UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

SARA (BOMENGEN) FORTIER, ) 

 )

 Plaintiff ) 

 )

v. )

 ) NOTICE OF REMOVAL

HIGHMARK LIFE INSURANCE ) 

COMPANY, ) 

 )

 Defendant ) 

To: The Judges of the United States District Court for the District of New Hampshire 

Pursuant to 28 U.S.C. §§ 1441(a) et seq., the Defendant in this action hereby requests 

removal of a civil action commenced in the Superior Court of New Hampshire, Hillsborough 

County, styled Sara (Bomengen) Fortier v. Highmark Life Insurance Company, Docket No. 04-

E-526. In support of removal, Defendant respectfully states: 

1. Plaintiff commenced this action by filing in Superior Court a Petition for 

Declaratory Judgment. Plaintiff alleges the defendant is not entitled to reimbursement for 

overpayments made to the Plaintiff prior to her Social Security Award in June 2004 and seeks a 

declaratory judgment with respect thereto. See Petition at ¶ 5. A copy of all process, pleadings 

and other orders served upon Defendant is attached hereto as Exhibit A. 

2. The Defendant received the Petition no sooner than January 4, 2005. 

3. This Court has original jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 

29 U.S.C. § 1132(e) and 28 U.S.C. § 1332(a), and the action may therefore be removed to this 

Court pursuant to 28 U.S.C. § 1441(a). 

4. This is a civil action arising under the laws of the United States. The insurance 

policy described in Plaintiff’s Petition, pursuant to which she disputes the amount of benefits 

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properly payable, is a disability insurance policy, policy # 911558-0010, established by 

Plaintiff’s employer, Southern New Hampshire Medical Center, for the benefit of its employees. 

As such, it is an “employee welfare benefit plan” for purposes of the Employee Retirement 

Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. A proper action concerning benefits 

due under the plan can be brought only pursuant to 29 U.S.C. § 1132(a)(1)(B). Since Plaintiff’s 

claims are within the scope of ERISA section 502(a), those claims are “completely preempted” 

and may be removed to this court. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64 – 67 

(1987). Moreover, Plaintiff’s claims “relate to” her employer’s ERISA plan and are therefore 

converted to federal claims for the purposes of removal jurisdiction. Id. at 60. 

5. Defendant desires to remove this action to this Court. 

6. Pursuant to 28 U.S.C. § 1446(b), removal is timely filed within thirty days after 

the receipt by any Defendant, through service or otherwise, of the initial pleading setting forth 

the claims for relief. 

7. Pursuant to 28 U.S.C. § 1446(D), Defendant is this day filing a copy of the Notice 

of Removal with the Superior Court, Hillsborough County, and sending copies of the Notice to 

all counsel. 

8. Pursuant to the United States District Court for the District of New Hampshire 

Local Rule 81.1(a), Defendant will file certified or attested copies of all records and proceedings 

in the state court and a certified or attested copy of all docket entries in the state court. 

WHEREFORE, Defendant respectfully requests that the above-captioned action be

removed from the Superior Court, Hillsborough County, to this Court. 

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Case 1:05-cv-00038-JD Document 1 Filed 02/02/05 Page 2 of 4
Dated: February 2, 2005 __/s/ Byrne J. Decker

 Byrne J. Decker

N.H. Bar No. 9300 

Pierce Atwood LLP 

One Monument Square 

Portland, ME 04101 

(207) 791-1100 

Attorneys for Defendant 

Highmark Life Insurance Company 

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CERTIFICATE OF SERVICE

 I hereby certify that on February 2, 2005, I electronically filed the Defendants’ Civil 

Cover Sheet, Notice of Removal, Notice of Filing Notice of Removal, Notice of Appearance and 

Corporate Disclosure Statement with the Clerk of Court using the CM/ECF system which will 

send notification of such filing to the following: 

Peter E. Hutchins, Esquire 

Wiggin & Nourie, PA 

P.O. Box 808 

Manchester, NH 03105 

Dated: February 2, 2005 __/s/ Byrne J. Decker 

 Byrne J. Decker, Esquire 

 Bar No. 9300 

Case 1:05-cv-00038-JD Document 1 Filed 02/02/05 Page 4 of 4