UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kim Walker, Colin Pilcher, Adam Teal

and Scott Long,

Plaintiffs,

v.

Thibco, Inc. and Gerard L. Thibodeau,

Defendants.

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CIVIL ACTION NO. ___________

REMOVED FROM THE SUPERIOR COURT

OF NEW HAMPSHIRE (HILLSBOROUGH

COUNTY, NORTHERN DISTRICT)

STATE DOCKET NO.: 07-C-750

NOTICE OF REMOVAL TO UNITED STATES DISTRICT COURT

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1441 and 1446, defendants

Thibco, Inc. and Gerard L. Thibodeau, by and through their attorneys, Devine, Millimet &

Branch, P.A., hereby remove this civil action to the United States District Court for the District

of New Hampshire upon the following grounds:

1. The plaintiffs commenced this action by Writ of Summons (the “Writ”) in the

Superior Court of New Hampshire, Hillsborough County, Northern District. The Writ is dated

December 5, 2007, and was received by the Hillsborough County Superior Court on December

10, 2007. The Hillsborough County Superior Court has assigned the following docket number to

the matter: 07-C-750. A copy of the Writ and attached Declaration, along with the Receipt of

Writ, is attached hereto as Exhibit A. Counsel for the defendants accepted service of the Writ of

Summons on January 17, 2008.

2. In this action, the plaintiffs, current and former employees of defendant Thibco,

Inc., seek to recover retirement benefits allegedly due to them as participants or beneficiaries

under the “Massachusetts State Carpenter’s Pension Fund” and “Guaranteed Annuity Fund,” to

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enforce their alleged rights as participants or beneficiaries under the terms of these plans, and/or

to clarify their rights to future benefits under the terms of these plans. The plaintiffs have filed

two counts, one alleging a violation of New Hampshire RSA 275:43 and the other asserting

common law breach of contract.

3. Under the federal removal statute, 28 U.S.C. § 1441(a), a defendant may remove

to federal court “any civil action brought in a State court of which the district courts of the

United States have original jurisdiction.” Federal district courts have original jurisdiction over

“federal question” cases, which are cases “arising under the Constitution, laws, or treaties of the

United States.” § 1331.

4. In order to determine whether a particular case “arises under” federal law, a

federal court usually applies the “well-pleaded complaint rule.” Franchise Tax Bd. of Cal. v.

Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9-10 (1983). There are, however,

certain key exceptions that Congress has created that waive the rule. One such exception is

“when a federal statute wholly displaces the state-law cause of action through complete preemption.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003); see also Aetna Health Inc. v.

Davila, 542 U.S. 200, 208 (2004). In such circumstances, removal is proper “even though the

complaint purports to raise only state-law claims.” Beneficial, 539 U.S. at 9.

5. The Employee Retirement Income Security Act of 1974 (ERISA) provides that

state causes of action that “duplicate or fall within the scope of an ERISA § 502(a) remedy are

completely pre-empted and hence removable to federal court.” Aetna Health, 542 U.S. at 206

(quotation omitted); see also Metro. Life Ins. Co. v. Taylor, 481 U.S. 59, 64-66 (1987).

6. Although the plaintiffs present their claims only in terms of state law causes of

action, the plaintiffs’ claims are subject to complete pre-emption under ERISA. See 29 U.S.C. §

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1144(a) (preempting state laws that “relate to [an] employee benefit plan”). “[A]ny state-law

cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy

conflicts with the clear congressional intent to make the ERISA remedy exclusive and is

therefore pre-empted.” Aetna Health, 542 U.S. at 209; see also Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 54-56 (1987); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39, 143-145

(1990).

7. The plans at issue are “employee benefit plans” within the meaning of ERISA. 29

U.S.C. § 1002(3); see also 29 U.S.C. § 1003(a); Dist. of Columbia v. Gr. Wash. Bd. of Trade,

506 U.S. 125, 127 (1992) (“ERISA applies generally to all employee benefit plans sponsored by

an employer or employee organization.”). The plaintiffs bring this action as “participants” or

“beneficiaries” under the plans, within the meaning of ERISA. 29 U.S.C. §§ 1002(7) and (8),

and/or otherwise seek to recover pension/annuity or other retirement benefits. The plaintiffs’

claims are covered by the ERISA civil enforcement remedy, see 29 U.S.C. § 1332(a)(1)(B),

which is designed to be the comprehensive and exclusive remedy for causes of action that fall

within its scope. Aetna Health, 542 U.S. at 208-10; Pilot Life, 481 U.S. at 56-57.

8. The plaintiffs’ state law claims are preempted by the complete preemption of

ERISA because they “relate to [an] employee benefit plan.” 29 U.S.C. § 1144(a). Moreover, as

a suit by participants and beneficiaries to recover benefits under employee benefit plans, to

enforce alleged rights thereunder, and/or to clarify rights to future benefits thereunder, this action

falls directly under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), which provides a

comprehensive civil enforcement scheme and the exclusive federal cause of action for the

resolution of such disputes. 29 U.S.C. § 1144(a); Pilot Life, 481 U.S. at 47-48, 56-57; Metro.

Life Ins., 481 U.S. at 62-63. This action arises under the laws of the United States within the

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meaning of 28 U.S.C. § 1331, even though the plaintiffs presented their claims in terms of state

law. Beneficial, 539 U.S. at 8; Metro. Life, 481 U.S. at 65-67.

9. This Court has original jurisdiction over the action by virtue of the provisions of

§§ 502(a)(1)(B), 502(e)(1), 502(f) and 514(a) of ERISA (29 U.S.C. §§ 1132(a)(1)(B),

1132(e)(1), 1132(f) and 1144(a)), and the provisions of 28 U.S.C. § 1331, and the action is

removable to this Court under the provisions of 28 U.S.C. § 1441(b). Aetna Health, 542 U.S. at

207; Metro. Life, 481 U.S. at 67.

10. The requirements of the removal statute having been met, the defendants’ right to

remove is absolute.

Respectfully submitted,

THIBCO, INC. and

GERARD L. THIBODEAU,

By their attorneys,

DEVINE, MILLIMET & BRANCH,

PROFESSIONAL ASSOCIATION

Dated: February 5, 2008 By: /s/ David P. Eby______________

David P. Eby, Esquire

Bar No. 12468

111 Amherst Street

Manchester, New Hampshire 03101

Telephone: 603.669.1000

Facsimile: 603.669.8547

deby@devinemillimet.com

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Certificate of Service

I, David P. Eby, hereby certify that the foregoing was forwarded by U.S. Mail to Jon

Meyer of Backus, Meyer, Solomon & Branch, LLP, 116 Lowell Street, PO Box 516,

Manchester, NH 03105-0516, counsel for the plaintiffs, and John M. Safford, Clerk,

Hillsborough County Superior Court, Northern District, 300 Chestnut Street, Manchester, NH

03101-2490.

Dated: _ February 5, 2008 ______/s/ David P. Eby____________

David P. Eby

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