At the time defendants filed their final brief in support of their motion for summary judgment, they also moved for leave to amend their answer to Grun's complaint. I granted defendants' motion for leave to amend their answer on April 21, 1992. The amended answer, which raises ERISA preemption as an affirmative defense, was filed on May 5, 1992. As a result, Grun's waiver argument is no longer applicable.
As discussed above, the SCA constitutes an "employee benefit plan" within the meaning of ERISA. ERISA explicitly states that it "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. § 1144(a). The courts have recognized that this preemption clause is "conspicuous for its breadth." FMC Corporation v. Holliday, 498 U.S. 52, 111 S. Ct. 403, 407, 112 L. Ed. 2d 356 (1990). Whether a state law "relates" to such a plan includes any law which has a connection with or reference to an employee benefit plan. See Id. at 408-409. In essence, the inquiry is whether the conduct challenged by the state law claim was part of the administration of an employee benefit plan. Scott v. Gulf Oil Corporation, 754 F.2d 1499, 1505 (9th Cir. 1985). Under these standards, the allegations of Count II, which claim that PA Holdings and Henley engaged in conduct which interfered with Grun's ability to receive compensation under the SCA, clearly have a connection to an ERISA plan. See generally Pane, 868 F.2d at 635 (claim of intentional infliction of emotional distress by refusing to grant severance benefits is preempted by ERISA). Because Count II is preempted by ERISA, summary judgment should be entered in favor of defendants and against plaintiff with respect to this count.
IV. Count III
Defendants argue that they are entitled to summary judgment on Count III because the undisputed facts establish that Grun was removed from participation in the Incentive plan in May, 1989 when Mr. Stewart promoted him. Therefore, they argue that Grun is not entitled to receive any benefits under the Incentive plan. They assert that the $ 50,000 payment to Grun in March, 1990 was simply a discretionary payment in recognition of Grun's valuable services.
In response, Grun contends that the defendants have conceded that he was a proper participant in the Incentive plan during the first six months of 1989. He argues, therefore, that disputed issues of fact remain regarding his entitlement to benefits under the plan.
Despite the defendants' implied representation that Grun did not participate in the Incentive plan subsequent to his promotion in May, 1989, the evidentiary record does not support this contention. The defendants principally rely on the deposition testimony of Mr. Stewart to support their contention. Mr. Stewart, however, merely testified that Grun participated in the Incentive plan prior to his promotion and that he (Mr. Stewart) did not know whether Grun participated in the plan after the promotion. Defendants cite to nothing in the record which states that Grun did not participate in the Incentive plan after his promotion. Moreover, as Grun points out, the defendants admitted the allegation that Grun "properly participated" in the Incentive plan between January 1 and June 30, 1989. Amended Answer, P 55. Thus, defendants' "proof" that Grun was not entitled to benefits under the Incentive plan is questionable at best. Even if he was removed from the plan in May, 1989, a question would remain as to Grun's right to recover any benefits accrued to him during the five months when we was a participant of the plan.
Defendants simply have not shown that, based on the undisputed facts, there is an absence of evidence to support Grun's case with respect to Count III. Accordingly, the entry of summary judgment in favor of defendants would be inappropriate.
For the reasons stated above, it is recommended that plaintiff's motion for summary judgment with respect to Count I of the complaint be granted, and that defendants' motion for summary judgment be denied with respect to Counts I and III and granted with respect to Count II.
Written objection to any finding of fact, conclusion of law, or the recommendation for disposition of this matter must be filed with the Honorable Charles R. Norgle, Sr. within ten days after service of this Report and Recommendation. See Fed. R. Civ. P. 72(b). Failure to object will waive any such issue on appeal.
JOAN HUMPHREY LEFKOW
United States Magistrate Judge
Dated: October 1, 1992