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August 8, 1996

DIANE FRAVEL and AMY FRAVEL, a minor by DIANE FRAVEL, her mother and next friend, Plaintiffs,

The opinion of the court was delivered by: NORDBERG

 Plaintiffs Diane Fravel and Amy Fravel, a minor, sued Defendants Richard Stankus, Eleanor Stankus, and Oko Michalina in the Circuit Court of Cook County, Illinois for negligence (Case no. 91 L 13140). After a settlement was negotiated between Amy Fravel and the Stankuses, Amy Fravel filed a Motion to Adjudicate Lien, pursuant to a Notice of Lien sent by Health Cost Controls of Illinois, Inc. ("HCC"). HCC then removed the case to this Court. Before the Court is Plaintiff's Motion to Remand Pursuant to 28 U.S.C. § 1447.


 On May 6, 1988 Plaintiffs were injured. As dependents of Gary Fravel, Plaintiffs' medical expenses were covered through his participation in the Health and Welfare Fund of Local 705 International Brotherhood of Teamsters ("Fund"). On February 27, 1989 HCC, as assignee for collection of the Fund's claims, notified Plaintiffs' attorney that it holds a lien against Plaintiff Amy Fravel totalling $ 22,065.57 for services rendered as a result of her injuries, pursuant to a subrogation and reimbursement agreement. After filing suit in the Circuit Court of Cook County, Plaintiff Amy Fravel negotiated a settlement agreement with the Stankuses. Amy Fravel then filed a Motion to Adjudicate Lien in the state court proceeding, invoking Illinois law that forbids subrogation claims against minors' funds. Kelleher v. Hood, 238 Ill. App. 3d 842, 605 N.E.2d 1018, 179 Ill. Dec. 4 (2d Dist. 1992). HCC filed a Notice of Removal in this Court, invoking the federal common law and Sections 514 and 502(a) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1144 & 1132(a).


 Congress has allowed state court defendants to remove certain civil actions to federal district court via 28 U.S.C. § 1441. Specifically, "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable." § 1441(b). Plaintiff moves to remand on several grounds: (1) the Court does not have original jurisdiction over the action; (2) HCC did not obtain the consent of the state court defendants; (3) HCC is not a defendant for removal purposes; and (4) the removal was untimely under 28 U.S.C. § 1446(b)'s thirty-day period. *fn1"

 I. Jurisdiction

 Section 1447(c) of Title 28 directs the district court to remand the case if it lacks subject matter jurisdiction. The removal statute is not itself a source of federal jurisdiction. Rather, under the "well-pleaded complaint rule," a federal district court has subject matter jurisdiction only if "the suit -- as the plaintiff framed or could easily have framed it in the complaint -- would have been within the district court's original jurisdiction at the time of removal." Federal Deposit Ins. Corp. v. Elefant, 790 F.2d 661, 667 (7th Cir. 1986) (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983)). Moreover, a defense based upon federal law does not render the case removable. Elefant, 790 F.2d at 667. Thus, a defendant may not remove a state action based upon the defense of federal preemption. However, under the complete preemption doctrine state common law claims within the scope of ERISA's civil enforcement provision -- § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) -- are "displaced," to the extent that a suit purporting to raise such state law claims "is necessarily federal in character" and, thus, is removable. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 60 & 66, 107 S. Ct. 1542, 1544 & 1548, 95 L. Ed. 2d 55 (1987).

 In the instant case, although the Motion to Adjudicate Lien does not purport to raise any federal claims, HCC contends that the Motion is within the scope of Section 502(a)(1)(B) (i.e., an action "by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the plan, or to clarify his rights to future benefits under the terms of the plan"). In holding that the Motion is completely preempted by ERISA and, thus, removable, this Court follows the district court's decision in Musinski v. Staudacher, 928 F. Supp. 739 (N.D. Ill. 1996). Musinski travelled the same path to the federal courthouse as the present case: the plaintiff sued his tortfeasor in state court, reached a settlement against which the subrogee asserted a lien, and filed a Motion to Adjudicate Lien in state court, which the subrogee removed. The plaintiff asserted state antisubrogation law against the lien, namely, the common fund doctrine as set out in Scholtens v. Schneider, 274 Ill. App. 3d 102, 653 N.E.2d 775, 210 Ill. Dec. 580 (1st Dist.), appeal allowed, 164 Ill. 2d 583 (1995).

 The Musinski court noted that the Motion to Adjudicate Lien, which arises from a subrogation agreement, "does not fall expressly within the literal language of" Section 502(a)(1)(B), because the plaintiff has already received the benefits at issue. Id. at 743. Indeed, another district court found the identical situation to warrant remand. Washington v. Humana Health Plan, Inc., 883 F. Supp. 264 (N.D. Ill. 1995). However, as the Musinski court aptly explained, Rice v. Panchal, 65 F.3d 637 (7th Cir. 1995) compels the finding that the Motion to Adjudicate Lien falls within the scope of Section 502(a)(1)(B). Significantly, Panchal was not available to the Washington court when it ruled.

Specifically, the Panchal court concluded that a suit brought by an ERISA plan participant is an action to "enforce his rights under the terms of a plan" within the scope of § 502(a)(1)(B) where the claim rests upon the terms of the plan or the "resolution of the [plaintiff's] state law claim . . . require[s] construing [the ERISA plan]."

 Panchal, 65 F.3d at 644-45 (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407, 108 S. Ct. 1877, 1882, 100 L. Ed. 2d 410 (1988)). Moreover, the Seventh Circuit engaged in the same analysis, albeit in an abbreviated manner, when it upheld the removal by an intervening defendant who asserted an employee benefit plan's subrogation and reimbursement agreement. Shannon v. Shannon, 965 F.2d 542, 545-46 (7th Cir.), cert. denied sub nom. Shannon v. United Services Auto Ass'n, 506 U.S. 1028, 121 L. Ed. 2d 599, 113 S. Ct. 677 (1992). Like the defendant in Musinski, HCC has not cited Shannon to this Court. However, HCC properly argues for removal based upon Panchal.

Applying Panchal and Shannon, the Musinski court found:
In ERISA § 502(a)(1)(B) terms, Musinski's claim may perhaps not be one "to recover benefits," and perhaps he might be characterized as resisting Blue Cross' effort to enforce its rights under the Plan rather than seeking to enforce his own, but it is surely the case that in the language Rice adapted from Lingle, the "resolution ...

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