In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2648

SHANNON CRUTHIS,

Plaintiff-Appellee,

v.

METROPOLITAN LIFE INSURANCE COMPANY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 03 C 139—Michael J. Reagan, Judge.

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ARGUED JANUARY 7, 2004—DECIDED FEBRUARY 2, 2004

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 Before FLAUM, Chief Judge, and MANION and EVANS,

Circuit Judges.

 FLAUM, Chief Judge. Metropolitan Life Insurance

Company (“MetLife”) appeals the district court’s remand of

this ERISA case to Illinois state court, and argues that the

case should be heard in federal court. For the reasons

stated herein, we reverse.

I. BACKGROUND

Shannon Cruthis alleges that she became disabled in

2001. She therefore sought to recover the benefits she be-
2 No. 03-2648

lieved were due under the terms of her employee benefit

plan. However, her insurer, MetLife, refused to pay the

benefits. 

Cruthis subsequently filed suit against MetLife in Illinois

state court, alleging violations of the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1001 (1974)

(“ERISA”). MetLife removed the action to the United States

District Court for the Southern District of Illinois on the

basis of federal question jurisdiction, and Cruthis then filed

a motion to remand the case back to the state court. The

district court granted the motion to remand in April 2003.

MetLife now appeals the remand order. 

The district court’s remand order was based upon what it

considered to be a forum selection clause in the summary

plan description of the employee welfare benefit plan

provided to Cruthis by MetLife. The clause stated:

STATEMENT OF ERISA RIGHTS

The following statement is required by federal law and

regulation . . . . Under ERISA, there are steps you can

take to enforce the above rights. For instance, if you

request materials from the Plan and do not receive

them within 30 days, you may file suit in a federal

court. In such a case, the court may require the Plan

administrator to provide the materials and pay you up

to $110.00 a day until you receive the materials, unless

the materials were not sent because of reasons beyond

the control of the administrator. If you have a claim for

benefits which is denied or ignored, in whole or in part,

you may file suit in a state or federal court.

MetLife argues that this statement is not a forum selection

clause, but is rather a disclosure of the employee’s rights

that is mandated by ERISA.
No. 03-2648 3

1

 As a preliminary matter, we note that although a district court’s

remand order that is based on the absence of jurisdiction is not

reviewable by an appellate court, a remand that is based on the

interpretation of a forum selection clause may be reviewed. See

Autoridad de Energia Electrica de Puerto Rico v. Ericsson, Inc.,

201 F.3d 15, 16 (1st Cir. 2000); see also Matter of Skupniewitz, 73

F.3d 702, 705 (7th Cir. 1996). 

II. DISCUSSION

State and federal courts have concurrent jurisdiction over

ERISA claims brought by employees to recover benefits,

enforce rights, or clarify rights under employee benefit

plans. See 29 U.S.C. § 1132(e)(1). Therefore, Cruthis’s suit

to recover benefits from her employee benefit plan is the

type of suit that may be filed in either state or federal court.

It is also the type of suit that typically could be removed

from state court to federal court at the defendant’s behest.

See 28 U.S.C. § 1441(a) (stating that defendants may

remove civil actions filed in state court to federal district

court if the district court had original jurisdiction over the

cause of action). However, Cruthis argues that MetLife

waived its right to remove the case to federal court by

stating within the summary plan description that Cruthis

had the right to file suit in state or federal court. We

disagree and hold that the phrase, “you may file suit in a

state or federal court” is a statutorily mandated disclosure

of ERISA rights rather than a forum selection clause.1

Forum selection clauses, like all other contractual provisions, will be upheld if they are a freely negotiated part of

the contract between the parties. See AAR Int’l, Inc. v.

Nimelias Enters. S.A., 250 F.3d 510, 525 (7th Cir. 2001). In

this case, there is no evidence that MetLife’s statement of

ERISA rights was freely negotiated or part of the contract

between the parties. Rather, all of the evidence shows that

MetLife was merely complying with federal law by inform-
4 No. 03-2648

ing Cruthis of her right under ERISA to initiate suit in

either state or federal court.

Under ERISA, plan providers must notify employees of

the remedies available to them if they are denied benefits.

Specifically, ERISA provides that the “summary plan

description shall contain the . . . remedies available under

the plan for the redress of claims which are denied in whole

or in part.” See 29 U.S.C. § 1022(b). The Code of Federal

Regulations sets forth a “model statement” for plan drafters

to use to ensure that their summary plan descriptions

comply with ERISA’s disclosure requirements. One section

of the model statement reads: “If you have a claim for

benefits which is denied or ignored, in whole or in part, you

may file suit in a state or Federal court.” See 29 C.F.R. §

2520.102-3(t)(2). 

We conclude that MetLife’s statement clearly was made

to comply with ERISA’s disclosure requirements. Significantly, MetLife copied the model statement quoted above

verbatim. Moreover, there is no evidence that the statement

was intended to be part of the contract between the parties.

The clause began with the capitalized title “STATEMENT

OF ERISA RIGHTS” and the first sentence states that

“[t]he following statement is required by federal law and

regulation.” The statement further specified that “[u]nder

ERISA, there are steps you can take to enforce the above

rights.” Thus, the plain language of the statement indicates

that it is a disclosure of applicable law rather than a

substantive contract provision.

Furthermore, there is no evidence that the drafters of

ERISA intended this disclosure statement to act as a substantive contract provision and eliminate the right of

removal provided by 28 U.S.C. § 1441(a). “ERISA contains

no express provision against removal,” and there “is also no

indication in ERISA’s legislative history that Congress

intended to prevent removal of employee actions filed in
No. 03-2648 5

state courts.” See Clorox Co. v. U.S. Dist. Court for the

Northern Dist. of California, 779 F.2d 517, 521 (9th Cir.

1985) (holding that the phrase, “you may file suit in a state

or federal court” should be interpreted as a statutorily required disclosure rather than a forum selection clause). If

this Court interprets the phrase, “you may file suit in a

state or federal court” as a waiver of the right to remove, it

would result in the virtual elimination of removal in ERISA

cases because every employer covered by ERISA is required

to make such a disclosure.

Moreover, the language in the disclosure statement does

not compel a finding of waiver. The right to file suit in a

particular forum is not equivalent to the right to avoid removal from that forum. Cruthis was granted the right to file

suit in either state or federal court, and she exercised that

right. This is not inconsistent with MetLife’s power to

remove the case to federal court once it has been filed. 

For these reasons, we join the several courts that have

addressed this issue by holding that the phrase, “you may

file suit in a state or federal court” is a statutorily required

disclosure of an employee’s ERISA rights rather than a

forum selection clause. See, e.g., Clorox Co. v. U.S. Dist.

Court for the Northern Dist. of California, 779 F.2d 517, 521

(9th Cir. 1985); Fanney v. Trigon Ins. Co., 11 F. Supp. 2d

829, 831 (E.D. Va. 1998); Yurcik v. Sheet Metal Workers’

Int’l Ass’n, 889 F. Supp. 706, 707 (S.D.N.Y. 1995);

Satterfield v. Fortis Benefits Ins. Co., 225 F. Supp. 2d 1319,

1321-22 (M.D. Ala. 2002). The district court’s finding that

this statement was a forum selection clause is therefore

reversed.

III. CONCLUSION

For the foregoing reasons, we REVERSE the decision of the

district court and REMAND this case for further proceedings

consistent with this opinion.
6 No. 03-2648

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-2-04