United States District Court, N.D. Mississippi, Aberdeen Division
before this Court is Plaintiff Shirley Gann's motion to
remand [Doc. 5], and Defendant J&B Services motion to
strike [Doc. 11]. Having considered the matter, the Court
finds that both motions should be denied.
Gann's husband, Jerry, was employed by J&B Services.
While employed there, he maintained a life insurance policy
issued by Humana that was made available to J&B
employees. Premiums for this policy were paid through payroll
deductions from Jerry's paycheck.
January 2015, Jerry suffered a severe work-related injury.
After the injury, J&B began paying the premiums for
Jerry's insurance since Jerry was no longer able to work.
eventually succumbed to his injuries in June 2016. Gann made
a claim on the life insurance benefits, only to discover that
the policy had been cancelled by J&B in April 2015.
filed this action in state court alleging claims of
negligence, negligent misrepresentation, breach of fiduciary
duty, and equitable estoppel against J&B for stopping its
payment of the premiums and failing to inform the Ganns it
was doing so. J&B removed to this court, asserting that
Gann's state law claims were completely preempted by the
remedies of the federal Employee Retirement Income Security
Act, and thus federal question jurisdiction existed.
moved to remand [Doc. 5] arguing that the life insurance
policy was not a part of a benefits plan that was established
and maintained by J&B and, thus not covered by ERISA.
J&B responded the policy is part of such a plan. In her
reply, Gann argues that J&B should be estopped from
arguing that the policy was part of an employee benefit plan.
Shirley further argues that ERISA did not completely preempt
a Mississippi law regulating insurance policy cancellation
then moved to strike [Doc. 11] Gann's estoppel and
preemption arguments, asserting that she could not make those
arguments for the first time in her reply brief. Gann
responded, and both motions are now ripe for review. The
Court will first address the motion to strike and then the
motion to remand.
Motion to Strike Plaintiffs Reply Arguments
moves to strike Gann's estoppel and preemption arguments,
claiming that they were improperly made for the first time in
Gann's reply brief.
raised for the first time in rebuttal cannot be addressed by
the other side and are therefore not properly before the
Court. McWilliams v. Advanced Recovery Sys., Inc.,
108 F.Supp.3d 456, 462 fn. 2 (S.D.Miss. 2015) (citing
Wallace v. Cnty. Of Comal, 400 F.3d 284, 292 (5th
Cir. 2005)). The reply brief is" limited to addressing
matters presented in a motion and response." Lynch
v. Union Pac. R.R. Co., No. 3:13-CV-2701-L, 2015 WL
6807716, at * 1 (N.D. Tex. Nov. 6, 2015).
reply arguments are responsive to J&B's brief. Gann,
in her initial remand motion, argues J&B did not
"establish" and "maintain" the plan as
contemplated by ERISA. J&B in response, argues that it
was a plan as defined by ERISA, and that ERISA completely
preempts Gann's claims. Gann's reply goes directly to
those two arguments: that J&B is estopped from arguing
the insurance policy is a plan under ERISA, and that her
claims are not entirely preempted. Thus, J&B's motion
to strike is DENIED.
Motion to Remand
jurisdiction exists in any case where the federal court would
have original jurisdiction. Gutierrez v. Flores, 543
F.3d 248, 251 (5th Cir. 2008); 28 U.S.C. § 1441(a). The
removing party "bears the burden of showing that federal
jurisdiction exists." Mumfrey v. CVS Pharmacy,
Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002)). "Any 'doubts
regarding whether removal jurisdiction is proper should be
resolved against federal jurisdiction.'" Vantage
Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir.
2014) (quoting Acuna v. Brown & Root Inc., 200
F.3d 335, 339 (5th Cir. 2000)).
federal court only has original or removal jurisdiction if
the federal question appears on the face of the plaintiffs
well-pleaded complaint and there is generally no federal
jurisdiction if the plaintiff properly pleads only a state
law cause of action." MSOF Corp. v. Exxon
Corp., 295 F.3d 485, 490 (5th Cir. 2002). Thus, a
federal law defense to a state law claim is not a basis for
removal. Beneficial Nat'l Bank v. Anderson, 539
U.S. 1, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003)
("Potential defenses, including a federal statute's
pre-emptive effect, do not provide a basis for
in some contexts, a "federal statute 'so forcibly
and completely displace[s] state law that the plaintiffs
cause of action is either wholly federal or nothing at
all." Hoskins v. Bekins Van Lines, 343 F.3d
769, 773 (5th Cir. 2003) (quoting Carpenter v. Wichita
Falls Ind. School Dist, 44 F.3d 362, 366 (5th Cir.
1995)). ERISA is such a statute. Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d
55 (1987) (finding complete pre-emption in § 502 of
ERISA, 29 U.S.C. § 1132). Thus, a defendant may defeat
remand to state court by establishing that ERISA completely
preempts the state law cause of action. This is not to say
that, the defendant must establish complete preemption of
every cause of action in the plaintiffs complaint,
but rather that the defendant must show at least one claim is
preempted. Giles v. NYLCare Health Plans, Inc., 172
F.3d 332, 337 (5th Cir.1999) ("When a complaint raises
both completely-preempted claims and arguably
conflict-preempted claims, the court may exercise removal
jurisdiction over the completely-preempted claims and
supplemental jurisdiction... over the remaining
provides a beneficiary with a federal cause of action
"to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the terms of
the plan." 29 U.S.C. § 1132(a)(1)(B). A state law
claim is completely preempted by § 1132 when "(1)
[t]he state law claim addresses ... the right to receive
benefits under the terms of an ERISA plan; and (2) the claim
directly affects the relationship among traditional ERISA
entities." Mayeaux v. La. Health Serv. and Indent.
Co.,376 F.3d 420, 432 (5th ...