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February 26, 1990

JAMES KLANK, Plaintiff,

The opinion of the court was delivered by: SHADUR


 James Klank ("Klank") initially sued Sears, Roebuck and Co. ("Sears") in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois. Sears timely removed the case to this District Court on the premise that although Klank's Complaint advanced only what purported to be state-law claims, federal jurisdiction nonetheless existed because the lawsuit was instinct with federal-question claims. *fn1" Now Klank -- even though there has been a good deal of litigation activity and even though a briefing schedule has actually been set for Sears' anticipated summary judgment motion -- has moved to remand to the state court for lack of subject matter jurisdiction. *fn2" For the reasons stated in this memorandum opinion and order, Klank's motion is granted.


 On September 28, 1988 Sears announced it would be closing its Oakbrook Center, Illinois Catalogue Unit effective January 2, 1989. At that time Klank had been working at Sears' Oakbrook retail store for his entire 22-year tenure as a Sears employee.

 Just a month after the Sears announcement (on October 28) Klank met with three Sears people -- his supervisor, a representative from Sears' Personnel Department and the store manager -- to discuss his voluntary resignation from Sears' employment, and he in fact left Sears that very day. At the meeting none of the Sears people disclosed to Klank the imminent announcement by Sears (which was made by a Sears letter transmitted on the next business day, October 31) of a special severance pay package for its Oakbrook Center Retail Store employees. Under that plan Klank would have been an eligible employee who could have left his employment on December 31 (rather than his actual date of departure) and would then have received a combination of normal retirement benefits and a service allowance. That nondisclosure, coupled with Klank's October 28 departure in ignorance of Sears' future announcement, deprived Klank of the benefits that he would have received had he remained with Sears until the plan was put into effect.

 Klank's state-court lawsuit was framed in three counts, respectively charging fraud (Count I), negligent misrepresentation (Count II) and breach of confidential relationship (Count III). In Sears' view, however, the claims inherently implicated the federal Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, because the benefits Klank lost out on were provided by an "employee benefit plan" as defined in ERISA § 1002(3), *fn4" thus establishing the predicate for removal.

 Principles of Removal: ERISA-Based Claims

 It is scarcely necessary at this late stage to repeat the familiar proposition that plaintiffs can usually choose their grounds of action so as to choose their own forums -- as the classic statement by Justice Holmes in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913) (citation omitted) put it:

Of course, the party who brings a suit is master to decide what law he will rely on, and therefore does determine whether he will bring a "suit arising under" [any] law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense, even when anticipated and replied to in the bill.

 Nor is it necessary to expound at any length on what has become the major exception to that proposition: the concept of pervasive congressional preemption of an area of law so as to render all claims in that area federal-question claims, even though a plaintiff may seek to state those claims purely in state-law terms. Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987) (citations omitted) has summarized the exception this way:

It is long settled law that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law. . . . The "well-pleaded complaint rule" is the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts. . . .
Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court. . . . One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character.

 ERISA § 1132(a)(1)(B) has followed Section 301 of the Labor Management Relations Act ("LMRA") into the fold of such completely preempted areas. Metropolitan Life, id. described the evolution from Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 25-27, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983) (which had held that ERISA preemption was not by itself enough to make a state-law claim ...

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