                                                                           FILED
                           NOT FOR PUBLICATION                              APR 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SENN MOSES,                                      No. 08-56897

             Plaintiff - Appellant,              D.C. No. 2:07-cv-04137-ODW-SS

  v.
                                                 MEMORANDUM *
THE NIELSEN COMPANY, INC., a
Corporation Erroneously Sued As The
Nielsen Company (US), Inc., FKA VNU,
Inc.; ADMINISTRATIVE COMMITTEE
OF THE NIELSEN COMPANY (US),
INC. CAREER TRANSITION PLAN,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                       Argued and Submitted March 4, 2010

                                Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:      KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
             TUNHEIM, ** District Judge.

      Senn Moses (“Moses”) appeals the district court’s denial of his motion to

remand this case to state court. The district court determined that Moses’s state

law claims were preempted by the Employment Retirement Income Security Act

(“ERISA”). Moses also appeals the district court’s grant of summary judgment to

The Nielsen Company (“Nielsen”). We affirm both decisions of the district court.

      For his arguments against preemption and in favor of remand, Moses relies

heavily on Graham v. Balcor Co., 146 F.3d 1052 (9th Cir. 1998). In Graham,

neither party disputed that the agreement giving rise to Graham’s claims was made

outside of the context of any ERISA plan, although such a plan was the subject of

the agreement. Here, Nielsen argues that the agreement giving rise to Moses’s

claims is part of its Career Transition Plan (“Plan”), which is governed by ERISA.

Moses counters that his agreement with Nielsen is separate from the Plan, like the

agreement in Graham. In order to decide the merits of Moses’s claims, a court will

have to interpret Plan language. For example, a crucial disclaimer is found on a

form document used in Plan administration, and the disclaimer’s language

explicitly references the Plan’s terms and summary description. Because it would


      **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

                                          2
be impossible to decide this case without interpreting Plan language, this case

relates to an employee benefit plan as required for ERISA preemption. See 29

U.S.C. § 1144(a); Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th

Cir. 2004).

        As to summary judgment, we agree with the district court. Nielsen’s

Committee did not abuse its discretion as Plan administrator. The summary Moses

received concerning his severance pay clearly indicated that the amount of pay was

subject to the terms and conditions of the Plan. The Plan provided for a maximum

benefit equal to the employee’s annual salary. Only Nielsen’s CEO had the

authority to grant greater benefits, and no evidence in the record indicates that he

did so or that Moses believed he had done so. Correcting the amount of severance

specified in the summary Moses received, by reducing it to the amount specified in

the Plan, was not an abuse of discretion. Moses was on notice of the correct

amount from the outset and only eight days had passed before the correction was

made.

        For the foregoing reasons, we AFFIRM the district court’s denial of the

motion to remand and its grant of summary judgment to Nielsen.




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