do no better than to advance the same kind of ipse dixit assertions in the opposite direction.
Fortunately counsel for the removing defendants--Donald Hunt and Harris Trust and Savings Bank, collectively referred to here as "Harris Defendants"--have made a more analytical presentation, identifying the ERISA pigeonholes into which Sliwa's claims may fairly be characterized as fitting.
Here is the way that the matters appear to line up:
1. Count I, plainly brought by Sliwa as a fiduciary (in his capacity as Trustee of the Plan), charges that Cigna Defendants, who are identified as the insurance company that was the Plan manager and its agent (both of them are apparently also viewed as Plan fiduciaries), caused Plan funds to be transmitted to Harris Trust and Savings Bank, which then allegedly converted the funds to its own use and benefit. Because injunctive relief is sought against Harris Defendants to compel the return of the Plan funds, the claim reads like one brought under ERISA § 1132(a)(3)(B).
2. Count II asserts the same set of facts, then elaborates on them en route to charging that Sliwa "has been permanently damaged and stigmatized" (Count II P 19) and "has been unable to obtain full-time and gainful employment in his profession as a certified public account [sic]" (id. P 20). That claim, asserted only against Cigna Defendants, does not really fit either ERISA § 1132 or the other potential source of an ERISA private action, ERISA § 1109.
3. Count III, which also targets only Cigna Defendants, is labeled as "Professional Negligence/Malpractice." Even though that caption does not of course control under Tolle and NAACP, that claim too does not sound in either ERISA § 1132 or ERISA § 1109.
4. Count IV shifts the locution of Count III to a charge of "Wilful and Wanton Misconduct" against Cigna Defendants alone, in an effort by Sliwa to obtain punitive damages from them. Conceptually that claim stands on the same footing as Count III: It too is a non-ERISA claim.
5. Finally, Count V asks for a declaratory judgment against a member of the Chubb Group of Insurance Companies (a corporation presently unidentified as a specific party defendant, although it appears from other filings that Federal Insurance Company may be the proper target) for its failure to defend and indemnify Sliwa under a fiduciary liability policy.
In terms of Sliwa's remand motion, Count I's ERISA linkage is enough to provide federal subject matter jurisdiction. That being so, no remand is permitted under 28 U.S.C. § 1447(c), which limits remand to situations in which "it appears that the district court lacks subject matter jurisdiction." And because all of the remaining counts "are so related to claims in [Count I] that they form part of the same case or controversy under Article III of the United States Constitution" (28 U.S.C. § 1367(a)), the concept of supplemental jurisdiction permits their retention here if they survive dismissal.
On that score the question is not so easy as Cigna Defendants would have it by just crying out for ERISA preemption. They are simply wrong in saying that Sliwa's causes of action against them are advanced under ERISA. Neither Tolle, 977 F.2d 1129, 1992 U.S. App. LEXIS 26687, at *16-*21 nor Ingersoll Rand Co. v. McClendon, 111 S. Ct. 478 (1990) (on which Tolle relies heavily) calls for that result, for there is nothing about the claims in Counts II through IV that hinges on the status of the trust for which Sliwa is Trustee as one that provides employee benefits (and is therefore an ERISA plan).
In summary, Sliwa's motion to remand this action to the Circuit Court of Cook County is denied. Cigna Defendants' motions to dismiss and to strike any portions of the Complaint are denied, and they are ordered to answer all the previously unanswered aspects of the Complaint on or before November 13, 1992.
Milton I. Shadur
Senior United States District Judge
Date: November 2, 1992