MEMORANDUM OPINION AND ORDER
This mаtter is before the court on plaintiffs motion to remand the case to state court and defendant’s motion to dismiss for failure to state a cause of action. For the reasons set forth below, plaintiffs motion to remand is DENIED and defendant’s motion to dismiss is STAYED. In addition, the court GRANTS plaintiff thirty days from the date of this order to file an amended complaint, stating a claim under ERISA.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff, Melissa P. Fanney, is married to Thomas R. Fanney, who is employed by Virginia Wesleyan College. 1 Virginia Wesleyan Collеge is a participant in Trigon Blue Cross Blue Shield’s' (Trigon) group hospitalization plan. The plan provides coverage to Wesleyan’s employees and offers various options to insure family members of employees. On or abоut January, 1994, in consideration of a monthly premium of $52.00, Thomas R. Fan-ney and his family, including plaintiff, were accepted as insured individuals under the group hospitalization plan.
On May 17, 1997, while the policy was in full force and effect, plaintiff was hospitаlized as a result of a suicide attempt. Plaintiff was subsequently admitted for in-patient treatment to various hospitals that specialize in treatment for substance abuse and related mental health problems. Plaintiffs treating physician and оther mental health care providers had concluded that the in-patient treatment was a medical necessity. According to plaintiff, defendant is obligated under the terms of the policy to pay for the total cost of her hospitalization.
Plaintiff alleges that she has furnished defendant with all of the information necessary to receive benefits. Between June and September, 1997, defendant rejected plaintiffs claim for benefits on the ground that her hospitalizаtions were not medically necessary. Defendant has refused to pay any portion of plaintiffs claim.
Plaintiff initially filed a Motion for Judgment in the Circuit Court of the City of Virginia Beach against defendant, Trigon, for breach of contract. Plaintiff sеeks $17,500, which is the total cost of her hospitalization, plus interest that has accrued and is expected to accrue in the future. In addition, plaintiff seeks reasonable attorney’s fees and court costs incurred in this proceеding.
On February 17, 1998, Trigon removed the action to this court pursuant to 28 U.S.C. §§ 1441(b) and 1446. Section 1441(b) allows for the removal of actions over which “district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United Stаtes.” Defendant maintains that this court has original federal question jurisdiction over this action, as it involves a claim for health benefits under a plan governed by the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1001 et seq. In addition, Trigon filed a motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). In its motion to dismiss, Trigon argues that plaintiffs state law claim *831 is preempted by ERISA and that plaintiff has thus failed to state a claim upon which relief can be granted.
On Mаrch 3, 1998, plaintiff responded to the motion to dismiss, arguing that the claim is sufficient to state a cause of action pursuant to ERISA and that the court should thus treat it as such, rather than dismiss the claim. On March 11, 1998, defendant submitted a brief in reply to plaintiffs resрonse. On April 16, 1998, plaintiff filed a motion to remand the matter to state court entitled “Additional Objection to Removal to the United States District Court.” Plaintiff filed a brief in support of her motion on April 30, 1998. In the motion, plaintiff argues that defendant has wаived federal venue, and thus the case should be remanded to state court. On May 29, 1998, Trigon’s response'to plaintiffs motion was docketed by the court. 2 These matters are thus ripe for judicial review.
II. ANALYSIS
A. MOTION TO REMAND
In her motion to remand, plaintiff admits that her claim for benefits is governed exclusively by ERISA. Accordingly, she agrees that this court has federal question jurisdiction over the action and that she could have chosen to originally file suit in this court. However, she argues that defen- . dant has waived its right to remove any state court action filed by a claimant to federal court.
Defendant has promulgated a booklet of benefits entitled Key Care Plan for Virginian Wesleyan College, which is the plan’s Summary Plan Description (SPD). Under the heading entitled “Enforcement of ERISA Rights,” the SPD informs participants that “[i]f you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court.” Additional Objection to Removal to the U.S. Dist. Ct., Attachment (p. 57 of SPD). Plaintiff maintains that this language invests in a claimant the right to select the forum for litigation. According to plaintiff, the language constitutes, a waiver by defendant of its right to remove, to federal court, an action for benefits that was brought in state court.
There is no merit to plaintiffs argument. The law is well-settled that a waiver is the voluntary and intentional relinquishment of a known right.
See, e.g., United States v. Stout,
Instead, the SPD simply informs plan participants that there is concurrent state and federal jurisdiction for routine ERISA claims for benefits. See 29 U.S.C. § 1311(e)(l)(pro-viding for state courts and federal district courts to have concurrent jurisdiction over claims for benefits). Specifically, the SPD informs particiрants of their right to file suit in either a state or federal court. Defendant does not deny that state courts have concurrent jurisdiction over ERISA claims or that participants have a right to file suit in state court. Defendant does deny the allegation that it has somehow waived its right to remove actions that have been filed in state court, simply by outlining for participants the courts in which they may file suit.
Furthermore, the SPD language relied on by plaintiff is mandated by federal statute and the Department of Labor regulations. See 29 U.S.C. §§ 1022(b) & 1024(e); 29 C.F.R. § 2520.102-3(t)(2). ERISA requires *832 employers to give employees summary descriptions of plan benefits. 29 U.S.C. § 1022(b). The Secretary has required administrators to provide all plan participants and beneficiaries with an SPD, such as those provided by the administrators of the Virginia Wesleyan College plan, and has set forth the “General Reporting and Disclosure Requirements.” 29 C.F.R. § 2520.102-1 et seq. These benefit handbooks, or SPDs, which must be distributed to all employees, are deemed to comрly with federal law if they contain, inter alia, the following language: “If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court.” 29 C.F.R. § 2520.102-3(t)(2).
The statement included in defendant’s SPD is identical to the statement mandated by the Department of Labor, and is essentially a paraphrase of 29 U.S.C. § 1181(e)(1), which provides for concurrent jurisdiction in state and federal courts. Under plaintiffs line of reasoning, every employer that is in compliance with fеderal law would necessarily have waived their right to remove actions for benefits to federal court. The application of plaintiffs reasoning would have an absurd result—virtually all ERISA cases removed from state court would havе to be remanded.
Plaintiff has cited to no cases that support her argument.
3
The court has, however, found one case directly on point.
See Clorox Co. v. United States Dist. Court,
For the reasons stated above, the court FINDS that defendant has not waived its right to remove actions brought in state court for ERISA benefits. Accordingly, plaintiffs motion to remand is DENIED.
■ B. MOTION TO DISMISS
Defendant argues that plaintiffs Motiоn for Judgment should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), based on ERISA’s preemption of plaintiffs state cause of action. ERISA supersedes “any and all State laws insofar as they may now or hereafter relate to any [ERISA] рlan.” 29 U.S.C. § 1144(a);
see also Salomon v. Transamerica Occidental Life Ins. Co.,
Plaintiff concedes that her state law breach of contract claim is preempted. She argues, however, that hеr action should not be dismissed because it is sufficient to state a cause of action under ERISA. Plaintiff thus maintains that the court should treat the claim as one pursuant to ERISA, rather than dismiss the action entirely.
A Rule 12(b)(6) motion for failure to state a claim should only be granted “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson,
However, Fourth Circuit jurisprudence does not seem to support the remedy sought by plaintiff. Instead, courts within this circuit have allowed plaintiffs leave to аmend their complaint to state a cause of action under ERISA.
See Hand v. Church & Dwight Co., Inc.,
Accordingly, the court will not simply construe the claim as an action pursuant to ERISA. Neither will the court dismiss plaintiffs complaint at this juncture. Instead, the court will GRANT plaintiff leave to amend her complaint tо state a cause of action for relief under ERISA, and will STAY the motion to dismiss.
III. CONCLUSION
For the foregoing reasons, plaintiffs motion to remand is DENIED and defendant’s motion to dismiss is STAYED. In addition, the court GRANTS plaintiff thirty (30) days from the date of this order to file an amended complaint, stating a claim under ERISA. The court GRANTS defendant twenty (20) days from service of the amended complaint to file responsive pleadings or appropriate motions to plaintiffs amended complaint.
It is so ORDERED.
Notes
. The facts are takеn from the allegations in plaintiffs Motion for Judgment and are assumed to be true for the purpose of considering these motions.
. The motion filed on April 16, 1998, was actually the second motion to remand filed by plaintiff. On March 3, 1998, Fanney filed a motiоn entitled "Objection to Removal and Request for Remand to the Circuit Court of the City of Virginia Beach." Trigon responded to this motion on March 17, 1998. However, plaintiff subsequently withdrew the March 3, 1998, motion and filed the second motion to remand, seeking а remand on an entirely different ground. The second motion to remand, as well as defendant's response to that motion, has been docketed with leave of the court.
. The three cases relied on by plaintiff have no relevance to the issue in this case.
See Pelleport Investors, Inc. v. Budco Quality Theatres, Inc.,