that in Blackburn, as here, the plan at issue contained an attorney’s fee provision, id. at 495, thus
rendering less effective the Plan’s argument that the attorneys’ fee provision brings the claim
more squarely into the realm of those claims that cannot be resolved without an interpretation of
the contract governed by federal law.

The Illinois Supreme Court recently echoed the holding in Blackburn in another case with
very similar facts, and where the Plan was a party. In Bishop v. Burgard, the Illinois Supreme
Court found that a claim under the Common Fund Doctrine is based upon the attorney’s rights

and wholly unrelated to the ERISA plan. Again, preemption was inappropriate.

For the foregoing reasons, plaintiffs motion to remand [4-1] is GRANTED.

ENTER:

7 Se

‘ames |B. Zagel
Unit 2 aes icboute, ge

DATE: _ A605 202


of action falls within the scope of an ERISA provision that the plaintiff can enforce through
Section 502(a) and whether the plaintiff's state law claim cannot be resolved without an
interpretation of the contract governed by federal law. Speciale v. Seybold, 147 F.3d 612, 615
(7" Cir. 1998).

In evaluating whether the claim at issue falls within the ambit of ERISA’s complete
preemption doctrine, the Seventh Circuit and the Illinois Supreme Court have determined
repeatedly that the claims arise under state law and do not require the interpretation of the
contract governed by federal law. Accordingly, such claims are not preempted. See, e.g.,
Speciale v. Seybold, 147 F.3d 612, 615 (7" Cir. 1998) (finding that personal injury claim was not
a cause of action that falls within the scope of an ERISA provision and state law claim requires
resolution of an interpretation of the contract governed by federal law); Blackburn v. Sundstrand
Corp., 115 F.3d 493, 494-95 (7" Cir. 1997) (finding that the claim that the plaintiffs should be
credited with attorneys’ fees in connection with their duty to reimburse arises under state law
because the action did not seek a payment from the ERISA plan).

The Seventh Circuit in Blackburn, on facts remarkably similar to those here, refers to the
ERISA preemption doctrine as “misleadingly” called “complete.” 115 F.3d at 495. The
Blackburn court, although not specifically addressing removal pursuant to 28 U.S.C. 1441(c),?
addressed the nature of the claim and found that a claim where, as here, the plaintiffs sought to
be credited with the amount of attorneys’ fees where plaintiffs had a duty to reimburse the

defendant pursuant to an ERISA plan was a claim arising under state law. It is important to note

2 The Plan reads the Blackburn decision more narrowly than I do, especially in light of the

Illinois Supreme Court’ s decision in Bishop v. Burgard, 198 Ill. 2d 495 (2002).

3


*

Minesi-SBater orn (06/97)

: /[ mm United States District Court, Northern District of Illinois

Name of Assi ufc James B. Zagel Sitting Judge if Other
or Magiftrate Shdge than Assigned Judge
CASEXKUMBER 02 C 3225 DATE 8/5/2002
CASE JEAN HUMMELL vs. YELLOW FREIGHT SYSTEMS, INC.
TITLE

MOTION: of the motion being presented. ]

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

DOCKET ENTRY:

qd) Qo Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer briefdue___
(4) oO Ruling/Hearing on setfor at
(5) Q Status hearing[held/continued to] [set for/re-set for} on setfor at.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on____——ssetfor__ at.
(ea) o Trial{set for/re-set for]on__ at.
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
Oo

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuamt to]
CUFRCP4(m) O General Rule 21 OJ FRCP41(a)(1) O FRCP41(a)(2).

Court of Cook County, Law Division.

dl) @ [For further detail see order attached to the original minute order.]

(10) a [Other docket entry] Motion (4-1) to remand is granted. The case is remanded to the Circuit

No notices required, advised in open court. 2
No notices required

umber of notices

Document
Number

Notices mailed by judge’s staff.

ayo 13 2002

dlate docketed

huG 13 2002

Notified counsel by telephone,

Y_ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom
Dw deputy’s
initials

Date/time received in
central Cletk’s Office ning dpty nals



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEAN HUMMELL,
Plaintiff,
v. No. 02 C 3225

Judge James B. Zagel
YELLOW FREIGHT SYSTEMS, INC.,

, Pee
Defendant. UES

MEMORANDUM OPINION AND ORDER ‘uc Lenny

After plaintiff Jean Hummell settled a personal injury claim arising out of a car accident
with defendant Yellow Freight Systems, Inc. for the sum of $150,000, an issue remained as to a
claim for reimbursement of the defendant/counter-plaintiff Administrative Committee of the
Wal-Mart Stores, Inc. Associates’ Health and Welfare Plan (the “Plan”) for medical benefits the
Plan previously paid in the amount of $16,698.10.

The Plan contains a reimbursement/subrogation provision that requires Ms. Hummeil to
reimburse the Plan to the extent of medical benefits paid, when she makes a recovery from a
responsible third party. At issue is a provision that states that there will be no reduction of the
Plan’s lien for attorney’s fees and that Ms. Hummell must reimburse the Plan regardless of
whether she was made whole by the third-party recovery. Ms. Hummell sought in state court to
reduce the Plan’s claim for reimbursement pursuant to the Illinois Common Fund Doctrine. The
Plan removed the action to this Court and now Ms. Hummell seeks remand. Ms. Hummell
argues that what remains of her claim is a straight-forward state claim based on the Illinois

Common Fund Doctrine. The Plan opposes remand on the theory that Ms. Hummell’s claim is


completely preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §
101 et seg. (“ERISA”).

Section 1441(c)! of Title 28 of the United States Code permits removal by a defendant
from state court to federal court “[wJhenever a separate and independent claim or cause of action
within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise
nonremovable claims or causes of action... .” 28 U.S.C. § 1441(c). Section 1331 of Title 28 of
the United States Code confers federal question jurisdiction over cases that “arise under the
Constitution, laws, or treaties of the United States.” Ordinarily, a court decides whether federal
question jurisdiction exists by examining whether the plaintiff's well-pleaded complaint contains
issues of federal law. Rice v. Panchal, 65 F.3d 637, 639 (7th Cir. 1995) (citation omitted). A
corollary to the well-pleaded complaint rule, however, is that Congress may so completely
preempt a specific area that any complaint raising this group of claims is federal in character and
creates federal question jurisdiction. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 95
L. Ed. 2d 55, 107 S. Ct. 1542 (1987) (citation omitted).

The United States Supreme Court has found that Congress showed an intent to make
causes of action within the scope of ERISA's Section 502(a), 29 U.S.C. § 1132, civil enforcement
provisions removable to federal court under the doctrine of complete preemption. Jd. at 66.
Three factors are examined to determine whether the doctrine of “complete preemption” applies:

whether the plaintiff is eligible to bring a claim under that section, whether the plaintiffs cause

' Although it was unclear from its removal petition on what subsection of 28 U.S.C. §1441

the Plan relied, in its Response the Plan clarified that it sought removal pursuant to 28 U.S.C. §1441(c),
an argument likely based in part on the fact that Ms. Hummell is correct that removal pursuant to
subsection (b) would be explicitly foreclosed by the Seventh Circuit’s decisions in Speciale v. Seybold,
147 F.3d 612 (7" Cir. 1998) and Blackburn v. Sundstrand Corp., 115 F.3d 493 (7" Cir. 1997).

2