                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0422n.06

                                          No. 19-6249

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jul 21, 2020
                                                                             DEBORAH S. HUNT, Clerk
LOREY LOWE,                           )
                                      )
      Plaintiff-Appellant,
                                      )                 ON APPEAL FROM THE
                                      )                 UNITED STATES DISTRICT
v.
                                      )                 COURT FOR THE EASTERN
                                 LIFE )                 DISTRICT OF KENTUCKY
THE    LINCOLN        NATIONAL
INSURANCE       COMPANY;     LINCOLN )
                                      )
NATIONAL CORPORATION,
                                      )                         OPINION
      Defendants-Appellees.           )
                                      )



BEFORE: MOORE, CLAY, and MURPHY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. In 2016, Lorey Lowe began receiving

disability benefits from The Lincoln National Life Insurance Company after suffering from a

stroke, anxiety, and diminished vision. In 2017, Lincoln wrote Lowe a letter informing her of its

determination that she was no longer disabled from performing the main duties of her job, and that

she would no longer receive benefits. In the letter, Lincoln referred to purported guidelines set

forth by the “American Psychiatric Foundation Return to Work Taskforce,” which it subsequently

admitted did not exist. Lowe filed suit against Lincoln, alleging a variety of state-law claims.

After Lowe amended her complaint, Lincoln moved to dismiss it on the ground that it was

preempted by the Employee Retirement Income Security Act. The district court agreed with
No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


Lincoln and dismissed the case. Although our reasoning differs from that of the district court, we

agree that Lowe’s case should be dismissed, and therefore AFFIRM.

                                       I. BACKGROUND

       In May 2016, Plaintiff Lorey Lowe suffered a left frontal intracranial hemorrhage, known

commonly as a stroke. R. 7 (Am. Compl. ¶ 7) (Page ID #26). After extensive treatment, she

returned to work in July 2016. Id. ¶ 9 (Page ID #26). Around October 4, 2016, however, she “left

her job due to crippling anxiety and greatly diminished vision.” Id. ¶ 10 (Page ID #26). Pursuant

to her employer’s group long-term disability insurance policy with Lincoln National Life

Insurance Company (“Lincoln”), R. 8-1 (Defs.’ Mot. to Dismiss, Ex. A (Ex. 1 at 1)) (Page ID

#48),1 she received disability benefits from November 6, 2016 to June 6, 2017, R. 7 (Am. Comp.

¶ 11) (Page ID #26). On June 14, 2017, Lincoln determined that Lowe “was no longer Totally

Disabled from performing the main duties of her occupation,” and terminated her benefits. Id.

¶ 12 (Page ID #26). Upon Lowe’s appeal of this decision, in which she offered further evidence

that she was “Totally Disabled,” Lincoln sent her a letter denying the appeal on October 26, 2017.

Id. ¶¶ 13–14 (Page ID #26–27). In relevant part, the letter states:

       Letters were received from your therapist dated 07/27/2017 and 09/20/2017
       indicating you are receiving psychotherapy twice a week (no records submitted of
       therapy sessions). The American Psychiatric Foundation Return to Work Taskforce
       guidelines state psychiatric inability to work is a crisis requiring intensive treatment
       to restore function. The standard of care for an individual who is impaired by a



       1
         We “may consider . . . exhibits attached to [a] defendant’s motion to dismiss so long as
they are referred to in the Complaint and are central to the claims contained therein.” Bassett v.
Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Accordingly, we consider the
disability insurance policy and the various letters that Lincoln sent to Lowe, which are referred to
in the complaint, are central to Lowe’s claims, and are appended to Lincoln’s motion to dismiss.


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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


       psychological condition is weekly to biweekly psychotherapy in addition to
       monthly psychiatric contacts.

R. 8-1 (Defs.’ Mot. to Dismiss, Ex. A (Ex. 2)) (Page ID #93). According to Lowe, “[w]hen [she]

learned that a main source of her income was going to be stripped away, [her] ailments attributed

to the stroke on May 23, 2016 worsened and [she] suffered severe and extreme physical and

emotional injuries.” R. 7 (Am. Compl. ¶ 23) (Page ID #27). Despite numerous requests by Lowe

that Lincoln produce the referenced guidelines by the “American Psychiatric Foundation Return

to Work Taskforce,” Lincoln failed to produce them. R. 7 (Am. Compl. ¶ 19) (Page ID #27). On

October 22, 2018, a claims specialist for Lincoln “admitted that to his knowledge there is no such

report.” Id. ¶ 20 (Page ID #27). Lowe appealed Lincoln’s termination of benefits, and ultimately

Lincoln reversed its prior decision and paid Lowe the claimed benefits. R. 8-1 (Defs.’ Mot. to

Dismiss, Ex. A (Ex. 3 at 1, Ex. 4 at 1)) (Page ID #96, 104).2

       On March 29, 2019, Lowe filed suit in the U.S. District Court for the Eastern District of

Kentucky, alleging five violations of state law by Lincoln.3 R. 1 (Compl. ¶¶ 24–56) (Page ID #4–




       2
         See supra note 1. Lowe does not dispute—and in fact relies upon—the fact that she was
ultimately paid these benefits. See R. 10 (Opp. to Mot. to Dismiss at 3) (Page ID #114) (“After
suit was filed, Defendants have paid Plaintiff’s due benefits under the terms of her insurance
policy.”); Appellant Br. at 7 (“Ironically, after being caught red-handed engaging in dishonest and
deceptive conduct, soon after the filing of the Complaint, in April of 2019, Ms. Lowe’s her [sic]
request for long term disability benefits was granted by Lincoln. (Motion to Dismiss, RE 8-1, Page
ID #63-64).”); id. at 16 (noting that “there is no question Ms. Lowe ultimately received the benefits
to which she was entitled”).
       3
         The district court had subject-matter jurisdiction to hear the case based on diversity of
citizenship. Lowe is a citizen of Kentucky, Lincoln National Life Insurance Company is an
Indiana corporation with its principal place of business in Indiana, and Lincoln National
Corporation is an Indiana corporation with its principal place of business in Pennsylvania. R. 7
(Am. Compl. ¶¶ 1–3) (Page ID #25–26). Diversity of citizenship therefore exists between the

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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


7). She amended her complaint on May 9, 2019, adding two state-law counts. R. 7 (Am. Compl.

¶¶ 57–67) (Page ID #31–32). On June 12, 2019, Lincoln moved to dismiss Lowe’s complaint,

arguing that her claims were preempted by the Employee Retirement Income Security Act

(“ERISA”). R. 8 (Defs.’ Mot. to Dismiss at 1) (Page ID #34). In the alternative, Lincoln requested

that the district court enter summary judgment in its favor. Id. On October 3, 2019, the district

court sustained Lincoln’s motion, concluding that “Plaintiff[’]s claims fall squarely within the

scope of [29 U.S.C.] § 1132(a)(1)(B) and are preempted by ERISA.” Lowe v. Lincoln Nat’l Life

Ins. Co., No. CV 19-31-HRW, 2019 WL 4891041, at *3 (E.D. Ky. Oct. 3, 2019). Lowe timely

appealed the district court’s judgment. R. 15 (Notice of Appeal) (Page ID #137).

                                 II. STANDARD OF REVIEW

       “We review de novo the district court’s ruling on a motion to dismiss a claim.” Jones v.

City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). “A claim survives such a motion if its

‘[f]actual allegations [are] enough to raise a right to relief above the speculative level on the

assumption that all of the complaint’s allegations are true.’” Id. (alterations in original) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[W]e construe the complaint in the light

most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in

favor of the plaintiff.” Id. (alterations in original) (quoting Directv, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007)).




parties, and Lowe alleges that she seeks damages in excess of the jurisdictional minimum, which
Lincoln does not contest, see id. ¶ 4 (Page ID #26).


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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


                                       III. DISCUSSION

       “There are two forms of ERISA preemption: express preemption (which applies broadly)

and complete preemption (which applies narrowly).” K.B. ex rel. Qassis v. Methodist Healthcare

- Memphis Hosps., 929 F.3d 795, 800 (6th Cir. 2019). The latter “is more aptly described as a

‘jurisdictional’ doctrine.” Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016) (quoting Loffredo

v. Daimler AG, 500 F. App’x 491, 500 (6th Cir. 2012) (opinion of Moore, J.)). The “quagmire

that is [ERISA] preemption,” Self-Ins. Inst. of Am., Inc. v. Snyder, 827 F.3d 549, 553 (6th Cir.

2016), most often involves consideration of the doctrine of complete preemption. Specifically, the

typical case comes to this court after (1) a plaintiff has filed a lawsuit in state court and (2) a

defendant has removed the case to federal court, asserting that the plaintiff’s claims are preempted

by ERISA. See, e.g., Peters v. Lincoln Elec. Co., 285 F.3d 456, 462 (6th Cir. 2002); Gardner v.

Heartland Indus. Partners, LP, 715 F.3d 609, 612 (6th Cir. 2013); Hogan, 823 F.3d at 877; Milby

v. MCMC LLC, 844 F.3d 605, 608 (6th Cir. 2016); Arora v. Henry Ford Health Sys., No. 17-2252,

2018 WL 3760888, at *1 (6th Cir. July 9, 2018) (order); K.B., 929 F.3d at 798.

       Here, by contrast, Lowe filed suit in federal court based on diversity jurisdiction, and

Lincoln makes its ERISA-preemption argument not as a means of defending removal, but as a

means of dismissing the action. Jurisdiction thus does not turn on the success or failure of

Lincoln’s complete-preemption arguments.             Although complete preemption, beyond its

“jurisdictional impact,” can “affect[] how the federal court should treat [the plaintiff’s] claim,”

Loffredo, 500 F. App’x at 500 (opinion of Moore, J.), analysis of complete preemption would be

moot in this case if we determine that Lowe’s claims are expressly preempted. If express




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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


preemption applies, the state-law claims “should be dismissed with prejudice.” Id. at 501. Thus,

we turn first to the question of express preemption under ERISA.

       ERISA’s express-preemption clause preempts “any and all State laws insofar as they may

now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and

not exempt under section 1003(b) of this title.” 29 U.S.C. § 1144(a). By itself, the phrase “relate

to” does not tell us much. As the Supreme Court has recognized, “uncritical literalism” would

arise “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy.” N.Y. State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655–56 (1995).

Even the Court’s explanation that “[a] law ‘relates to’ an employee benefit plan, in the normal

sense of the phrase, if it has a connection with or reference to such a plan,” Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 96–97 (1983), did not clarify the “amorphous nature of the phrase ‘relate

to.’” Briscoe v. Fine, 444 F.3d 478, 497 (6th Cir. 2006). We subsequently added that the express-

preemption inquiry should “consider the kind of relief that plaintiffs[] seek, and its relation to the

pension plan.” Ramsey v. Formica Corp., 398 F.3d 421, 424 (6th Cir. 2005). Finally, in

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 698 (6th Cir. 2005)

(“PONI”), we set forth three specific classes of state laws that were preempted by ERISA:

       ERISA preempts state laws that (1) “mandate employee benefit structures or their
       administration;” (2) provide “alternate enforcement mechanisms;” or (3) “bind
       employers or plan administrators to particular choices or preclude uniform
       administrative practice, thereby functioning as a regulation of an ERISA plan
       itself.”

Id. (quoting Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1468 (4th Cir. 1996)). Depending on

the case, this analysis may consider whether the state law itself is preempted by ERISA, or




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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


“whether a state-law claim relates to plans covered by ERISA.” Briscoe, 444 F.3d at 497

(emphasis added).

       We have little difficulty concluding that Lowe’s amended complaint improperly challenges

the manner in which Lincoln administered the plan and seeks damages through an “alternate

enforcement mechanism[]” outside ERISA. PONI, 399 F.3d at 698 (citation omitted). The crux

of Lowe’s argument is that she is not suing Lincoln for denying her benefits, but for its independent

tortious conduct, namely concocting a fake study, which itself caused her actionable emotional

distress and pecuniary loss. Yet we have held previously that a claim of intentional infliction of

emotional distress which arises out of the refusal to pay benefits under an ERISA plan is one that

relates to the plan and is preempted. Tassinare v. Am. Nat’l Ins. Co., 32 F.3d 220, 224–25 (6th

Cir. 1994). The fact that Lowe does not explicitly state in the complaint that she aims to recover

plan benefits does not change the essentially administrative nature of her claims. See Loffredo,

500 F. App’x at 502 (opinion of Moore, J.) (“By seeking to hold the defendants liable for conduct

that allegedly resulted in lost benefits without challenging the denial of benefits itself, Loffredo is

attempting to create an ‘alternate enforcement mechanism’ to ERISA’s vehicle for recovery of

benefits such that the claim is expressly preempted under § 1144.”) (quoting Thurman v. Pfizer,

Inc., 484 F.3d 855, 861 (6th Cir. 2007)).

       Lowe urges us to rely on the Ninth Circuit’s analysis in Dishman v. UNUM Life Insurance

Co. of America, 269 F.3d 974 (9th Cir. 2001), but we would resolve this case the same way even

if bound by that decision. In Dishman, the plaintiff alleged

       that an investigator retained by UNUM [Life Insurance Company of America]
       elicited information about his employment status by falsely claiming to be a bank
       loan officer endeavoring to verify information he had supplied; that investigators
       elicited personal information about him from neighbors and acquaintances by

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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


       representing that he had volunteered to coach a basketball team; that investigators
       sought and obtained personal credit card information and travel itineraries by
       impersonating him; that investigators falsely identified themselves when caught
       photographing his residence; and that investigators repeatedly called his residence
       and either hung up or else dunned the person answering for information about him.

Id. at 979–80. UNUM argued that “but for” its ERISA-covered relationship with the plaintiff, it

“would have had no need to investigate Dishman’s claim of disability,” and that his claim therefore

“related to” his employee benefits plan. Id. at 983. The Ninth Circuit rejected this argument,

reasoning that “the objective of Congress in crafting Section 1144(a) was not to provide ERISA

administrators with blanket immunity from garden variety torts which only peripherally impact

daily plan administration.” Id. at 984. The court contrasted Dishman’s complaint with another

case in which “[t]he harm [the plaintiffs] suffered was inextricably intertwined with the plan’s

decision not to pay.” Id. at 983. “[Dishman’s] damages for invasion of privacy remain whether

or not UNUM ultimately pays his claim.” Id.

       Lowe has simply made no allegations that approach the level of independent tortious

conduct alleged in Dishman. The sole act that, in her view, constitutes negligence, negligent

infliction of emotional distress, outrage, fraudulent misrepresentation, a violation of the Kentucky

Consumer Protection Act, bad faith, and a violation of the Kentucky Unfair Claims Settlement

Practices Act was Lincoln’s citation of a fictitious study in the course of denying her benefits.

According to the amended complaint, her “ailments attributed to the stroke . . . worsened” and she

“suffered severe and extreme physical and emotional injuries” not when she was the victim of

tortious conduct but “[w]hen [she] learned that a main source of her income was going to be

stripped away.” R. 7 (Am. Compl. ¶ 23) (Page ID #27). The amended complaint lacks any

allegation of how the specific act of mentioning or relying on the fictitious study was itself a cause


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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


of harm. Instead, as the district court recognized, the allegations in the amended complaint’s

various counts are “based upon Lincoln’s allegedly wrongful denial of benefits.” Lowe, 2019 WL

4891041, at *3.     Or, in Dishman’s terms, the allegedly tortious conduct was “inextricably

intertwined with the plan’s decision not to pay.” 269 F.3d at 983. We cannot conclude that “the

alleged conduct by the fiduciary is ‘entirely unrelated to and outside the scope of [the fiduciary’s]

duties under the plan or in carrying out the terms of the plan.’” PONI, 399 F.3d at 699 (alteration

in original) (quoting Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 193 (4th Cir. 2002)).

Instead, “[a]ll of [Lowe]’s state-law claims stem from the actions of [Lincoln] in the processing of

her claim for benefits,” and “[i]t is well established that such state-law tort . . . claims are

preempted by ERISA.” Caffey v. UNUM Life Ins. Co., 302 F.3d 576, 582 (6th Cir. 2002).

        There is one aspect of this case that appears to distinguish it from the many others in which

we have held that a plaintiff’s claims are related to an employee benefits plan, and thus expressly

preempted by ERISA: Lowe ultimately received all of the benefits that she claimed were owed to

her, albeit after filing this lawsuit. It would thus be erroneous to regard Lowe, at present, as seeking

unpaid benefits. Cf. Loffredo, 500 F. App’x at 494 (opinion of Sutton, J.) (plaintiffs “lost most of

their benefits” and accordingly brought multiple state-law claims). We could not conclude,

however, that the applicability of express preemption under ERISA hinges on whether, outside the

four corners of the plaintiff’s complaint, the defendant fulfilled an open claim for benefits. The

fact that Lincoln paid Lowe her benefits and that Lowe did not drop her lawsuit cannot make it

more likely that, as a matter of law, her tort claims are independent of her original grievance over

denied benefits with Lincoln. If Lowe wished to hold Lincoln accountable for a breach of its

fiduciary duties under ERISA, filing a claim under that statute was the proper course of action.


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No. 19-6249, Lowe v. Lincoln Nat’l Life Ins. Co.


                                               ***

        The district court granted Lincoln’s motion to dismiss, or in the alternative, for summary

judgment by concluding that Lowe’s claims “fall squarely within the scope of § 1132(a)(1)(B) and

are preempted by ERISA.” Lowe, 2019 WL 4891041, at *3. But “[c]omplete preemption under

§ 1132(a) is not grounds for dismissal.” Loffredo, 500 F. App’x at 501 (opinion of Moore, J.).

Instead, for the foregoing reasons, we conclude that Lowe’s state-law claims are expressly

preempted by ERISA under 29 U.S.C. § 1144(a), and on that basis we AFFIRM the judgment of

the district court.




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