UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

John R. Crooker

v. Civil No. 05-cv-008-JD

Anheuser Busch, Inc.

O R D E R

The plaintiff, John R. Crooker, brought a breach of contract

action in state court against his former employer, Anheuser

Busch, Inc., (“AB”) alleging that AB failed to honor its

obligations under his Employment Agreement and his Severance

Agreement. AB removed the case to this court on January 6, 2005,

asserting federal question jurisdiction based on preemption of

the claims by the Employee Retirement Income Security Act

(“ERISA”) and the Labor Management Relations Act (“LMRA”), along

with diversity jurisdiction. The parties filed their proposed

discovery plan on February 18, 2005, which stated that the

plaintiff’s theory of liability was a breach of the defendant’s

obligations under the agreements but raised a jurisdictional

question as to whether that claim was preempted.

AB has filed a motion for the case to be governed by Local

Rule 9.4 procedures, but Crooker objects. Rule 9.4, effective

June 1, 2005, governs “all actions that include one or more

claims under § 502(a)(1)(B).” Section 502(a)(1)(B) of ERSIA,

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1AB also suggests that the LMRA preempts Crooker’s claims

but provides no developed argument on that issue.

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which is codified at 29 U.S.C. § 1132(a)(1)(B), provides: “A

civil action may be brought -- (1) by a participant or

beneficiary . . . (B) to recover benefits due to him under the

terms of his plan, to enforce his rights under the terms of the

plan, or to clarify his rights to future benefits under the terms

of the plan.” Pursuant to Local Rule 1.1(c), Rule 9.4 would

apply in cases, such as this case, that were pending when it

became effective. 

Crooker does not allege a claim under § 502(a)(1)(B) of

ERISA. AB argues in only cursory fashion that ERISA preempts

Crooker’s claims.1 Cf. Aetna Health Inc. v. Davila, 124 S. Ct.

2488, 2496 (U.S. 2004) (describing detailed § 502(a)(1)(B)

preemption analysis); O’Connor v. Commonwealth Gas Co., 251 F.3d

262, 266-67 (1st Cir. 2001) (applying ERISA preemption analysis). 

Although AB’s analysis is insufficient for the court to determine

whether any of Crooker’s claims are preempted by ERISA, Crooker

does not dispute that his first claim, breach of contract,

involves an ERISA-based eligibility issue. Crooker argues,

however, that the claim is not preempted because it involves a

mixed eligibility and state law policy claim.

Crooker invokes Pegram v. Herdich, 530 U.S. 211 (2000),

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where the Court held that if the plaintiff’s treating physician

were administering both the plaintiff’s benefits and his medical

treatment and the eligibility decisions were “inextricably mixed”

with the treatment decisions, the physician was not acting as a

fiduciary within the meaning of ERISA. Id. at 231; accord Aetna,

124 S. Ct. at 2501. Crooker fails to appreciate the limited

exception that Pegram found to ERISA preemption. See id.

Nothing in Crooker’s complaint suggests a mixture of medical and

administrative judgments that formed the basis of the Pegram

decision.

Because Crooker does not dispute that his breach of contract

claim is preempted by ERISA, absent the exception provided by

Pegram, that claim must be brought, if at all, under ERISA. 

Therefore, Rule 9.4 would apply in this case unless the court

orders otherwise. The procedure provided by Rule 9.4 is more

appropriate for an ERISA case than the ordinary trial process. 

Because the case has proceeded so far under the standard trial

track, counsel shall confer to establish an appropriate schedule

to implement Rule 9.4. Further, Crooker shall file an amended

complaint to state his claim or claims under ERISA.

Case 1:05-cv-00008-JD Document 19 Filed 09/20/05 Page 3 of 4
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Conclusion

For the foregoing reasons, the defendant’s motion for the

case to be governed by Local Rule 9.4 (document no. 14) is

granted to the extent provided in this order. The plaintiff

shall file his amended complaint on or before September 30, 2005.

Counsel shall file a joint proposed schedule to proceed under

Local Rule 9.4 on or before October 3, 2005.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

September 20, 2005

cc: David A. Garfunkel, Esquire

Andrea K. Johnstone, Esquire

Paul B. Kleinman, Esquire

Shenanne Ruth Tucker, Esquie

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