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1 The caption has been changed since the Joint Status Report

filed February 14, 2005 (“JSR”), indicates that Kmart Corporation is the

only remaining defendant in this action. The JSR states that Defendants

Kmart Management Corporation and Kmart Holding Corporation were

dismissed from the action, and Kmart Corporation was named in an amended

complaint as the first Doe defendant. All other Doe defendants were

dismissed pursuant to the Status (Pretrial Scheduling) Order filed

February 17, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RON HART AND JUDY VEZEAU, on )

behalf of themselves and all ) 2:04-cv-2466-GEB-DAD

others similarly situated and on )

behalf of the general public, )

) 

Plaintiffs, ) ORDER

)

v. )

) 

K MART CORPORATION,1 )

)

Defendants. )

)

This action was removed from Sacramento County Superior

Court on November 18, 2004, on purported federal question grounds. 

Defendant asserted that removal was proper based on the doctrine of

complete preemption pursuant to the Employee Retirement Income

Security Act (“ERISA”), and because the subject matter of the

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complaint concerned claims arising under or in bankruptcy and

concerned the administration of the estate and rights created by the

United States Bankruptcy Code.

After nearly ten months in federal court, on September 6,

2005, the parties filed a “Joint Stipulation of Named Plaintiffs on

Behalf of Themselves and All Others Similarly Situated and Defendant

Kmart Corporation to Remand” (“Joint Stipulation”) and a “Proposed

Order Remanding Case to State Court” (“Proposed Order”). In the

Proposed Order, the parties state that “good cause appear[s]” and,

therefore, the action should be remanded to state court. (Proposed

Order 2.) In Joint Stipulation the parties assert that they “have

concluded that this Court would not have jurisdiction based on a right

to remove core proceedings in bankruptcy” and that they “do not

believe that it would be productive or further the interests of

justice to litigate [the ERISA] issue at this time in view of their

commitment to reaching an amicable resolution of this action.” (Joint

Stip. ¶¶ 6, 8.) The parties contend that since they “do not want to

incur the risk that any settlement that may be reached in this matter

. . . might be subject to challenge [because] the Court . . . lacked

subject matter jurisdiction over the settlement[,] the Parties believe

that the most prudent course would be to remand the action . . . .” 

(Id. ¶ 8.) 

While the parties contend that remanding this action would

be “prudent,” they assert no legal basis for doing so. Title 28 of

the United States Code, section 1447(c) provides that an action may be

remanded for lack of subject matter jurisdiction or “any defect other

than lack of subject matter jurisdiction.” 28 U.S.C. § 1447(c). The

thirty-day time limit for remanding for other defects has passed, so

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any remand must be for lack of subject matter jurisdiction. Id. But

the Joint Stipulation does not seek remand on this basis. Instead,

the parties assert that “the ERISA preemption issue (and concomitantly

the jurisdiction issue) will be very hard fought . . . .” and for that

reason they “do not believe that it would be productive or further the

interests of justice to litigate the issue at this time . . . .” 

(Joint Stip. ¶ 8.) This assertion is insufficient to support a

finding that the federal court lacks federal question subject matter

jurisdiction. Therefore, the parties’ stipulation to remand this

action is rejected. 

IT IS SO ORDERED.

Dated: September 20, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-02466-GEB-DAD Document 25 Filed 09/22/05 Page 3 of 3