     Case: 10-30674 Document: 00511501435 Page: 1 Date Filed: 06/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 7, 2011

                                       No. 10-30674                         Lyle W. Cayce
                                                                                 Clerk

WAYNE GLEN DAY,

                                                   Plaintiff - Appellant
v.


LOCKHEED MARTIN CORPORATION; CHERYL ALEXANDER,

                                                   Defendants - Appellees




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:10-CV-730




Before JONES, Chief Judge, and DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Wayne Glen Day appeals his motion to remand being denied and, in the
alternative, Lockheed Martin Corporation’s motion to dismiss being granted. He
contends:     the district court lacked subject-matter jurisdiction; collateral
estoppel did not bar his claims; and he is entitled to attorney’s fees and costs.
AFFIRMED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-30674 Document: 00511501435 Page: 2 Date Filed: 06/07/2011

                                  No. 10-30674

                                       I.
      Day’s employment with Lockheed began in 1979. While employed, he took
leaves of absence as part of his service in the United States Navy Reserve.
      For an absence from 1997 to 2004, Day received, in 2002, an extension in
his military orders; however, he failed to notify Lockheed of that extension
within 14 days of the expiration of his previous orders, as required under the
Uniformed Services Employment and Re-employment Rights Act (USERRA).
See 38 U.S.C. § 4312(e). Consequently, he forfeited reemployment and employee-
benefit protection under that Act.
      In 2004, Day left the Navy. Although not required to do so, Lockheed
reemployed him. Day retired from Lockheed in 2007.
      Day sued Lockheed and Cheryl Alexander, Lockheed’s Michoud Operations
Human Resource Director, in federal court for claimed violations of both
USERRA and the Louisiana Military Service Relief Act (LMSRA), L A. R EV. S TAT.
A NN. §§ 29:401–425. The district court awarded summary judgment against
Day, ruling that he had not submitted an application for reemployment with
Lockheed in 2002 within 14 days after completing his military orders. The court
dismissed Day’s USERRA claims with prejudice; his LMSRA claims, which were
identical to the USERRA claims, without prejudice. Our court affirmed. Day v.
Lockheed Martin Space Sys. Co., 304 F. App’x 296, 297-98 (5th Cir. 2008), aff’g,
No. 07-3539, 2008 WL 718142 (E.D. La. 14 Mar. 2008).
      Subsequently, Day filed this essentially identical action in Louisiana state
court, claiming violations of LMSRA. Day repeated the allegations from his
federal-court complaint, contending Lockheed and Alexander: did not promptly
reemploy him following his discharge from the Navy; and violated Lockheed’s
policies on, inter alia, 401(k) retirement-plan funding and matching. Lockheed
removed the action to federal court, asserting both federal-question and diversity
jurisdiction (28 U.S.C. §§ 1331, 1332(a)(1)).



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      Day moved to remand; Lockheed, to dismiss. The district court: denied
the motion to remand, ruling that the LMSRA claims were preempted by federal
law under the Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. §§ 1001–1461; and granted the motion to dismiss, holding the LMSRA
claims barred by collateral estoppel.
                                        II.
      The denial of the motion to remand and the grant of the motion to dismiss
are reviewed de novo. E.g., Lewis v. Fresne, 252 F.3d 352, 356 (5th Cir. 2001).
In the light of our upholding both rulings, we need not reach Day’s request for
attorney’s fees and costs.
                                        A.
      Lockheed removed this action based on federal-question and diversity
jurisdiction. Although the district court denied remand only on the former, we
may affirm subject-matter jurisdiction on any basis supported by the record.
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
                                         1.
      At least one of Day’s LMSRA claims is completely preempted by ERISA,
thus providing federal-question jurisdiction. ERISA § 502(a)(1)(B) provides a
retirement beneficiary with a claim “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the plan, or to clarify
his rights to future benefits under the terms of the plan”.             29 U.S.C.
§ 1132(a)(1)(B).   Complete preemption of a state-law claim occurs when “a
remedy falls within the scope of or is in direct conflict with ERISA § 502(a), and
therefore is within the jurisdiction of federal court”. McGowin v. ManPower
Int’l., Inc., 363 F.3d 556, 559 (5th Cir. 2004) (citations and internal quotation
marks omitted). Day’s complaint claims injury with respect to his rate of pay,
vacation credits, differential pay, back pay, and 401(k) contribution and
matching. In particular, his 401(k)-related claims seek benefits derived from
Lockheed’s retirement program for military-reserve employees, which is part of

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an overall employee-benefit plan. Thus, his 401(k)-related claims fall within
ERISA’s scope and are preempted. See, e.g., House v. Am. United Life Ins. Co.,
499 F.3d 443, 451-53 (5th Cir. 2007) (law firm’s disability policy part of an
ERISA plan, preempting plaintiff’s state law claims). For any of Day’s other
claims that are not preempted, they are subject to supplemental federal
jurisdiction. See, eg., Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 337-38
(5th Cir. 1999).
                                       2.
      In the alternative, diversity jurisdiction provides a basis for removal. See
28 U.S.C. § 1332(a)(1). Under the improper-joinder doctrine, where a non-
diverse defendant (here, Alexander) is improperly joined, the presence of that
party does not destroy diversity jurisdiction. E.g., Borden v. Allstate Ins. Co.,
589 F.3d 168, 171 (5th Cir. 2009). One way to show improper joinder is through
plaintiff’s inability to establish a claim against the non-diverse defendant in
state court; i.e., whether there is no reasonable basis for the district court to
predict plaintiff can recover against that defendant. E.g., Elam v. Kansas City
S. Ry. Co., 635 F.3d 796, 812 (5th Cir. 2011).
      Along that line, Day cannot do so because Alexander does not qualify as
an “employer” under Louisiana law.          See L A. R EV. S TAT. A NN. § 23:302(2)
(“‘Employer’ means a person . . . receiving services from an employee and, in
return, giving compensation of any kind to an employee.”); Ray v. City of Bossier
City, 859 So. 2d 264, 272 (La. App. 2d Cir. 2003) (noting Louisiana courts have
applied § 23:302(2)’s “employer” definition generally). Moreover, Day has not
alleged facts reasonably demonstrating that he has an independent or derivative
claim against Alexander. See Guillory v. PPG Indus., Inc., 434 F.3d 303, 312
(5th Cir. 2005) (personal liability cannot be premised upon employee’s general
responsibility in course of his or her employment). The remaining parties are
diverse: Day, a Louisiana resident; Lockheed, a Maryland corporation with
principle place of business in Bethesda, Maryland.

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                                          B.
      Collateral estoppel (issue preclusion) applies where an identical issue was:
previously adjudicated; actually litigated; and necessary to the decision in the
prior litigation. E.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir.
2005).   Although Day contends he satisfied LMSRA’s employer-notification
requirements in 2004 (when he left the Navy), compliance in 2004 is irrelevant
to his overcoming collateral estoppel. The relevant inquiry concerns 2002.
LMSRA, as it provided then (and, in that regard, was identical to USERRA),
required a person returning from a period of military service of more than 30
days to notify the employer of an intent to return by submitting “an application
for reemployment with the employer not later than fourteen days after the
completion of the period of service . . . .” L A. R EV. S TAT. A NN. § 29:410(E)(1)(c);
see also 38 U.S.C. § 4312(e)(1)(C) (USERRA’s 14-day application requirement).
      As our court ruled on Day’s prior appeal: “Day completed [his] order[s] on
March 30, 2002, but did not reapply within fourteen days”. Day, 304 F. App’x
at 297. Therefore, because the above-described elements for collateral estoppel
are satisfied, Day is barred from litigating his LMSRA claims.
      Moreover, Day may not proceed on his unreasonableness-of-notification
theory. It was not presented to the district court when it addressed Lockheed’s
motion to dismiss. See Dunbar v. Seger-Thomschitz, 615 F.3d 574, 576 (5th Cir.
2010) (party may not advance new theory on appeal not raised in district court),
cert. denied, 131 S. Ct. 1511 (2011).
                                         III.
      For the foregoing reasons, the judgment is AFFIRMED.




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