be established consistent with the allegations. Id.
See also Shannon v. Shannon, 965 F.2d 542 (7 Cir.
1992).

As Tolle, id. at 1135 went on to say:

Bartholet and Shannon, like this case, involved ERISA
actions. In those cases we held that although the
parties framed their claims as claims under state law,
the parties plead facts sufficient to raise claims
under ERISA. Indeed, we concluded in those cases that
ERISA preempted the state claims.

Those principles are as good law today as they were a decade ago.
Accordingly John Alden's Rule 12(b) (6) motion is denied.
Instead Neurological Testing's lawyers are ordered to reshape
their Complaint into one asserted under ERISA, by filing an
Amended Complaint in this Court's chambers (with a copy to be
delivered to John Alden's counsel) on or before April 1, 2002.
John Alden is ordered to answer (but not otherwise to plead to)
that Amended Complaint within 14 days after its delivery to John
Alden's counsel. Finally, because that timetable carries beyond
the previously-scheduled status hearing date of April 9, that
date is vacated and is replaced by a telephonic status hearing

date of April 25, 2002 at 8:45 a.m.

Milton I. Shadur
Senior United States District Judge

Date: March 19, 2002


2 ae

Minite Order Form (0697)

United States District Court, Northern District of Minois

N: if Assit id i E Sitti dge if Oth
vor Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 02 C 1746 DATE 3/99/2002
CASE Neurological Testing vs. John Alden Life Insurance
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:
Defendant’s motion to dismiss plaintiff's complaint pursuant to FRCP 12(b)(6)
DOCKET ENTRY:
qa) + | Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
GB) oO Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearingon___setfor__— se at_
(5) oO Status hearing[held/continued to] [set for/re-set for]on__——ssetfor_—at
(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_—at_
() Oo Trial[set for/re-set for]on___at
(8) o {Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (General Rule21 OFRCP41(a)\(1) OO FRCP41(a)(2).

is denied. Instead Neurological Testing’s lawyers are ordered to reshape their complaint into

(io) ff [Other docket entry] Enter Memorandum Opinion and Order. John Alden’s Rule 12(b)(6) motion

one asserted

under ERISA, by filing an Amended Complaint in this Court’s chambers on or before April 1,2002. John
Alden is ordered to answer that Amended Complaint within 14 days after its delivery to John Alden’s
counsel. The April 9 status date is vacated and replaced by a telephonic status hearing on April 25, 2002

Docketing to mail notices.

Mail AO 450 form.

doce row i ivals

Copy to juclge/magistrate judge.

snoiter

at 8:45.
day {For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
A . Number.
No notices required. number of notices :
Notices mailed by judge’s staff, MAR 21 2002
Notified counset by telephone. date docketed

ate mailed notice
courtroom

SN deputy’s f — sw
initials — -

———
Date/tinie received in

L. central Clerk’s Office nang depois



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NEUROLOGICAL TESTING SERVICES,

ep

ae

7

)
L.L.C., )
)
Plaintiff, )
)
v. ) No. 02 ¢ 1746 DOeHe

)

JOHN ALDEN LIFE INSURANCE COMPANY, ) MAR 27 2002
)
Defendant. )

MEMORANDUM OPINION AND ORDER

To strike its first blow in what used to be called in the
fight game “the old one-two,” John Alden Life Insurance Company
(“John Alden”) timely removed this action from the Circuit Court
of Cook County on federal question grounds: the premise that
Neurological Testing Services, L.L.C. (“Neurological Testing”)
has implicitly advanced its claims under ERISA,* even though the
claims are expressed in state law terms. Neurological Testing
has sued John Alden as the assignee of three individuals covered
by group health plans established by their employer--“employee
benefit plans” within the meaning of ERISA, so that those claims
by Neurological Testing could indeed qualify for assertion under
ERISA.

Now John Alden has followed up with what it hopes is a

knockout blow--a Fed. R. Civ. P. (“Rule”) 12(b) (6) motion to

1 Citations to ERISA will take the form “Section --,” using
the numbering under Title 29 rather than ERISA's internal
numbering.


dismiss Neurological Testing's Complaint (which comprises four
counts, each speaking--as already stated--in terms of a state-law
claim) as fully preempted by ERISA. But that attempted haymaker,
although it does knock Neurological Testing down for four
counts,’ does not succeed in knocking it entirely out of the
federal court ring.

As assignee from the insureds who are adverted to in its
Complaint, Neurological Testing stands in their legal shoes and
is hence authorized to bring an action under Section
1132 (a) (1) (B). And to be sure, any purported claims sought to be
advanced by it under state law are preempted under Section
1144(a)--in that respect see, e.g., the seminal decisions in
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) and

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987).

But John Alden's effort to trash this lawsuit because of
such preemption ignores the basic teaching of our Court of
Appeals in another ERISA-based case--Tolle v. Carroll Touch
Inc., 977 F.2d 1129, 1134 (7 Cir. 1992):

In Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078

(7 Cir. 1992), this court emphasized that a complaint
need not point to the appropriate statute or law in
order to raise a claim for relief under Rule 8 of the
Federal Rules of Civil Procedure. And, we held that a
complaint sufficiently raises a claim even if it points
to no legal theory or even if it points to the wrong
legal theory as a basis for that claim, as long as
“relief is possible under any set of facts that could

2 Bad pun intended.