Legal Memorandum: ERISA Preemption and Removal of Action

Issue: When does an ERISA preemption make an action removable to federal court?

           ERISA preemption, if it arises, renders an action removable even if only state law claims are set forth in the complaint and ERISA is not mentioned, so long as the party seeking removal alleges facts which bring the case under ERISA.*FN1  Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987); Davidson v. Life Ins. Co. of N. Am., 716 F. Supp. 674, 675 (D. Mass. 1989).  “Because the original complaint was preempted by ERISA, this case was removable when filed in 1984.  Once the thirty day window for removing a case has closed, the removal right is only revived by a subsequent pleading that changes the nature of the litigation, such that the case is `substantially a new suit begun that day.’ . . . Removal, therefore, was untimely.”  Davidson, 716 F. Supp. at 676 (citations omitted) (quoting Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass’n, 668 F.2d 962, 965 (7th Cir.), cert. denied, 459 U.S. 831 (1982)).  Accord Sclafani v. Insurance Co. of N. Am., 671 F. Supp. 364, 365 (D. Md. 1987). 

FOOTNOTES

*FN1 A notice is thus facially invalid as lacking factual support.  Wright v. Sterling Investors Life Ins. Co., 747 F. Supp. 653, 654 (N.D. Ala. 1990) ("Where the state court complaint fails on its face to indicate the existence of a federal question, the mere conclusory allegation […]