defendants, Shell, the law firm of Adams and Reese, James E. Blasek, Andrew Clausen, and Margaret Joffe⁴. These defendants argue that the case should not be remanded because this court has original federal question jurisdiction over Zewe's suit by virtue of ERISA's preemption, and further, that this court has supplemental jurisdiction under 28 U.S.C. § 1367 over the claims asserted in Zewe's state court petition.

Also before the court is a motion filed by the Adams and Reese law firm, Blasek, Clausen, and Joffe to enjoin Zewe from proceeding in state court under exceptions to the Anti-Injunction Act, 28 U.S.C. § 2283.

Factual Background

The circumstances leading to the present suit arose from events occurring in a class action suit brought against Shell as a result of the May 5, 1988, explosion at Shell's refinery in Norco, Louisiana. That suit, captioned In re Shell Oil Refinery, Civil Action No., 88-1935, sought compensatory and punitive damages on behalf of persons present in a five-parish geographical area at the time of the explosion and who sustained injuries or damages as a result of the explosion. After over five years of litigation before this court, In re Shell Oil Refinery and all pending federal opt-out suits were settled in the amount of $170 million. The court entered a final judgment approving the settlement on October 20, 1993.

During the course of the class action litigation, Zewe, who was a twenty-year employee of Shell, surreptitiously provided the PLC with Shell business documents and other information related to the class action litigation. Suspecting a mole within its organization, Shell conducted an internal investigation which exposed Zewe as the source of the information leak. Zewe described his taking of documents and relations with counsel in that suit in a lengthy, transcribed statement, immediately after which Shell terminated his employment and his employee benefits.

ERISA Preemption

Proper removal requires that the district court have original jurisdiction over the matter removed. 28 U.S.C. § 1441(a) (West Supp.1993). There is no diversity jurisdiction in this case. Shell maintains that federal question jurisdiction exists because Zewe's claim for wrongful termination under Louisiana law is preempted by ERISA.

ERISA's provisions preempt state laws "relating to" any employee benefit plans covered by ERISA. 29 U.S.C. § 1144(a) (West 1990). "A law `relates to' an employee benefit plan, ... 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, 2900, 77 L.Ed.2d 490 (1983)).

In the case of a claim for wrongful termination, no ERISA preemption occurs when the loss of pension benefits was a "mere consequence of, but not a motivating factor behind, a termination of employment." Rose v. Intelogic Trace, Inc., 652 F.Supp. 1328, 1330 (W.D.Tex.1987) (citing Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff'd, 742 F.2d 1441 (2nd Cir. 1983)); see also Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 974 (9th Cir.1993) (no ERISA preemption where plaintiff's suit alleged that he was terminated as a scapegoat for legal errors committed by others); Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988) (claim for tortious discharge without suggestion that the employer had a pension-defeating motive is not preempted by ERISA simply because the plaintiff sought to recover lost salary and benefits); Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992) (no ERISA preemption where the reason for discharge, that the employer decided not to develop the medical clinic plaintiff had been hired to establish, was a fact entirely unrelated to the employee benefits he claims he lost because of his discharge); NOWOC v. Rheem Mfg. Co., 772 F.Supp. 977, 979 (S.D.Tex.1991) (no ERISA preemption where the plaintiff made no claim that his employer fired him for the purpose of depriving him of employee benefits).

Zewe's allegations regarding his termination and loss of benefits are contained in three paragraphs:

Paragraph 29 provides:

Because Zewe "blew the whistle" on defendant, Shell, he was fired immediately after the October 1, 1992 inquisition in violation of La.R.S. 30:2027.

Paragraph 36 provides:

To further punish Plaintiff for `blowing the whistle,' Defendant Shell has terminated Plaintiff's medical coverage and has removed him from the Benzene and Asbestos Surveillance Program in which he was enrolled by Defendant Shell in 1976, notwithstanding the fact that Zewe was exposed to said carcinogens while in Shell's exclusive employ.

Paragraph 42 provides:

Notwithstanding the fact that Zewe acted in good faith and disclosed to his superiors violations of Louisiana Environmental Law, and further provided information to O.S.H.A. and the EPA of environmental violations, Defendant Shell retaliated by, inter alia, terminating his employment and employment related benefits which immediately renders Defendant Shell liable for treble damages and attorney's fees, all as provided in La.R.S. 30:2001, et seq.

Zewe's complaint does not mention ERISA, nor does it contain an allegation or suggestion that Shell's motive in terminating his employment was to avoid payment of benefits. His complaint expressly alleges that Shell discharged him in retaliation for his professed whistle blowing activities. That his termination resulted in a loss of benefits does not invoke ERISA preemption. The essence of Zewe's claim for wrongful termination is that Shell was motivated by revenge, rather than any pension-defeating objective.

Shell cites several cases where the court applied ERISA's preemption provisions to state law claims. Ingersoll-Rand v. McLendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (plaintiff filed a wrongful discharge action alleging the basis for his termination was his employer's desire to avoid contributing to his pension plan); Christopher v. Mobil Oil, 950 F.2d 1209 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992) (the focus of plaintiff's state law claims, the action of his employer in amending his ERISA plan and failing to disclose certain terms of the plan, related directly to the operation of an ERISA plan); Lee v. E.I. DuPont de Nemours and Co., 894 F.2d 755 (5th Cir.1990) (plaintiff claimed that his employer fraudulently or negligently induced him to take an early retirement depriving him of benefits created under a plan instituted one month after his departure); Cefalu v. B.F. Goodrich, Co., 871 F.2d 1290 (5th Cir.1989) (plaintiff claimed his employer reneged on an agreement to provide retirement benefits in a certain amount which had been offered as inducement to purchase a company franchise in lieu of working for another division of the company or retiring). None of these cases are controlling in the instant case because they involve state law claims arising out of the administration of an ERISA plan. Each case involved a claim that the employer's objective was to avoid its obligations under an ERISA employee benefit plan. In the case at bar, Zewe's loss of benefits was nothing more than a consequence of his purported whistle blowing activities.

In conclusion, Zewe's claim for wrongful termination is not sufficiently related to an ERISA-governed employee benefit plan, and consequently, this court has no original jurisdiction over this case.

Supplemental Jurisdiction

Defendants, the Adams and Reese law firm, Blasek, Clausen, and Joffe, argue that this court has supplemental jurisdiction under 28 U.S.C. § 1367 over the claims Zewe asserted in his state court suit because they are so factually related to claims in the federal class action that they form part of the same case or controversy.⁵ Defendants assert that supplemental jurisdiction exists even without original jurisdiction over any of the claims asserted in Zewe's suit, relying on Royal Ins. Co. v. Quinn-L Capital Corp., 960 F.2d 1286, 1292 (5th Cir.1992) ("Quinn-L Capital I").

The opinion in Quinn-L Capital I does not support the exercise of supplemental jurisdiction over any of the claims asserted in Zewe's state court petition. The cited portion of the Quinn-L Capital I opinion holds that a federal court has "ancillary jurisdiction" to issue an injunction against state court proceedings to protect and effectuate a prior...