sides i guess to what extent can these two sort of be argued together to the possible benefit of the court is we're trying to put all this together much you really want me going to the facts when we argue smith versus a gone versus the case currently right now which is smith versus com well general insurance company i think that might be musical because they give us a global picture on the facts at the two issues that are presented on this appeal and valving must dismiss and come with terrell insurance company or twofold one is whether or not the court had subject matter jurisdiction in which to entertain the claims because this was a case that was removed from state court under federal question and then secondly assuming that the court did have jurisdiction in the argument is that a risk preempted state will claims what should have happened at that point whether or not  the relief we seek with respect to the subject matter of stiction i think is a threshold issue which is speaks for itself which is that the court reversed the district court find that the essentially the excess benefits here the non qualified plan the severance plant was not subject to a court to the extent that the court affirms that decision obviously we're still in federal court on federal question that the proper relief would be to allow the case to go back for mr smith to proceed against come what general is a proper party and or as well to his aminta complaint to recast his claims of state local names under ressa as case law dictates with respect to the facts i think it's going to how we start of this discussion here today what's going on here why are we before the court mr smith was a long time employee of kamel general insurance company worked in louisville kentucky resided to move a kentucky kamel general insurance company is registered as a corporation residing in kentucky with the secretary of state has been a long time company smaller companies so to speak in there was a buy out between a gun and common what general as part of the buyout is typically happens they wanted to maintain some integrity of continuity i believe in the in the in the transfer in the changeover of control and that and so they offered select employees seven packages in exchange for continuing employment if you don't leave us today if you will agree to stay through this transition to a date certain we're going to pay you enhanced benefits and we refer to it in the briefing as the verb the e or pay that is a severance agreement that was part and parcel in mr us miss context what the verb agreement was going to do was to provide two payments one was a lump sum additional payment over the above all other benefits he was already entitled who invested in and then secondly the one that is really driving both of these cases is a non qualified excess benefit monthly benefit that was going to be payable for the remainder of his life company terminated his employment and sought to collect the severance benefits he received those benefits they started in roughly more to two thousand they continued up through two thousand and eleven roughly approximately eleven years at that point in time mr smith gets a letter from the aegon pension plan telling him that his benefits have been overpaid for the last eleven years demanding that he remit to them one hundred roughly one hundred fifty thousand dollars in alleged overpayment of benefits and cut his monthly benefit in half essentially took away what was the excess benefit they dropped him down to just what is already accrued pension benefits were at the time survivor's benefits notably they didn't have any they didn't seek any declaratory relief from the courts there's nothing in the plain language that permitted him do these things they just did it on the run now the point that i want to make your clear is this of general chose to fund the nine nine qualified benefit this excess amount that they've now said he was overpaid they chose to fund it through the pension plan and so by their anal because they chose to use a different funding mechanism to things occurred want to transpose this non qualified access benefit plan into a qualified a recipient and secondly all third who was liable to him under the terms of the seventh agreement respect we disagreed in the sixth circuit an individual does not have to pursue every claim against ever defended they can have claims against different defendants which is going to was going on here whole versus him alas i made the same observation that there can be numerous claims in a lawsuit or numerous claims before a lawsuit there and in vigil may have they don't have to bring them against all parties they don't have to name all parties  necessarily could have but we could have ok fair enough as this commonwealth general still in existence at the time yes or they were active they were an active corporation in the kentucky  is the boss is that's the parent corporation i believe so you've said several times now that you know we didn't get into any discovery you were only here on a motion to dismiss but it seems to me like that's not quite exactly an accurate statement there was a motion to dismiss of course but you also tried to get this rule set back to after it was removed to get it sent back to the state court on the grounds of lack of subject matter jurisdiction in which the defendant of course would bear the burden and so those facts which are necessary to demonstrate that there isn't subject matter jurisdiction would have had to come for the court would they not have i'm going to because the claim of course is that there is subject matter jurisdiction because this is complete preemption right under arrest and that can't be shown without some fact  honor i believe what we have is and i don't know that we have anything at the appellate level on this or not i see a number of the district court cases in judge the poor comes to mind out of the eastern district of kentucky where he is pointed out sometimes to a party on or own a removal of a case that as you noted the defendant bears the burden the removing porty burrs the burden of demonstrating subject manager stiction is appropriate in indic there to some extent has commented on how what if the defendant says i need discovery and the comment has been well then you need to go back to the state court and when the time is ripe when you have the discovery you come forth and present to us because you made a good faith basis that jurisdiction is appropriate they made no effort to do so and that what instead what they wanted to do they wanted to argue about how kamel general funded its obligation it funded it through the pension plan that's sort of what they argued as i understand the record in this case that your client was part and parcel of a specific amendment to the plan which incorporated the verb is that not true i believe that yes i believe that's an accurate statement of what they argued there is a number which exhibit is two to the pension plan where they identified individuals who had participated in the verb and one of the benefits of the verb were the amendment had to come into play was affected either their service on a resume with their service or how they could take reduced early retirement benefits under the pension plan i understand there's two parts to this they still get the pension plan and that was enhanced as far as when they can cases in the mid and early ninety's where companies were doing the the buy the new it is to fund the benefits and then walk away when there's no longer any administrative scheme when there's no more discretion on behalf of the plant sponsor the  longer exist a receipt is not attached that for just because he makes reference to how they paid him doesn't convert his claim into interests of klein his agreement was between himself and come with general they provided the enhanced pension benefits would have an issue with that they provided the lump sum would have an issue that we do have an issue with is them trying to claw back what they paid out of the pension plan but what they should have paid him on that non qualified and what i think is going on is that originally and we haven't gotten to this in the case because of the procedural nature of it is is to find out why they funded it out of his pension plan versus writing a check to him directly on the assets like every other severance plan is done like every excess benefit plan is done the record contains evidence that the benefits were paid were to be paid the excess benefits were to be paid out of the general assets it reflects that in under a resolution has a specific exclusion for an excess benefit plan general assets does not interest a plan it's similar to the salary continuation plain short term disability out there the payroll practices and department labors already issued multiple opinions and regulations concerning that those payroll practices do not convert a claim into klein just because we look at the pension plan for the value of the coin does it make it about the context as to tenuous and now i'm sorry heart of my concern and how this whole thing is shaping up is that your red light is on at this point and you're welcome to utilize your time however you want to right now you're into your reserve three but your red light is on good morning may please the court my name is david levin and i'm here on behalf of come with john corp first thing i'd like to do is correct the record first of all the argument that you just heard about the non qualified access benefit plan was not made to the district court these words say excess benefit do not appear in in the any of the three briefs that were filed by mr smith in the district court i also that's as the a just as the notion that you will generally as i understand the don't review issues that were presented or reviewed by the district court but separate and apart from that there is a matter of fact here that is completely inconsistent with what you have just heard the complaint in this case which was filed in kentucky court says mr smith wrote pardon me for reading i i remember cases and regulations but i don't remember the words of the complaint the complaint says appear rate of thirty mm mr smith's relied on the terms of the verb agreement including the amount of monthly compensation in accepting is c gc's commonwealths offer and the the the document was signed that's to say was accepted in february of two thousand at the time c g c approach mr smith he was fully vested in his plan the terms of the agreement reflected in the voluntary employee retention retirement program which is attached to that document which is  december of ninety nine three months before mr smith who was the head of human resources for commonwealth general and who drafted the amendment that was provided to the board of directors to make the a part of the retirement plan that document states this is document one dish one and in the second case the verb are for special benefits under the company's retirement plan the medical plan and the survivor  verb benefit was payable from an excess benefit plan or payable from the assets of commonwealth general not as a factual matter not as an argument in addition in vis  itself we filed because mr smith only filed the partial document we filed what's e c f document fifteen there schwann which is a whole package of material that was sent gratian with firemen plan this was sent to mr smith before the after he'd a man offered to drive to the amendment to the retirement plan to pay the first benefit and before he signed his agreement so as a matter of fact this issue about non qualified excess benefit plan is few will it's not only a red herring it's not a fit in addition although it wasn't to argue below and one of the reasons why i think the issues that aren't argued below have no business here is that a non qualified excess benefit plan is a statutory term it's found under if you are receptionists three there are no letters for him to says thirty six the state and it is accept is to provide benefits in excess of section four fifteen in the internal revenue code it cannot be your friend any other purpose this issue as far as i can tell has never been presented to the two to the six circuit all of the other circuits that have looked at this issue have said the language solely means surly in this case we know that mr smith himself is represented that the basis for this offer was something in addition to benefits in excess of the four fifteen limits in the internal revenue code it was to retain employees it had more than one purpose so i saw what i say to you is this an issue that wasn't addressed by the court below because it not to pay and so he simply doesn't get paid what he was promised so i mean how this stuff about it is you're talking about what he signed as to what plan and i asked this plan it just seems like a little bit of us stretching of what what what it would appear to be the claims argument if you will run it i wasn't clear in nineteen ninety eight or and mr a smith drafted for the review and acceptance by the board of directors of commonwealth general averbuch amendment to the retirement plan he did it himself and he gave it to the board of directors for the benefit of the verb benefit to be paid from the retirement plan that's what he did that's a matter if you that why deserving turned on that the deal that he made for the an additional return benefit was not made a sign until the year two thousand as i understood and so he was all ready to receive it on the base amount of whatever retirement amount that he was entitled to product that was to come from the joe retirement plan is that right both of them were to come from the general retirement plan drafted the verb amendment made the virk payment from the retirement plan it was an amendment he drafted to the plan he drafted and submitted it to the board of directors before he accepted the vote and before he went out on the verb the arrangement there was no arrangement and there's no evidence in the record that there was any arrangement whatsoever to provide mr smith with the benefit then from the retirement plan what i'm asking about is the additional retirement benefit was promised to mr smith from the employer not not from the verb no your honor the benefit that was promised was promised by the employer from the benefit plan it wasn't promised from the employer i mean when it's a very big difference that employer was acting and speaking on behalf continue to provide additional services for a period of time was the commonwealth was the employer not not the verb is that right and i'm not sure that i understand your wel mr smith and they want to hear smith an arrangement and the arrangement to stay one was you will receive the verb benefit and the vote benefit was payable from the retirement and second to provide services to the employer for the benefit that's what people or your retirement benefits juran or people agreed to work for retirement benefits they agreed to work for medical benefits in other words this was a deal you made with the employer to provide benefits to him from the pension plan and we look at this from a somewhat different perspective certainly would the question boil down to whatever that deal  is it related to supplant absolutely your honor in fear that's what if if the pension planning continued to pay and benefits we wouldn't be here today what mr smith presented to the district court was well this satisfied all of those requirements and then the court said it says it on the first page and a footnote in that it says as a matter of fact the benefits that are at issue here are benefits from the retirement plan and that's where the court the court the district court thomas a matter of fact because the existence of an illicit plant is a matter of fact judge clay's concern is there was a deal between mr smith and the employer and mr smith says i didn't hear where the money came from i have a contract and the contract says i'm going to get paid a lump sum plus monthly money and i ought to be able to sue you for breach of of that contract so mike and i can certainly understand why mr smith would feel that way but my concern is what do we have to look at to make the jurisdictional determination of whether even though there might have been a breach of that contract it relates to want to risk a plan for purposes of complete preemption in order to in order to to respond to your honest question in order to answer the question of what mr smith is or is not entitled to you have to look at the verb and the verb is a provision in the retirement plan so there's no and there's no way to contract that he's talking about is a part of the pension plan the language that he's looking at sirs that's it's right in the this contract so this is a severance agreement says you are going to be paid your benefit for eleven years of his pension payment then after eleven years almost he's and he thinks that's what do you agree that he would get all of a sudden he gets a notice saying well look we're overpaying ok mr smith received a lump sum payment from the retirement plan of one hundred ninety three thousand that's not it is should actually it since i thought you're mentioning the facts if you will your honor but i'll also have the facts on this than that if we want to with ties to form of the hundred ninety three thousand he was getting paid twice but he made a mistake wait a minute now he was told he was told it it wasn't his mistake it was a mistake he was told he would get the lump sum floor mat for receiving his fur and he elected lump sum and the letter back says you guys like to drill on something he didn't tell lech the annuity they paid him by mistake the annuity in addition to the lump sum the that's really why we were here but but the those are facts that some court somewhere will hopefully hear but but just so you'll know this isn't just the eleven years extra money and but these are the fed support what you have here is a minute now he can cans that he was entitle to the lump sum plus the monthly amount underlying facts in the case but at the end of the day there is absolutely no way to decide this issue without considering the ben the retirement plan the verb amendment to the retirement plan the payments that he was receiving under the retirement plan because the offer that he accepted which is attached to the second complaint that will actually says the offer to him is you get your benefit from the retirement plan and that's the offer that he accepted none other and and if you will the and i know i've used up my time but if i may i'm a an employer who is not the plan administrator and the employer's not the plan administrator here and who has no control over the provision of benefits is not the proper defendant you would judge sign a us to question about whether or not he moved to men his there was no motion to amend made or a request to amend made in the opposition to the motion to dismiss there was no rule sixty b even after the court entered there was no rule sixty b motion filed to reopen in order to allow him to amend and there are no facts alleged in the next case that you're going to hear the commonwealth general had any role whatsoever in this matter and the court said in the first case that in neither in the complaint nor in any of the briefs that mr smith filed in smith one against common law of general did he alleges single fix the provided a basis for more bringing action against conway general interests and i thank you for your time thank you for give me three minutes john and i were last on real quick i want to address the last statement that was made in it's actually part of the agreement or the discussion that we really didn't get to in the second issue which is the proper defendant and what the relief should have been again w dismiss we're not here in the complaint has to be taken as written the facts of the may contest the facts in our appellate brief they have to be accepted as true for the purposes of the thing we do here today a lot of the facts i heard coming up there are in the claim for benefits we just read arguably this case law says we don't have to redo it but to clean the record more often than not most of the judges the district judges want to clean a record to say look we're not going to go through the recasting i'm go were happy to do so and we reserve that right before the court contrary to what definitively has said now with respect to the non qualified versus excess benefit we're getting into semantics here all of the documentation for the court talked about non qualified mr smith entered into an agreement to continue his employment to receive his pension benefits which he was already going to get those would enhance and pension and also to get a non qualified additional monthly benefit as you were alluding to there is no dispute on that lump sum which is another component of it an interest doing mr smith for eleven years received two checks now what was odd when we look at the checks is they when you add them together they total up to the total amount that's at issue here on these monthly benefits as pension plus non qualified were they broke it out exactly is that no we don't know why but there were two checks there one from benefit plan for you would check yes he received two to well believe they may have been electronic deposit but the equivalent of two checks one from a non qualified and then the other from the pension plan was nothing else to be done there no discretion to be done it was up to the second element that they have to demonstrate is that once that's done is there any sort of ongoing mechanism providing health insurance in processing claims anything like that and i guess we can formally call the next case