                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT                                  August 5, 2004

                              _________________________                          Charles R. Fulbruge III
                                                                                         Clerk
                                    No. 03 - 11318
                                   SUMMARY CALENDAR
                              _________________________

STACIE HOLLOWAY,

                      Plaintiff - Appellee,

       v.

AVALON RESIDENTIAL CARE HOMES, INC. ET AL.,

                      Defendants,

AVALON RESIDENTIAL CARE HOMES, INC.,

                      Defendant - Appellant.

_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                          (4:03-CV-1173)
_________________________________________________________________

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit
Judges.

REYNALDO G. GARZA, Circuit Judge:1

       In this appeal, we review the district court's order

remanding this case to the state court.                       For the following

reasons, we uphold the district court’s decision.




       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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                                I.

                FACTUAL AND PROCEDURAL BACKGROUND

     Plaintiff - Appellee, Stacie Holloway, filed suit against

Freeman Administrative Solutions, Inc. (hereinafter, “FAS”) and

her employer, Avalon Residential Care Homes, Inc. (hereinafter,

“Avalon”) for injuries sustained as the result of an unsafe

workplace, and for wrongful termination.

     Defendants removed the suit to the District Court for the

Northern District of Texas, basing their removal on the Federal

Arbitration Act and the Employment Retirement Income Act of 1974

(hereinafter, “ERISA”).   Defendants asserted that Holloway’s

claims were recharacterized and preempted by ERISA due to the

inclusion of FAS as a party.   According to Defendants, Avalon was

the holder and FAS was the administrator of an occupational

injury insurance policy that was in force at the time of

Holloway’s injury and further, that Holloway’s benefits were

terminated pursuant to the terms of the insurance plan.

Defendants also asserted that Holloway had failed to exhaust her

administrative remedies pursuant to ERISA and that Holloway

failed to comply with the mediation and arbitration provisions

outlined in Avalon’s insurance plan.

     Holloway responded by moving to amend her complaint to

allege only her state law negligence claim against Avalon.    She

then moved to remand the case back to state court.   The district



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granted both of Holloway’s motions, finding that Holloway’s

amended complaint asserted only a claim of negligence in failing

to maintain a safe workplace and only against Avalon, her former

employer.   The district court therefore determined that the

amended complaint was not preempted by ERISA and ordered the case

remanded to state court pursuant to 28 U.S.C. § 1367.

     Defendant’s motion to dismiss was denied as moot, and Avalon

timely filed a notice of appeal.

                                 II.

                            JURISDICTION

     Normally, an order remanding a case to the state court from

which it was removed is not reviewable on appeal.    28 U.S.C. §

1447(d).    However, because the district court in its discretion

remanded the case to the state court after determining that all

federal claims had been eliminated and only pendent claims

remained, we have jurisdiction to hear this appeal.     See Hook v.

Morrison Milling Co., 38 F.3d 776, 780 (5th Cir. 1994).

                                III.

                          ERISA PREEMPTION

     Avalon argues that Holloway’s state law negligence claims

are fraudulently pleaded to avoid ERISA preemption and are

actually an attempt to receive damages from Avalon’s insurance

plan.   Avalon asserts that the damages sought by Holloway trigger

the insurance plan because the cause of action sufficiently


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relates to the plan.   Avalon also argues that Holloway has

received all or a portion of the damages claimed through payments

from the insurance plan and that it was Holloway’s violations of

the insurance plan’s terms that led to the termination of her

benefits.

      We review the district court’s preemption analysis de novo.

Id.

      ERISA preempts any state law that references or shares a

connection with an ERISA plan when the state law is not

specifically designed to affect such plans, affects such plans

only indirectly, or is inconsistent with ERISA’s substantive

requirements.   Id. at 781.   However, some state plans may be too

remote to warrant a finding of preemption.    Id.    To determine

whether a state law claim is preempted, we look to (1) whether

the claim addresses areas of exclusive federal concern, and (2)

whether the claim directly affects the relationship among

traditional ERISA entities.    Id.

      Holloway’s complaint asks for personal injury damages,

alleging that she was injured while attempting to move a patient.

According to Holloway, Avalon knew of the patient’s propensity

for violence but failed to provide adequate support staff during

Holloway’s shift.   Holloway asserts that she is not seeking to

recover benefits from Avalon’s insurance plan.      Thus, Holloway’s

negligence claim affects only her employer/employee relationship


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and is wholly independent from the existence of Avalon’s

insurance plan.    Id. at 783-84.     This court’s previous decision

in Hook is controlling, and Holloway’s negligence claim is not

preempted by ERISA.

     However, Avalon asks this court to overrule Hook, alleging

that the decision is inconsistent with both Metro. Life Ins. Co.

v. Taylor, 481 U.S. 58 (1987), and Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41 (1987).    We decline to do so.      Both of these

cases were decided before and were considered in Hook, and one

panel of this Court may not overrule another panel absent an

intervening decision to the contrary by the Supreme Court or this

Court en banc.    See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.

1997); Hook, 38 F.3d at 781.

     Avalon next argues that Hook is inconsistent with Arana v.

Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003).        In Arana, the

plaintiff sought a declaratory judgment requiring the health plan

to release its notice of lien and withdraw its subrogation claims

for reimbursement of health care benefits following the

plaintiff’s tort claim settlements.        The en banc Court held that

the plaintiff was seeking benefits under the terms of the plan

despite the fact that the plaintiff asked for relief under

Louisiana state law.    Id. at 438.       The Court held that a claim

seeking benefits premised on an ERISA plan read in conjunction

with state law is completely preempted.         Id. at 438-39.   Thus

                                    -5-
Arana and Hook are distinguishable and not inconsistent.

     The district court did not abuse its discretion in remanding

the case to the state court.    See Hook, 38 F.3d at 780.

                                 IV.

                             ARBITRATION

     Avalon next argues that the district court abused its

discretion by declining to compel Holloway to comply with the

Avalon insurance plan’s arbitration provision.    We disagree.   The

insurance plan’s arbitration clause only pertains to disputes

arising under the plan.    Thus, the district court correctly

concluded that Holloway’s claims did not arise under the Avalon

insurance plan.

                                 V.

                           ATTORNEY’S FEES

     In her appellee’s brief, Holloway argues that she is

entitled to attorney’s fees pursuant to both the removal statute

and ERISA.   However, the Federal Rules of Appellate Procedure and

the rules of this Court provide that applications for fees are to

be made by motion and should be supported by documentation of

time expended.    FED. R. APP. P. 27(a)(1); 5th Cir. R. 47.8.

Holloway has failed to provide such documentation.    Further,

Holloway is not entitled to fees under 28 U.S.C. § 1447(c)

because the district court remanded the case based not on the

removal statute, but on its decision not to extend supplemental


                                 -6-
jurisdiction.   Finally, Holloway dismissed the portion of her

complaint which stated an ERISA claim, and thus, she is not

entitled to attorney’s fees.   29 U.S.C. § 1132(g)(1).

                                VI.

                            CONCLUSION

     For the foregoing reasons, the district court’s decision is

AFFIRMED.




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