The Honorable Jed S. Rakoff, of the United States District * Court for the Southern District of New York, sitting by designation. -1- 09-1681-cv Stevenson v. The Bank of New York Co., Inc.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2009 4 (Argued:December 2, 2009 Decided:June, 15, 2010) 5 Docket No. 09-1681-cv 6 -----------------------------------------------------x 7 MATTHEW MILLS STEVENSON, on behalf of himself and as 8 representative of the Stevenson Retirement Plan and the 9 Stevenson SERP, 10 11 Plaintiff-Appellant, 12 13 -- v. -- 14 15 THE BANK OF NEW YORK COMPANY, INC., J. CARTER BACOT, THE 16ESTATE OF DENO D. PAPAGEORGE, administrator of the 17 Stevenson Retirement Plan and the Stevenson SERP, THOMAS 18A. RENYI, MICHAEL SHEPERD, THE TAX-QUALIFIED PENSION 19 PLAN, THE RETIREMENT PLAN COMMITTEE, THE SUPPLEMENTAL 20 EXECUTIVE RETIREMENT PLAN, THE STEVENSON RETIREMENT 21 PLAN, THE STEVENSON SERP, THE EXCESS BENEFIT PLAN, BNY 22 PROFIT SHARING PLAN and its administrator, PHANTOM 23 PENSION STOCK PLAN and its administrator, EMPLOYEE 24 SAVINGS INVESTMENT PLAN and its administrator, EMPLOYEE 25 STOCK OWNERSHIP PLAN and its administrator, ANY OTHER 26 PLAN and its administrator, 27 28Defendants-Appellees. 29 -----------------------------------------------------x 30 31 B e f o r e :WALKER, RAGGI, Circuit Judges, and 32 RAKOFF, District Judge.*-2- 1 Matthew Mills Stevenson filed a complaint in New York state 2 court based on an alleged agreement by BNY and its employees to 3maintain his pension benefits. The defendants removed that 4 complaint to federal court on the theory that Stevenson’s state 5 law claims were preempted under ERISA, 29 U.S.C. § 1001 et seq. 6 The defendants moved to dismiss the complaint for failure to 7 state a claim, and Stevenson moved to remand to state court. 8 Stevenson now appeals the following: 1) the March 30, 2007 order 9 of the District Court for the Southern District of New York 10 (Daniels, Judge) denying Stevenson’s motion to remand his case to 11 state court and granting the defendants’ motion to dismiss his 12 original complaint; and 2) the district court’s March 26, 2009 13 order granting the defendants’ motion to dismiss Stevenson’s 14 amended complaint for failure to state a claim under ERISA, 29 15 U.S.C. § 1001, or under New York law. On appeal, we hold that 16 Stevenson’s state law claims, as originally pleaded, are not 17 preempted by ERISA. We therefore VACATE the district court’s 18 order denying Stevenson’s motion to remand to state court and 19 REMAND to the district court with instructions that the case be 20 returned to state court. 21 VACATED and REMANDED. 22 THOMAS E.L. DEWEY, Dewey 23 Pegno & Kramarsky LLP, 24 New York, New York; 25 Jerome M. Marcus, Marcus 26 & Auerbach LLC, Wyncot, 27 Pennsylvania, on the-3- 1 brief, Jacob A. Goldberg, 2 Faruqi & Faruqi, LLP, 3 Elkins Park, 4 Pennsylvania, on the 5 brief, for Plaintiff6 Appellant. 7 8 MICHAEL L. BANKS, Morgan, 9 Lewis & Bockius LLP, 10 Philadelphia, 11 Pennsylvania, for 12 Defendants-Appellees. 13 14 15 16 JOHN M. WALKER, JR., Circuit Judge: 17 18 This appeal involves an alleged promise made by appellant 19Matthew Mills Stevenson’s former employer, the Bank of New York 20 Company (“BNY”), that it would maintain Stevenson’s pension and 21 benefits during Stevenson’s tenure as General Manager of the Bank 22 of New York–Inter Maritime Bank (“BNY-IMB”), a Swiss bank 23 affiliate of BNY. Stevenson filed this suit against BNY and 24 certain of its executives in the New York Supreme Court. The 25 complaint brought claims of breach of contract, promissory 26 estoppel, unjust enrichment, negligent misrepresentation, fraud, 27 and tortious inference with contract, based on Stevenson’s 28 allegation that BNY and BNY employees reneged on their promise to 29maintain certain benefits and pension plans on his behalf during 30 his absence from the bank and then unlawfully terminated his 31 employment from BNY-IMB.The complaint also claimed defamation 32 based on an allegation that the defendants published a letter to 33 the legal and banking community in Geneva, Switzerland, maligning-4- 1 Stevenson’s professionalism. 2 The defendants removed the state action to the District 3 Court for the Southern District of New York (Daniels, Judge), 4 claiming that, under the federal Employee Retirement Security Act 5 (“ERISA”), federal subject matter jurisdiction existed pursuant 6 to ERISA § 502, 29 U.S.C. § 1132, and that dismissal was required 7 because ERISA preempted Stevenson’s claims, ERISA § 514(a), 29 8 U.S.C. § 1144(a). The defendants also moved, pursuant to Rule 9 12(b)(6), to dismiss Stevenson’s defamation claim for failure to 10 state a claim. Stevenson cross-moved to remand the entire case 11 to state court. The district court concluded that each of 12 Stevenson’s claims, except the defamation claim, was related to a 13benefit plan and therefore preempted by ERISA. The district 14 court dismissed each of these claims, but granted Stevenson leave 15 to replead them as ERISA claims. The district court dismissed 16 the defamation claim for failure to state a claim, while granting 17 Stevenson leave to replead that claim with greater particularity, 18 and denied Stevenson’s cross-motion. 19 Stevenson then filed an amended complaint containing 20 allegations largely identical to those in his original complaint, 21 but now cast as ERISA violations, in addition to his state law 22 claims. The amended complaint named as additional defendants 23 several BNY-related pension, retirement, and benefit plans and 24 contained counts under various provisions of ERISA as well asOf the various pension plans named in Stevenson’s amended 1 complaint, several are regularly administered plans available to BNY employees generally. These include the Tax-Qualified Pension Plan, the Retirement Plan, the Supplemental Executive Retirement Plan (“SERP”), and the Excess Benefit Plan. Stevenson also names as defendants several “plans” that were allegedly applicable solely to him as a result of promises made by individual defendants at BNY. Those plans include the Stevenson RetirementPlan and the Stevenson SERP. Stevenson also names several “nonpension plans” as defendants, including the BNY Profit Sharing Plan, the Phantom Pension Stock Plan, the Employee Stock Ownership Plan, the Employee Savings Investment Plan, and “any other plan under which Mr. Stevenson was a participant. Appellant Br. at 37. The record is unclear as to whether these are regularly constituted BNY plans. -5- 1 state law claims for breach of contract, unjust enrichment, and 2 defamation.The district court then dismissed the amended 1 3 complaint in its entirety for failure to state a claim, 4 concluding that Stevenson had failed to exhaust his 5 administrative remedies with respect to claims under certain 6plans and had failed to allege sufficient facts to support his 7 claims of entitlement to benefits with respect to other plans. 8 The district court also dismissed Stevenson’s ERISA unlawful 9 termination claim for failure to allege that he was terminated in 10 order to prevent the vesting or exercise of his benefits; the 11 district court dismissed an ERISA estoppel claim as redundant of 12 his earlier claims for benefits and, therefore, for failure to 13 exhaust his administrative remedies as to that claim. The 14 district court again dismissed Stevenson’s breach of contract and 15 unjust enrichment claims as preempted by ERISA, and his 16 defamation claim on the basis of insufficient factual-6- 1 allegations. The district court denied leave to amend. 2 Stevenson appealed from the district court’s denial of his 3 cross-motion to remand, and its dismissals of the original and 4 amended complaints. 5 6 DISCUSSION 7 “Whether ERISA preempts a state law or portion thereof is a 8 question of law”, which we review de novo. Devlin v. Transp. 9 Commc’ns Int’l Union, 173 F.3d 94, 98 (2d Cir. 1999); cf. Drake 10 v. Lab. Corp. of Am. Holdings, 458 F.3d 48, 56 (2d Cir. 2006) 11 (“The district court's determination regarding preemption is a 12 conclusion of law, and we therefore review it de novo.”). 13 In determining the scope of ERISA’s preemption provision, 14 our touchstone is congressional intent, primarily as evidenced by 15 statutory language. Gerosa v. Savasta & Co., 329 F.3d 317, 323 16 (2d Cir. 2003). ERISA provides that it “shall supersede any and 17 all State laws insofar as they may now or hereafter relate to any 18 employee benefit plan.” 29 U.S.C. § 1144(a). The “relate to” 19 language, however, is so expansive as a textual matter as to 20 afford no meaningful limitation on the scope of ERISA preemption. 21 Therefore, we look to the structure and objectives of the statute 22 as a means of determining the scope of preemption. N.Y. State 23 Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. 24 Co., 514 U.S. 645, 655-56 (1995). This circuit has previously-7- 1 held that the analysis of ERISA preemption must start with the 2 presumption that “Congress does not intend to supplant state 3 law.” Gerosa, 329 F.3d at 323 (quoting Travelers, 514 U.S. at 4 654-55) (internal quotation marks omitted). We have also noted a 5 reluctance to find ERISA preemption where state laws do not 6 affect the relationships among “the core ERISA entities: 7 beneficiaries, participants, administrators, employers, trustees 8 and other fiduciaries.” Id. at 324. On the other hand, “state 9 laws that would tend to control or supersede central ERISA 10 functions - such as state laws affecting the determination of 11 eligibility for benefits, amounts of benefits, or means of 12 securing unpaid benefits - have typically been found to be 13preempted.” Id. 14 Stevenson’s original complaint alleged that he was asked to 15 accept the position of General Manager of BNY-IMB and move from 16New York to Geneva for a term of two to three years. Compl. ¶ 17 29. Stevenson specifically asked the defendants about the status 18 of his BNY pension benefits if he agreed to leave BNY for BNY19 IMB, to which defendants responded that they would “maintain 20 [those benefits].” Id. Stevenson then held a series of 21 discussions with BNY’s personnel department in which BNY 22 allegedly promised to “maintain [Stevenson’s] benefits and to 23 care for his Brooklyn residence” during his absence. Id. ¶ 30. 24 On the basis of these promises, Stevenson terminated his-8- 1 employment with BNY, accepted the position of General Manager of 2 BNY-IMB, and moved his family to Geneva in June of 1991. 3 The complaint then alleges a series of correspondence and 4 other writings concerning Stevenson’s pension status: 5 • On November 19, 1991, Stevenson corresponded with Douglas 6 Tantillo, BNY’s Vice President of Employee Relations, and 7 learned that he had been put on inactive pay status but that 8 his “medical and dental insurance, travel accident 9 insurance, GUL insurance, profit sharing accounts and 10 automatic investment accounts . . . ‘remain[ed] in effect . 11 . . .’” Compl. ¶ 36. 12 • On December 10, 1991, Stevenson received a memorandum 13 stating that BNY would maintain a “notional salary . . . to 14 facilitate his eventual return to [BNY].” Compl. ¶ 37 15 (internal quotation marks omitted). 16 • On February 7, 1995, Tantillo informed Stevenson that “[a]s 17 an inactive employee of the Bank of New York (from June 2, 18 1991), participation in both the BNY Pension Plan and BNY 19 Profit Sharing plan are maintained, but benefit accruals 20 ceased on that date. Your pension accrual is frozen at that 21 date (as a vested participant), and cannot begin again until 22 you again become an active employee. My only notes on this 23 topic indicate that we discussed that the Bank could take 24 administrative action upon your return to New York to give-9- 1 you credit [for] (i.e., bridge) the break-in-service while 2 you were in Switzerland. As prospects for your return are 3 either indefinite or fading, the issue of pension coverage 4 increases in importance.” Compl. ¶ 46 (emphasis omitted). 5 • And finally, on April 7, 1999, defendant Deno Papageorge, 6 BNY’s Senior Executive Vice President and later a Board 7 Member of BNY-IMB, sent a memorandum to BNY’s personnel 8 department, memorializing a series of conversations held by 9 Papageorge with members of that department, stating that 10 Papageorge had previously “agreed that BNY would provide 11 [Stevenson] with a pension benefit according to the BNY 12 Plan.” Compl. ¶ 50. The memo stated further that “[t]he 13 benefit was to be calculated on [Stevenson’s] base salary at 14 the time he left BNY and assumed normal annual salary 15 adjustments. In effect, there would be no break in service 16 for the purpose of calculating retirement benefits. 17 [Stevenson’s] current position is equivalent to Senior Vice18 President level at BNY, and, therefore, he would qualify for 19 the SERP as well.” Id. 20 The complaint’s allegations and the writings identified by 21 Stevenson, whatever their contractual significance, do not 22 support a finding of ERISA preemption. First, the defendants' 23 asserted liability under the original complaint does not 24 "derive[]" from "the particular rights and obligations-10- 1 established by [any] benefit plan[]," Aetna Health Inc. v. 2 Davila, 542 U.S. 200, 213 (2004), but rather from a separate 3promise that references various benefit plans, none of which 4 directly applies to Stevenson by its terms, as a means of 5 establishing the value of that promise. Because Stevenson's 6 state law claims derive from this promise rather than from an 7 ERISA benefits plan, their resolution does not require a court to 8 review the propriety of an administrator's or employer's 9 determination of benefits under such a plan. The BNY benefits 10 plans may provide a benchmark for determining claimed damages, 11 but such damages would be payable from BNY’s own assets, not from 12 the plans themselves. Further, Stevenson’s state law claims do 13 not allege that any plan administrator or employer breached a 14 fiduciary duty or plan provision relating to the BNY plans. 15 Thus, those claims do not affect the relationships among the 16 “core ERISA entities” with respect to those entities’ roles under 17 ERISA. See Gerosa, 329 F.3d at 324. 18 Second, none of Stevenson’s state law causes of action 19purport to require a plan administrator, employer, or beneficiary 20 to follow a standard inconsistent with those provided by ERISA. 21 Should Stevenson ultimately succeed in his state court action, 22 the operation of BNY’s benefit plans would need to be referenced 23 in order to establish the extent of his damages, but the actual 24 administration and funding of those plans would be unaffected.-11- 1 Because Stevenson’s suit neither interferes with the 2 relationships among core ERISA entities nor tends to control or 3 supersede their functions, it poses no danger of undermining the 4 uniformity of the administration of benefits that is ERISA’s key 5 concern. Davila, 542 U.S. at 208 (“The purpose of ERISA is to 6provide a uniform regulatory regime over employee benefit 7 plans.”). On the basis of the allegations in this case, 8 permitting Stevenson to pursue his suit in state court under 9broadly applicable, common law causes of action would not 10 necessitate “the tailoring of plans and employer conduct to the 11 peculiarities of the law of each [state].” Ingersoll-Rand Co. v. 12 McClendon, 498 U.S. 133, 142 (1990). 13 The defendants argue that Stevenson’s claims necessarily 14 “relate to” ERISA benefits because his original and amended 15 complaints allege the same underlying facts, which are “expressly 16 designat[ed] . . . as ERISA claims” in the amended complaint. 17Appellees’ Br. at 43. Stevenson’s amended complaint, however, 18 was filed in response to the district court’s dismissal of all 19 original state law claims, which allowed Stevenson to replead the 20 underlying facts under the terms of ERISA. In this context, in 21 which Stevenson’s ERISA claims were effectively forced upon him, 22 the labels attached to Stevenson’s claims are not dispositive of 23whether those claims in fact “relate to” an ERISA benefit plan 24 for preemption purposes.-12- 1 The defendants go on to argue, relying on Smith v. 2 Dunham-Bush, Inc., 959 F.2d 6 (2d Cir. 1992), that Stevenson’s 3 claims “relate to” ERISA employee benefit plans because they 4 “make specific reference to and, indeed, are premised on, the 5 existence of a pension plan.” Appellees’ Br. at 44. Smith 6 involved a state law complaint, similar to that filed by 7 Stevenson, based on an alleged oral promise to pay pension 8 benefits to the plaintiff employee who left the company in 9 exchange for that promise. Smith, 959 F.2d at 7. This court 10 gave the ERISA “relate to” language a “broad common-sense” 11 reading and noted that a “state law may relate to a benefit plan 12 . . . even if the law is not specifically designed to affect such 13plans or the effect is only indirect.” Id. at 9 (internal 14 quotation marks omitted). In the wake of the Supreme Court’s 15 opinion in Travelers (decided after our decision in Smith), 16however, we suggested that Smith’s broad view of ERISA preemption 17 was misguided. Gerosa, 329 F.3d at 327 n.8 ("[O]ur earlier 18 pronouncements in [Smith] suggest that in fact we simply took a 19very broad view of preemption."). In light of Travelers, and 20 following our approach in Gerosa, we hold in this case that § 21 502(a) of ERISA does not preempt Stevenson’s state law claims, 22 which are in themselves neutral toward ERISA plans. These claims 23make reference to ERISA plans solely as a means of describing the 24 consideration underlying an alleged contract that itself is-13- 1 separate from the terms of any plan; they will not affect the 2 referenced plans, particularly not in a way that threatens 3 ERISA’s goal of uniformity. See id. at 325 (noting “general 4 principle that preemption depends on whether state remedies are 5 consistent with ERISA’s core purposes”); see also Aetna Life Ins. 6 Co. v. Borges, 869 F.2d 142, 146 (2d Cir. 1989) (noting that 7 “laws that have been ruled preempted are those that provide an 8 alternative cause of action to employees to collect benefits 9protected by ERISA, refer specifically to ERISA plans and apply 10 solely to them, or interfere with the calculation of benefits 11 owed to an employee”). 12 Because Stevenson’s original complaint contained no 13 questions arising under federal law, the district court was 14 without jurisdiction to assess the sufficiency of Stevenson’s 15 original claim for defamation. Thus, we do not consider that 16 claim on appeal and instead vacate the dismissal of that claim so 17 that the state court may consider its sufficiency along with the 18 rest of Stevenson’s original complaint. 19 CONCLUSION 20 Accordingly, we VACATE the order of the district court 21 denying Stevenson’s motion to remand and dismissing his original 22 complaint and REMAND the case to the district court with 23 instructions to remand the case to New York state court.