Stenger v. Carelink Health Plans, Inc.
5:10-cv-00109
N.D.W. Va.Jun 27, 2011Background
- Stenger filed state-law claims in Ohio County, West Virginia, alleging discrimination, intimidation, and both intentional and negligent infliction of emotional distress against Carelink Health Plans and its former CEO.
- Carelink removed the action to this Court for a second time, asserting ERISA preemption and complete preemption under 29 U.S.C. § 1132(a).
- The prior remand in 2008 held the state-law claims were not preempted by ERISA because they did not relate to an ERISA benefit plan.
- The defendants rely on post-pleading materials (e.g., responses to discovery and deposition) as the basis for removal, arguing an ERISA-removal trigger existed in 2009–2010.
- Stenger moved to remand as untimely removal, and to strike the defendants’ removal-related memorandum; she also sought attorney’s fees.
- The court granted remand, denied striking the removal memorandum, and denied attorney’s fees, concluding removal was untimely and ERISA grounds were not timely asserted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal under 28 U.S.C. §1446(b) | Stenger claims removal was untimely. | Carelink contends the 'other paper' from plaintiff indicated removability. | Removal untimely; remand granted. |
| Whether ERISA provides a basis for removal under complete preemption | Stenger’s filings do not create ERISA-removable claims. | Carelink asserts ERISA complete preemption applies to plaintiff’s claims. | ERISA grounds exist but do not save untimely removal; remand stands. |
| Attorney’s fees and costs on remand | Fees and costs should be awarded for improper removal. | Removal was colorable; no fees warranted. | Fees denied. |
Key Cases Cited
- Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148 (4th Cir. 1994) (burden on party seeking removal; strict construction of jurisdiction)
- Lovern v. General Motors Corp., 121 F.3d 160 (4th Cir. 1997) (look to four corners of initial pleadings and other papers for removability)
- Tolley v. Monsanto Co., 591 F. Supp. 2d 837 (S.D. W. Va. 2008) (recognizes the “clue” test for removability from later filings)
- Shonk Land Co., LLC v. Ark Land Co., 170 F. Supp. 2d 660 (S.D. W. Va. 2001) (applies the ‘clue’ approach to removability on later papers)
- Link Telecommunications, Inc. v. Sapperstein, 119 F. Supp. 2d 536 (D. Md. 2000) (emphasizes use of later papers to ascertain removability)
- Harris v. Bankers Life and Casualty Co., 425 F.3d 689 (9th Cir. 2005) (addressing limits of the “clue” test in determining removability)