UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

John R. Crooker * 

Mason, NH 03048 * 

 * 

 Plaintiff * 

 * 

v. * Case No. 

 * 

Anheuser-Busch, Inc. * 

St. Louis, MO 63118 * 

 * 

 Defendant * 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

NOTICE OF REMOVAL 

 

 Pursuant to 28 U.S.C. §§ 1331, 1332(a), 1441, and 1446, Defendant AnheuserBusch, Inc., (“Defendant”) hereby removes the civil action captioned John R. Crooker v. 

Anheuser-Busch, Inc. (the “Action”) from the Hillsborough County Superior Court, 

Southern District, to the United States District Court for the District of New Hampshire. 

Removal is based upon the following: 

1. Defendant was served with the Writ of Summons (“Writ”) in this Action on 

December 7, 2004. A copy of the Writ is attached hereto as Exhibit 1 and constitutes all 

pleadings and orders served upon or by Defendant in the Action. Certified copies of the 

docket sheet and all pleadings and orders filed with the Hillsborough County Superior 

Court, Southern District, in the Action will be provided to this Court pursuant to Local 

Rule 81.1. 

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2. Defendant is filing this notice within thirty (30) days of service of the Writ, 

as required by 28 U.S.C. § 1446. Therefore, this Notice of Removal is timely under 28 

U.S.C. § 1446. 

3. This Court is within the jurisdictional district that embraces the county of 

the Superior Court where this Action is currently pending. 

4. Venue in this District is proper pursuant to 28 U.S.C. § 1441(b) and 28 

U.S.C. § 1391(b). 

5. This Court possesses original jurisdiction over this Action on the basis of 

federal question jurisdiction pursuant to 28 U.S.C. § 1331. An action filed in state court 

that presents a question arising under federal law may be removed to federal district 

court regardless of the citizenship or residence of the parties. 28 U.S.C. § 1441(b). 

6. The Writ contains one cause of action which, though framed as a breach 

of contract, is in reality a claim to recover health benefits under defendant’s Group 

Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. (the 

“Plan”).1

 Writ ¶¶ 9 & 12. The Plan is an employee benefit plan as defined by Section 

3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). 

29 U.S.C. § 1002(3). 

7. Removal here is appropriate because the plaintiff’s claims against the 

Defendant are based on conduct that is wholly governed by ERISA. As a result, these 

claims fall under the so-called “complete pre-emption” doctrine.2 Section 502(a)(1)(B) of 

 

1

 Effective January 1, 2005, Anheuser-Busch, Inc. retirees eligible for retiree health benefits are covered 

under a separate plan called Group Insurance Plan for Certain Retirees of Anheuser-Busch Companies, 

Inc. and its Subsidiaries. 

2

 Characterizing claims for benefits as state-law breach of contract claims does not exempt them from 

application of this doctrine. See Hampers v. W.R. Grace & Co., Inc., 202 F.3d 44 (1st Cir. 2000) (holding 

that plaintiff’s state-law claim that his contract with former employer entitled him to benefits under an 

ERISA plan was pre-empted). 

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ERISA provides that a civil action may be brought under ERISA by a participant “to 

recover benefits due to him under the terms of the plan....” 29 U.S.C. § 1132 (a)(1)(B). 

8. Complete pre-emption is an exception to the well pleaded complaint rule 

and is applicable when a federal law so wholly displaces a state law cause of action that 

a claim can be removed even if only state law claims are pleaded. Beneficial National 

Bank v. Anderson, 539 U.S. 1, 9-10 (2003). ERISA is such a federal law and, 

if an individual, at some point in time, could have brought his claim under 

ERISA § 502(a)(1)(B), and where there is no other independent legal duty 

that is implicated by a defendant’s actions, then the individual’s cause of 

action is completely pre-empted by ERISA 502(a)(1)(B). 

Aetna Health Inc. v. Davila, 124 S. Ct. 2488, 2496 (2004). 

9. Removal here is also appropriate because paragraphs 4, 9, 11 and 12 of 

the Writ reference unspecified “retirement benefits” to which the Plaintiff claims 

entitlement pursuant to the terms of an “employment agreement.” The employment 

agreement, which identifies any retirement benefits to which the Plaintiff may have been 

entitled, is a labor contract between Anheuser-Busch, Inc., The Brewery and Soft Drink 

Workers Conference, U.S.A. and Canada, and Local Union 633, the enforcement of 

which is wholly subject to the Labor Management Relations Act, 29 U.S.C. § 141, et 

seq. A state law claim that requires interpretation of a labor contract for adjudication is 

pre-empted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. 

Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 145 (1st Cir. 2001); Martin v. Shaw’s 

Supermarkets, Inc. 105 F.3d 40, 44 (1st Cir. 1997). As with ERISA, the Labor 

Management Relations Act completely pre-empts state-law causes of action. Avco 

Corp. v. Aero Lodge No. 735, Int’l Assoc. of Machinists, 390 U.S. 557, 560 (1968). 

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10. This Court also possesses original jurisdiction over this civil Action 

pursuant to 28 U.S.C., § 1332(a). Plaintiff is alleged to be an individual residing in 

Mason, New Hampshire. Defendant Anheuser-Busch, Inc. is a Missouri corporation 

with a principal place of business at One Busch Place, St. Louis, Missouri. Plaintiff and 

Defendant are, therefore, citizens of different states. 

11. The controversy involves a claim by the plaintiff for “medical insurance . . . 

during his retirement.” Writ, ¶ 7. Plaintiff is now 59 years of age. The cost to defendant 

of providing such benefits is in excess of $13,000 per year up until age 65, and in 

excess of $6,500 per year after age 65. Therefore, the amount in controversy between 

the parties exceeds the sum or value of $75,000, exclusive of interest and costs. 

12. Pursuant to 28 U.S.C. § 1446(d), Defendant will file a Notice of this 

removal action, a copy of which is attached hereto as Exhibit 2, and a copy of this 

Notice of Removal with the Clerk, Hillsborough County Superior Court, Southern 

District. 

13. Pursuant to 28 U.S.C. § 1446(d), Defendant will serve written notice to 

Plaintiff of the filing of this Notice of Removal, a copy of which is attached hereto as 

Exhibit 3, along with a copy of this Notice of Removal. 

 WHEREFORE, Defendant prays that the above Action now pending against 

them in the Hillsborough County Superior Court, Southern District, be removed 

therefrom to this Court. 

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 Respectfully submitted, 

 ANHEUSER-BUSCH, INC. 

 By Its Attorneys 

 GALLAGHER, CALLAHAN & GARTRELL 

 Professional Association 

Dated: January 6, 2005 /s/ David A. Garfunkel 

 David A. Garfunkel 

 Bar No.: 900 

 Gallagher, Callahan & Gartrell, P.A. 

 P.O. Box 1415 

 Concord, NH 03302-1415 

 Phone: (603) 228-1181 

 E-mail: garfunkel@gcglaw.com 

CERTIFICATE OF SERVICE

 I hereby certify that I have this date forwarded via U.S. Mail, postage prepaid, a 

copy of the foregoing Notice of Removal to Paul B. Kleinman, Esquire, of Bouchard & 

Kleinman, P.A., One Merrill Drive, Suite 6, Hampton, NH 03842. 

Dated: January 6, 2005 /s/ David A. Garfunkel 

 David A. Garfunkel 

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