IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40592

JERRY C. McCLELLAND,

Plaintiff-Appellant,

versus

ROBERT C. GRONWALDT, Individually and as

agent for Mobil Oil Corporation; MOBIL OIL

CORPORATION; NATIONAL UNION FIRE INSURANCE

COMPANY OF PITTSBURGH, PA,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Texas

September 9, 1998

Before GARWOOD, SMITH and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Jerry C. McClelland (McClelland) requested

and received certification under 28 U.S.C. § 1292(b) to appeal the

district court’s denial of his motion to remand his suit to state

court. We hold that the district court erred in denying

McClelland’s motion to remand, and we reverse the district court’s

order and direct that the case be remanded to the state court.

Facts and Proceedings Below1 To the extent that there is no relevant distinction to be

made among them, the three defendants-appellees will be referred to

collectively as "Mobil" in the interest of simplicity.

2 He alleged, i nter alia

, breach of good faith and fair dealing

in handling of insurance claim, violations of the Texas Insurance

Code, violations of the Texas Deceptive Trade Practices Act,

negligent handling of an insurance claim, intentional infliction of

emotional distress, and breach of insurance contract.

2 In 1988, McClelland was allegedly injured in the course of his

employment at a refinery located in Beaumont, Texas, and operated

by his employer, defendant-appellee Mobil Oil Corporation (Mobil).

The injury required medical attention, and McClelland subsequently

filed a related claim for workers’ compensation under t he Texas

workers’ compensation act. Dissatisfied with the handling of his

claim, McClelland brought this suit in Texas state court ag ainst

Robert C. Gronwaldt, the individual who had handled his claim;

National Union Fire Ins u rance Company, which provided Mobil’s

workers’ compensation insurance; and Mobil. 1

McClelland’s original suit, filed in December of 1992, alleged

a variety of state law causes of action arising principally out of

the manner in which his particular workers’ compensation claim had

been handled. 2 McClelland subsequently amended his complaint to

allege that Mobil was v iolating state insurance and workers’

compensat ion laws by conspiring with National Union to allow

workers’ compensation claims to be adjusted by employees of a Mobil

subsidiary, rather than by independent claims adjusters as is

allegedly required under state law. He also asserted that Mobil’s3 The gravamen of the class action suit is that Mobil conspired

with various other entities to create the impression that Mobil was

providing workers’ compensation pursuant to the laws and applicable

regulations of the state of Texas, when in fact Mobil was engaging

in an allegedly unlawful form of "self insurance" and was allowing

workers’ compensation claim s to be adjusted by Mobil employees,

rather than by independent adjusters, which also allegedly violates

state law. The claims asserted include, i nter alia

, breach of good

faith and fair dealing, fraudulent representations regarding

c overage, negligent handling of claims, willful denial o f

meritorious claims, and the handling of claims in violation of

various state insurance regulations.

3 purported workers’ compensation plan violated both state workers’

compensation law and state insurance law and regulations. 3

Alleging that the defendant-appellees had conspired to defraud

him and simi larly situated individuals of the benefits to which

they were entitled under their workers’ compensation in surance,

McClelland sought certification of a class of persons consisting

generally of all individuals employed by Mobil in the state of

Texas whose workers’ compensation claims were handled, settled, or

a djusted by a Mobil employee between 1988 and 1993. The state

trial court granted class certification on June 20, 1994.

During the time M cClelland’s case was pending in the Texas

state c ourts, Mobil was undergoing a nationwide restructuring.

Seeking to reduce its workforce, Mobil began offering voluntary

separation benefit packages to its employees. In 1992, a uniform

plan, referred to as the "Enhanced Separatio n Benefits Package"

(ESBP), was offered to employees of "all impacted units." The ESBP

was eventually offered to employees of the Beaumont refinery.

The ESBP was initially available only to non-union employees4 The class certification order was affirmed by the Beaumont

Court of Appeals in a December 29, 1994, unpublished opinion, and

rehearing was denied January 19, 1995. G ronwaldt v. McClelland

,

No. 09-94-238CV, 1994 WL 720018 (Tex.App.

—— Beaumont). Apparently,

thereafter review or relief in the Texas Supreme Court was

unsuccessfully sought.

5 On July 26, 1995, McClelland had filed in the state court a

request fo r, and that court had granted, a similar temporary

restraining order (TRO) which expired by its own terms ten days

4 at the Beaumont refinery. But Mobil subsequently negotiated a

Memorandum of Agreement (MOA), dated Sept ember 1, 1995, with the

Oil, Chemical, and Atomic Workers International Union (the Union),

which extended a plan analogous to the ESBP to Mobil employees in

the bargaining units represented by the Union. The ESBP and MOA

both required participating employees to sign a "Separation

Agreement" that included a broad waiver provision, releasing "all

claims " arising from both the employee’s employment and

termination. Due at least in part to the interlocutory appeal of

the class certification, many of the potential members of the class

were not promptly notified of the class action, and McClelland, as

class representative, became concern e d that the broad release

included in the separation agreement could be construed to waive

t hose claims that were the subject of the class action. 4

Consequently, McClelland filed in the state court case a motion

dated September 27, 1995, seeking an injunction prohibiting "Mobil

from continuing with this particul ar program [ i .e.

, the ESBP and

MOA] to the extent it requires releasing causes of action that the

plaintiffs may have." 5later. McClelland’s September 27, 1995, filing also sought a TRO,

which was granted, and a temporary and permanent injunction. The

case was removed before any injunction was acted on a nd the TRO

apparently expired by its own terms before or a few days after

removal.

6 29 U.S.C. § 141, et seq.

7 29 U.S.C. § 185(a).

8 29 U.S.C. § 1001, et seq.

5 On October 17, 1995, Mobil filed a notice of removal, alleging

that the plaintiffs’ motion for injunctive relief asserted claims

subject to "complete preemption" and therefor e created federal

question jurisdiction supporting removal. Specifically, Mobil

contended that the attempt to enjoin execution of the MOA, a

collective bargaining agreement (CBA), triggered complete

preemption unde r the Labor Management Relations Act 6 (LMRA),

section 301, 7 because resolution of the plaintiffs’ claim for

injunctive relief was substantially dependent on the terms of the

MOA and would require the state court to interpret the release

provision contained in the Separation Agreement. Mobil also argued

that the plaintiffs’ motion gave rise to complete preemption under

the Employment Retirement Income Security Act of 1974 8 (ERISA),

asserting that the ESBP constituted an ERISA plan and,

consequently, that any attempt to enjoin the administration of the

ESBP in state court was completely preempted under ERISA and thus

constituted a federal claim sufficient to provide a jurisdictional

basis for removal.6

On October 23, 1995, McClelland filed a motion to remand the

case to state court, arguing, inter alia

, that remov al was

improvident because the motion for injunctive relief was so

tangential to LMRA or ERISA concerns that it was insufficient to

trigger "complete preemption" so as to provide the federal district

court with removal jurisdiction under either statute. McClelland

also pointed out that the motion upon which the removal was based

would soon become moot because the "self-nomination" period during

which employees could elect to participate in the MOA and ESBP

plans was relatively short and had already commenced. As a

consequence, McClelland asserted, unless injunctive relief were to

be granted almost immediately the plainti ffs’ request for a

"restraining order will be moot and there will be absolutely no

federal question left for this court to decide."

In a memorandum opinion dated November 16, 1995, the district

court denied the plaintiffs’ motion to remand the case to state

court. 909 F.Supp. 457 (E.D. Tex. 1995). The district court held

that the motion for injunctive relief asserted claims that were

completely preempted by both the LMRA and ERISA, thereby providing

a basis for federal question jurisdiction, and further determined

that it properly exe r cised supplemental jurisdiction over the

underlying state law claims.

Subsequent to the d istrict court’s denial of the motion to

remand, the case appears to have languished in federal court with9 The questions, as formulated by the district court, are as

follows:

"I) whether the state court's TRO and the

plaintiff's state court pleading seeking a permanent

injunction would require the state courts to in terpret

and administ er a CBA, thus vesting this court with

jurisdiction pursuant to 28 U.S.C. § 1331;

II) whe ther the state court's TRO and the

plaintiff's state court pleading seeking a permanent

injunction would require the state courts to interpret

and administer an ERISA plan, thus vesting this court

with jurisdiction pursuant to 28 U.S.C. § 1331; and

III) whether, i f this court had federal question

7 little significant progress for almost a year. Then, on October 4,

1996, the dis trict court held a hearing regarding all pending

motions. At this hearing, questions regarding the propriety of

removal and the district court’s subject matter jurisdiction were

raised and argued at some length. These proceedings prompted the

district court to note that "[s]ince the October 4, 1996 hearing it

became clear to this court that there is a substantial difference

of opinion on whether the state court’s TRO involved, and will

likely involve as a matter of law, an interpretation of a CBA or

the interpretation and administration of an ERISA plan" sufficient

to sustain its jurisdiction under a theory of complete preemption.

McClelland v. Gronwaldt , 958 F.Supp. 280, 283 (E.D. Tex. 1995).

On February 19, 1997, the d istrict court certified its

November 16, 1995, order for interlocut ory appeal pursuant to 28

U.S.C. § 1292(b), identifying three "controlling" questions of law

regarding the propriety of its continued retention of jurisdiction

over the case sub judice

. 9jurisdiction pursuant to 28 U.S.C. § 1331 at the time of

removal, this court now has supplemental jurisdiction

over all state law claims under 28 U.S.C. § 1367."

McClelland v. Gronwaldt , 958 F.Supp. 280, 283 (E.D. Tex. 1995).

10 S ee also Jones v. Roadway Express, Inc. , 936 F.2d 789, 792

(5th Cir. 1991) ("The Supreme Court has held that, under the

d octrine of pendent jurisdiction, a federal district court h a s

discretion to remand a properly removed case to state court when

all federal-law claims have been eliminated and only pendent statelaw claims remain.") (citation omitted); and Parker & Parsley

Petroleum Co. v. Dresser Indus.

, 972 F.2d 580, 585 (5th Cir. 1992)

(stating standard of review).

8 Discussion

Our analysis in this appeal involves two steps and two

standards of revi ew. First, the district court’s preemption

analysis, based upon which the court held that it had federal

question jurisdiction, is a determination of original jurisdiction

subject to de novo review. Hook v. Morrison Milling Co. , 38 F.3d

776, 780 (5th Cir. 1994); Carpenter v. Wichita Falls Indep. School

Dist.

, 44 F.3d 362, 365 (5th Cir. 1995). Second, we review the

district court’s retention of jurisdiction of the state law claims

for abuse of discretion. H ook

, 38 F.3d at 780 (citing In re Wilson

Indus. , 886 F.2d 93, 95-96 (5th Cir. 1989)). 10

I. Complete Preemption and Removal

Pursuant to statute, removal is g enerally available to the

defen dant in "any civil action brought in a State court of which

t he district courts of the United States have origina l

jurisdiction" founded on the existence of a claim or right "arising11 Ordinarily our "arising under" analysis focuses on the

plaintiffs’ well-pleaded complaint, for "[i]t is long-settled law

that a cause of action a rises under federal law only when the

plaintiff’s well pleaded complaint raises issues of federal law."

Metropolitan Life Ins. Co. v. Taylor

, 107 S.Ct. 1542, 1546 (1987).

9 under" federal law. 28 U.S.C. § 1441(a) and (b). In the case at

bar, although no federal issue appeared on the face of the motion

for injunctive relief that provided the basis for removal, the

district cou rt held that it had "federal question" jurisdiction

based on theories of complete preemption under both the LMRA and

ERISA. While federal courts typically ascertain the existence of

federal question jurisdiction by applying the familiar "wellpleaded complaint" rule, 11 there exists a "corollary" to this rule,

which is most frequently referred to as the doctrine of "complete

preemption." This doctrine has been used to define limited

categories of state law claims that are "completely preempted" such

that "any civil complaint raising this select group of claims is

necessarily federal i n character," no matter how it is

characterized by the complainant in the relevant pleading.

Metropolitan Life Ins. Co. v. Taylor

, 107 S.Ct. 1542, 1546 (1987).

In effect, the application of complete preemption "converts an

ordinary state common law complaint into one stating a federal

claim for purposes of the well-pleaded complaint rule." I d. at

1547. Because they are recast as federal claims, state law claims

that are held to be completely preempted give rise to "federal12 We have summarized the effect of complete preemption as

follows:

"Un der this doctrine, ‘Congress may so completely preempt a particular area that any civil complaint raising

this select group of claim s is necessarily federal in

character,’ and the case may be removed even if no

federal claim is asserted in the complain t and federal

preemption, raised as a de fense, is the only issue of

federal law implicated in the case." A nderson v.

Electronic Data Systems Corp.

, 11 F.3d 1311, 1315 (5th

Cir. 1994) (quoting Taylor , 107 S.Ct. at 1546).

13 The Supreme Court first applied what has come to be referred

to as complete preemption in Avco Corp. v. Aero Lodge No. 735,

Int’l Assn. of Machinists

, 88 S.Ct. 1235, 1237 (1968), in which the

Court not only held that a state actio n for breach of contract,

where the contract in question was a collective b argaining

agreement, was preempted by section 301 of the LMRA, but also held

that although the plaintiff had relied solely on state law and had

chosen to bring suit in state court, the preemptive power of the

LMRA was sufficient that the claim nevertheless "arose under"

federal law, thus crea ting federal question jurisdiction. The

Supreme Court subsequently explained that "the preemptive force of

§ 301 is so powerful as to displace entirely" state actions for

breach of a collective bargaining agreement. Franchise Tax Board

v. Construction Laborers Vacation Trust

, 103 S.Ct. 2841, 2847

(1983). In M

etr opolitan Life Ins. Co. v. Taylor , 107 S.Ct. 1542

(1987), t he Supreme Court extended the doctrine of complete

preemption to state actions falling within the preemptive scope of

ERISA’s civil enforcement provision, section 502(a).

10 question" jurisdiction and thus may provide a basis for removal. 12

The Supreme Court has held the doctrine of complete preemption

applicable to certain claims preempted by ERISA, as well as to

certain claims preempted by the LMRA. 13

II. LMRA Preemption

We begin by addressing the district court’s firs t certified

question, wheth er the plaintiffs’ request for injunctive relief

necessarily requi red the state court to interpret a collective11

bargaining agreement, thereby triggering complete preemption under

the LMRA.

The displacement of conflicting state laws and the provision

of a federal forum pursuant to "complete preemption" under the LMRA

function to "ensure uniform interpretation of collective-bargaining

agreements, and thus to promo te the peaceable, consistent

resolution of labor-management disputes." L ingle v. Norge Div

. ,

Magic Chef, Inc.

, 108 S.Ct. 1877, 1880 (1988). S ee also Teamsters

v. Lucas Flour Co. , 82 S.Ct. 571, 576-77 (1962). To further this

goal, "if the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the app lication of

state law (which might lead to inconsistent results since there

could be as many state-law principles as there are States) is

preempted and federal labor-law principles——necessarily uniform

throughout the Nation——must b e employed to resolve the dispute."

Lingle

, 108 S.Ct. at 1881. Thus, complete preemption under the

LMRA applies when "resolution of a state law claim is substantially

dependent upon analysis of the terms of an agreement made between

parties to a labor contract." Wells v. General Motors Corp. , 881

F.2d 166, 172 (5th Cir. 1989).

In the case sub judice it is uncontested that the MOA

qualified as a CBA and that the waiver provision contained in the

accompanying Separation Agreeme nt was an integral part of that14 As we held in Thomas v. LTV Corp. , 39 F.3d 611 (5th Cir.

1994), to the extent that an agreement between an employer and

employee cannot be construed independently of a CBA——as for example

when the agreement seeks to limit or condition a CBA——the

purportedly separate agreement "is subject to a preemption analysis

just as if it was a CBA." Id. at 618.

12 agreement. 14 Applying L ingle

, the district court considered whether

resolution of the plaintiffs’ motion depended on the terms of a CBA

and concluded that "[t]he temporary restraining order sought by the

Plaintiffs [would] necessarily require[] the state court to make an

interpretation of the MOA and the relevant Separation Agreements."

909 F.Supp. at 463. Because resolution of the plaintiffs’ motion

would have necessitated construal of the waiver provision contained

in the Separation Agreement and possibly th e interaction of that

provision with the MOA, the district court held that the

plaintiffs’ motion for an injunction triggered complete preemption,

thus creating federal question jurisdiction.

As discussed above, the fundamental rationale of LMRA

preemption is to promote uniformity in the law used to interpret

CBAs by mandating the application of federal law and by providing

a federal forum. Obviously this rationale, and consequently the

applicability of complete preemption, endure only so long as there

is a live, persisting "dispute," the resoluti on of which

"substantially depends" on the interpretation o f a CBA. The

district co urt’s memorandum opinion and accompanying order are

dated November 16, 1995, and are "time stamped" as having been15 Section 1447(c) provides, in pertinent part, that upon

determination that a case should be remanded, "[a] certified copy

of the order of remand shall be mailed by the clerk to the clerk of

the State court. The State court may thereupon proceed with such

case." 28 U.S.C. § 1447(c).

It should be noted that the actual mailing of the remand order

has legal significance in determining the time at which the

district court is divested of jurisdiction. S ee, e.g., Browning v.

Navarro , 743 F.2d 1069, 1078-79 (5th Cir. 1984) (citing cases and

treatises generally supporting the proposition that pursuant to the

language of section 1447(c), a federal court is completely divested

13 filed with the clerk of the court at 4:24 p.m. on that day.

Purs uant to a negotiated provision of the MOA, the "selfnomination" or "election" period for participation in that program

expired on November 17, 1995, the day after the court rendered the

order denying remand. This temporal proximity raises the threshold

question w hether, at the time the district court rendered its

decision, there still existed a live issue as to the potential

interpretation of the waiver provisions by a state court. If there

was no realistic possibility that a state court could rule on the

plaintiffs’ motion for injunctive relief du ring the “election”

period, then the LMRA preemption issue was moot and the district

court erred in considering it as providing a basis for federal

question jurisdiction. Had the case been remanded on November 16,

1995, under the federal rules governing post-remand procedures, no

state court could have exercised jurisdiction over the case until

a certified copy of the remand order had been mailed by the clerk

of the federal district court to the clerk of the state court. S ee

28 U.S.C. § 1447(c). 15 Given the time necessarily involved inof jurisdiction once it mails a certified copy of the order to the

clerk of the state court.).

16 T ay lor v. Resolution Trust Corp. , 56 F.3d 1497, 1502 (D.C.

Cir. 1995).

14 mailing a certified copy of the remand order to the clerk of the

state court as well as the time required to schedule and recommence

proceedings, the potential for a state court to rule on the motion

f or injunctive relief before the “election” period under the MOA

expired was negligible on the date that the district court rendered

its decision. Thus, while at the time the case was removed, a

state court ruling on the plaintiffs’ motion was imminent, by the

time the district court rendered its opinion, the possibility of a

state court’s interpreting the MOA had, for all practical purposes,

ceased to exist. Consequently, the issue had become effectively

moot, and the court should not have based its continuing federal

question jurisdiction on complete preemption under the LMRA.

The district court’s analysis is also subject to a second,

more fundamental, mootness problem. It is axiomatic that "[a]

request for injunctive relief remains live only so long as there is

some present harm left to enjoin." 16 This is a corollary of the

more general rule that "[a] case is moot when it no longer presents

a live controversy with respect to which the court can give

meaningful relief." P acific Ins. Co. v. General Development Corp.

,

28 F.3d 1093, 1096 (11th Cir. 1994). The relief sought by the

plaintiffs was an injunction restrain ing Mobil from soliciting17 The district court found that the MOA "probably became

effective September 17, 1995." 909 F.Supp. at 459.

18 We note this potential mootness problem was raised at several

points by the plaintiffs. In the motion to remand, it was asserted

that the relief sought would be effectively unavaila ble within a

relatively short period of time and as a consequence that

plaintiffs’ request for a "restraining order will be moot and there

will be absolutely no federal question left for the court to

decide." After the district court denied the motion to remand,

class counsel took the position that the motion had been mooted

because the "self-nomination" period had expired. In the October

4, 1996, hearing, plaintiffs’ counsel argued that the plaintiffs

had consistently, from the time of the motion to remand, taken the

position that the motion was moot, and in open court repeatedly

stated that plaintiffs were no longer seekin g any type of

injunctive relief. The transcript of the October 4, 1996, hearing

indicates that counsel for the McClelland class claimed that "in

addressing the court about this issue we took the position that it

was moot, that we were no longer seeking the relief sought, because

we couldn’t get it. And if there is any question about that, then

I’ll formally request that the pleading be withdrawn at this time."

T he district court noted that the plaintiffs failed to

formally amend or withdraw the motion. 958 F.Supp. at 282 n.4.

This misses the relevance of plaintiffs’ argument as to mootness.

The question we consider is not whether the plaintiffs took

sufficient steps to withdraw their motion. Rather, assuming,

arguendo

, that th e motion was n ot withdrawn, the question is

whether any court was in a position to provide the plaintiffs

meaningful relief.

15 waivers under the ESBP and MOA plans from potential class members.

This relief was requested on September 27, 1995, near the beginning

of the election period under the MOA. 17 By November 16, 1995, the

"harm" that the plaintiffs had sought to e njoin was virtually

complete. Irrespective of a court’s ruling on the motion, the

election period, and the concomitant harm alleged by plaintiffs,

would end the next day. Thus, no "meaningful relief" as to the MOA

remained available under the motion at the time of the district

court’s decision. 1819 We are not persuaded by Mobil’s argument that because it has

not relinquished the "right" to reimplement a similar program this

issue is not moot. The MOA is a collectively-bargained instrument,

and Mobil did not retain any "right" under the MOA to unilaterally

extend the election period or to reinstate the agreement. Thus,

Mobil, whatever i t might have the right to do apart from Union

agreement, could not reinstitute a similar program as a part of or

pursuant to the MOA without negotiating a new agreement with the

Union. Moreover, Mobil does not even claim to have (or have had)

any spe cific plans to reimplement a similar separation benefits

program involving the union workers at the Beaumont refinery. Nor

does Mobil assert that it intends to pursue renegotiation with the

Union regarding the implementation of such a plan. Thus, Mobil’s

argument that it could recommence the behavior sought to be

enjoined is unsupported speculation——and self-serving speculation

at that. Mobil’s mere assertion that it might, at some point in

the future, reinstate a similar benefit containing a similar

separation agreem ent and waiver clause, without any specific

allegation whatsoever that it actually plans to do so, is

insufficient to prevent mootness.

16 Thus, even if——contrary to the reasoning above——there existed

some abstract possibility that a state court might rule on the

plaintiffs’ request for injunctive relief, the first day on which

it could do so would appear to have been t he day on which the

election period un der the MOA expired by its own terms.

Consequently, at least as it pertained to the MOA, the plaintiffs’

motion for injunctive relief had become moot by the time the

distri ct court rendered its November 16, 1995, order. 1 9

Accordingly, the district court erred in treating the motion as a

"live" pleading for purposes of its LMRA preemption analysis. In

sum, because the motion for injunctive relief, at least as it

related to the MOA, had become moot, and because there was no

longer any possibility that a state court would rule on the motion20 Mobil argues in its brief on appeal that we must review this

case on the facts as they existed at the time of removal and that

any subsequent events are irrelevant to our review. Although Mobil

is correct that we typically review questions of subject matter

jurisdiction on the basis of the facts as they existed when the

relevant pleading was filed, our review is not similarl y limited

when determining questions of mootness. "Events both before and

after the filing of a claim may render a claimant ’s case moot.

Mootness doctrine requires tha t the controversy posed by a

complaint be present throughout the litigation process," Baccus v.

Parrish

, 45 F.3d 958, 961 (5th Cir. 1995) (internal quotation marks

and citation omitted). S ee also Carr v. Alta Verde Industries,

Inc.

, 931 F.2d 1055, 1061 (5th Cir. 1991) (stating that all

questions of subject matter jurisdictio n except mootness are

determined as of the date of the filing of the complaint, and

subsequent events do not deprive the court of jurisdiction). See

generally

, 19 Moore’s Federal Practice § 205.02[3][a] (3d ed. 1998)

("A controversy may be or become moot at any stage of the

proceedings due to a change in circumstances that ends the harm or

resolves the dispute.") (collecting cases).

17 during the MOA “election” period, we hold that the district court

erred in relying on complete preemption under the LMRA as a

continuing basis of federal question jurisdiction in its November

16, 1995, denial of plaintiffs’ motion to remand. 20

III. ERISA Preemption

The second question identified by the district c ourt in its

certifying opinion is whether the plaintiffs’ request for

injunctive relief "would require the state courts to interpret and

administer an ERISA plan, thus vesting this [district] court with

[removal] jurisdiction." 958 F.Supp. at 283. Because the district

court applied the wrong standard in determining whether the

plaintiffs’ motion for injunctive relief triggered "complete

preemption" as opposed to "ordinary preemption," we hold that the21 29 U.S.C. § 1144(a).

18

court erred in concluding that it had removal jurisdiction based on

ERISA preemption.

In its denial of plaintif fs’ motion to remand, the district

court framed its ERISA preemption analysis solely in terms of

whether the plaintiffs’ motion for injunctive relief sufficiently

"related to" an ERISA plan so as to be preempted, app lying the

standard for determining ordinary pr eemption and failing to

consider the additional requirements necessary to implicate

"complete preemption." In analyzing whether the plaintiffs’ claims

"related to" an ERISA plan, the court concluded that although "the

underlying state to rt claims in this case do not necessarily

implicate an ERISA plan, the Plaintiffs’ Motion for Temporary

Restraining Order seeks to enjoin the operation and implementation

of an ERISA plan by operation of state law." 909 F.Supp. at 462.

Accordingly, the court found that the plaintiffs’ motion directly

"related to" an ERISA plan and, on the basis of this determination,

held that "[t]o the extent that the Plaintiffs’ application for

state court injunctive relief would halt the administration of the

plan or the payment of benefits thereunder, the Plaintiffs’ action

now rests properly in federal court." I d. Thus, the district

court’s holding was based on the reasoning that because the

plaintiffs’ motion "related to" an ERISA plan within the meaning of

the statute’s general preemption provision, section 514(a), 2 1 the22 The district court is certainly not the only court that has

done so. S ee, e.g., Jass v. Prudential Health Care Plan, Inc.

, 88

F.3d 1482, 1487 (7th Cir. 1996) (noting th at "because the

jurisdictional doctrine of ‘complete preemption’ included the word

‘preemption,’ confusion arose between the jurisdictional doctrine

and the federal defense of preemption").

23 For example, in H ubbard v. Blue Cross & Blue Shield Assoc.

, 42 F.3d 942 (5th Cir. 1995), we explained that,

"Ordinarily, preemption of state law by federal law is a

defense to a plaintiff's state law claim, and therefore

cannot support federal removal jurisdiction under the

‘well-pleaded complaint’ rule. ‘Complete preemption,’ in

contrast, exists when the federal law occupies an entire

field, rendering any claim a plaintiff may raise

necessarily federal in cha racter." I d. at 945 n.5

(citing Franchise Tax Board , 103 S.Ct. at 2854).

See also Anderson v. Electronic Data Systems Corp. , 11 F.3d 1311,

1315 (5th Cir. 1994) ("A finding that a claim is preempted does not

end our analysis, since preemption is raised as a defense and

ordinarily federal question jurisdiction is determined by the wellpleaded complaint rule, which looks to the complaint in determining

subject matter jurisdiction.").

24 S ee, e.g., Toumajian v. Frailey

, 135 F.3d 648, 655 (9th Cir.

1998) ("This distinction is important, for if th e doctrine of

complete preemption does not apply, even if the defendant has a

defense of ‘c onflict preemption’ within the meaning of § 1144(a)

because the plaintiff’s claims ‘relate to’ an ERISA plan, the

district court, being without subject matter jurisdiction, cannot

rule on the preemption issue."); Rice v. Panchal

, 65 F.3d 637, 640

19 district court was "vested" with federal question jurisdiction and,

consequently, that removal was proper. S ee 909 F.Supp. at 461-62.

The error in the district court’s analysis stems from its

failure to distinguish clearly between the concepts of "ordinary"

and "complete" preemption. 22 Although we have, in past decisions,

both explicitly and implicitly differenti ated between these two

concepts, 23 as have our sister circuits, 24 the district court appears(7th Cir. 1995) ("The difference between complete preemption under

§ 502(a) and conflict preemption under § 514(a) is important

be cause complete preemption is an exception to the well-pleaded

complaint rule that ha s jurisdictional consequences."); D ukes v.

U.S. Healthcare, Inc.

, 57 F.3d 350, 355 (3d Cir. 1995) (emphasizing

the importance o f the distinction due to the jurisdictional

consequences of its application); Warner v. Ford Motor Co.

, 46 F.3d

531, 535 (6th Cir. 1995) (criticizing the failure to "keep complete

preemption removal and ordinary preem ption doctrine separate and

distinct").

25 As this Court has previously noted, section 514(a) was

drafted to be "deliberately expansive," broadly displacing

inconsistent state laws so as to implement "Congress’s decision to

create a comprehensive, uniform federal scheme for the regulation

of empl oyee benefit plans" through the enactment of ERISA.

Corcoran v. United Healthcare, Inc.

, 965 F.2d 1321, 1329 (5th Cir.

1992). S ee also id. at 1328-29 (discussing the broad

interpretation of the phrase "relates to" in the context of

ordinary ERISA preemption).

20 not to have properly taken account of this distinction in its

analysis. A brief discussion of the two concepts and an outline

of the analysis applicabl e to the determination of complete

preemption under ERISA follow.

A. Ordinary Preemption

ERISA section 514(a) provides for the general pr eemption of

"any and all State laws insofar as they may now or hereafter relate

to any employee benefit pl an" regulated by that statute. 2 5 29

U.S.C. § 1144(a) (emphasis added). Preemption pursuant to section

514(a), however, merely results in the displacement of state law.

Because ordinary preemption almost invariably arises as a defense,

and thus does not appear on the face of the plai ntiff’s wellpleaded complaint, section 514(a) preemption typically cannot serve26 Under the well-pleaded complaint rule, a cause of action

"arises under" federal law only when the plaintiff’s well-pleaded

complaint raises issues of federal law. M etropolitan Life Ins. Co.

v. Taylor

, 107 S.Ct. 1542, 1546 (1987). Because "[f]ederal preemption is ordinarily a federal defense to the plaintiff’s suit,"

and as such "does not appear on the face of a well-pleaded

complaint," federal preemption typically "does not authorize

removal to federal court." Id. at 1546.

27 107 S.Ct. at 1547 (citing F ranchise Tax Board , 103 S.Ct. at

2854-56).

28 "[I]f a federal cause of action completely preempts a state

ca use of action any complaint that comes within the scope of the

federal cause of action necessarily ‘arises under’ fede ral law."

Franchise Tax Board , 103 S.Ct. at 2854.

21 as the basis for re moval jurisdiction. 2 6 As the Supreme Court

stated in Taylor

, "ERISA pre -emption, without more, does not

convert a state claim into an action arising under federal law." 27

Accordingly, the district court’s finding that the plaintiffs’

motion for injunctive relief directly "rela t ed to" the

implementation and administration of an ERISA plan was an

insufficient basis fo r its holding that the motion triggered

complete preemption and, consequently, the court erred in

determining that it had removal jurisdiction.

B. Complete Preemption

In contrast to ordinary preemption, complete preempti on not

only displaces subs tantive state law, but also "recharacterizes"

preempted state law claims as "arising under" federal law for the

purposes of determining federal question jurisdiction, 28 typically

makin g removal available to the defendant. Thus, "complete29 S ee, e.g., Lister v. Stark , 890 F.2d 941, 943 n.1 (7th Cir.

1989) (commenting that "[t]he use of the term ‘complete preemption’

is unfortunate, since t he complete preemption doctrine is not a

preemption doctrine but rather a federal jurisdiction doctrine").

30 877 F.2d 354, 355 (5th Cir. 1989) ("A prerequisite to this

exercise of [complete preemption] jurisdiction, however, i s that

the state law claims actually be preempted by ERISA.").

22 preemption" is less a principle of substantive preemption than it

i s a rule of federal jurisdiction. 2 9 In other words, complete

preemption principally determines not whether state or federal law

governs a pa rticular claim, but rather whether that claim will,

irrespective of how it is characterized by the complainant, be

treated as "arising under" fe deral law. In sum, complete

preemption "converts an ordinary state common law complaint into

o ne stating a federal claim for purposes of the well-pleaded

complaint rule," generally rendering the entire case removable to

federal court at the discretion of the defendant. T aylor

, 107

S.Ct. at 1547.

C. Complete Preemption Analysis

Although "ordinary" and "complete" preemption are conceptually

and functionally distinct, they are analytically related insofar as

ordinary preemption is a necessary——but obviously not a

sufficient——precondition to complete preemption in the context of

ERISA. In H artle v. Packard Electric

, we held that "ordinary"

preemption was a "prerequisite to [the] exercise of jurisdiction"

pursuant to "complete preemption." 30 Accordingly, the first step31 Our subsequent cases have followed this two-step approach.

See, e.g., Kramer v. Barney

, 80 F.3d 1080, 1083 ("Having concluded

that [Plaintiff’s] state law claim s are preempted, we must next

consider whether ERISA displaces those clai ms under the complete

preemption doctri ne."); and A nderson v. Electronic Data Systems

Corp. , 11 F.3d 1311, 1313 (applying two-prong analysis).

32 107 S.Ct. at 1547-48. The Court also noted that "Congress

has clearly manifested an intent to make causes of action within

the scope of § 502(a) removable to federal court." Id. at 1548.

23 in the co mplete preemption analysis is to determine whether the

claim is subject to ordinary preemption under sectio n 514(a). 3 1

This leaves the obvious question of what more is required to bring

a claim subject to ordinary preemption within the scope of complete

preemption.

This question has been answered, at least in substantial part,

by the Supreme Court in Franchise Tax B oard and Taylor

. In

Franchise Tax Board

, the Court suggested, but did not have occasion

to hold, that the civil remedies provided by ERISA might give rise

to complete preemption, stating that “[i]t may be that, as with

§ 301 as interpreted in Avco

, any state action com ing within the

scope of § 502(a) of ERISA would be removable to federal district

court, even if an otherwise adequate state cause of action were

pleaded without reference to federal law." 103 S.Ct at 2854.

Subsequently, in Taylor

, the Court reached and decided this issue,

holding that section 502(a)(1)(B) of ERISA compl etely preempted

state law claims falling within its scope. 32

In Anderson v. Electronic Data Systems, Corp. , 11 F.3d 1311,33 I d. at 1315 (holding that plaintiff’s claim "falls within the

scope of the civil enforcement provision, and hence created removal

jurisdiction.").

34 In describing the scope of complete preemption as generally

including those claims falling within section 502(a), we note that

there exists some ambiguity in the caselaw as to whether the scope

of complete preemption is limited to only those claims falling

within section 502(a)(1)(B), or whether complete preemption

encompasses all claims falling within the scope of section 502(a).

The Supreme Court’s opinion in Taylor dealt with a claim that was

preempted by sect ion 502(a)(1)(B), and consequently it could be

argued that the Court’s holding was limited to that subsection.

However, the Court appeared to base its conclusion regarding the

scope of complete preemption under ERISA on the "explicit direction

from Congress" that it found in the legislative history of the

statute. T aylor

, 107 S.Ct. at 15 47. The Court summarized this

24 1315 (5th Cir. 1994), we construed the Supreme Court’s decision in

Taylor as holding that complete preemption in the context of ERISA

applies to those claims that fall within the scope of section

502(a). 33 In K ramer v. Smith Barney

, 80 F.3d 1080 (5th Cir. 1996),

we construed Taylor a bit more narrowly, interpreting its specific

holding as being limited to claims falling within the scope of

section 502(a)(1 ). Id. at 1083. We reasoned, however, that the

Court’s analysis supported extending the scope of complete

preemption to claims falling under section 502(a)(2), and held that

"because [plaintiff’s] state law claims fall within the enforcement

provisions of section 502, they are completely preempted an d the

action was properly removed to the district court." Id. at 1084.

Thus, this Court has held, in essence, that state law claims

falling within the scope of the civil enforcement provisions

contained in section 502(a) are completely preempted. 34"explicit direction" as indicating that "Congr e ss has clearly

manifested an intent to make causes of action within the scope of

the civil enforcement provisions of § 502(a) removable to federal

court." I d. at 1548. Thus, it is potentially unclear whether the

Court intended its holding to apply to section 502(a)(1)(B) or to

all of section 502(a).

In Kramer

, we held that the Supreme Court’s reasoning, if not

its specific holding, in Taylor supported complete preemption based

on section 502(a)(2). 80 F.3d at 1083. Some courts, however,

appear to have limited complete preemption to section 502(a)(1)(B),

while others seem to anticipate t hat complete preemption

potentially encompasses the full range of causes of action provided

by 502(a). C omp are, e.g., Lupo v. Human Affairs International,

Inc.

, 28 F.3d 269, 273 (2d Cir. 1994) (stating that "the § 1109

fiduciary claims discussed by [defendant-appellee] are not the §

1132(a)(1)(B) claims that provide the complete preemption necessary

to satisfy the well-pleaded-complaint rule in accordanc e with

[ Taylor ]"), with Toumajian v. Frailey

, 135 F.3d 648, 654-57 ( 9th

Ci r. 1998) (considering the possibility of complete preemption

removal based on causes of action authorized by each subsection of

section 502(a)). For other examples of the application of complete

preemption in the ERISA context, see, e.g., Rice v. Panchal

, 65

F.3d 637, 640 (7th Cir. 1995); Dukes v. U.S. Healthcare, Inc. , 57

F.3d 350, 355 (3d Cir. 1995), and Warner v. Ford Motor Co.

, 46 F.3d

531, 535 (6th Cir. 1995).

We do not intend our brief discussion of complete preemption

to be interpreted as expanding its scope under ERISA. Because it

is not essential to the determination of the case sub judice , and

because it is not clear that there is any persisting conflict

between our position and those of our sister circuits, we leave the

tasks of further exposition and more precise definition of the

scope of complete preemption under ERISA to future cases.

25 Applying this two-prong analysis to the facts of the case sub

judice

, we conclude that the plaintiffs’ motion for injunctive

relief did not trigger complete preemption. We begin by assuming,

arguendo only, that the district court was correct in its holding

that the motion sufficiently "related to" an ERISA plan to

implicate ordinary preemption under section 514(a), thus disposing

of the first prong of our analysis. Proceeding to the second35 As discussed above, the underlying class action asserts

various state claims involving Mobil’s alleged violation of

w orkers’ compensation law. As such, this suit implicates the

employer-employee relationship and not a relationship dependent

upon the existence of an ERISA plan. Or, in other words, this suit

is not between traditional "ERISA entities."

36 It might be argued that because in ruling on the motion a

court would necessarily construe the waiver provision, the motion

implicitly sought a clarif ication of rights to future benefits

und er section 502(a)(1)(B). This argument, however, necessarily

fails because the plaintiffs were not acting as "participants" or

"beneficiaries" in seeking the injunctive relief that might result

in a clarification of future rights. Thus, the plaintiffs’ motion

for injunctive relief does involve the parties as traditional ERISA

entities. Furthermore, we note that our decision in H ook v.

Morrison Milling Co.

, 38 F.3d 776 (5th Cir. 1994), would appear to

forecl ose the general argument that the construal of a waiver

provision contained in an ERISA plan, or executed in partial

consideration for benefits under an ERISA plan, giv es rise to

complete preemption.

37 See 29 U.S.C. § 1132(a)(2).

38 See 29 U.S.C. § 1132(a)(4).

26 prong, we have little d ifficulty in determining that the

plaintiffs’ motion for an injunction does not fall within the scope

of the civil enforcement provisions of section 502(a). Initially

we note that the plaintiffs were not acting as "participants" or

"benefici aries" in seeking injunctive relief; 3 5 and the motion

clearly does not seek to recover benefits or enforce rights under

an ERISA plan p ursuant to section 502(a)(1)(B). 3 6 Nor does the

motion seek relief for a breach of fiduciary duty, 3 7 or for

violations of the reporting requirements. 38 In sum, the plaintiffs’

motion does not appear to assert a claim that falls within any of39 We note that our analysis may seem somewhat terse. Our

brevity, however, is occasioned by the failure of the parties to

give detailed attention to thi s issue on appeal. We decline to

atte mpt to anticipate and resolve every possible argument that

Mobil coul d have, but did not, make on appeal. Nonetheless, we

have reviewed the provisions of section 502(a) and our caselaw, and

it does not appear to us that the plaintiffs’ motion falls within

any of the causes of action provided by section 502(a), so as to be

completely preempted.

27 the causes of action provided by section 502(a). 39

Thus, although the plaintiffs’ motion for injunctive relief

may "relate to" an ERISA plan, thereby triggering ordinary

preemption, we can find no basis for holding that the motion

asserted a claim falling within the sco pe of section 502(a). We

therefore hold that the district court erred in concluding that the

plaintiffs’ motion asserted a claim "arising under" federal law, so

as to provide the basis for original jurisdiction necessary to

support removal.

IV. Supplemental Jurisdiction over State Claims

The final question posed by the district court is whether it

may "now [exe rcise] supplemental jurisdiction over all state law

claims under 28 U.S.C. § 1367." 958 F.Supp. at 283. In

determining whether it could properly exercise supplemental

jurisdictio n over the plaintiffs’ state law claims, the district

court appropriately considered th e four factors enumerated in

section 1367(c). 909 F.Supp. at 464. Concluding that the case did

not invol ve novel issues of state law, that the state claims did

not predominate over the federal claims, and that there existed no28

"other compelling reasons" for declining jurisdiction, the district

court held that retaining the state law claims was a ppropriate.

Id. The court did not consider the factor stated in section

1367(c)(3), the di smissal of all federal claims, to be relevant

because of its holdings regarding complete preemption.

We review the district court’s decision to retain jurisdiction

over pendent state law claims for abuse of discretion. P arker &

Parsley Petroleum Co. v. Dresser Industries

, 972 F.2d 580, 585 (5th

Cir. 1992). Our review is guided by the relevant statutory

provisions governing the exercise of supplemental jurisdiction, see

28 U.S.C. § 1367(c), as well as the Supreme Court’s articulation of

the scope and nature of district courts’ discretion in exercising

jurisdiction over pendent state law claims. See, e.g., CarnegieMellon Univ. v. Cohill

, 108 S.Ct. 614, 618-20 (1988), and United

Mine Workers v. Gibbs , 86 S.Ct. 1130, 1138-39 (1966).

In the case sub judice

, it seems appropriate to begin by

noting that when all federal claims are dismissed or otherwise

eliminate d from a case prior to trial, we have stated that our

"general rule" is to decline to exercise jurisdiction over the

p endent state law claims. W ong v. Stripling

, 881 F.2d 200 , 204

(5th Cir. 1989). This general rule, however, is not always

mandatory or absolute. S ee Newport Ltd. v. Sears, Roebuck and Co.

,

941 F.2d 302, 307 (5th Cir. 1991). Thus, while our determination

that the district court erred in concluding that the case before it40 28 U.S.C. § 1367(c) provides that

"[t]he district courts may decline to exercise

supplemental jurisdiction over a claim under subsection

(a) if

—— (1) the claim raises a novel or complex issue

of State law,

(2) the claim substantially predominates over

the claim or cla ims over which the district

court has original jurisdiction,

(3) the district court has dismissed all

claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are

other comp elling reasons for declining

jurisdiction. “

29 included judiciable federal claims provides "a powerful reason to

choose not to continue to exercise jurisdiction," Cohill

, 108 S.Ct.

at 619, no single factor is dispositive in this analysis. Parker

& Parsley , 972 F.2d at 587. Thus, we review the district court’s

decision in light of the specific circumstances of the case at bar,

beginning with the factors enumerated in 28 U.S.C. § 1367(c). 40

With regard to the first of the section 1367(c) factors, it

appears that this case may involve at least one "novel or complex"

issue of state law. Although it is not entirely clear from the

briefs on appeal, the class claims regarding Mobil’s noncompliance

with state insurance regulations may raise novel issues both as to

the interpretation and applicability of these regulations and as to

whether t hey give rise to a private right of action. Turning to

the second and third statutory factors, our analysis above mandates

that the only two federal claims alleged, i. e. , the complete30

preemption claims, must be "dismissed." Consequently, the state

law claims now clearly predominate over the (now nonexistent)

federal claims. Finally, we find no "exceptional circumstances"

that would make the fourth section 1367(c) factor relevant. Thus,

our section 1367(c) analysis results in the conclusion that remand

is appropriate.

Furthermore, as noted above, not only have we stated that it

is our "general rule" to remand cases when all federal claims are

disposed of prior to trial, but the Supreme Court has counseled

that the dismissal of all federal claims weighs heavily in favor of

declining jurisdiction. See Gibbs , 86 S.Ct. at 1139, and Cohill

,

108 S.Ct. at 619. The Supreme Court has also provided additional

guidance regarding review of the discretionary retention of pendent

state law claims. In C ohill

, the Supreme Court discussed the

seminal case of United Mine Workers v. Gibbs

, 86 S.Ct. 1130 (1966),

specifically fo cusing on the considerations appropriate to the

exercise of jurisdiction over pendent state law c laims after all

federal claims had been eliminated from a case. 108 S.Ct. at 618-

19. The Court counseled that, pursuant to the reasoning and

holding of Gibbs

, "a federal court should consider and weigh in

each case, and at every stage of the litigation, the va lues of

judicial economy, convenience, fairness, and comity in order to

decide whether to exercise jurisdiction over a case brought in that

court involving pendent state-la w claims." C ohill

, 108 S.Ct. at31

619. The Court went on to state that when a "balance of these

factors indicates that a case properly belongs in state court, as

when the federal-law claims have dropped out of the lawsuit in its

e arly stages and only state-law claims remain, the federal co urt

should decline the exercise of jurisdictio n." I d. (footnote and

internal citation omitted). Thus, both our "general rule" and the

reasoning contained in Gibbs and Cohill indicate that remand is the

correct disposition in the case at bar.

Finally, based on a case presenting issues somewhat analogous

to those under consideration here, this Court held that remand was

mandated d ue to concerns of comity and the Congressional intent

that cases involving work ers’ compensation issues be resolved in

state courts. In J ones v. Roadway E xpress, Inc. , 931 F.2d 1086

(5th Cir. 1991), we construed 28 U.S.C. § 1445(c), which bars the

removal of workers’ compensation cases, as indicating that

"Congress intended that all cases arising under a state’s workers’

compensation scheme remain in state court." I d. at 1092.

Accordingly, after the complete p reemption claim asserted by the

defendant was eliminated on appeal, we held that "the case must be

remanded to state court." I d. (emphasis added). We concluded that

remand was required "in order to satisfy Congress’ dictate that, to

the extent possible, workers’ compensation cases remain in state

c ourt." I d. On petition for rehearing, we stated that the

principal issue on appeal in Roadway Express had been "whether to41 Of course, section 1445(c) applies only to cases commenced

in state court, a nd it does not govern, expressly or by analogy,

cases pro perly commenced in federal court. S t. Paul Ins. Co. v.

Trejo , 39 F.3d 585 (5th Cir. 1994).

42 We are not suggesting that any of the state law claims in

this case are ones “arising under the workmen’s compensation laws”

of Texas for purposes of section 1445(c). S ee Pati n v. Allied

Signal, Inc ., 69 F.3d 1 (5th Cir. 1995). Clearly, however, Texas

workers’ compensation laws are significantly implicated in many of

the claims. What we are addressing is, and is only, remand under

section 1367(c) and the Gibbs and Cohill factors.

32 remand the case to state court when only a state-law claim

remained," the question we consider in the case sub judice

. J ones

v. Roadway Express, Inc. , 936 F.2d 789, 792 (5th Cir. 1991). 41 We

went on to clearly restate our prior holding that "[g]iven the

discretion vested in the court to remand pendent state-law claims

to state court, we bel ieve that the intent of Congress

— — that,

whenever feasible, state workers’ compensation claims be resolved

in state court

—— favors remand to state court." Id. 42

The factors enumerated in 28 U.S.C. § 1367(c), a "balancing"

of the Gibbs "values" as articulated in Cohill

, and our holding in

Roadway Express all lead to the conclusion that this case properly

belongs in the state court where it b egan. We can find no

significant factor that would justify retaining jurisdiction rather

than remanding, while the statutory, Supreme Court, and circuit law

and analyses relev ant to review of the case at bar each weigh

heavily in favor of declining to exercise jurisdiction over the

remaining removed state law claims. Accordingly, we hold that33

retaining jurisdiction over, rather than remanding, the state law

claims in this case would constitute an abuse of discretion.

Conclusion

Because the distric t court erred in determining that it had

federal question jurisdiction pursuant to complete preemption under

the LMRA at the time that it rendered its order, and also erred in

determining that it had removal jurisdict ion pursuant to ERISA

complete preemption, we hold that the distr ict court’s continued

exercise of jurisdiction would constitute an abuse of discretion.

Accordingly, we reverse the district court’s denial of plaintiffs’

motion to remand and direct the district court, pursuant to our

holding herein, to remand the case to the state court from which it

was removed.

REVERSED and REMANDED