UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Nicholas Nikolopoulos and

Peter Nikolopoulos

v. Civil No. 06-cv-398-JD

Opinion No. 2006 DNH 137

Sophie Nikolopoulos,

Madelyne E. Theodore,

and Pamela Theodore Salera

O R D E R

After their father’s death, Nicholas and Peter Nikolopoulos

brought an equity action in state court against their stepmother, Sophie Nikolopoulos, and her daughters, Madelyne E.

Theodore and Pamela Theodore Salera, seeking both the imposition

of constructive trusts over money held by Sophie and her

daughters and injunctive relief. The defendants removed the

action to this court, asserting subject matter jurisdiction

pursuant to 28 U.S.C. § 1331. The plaintiffs move to remand the

case to state court due to a lack of subject matter jurisdiction. 

The defendants move for judgment on the pleadings.

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1The following summary is taken from the allegations in the

complaint.

2

Background1

Nicholas and Peter Nikolopoulos are the sons of James

Nikolopoulos. James and his first wife, the mother of Nicholas

and Peter, were divorced in 1983. Under the divorce decree,

James was required to maintain life insurance for the benefit of

his sons. After the divorce, James also made his sons the

beneficiaries of his long-term savings plan through his employer,

Lucent Technologies, his IRA accounts, and his savings accounts.

James retired from Lucent in 1996. In December of 1998,

James married Sophie, who had been married twice before and had

two grown daughters from her first marriage. After their

marriage, James made Sophie the beneficiary of his life insurance

policy, replacing his sons. James kept in close touch with his

sons, even after his marriage, keeping them apprised of his

financial situation and his financial arrangements with Sophie.

In August of 2004, while James and Sophie were vacationing

in Greece, James experienced several seizures that affected his

ability to speak and his motor skills. Tests at Catholic Medical

Center in Manchester, New Hampshire, showed that James had a

brain tumor. Further testing revealed that the tumor was

malignant. The plaintiffs allege that Sophie took advantage of

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James’s disabilities to gain control over his finances. James

died on March 7, 2005.

Nicholas was executor of his father’s estate. After James’s

death, Nicholas alleges that he found Sophie had taken his

father’s money out of his accounts and had given the money, at

least in part, to her children and grandchildren. In April of

2005, the Lucent Pension Benefit Center notified Sophie that she

was the beneficiary of James’s long-term savings plan proceeds,

although his sons were named as the beneficiaries. The

plaintiffs allege that Sophie initially recognized that it was a

mistake for her to receive those proceeds that were intended for

Nicholas and Peter but then changed her mind and kept that money.

She withdrew the entire amount, $579,038.56, and put the money

into her own accounts and accounts for her children and

grandchildren. 

Discussion

The plaintiffs’ suit is seeking to recover the money that

the plaintiffs believe belongs to them and not to Sophie or her

children or grandchildren. They move to remand the case to state

court on the ground that they have not alleged a claim that

arises under federal law, as required by § 1331. The defendants

respond that because the money that is the subject of the

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plaintiffs’ fourth claim for a constructive trust is the proceeds

of James’s long-term savings plan at Lucent, governed by the

Employee Retirement Income Security Act (“ERISA”), that claim is

preempted by ERISA, providing a federal question under § 1331. 

“Where a claim, though couched in the language of state law,

implicates an area of federal law for which Congress intended a

particularly powerful preemptive sweep, the cause is deemed

federal no matter how pleaded.” Danca v. Private Health Care

Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). ERISA preempts “(1)

state laws that ‘mandate[] employee benefit structures of their

administration,’ (2) state laws that ‘bind plan administrators to

[a] particular choice,’ and (3) state law causes of action that

provide ‘alternative enforcement mechanisms’ to ERISA’s

enforcement regime.’” Hampers v. W.R. Grace & Co., Inc., 202

F.3d 44, 51 (1st Cir. 2000) (quoting N.Y. State Conference of

Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.

645, 656 (1995)). To rely on complete preemption by ERISA as the

federal question basis for removal jurisdiction, “the defendants

must show that the state cause of action falls within the scope

of ERISA § 502(a).” Danca, 185 F.3d at 5. That determination

depends upon “the real nature of the claim.” Id.

ERISA § 502(a) is codified at 29 U.S.C. § 1132(a). The

defendants assert that § 1132(a)(1)(B) preempts the plaintiffs’

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2Because they have been distributed, the proceeds are not

protected by ERISA’s anti-alienation provision, 29 U.S.C. §

1056(d). Hoult v. Hoult, 373 F.3d 47, 54-55 (1st Cir. 2004).

5

claim for a constructive trust as to the proceeds of the Lucent

long-term savings plan. Section 1132(a)(1)(B) provides a cause

of action to a participant or beneficiary of an ERISA plan “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.” 

The proceeds of James’s long-term savings plan have been

distributed to Sophie and are no longer held by the plan

administrator.2 The plaintiffs’ claim in Count IV assumes that

the plan administrator distributed the benefits in accordance

with the terms of the plan. The plaintiffs seek a constructive

trust in their favor over the distributed proceeds based on

James’s expressed intentions to have his sons be the

beneficiaries and other circumstances in the relationships of the

parties that are unrelated to the plan and its administration. 

As such, the plaintiffs’ claim does not seek benefits due under

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

clarify rights under the plan to future benefits.

Therefore, the defendants have not shown that the

plaintiffs’ claim for a constructive trust in Count IV falls

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within the scope of § 1132(a)(1)(B). As a result, the defendants

have failed to establish that a federal question exists to

support subject matter jurisdiction over this case. In the

absence of subject matter jurisdiction, the case must be remanded

to state court. 

Conclusion

For the foregoing reasons, the plaintiffs’ motion to remand

(document no. 13) is granted. The defendants’ motion for

judgment on the pleadings (document no. 12) is terminated due to

the absence of subject matter jurisdiction.

The clerk of court shall remand the case to Hillsborough

County North Superior Court. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 7, 2006

cc: Jannette Lynn Mooney, Esquire

Vincent A. Wenners, Jr., Esquire 

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