11-423-cv
Arditi v. Lighthouse Int'l


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                 August Term 2011

    (Argued: August 25, 2011     Decided: February 9, 2012
                    Amended: March 9, 2012)

                              Docket No. 11-423-cv




                                    ARIES ARDITI,

                                               Plaintiff-Appellant,

                                          v.

                             LIGHTHOUSE INTERNATIONAL,

                                               Defendant-Appellee.


Before:
                  STRAUB and CHIN, Circuit Judges, and
                      PRESKA, Chief District Judge.*


             Appeal from a judgment of the United States

District Court for the Southern District of New York (Cote,

J.) denying plaintiff-appellant's motion to remand the case



      *
          The Honorable Loretta A. Preska, Chief Judge,
United States District Court for the Southern District of New
York, sitting by designation.
to state court on federal preemption grounds under the

Employee Retirement Income Security Act and dismissing the

action for failure to state a plausible claim for relief.

           Chief District Judge PRESKA dissents in a separate

opinion.

           AFFIRMED.


                       RONALD S. GREENBERG (Jared I. Heller, on the
                             brief), Kramer Levin Naftalis &
                             Frankel LLP, New York, New York, for
                             Plaintiff-Appellant.

                       MICHELLE SCHOTT (Curtis C. Mechling, Joanna
                             S. Smith, on the brief), Stroock &
                             Stroock & Lavan LLP, New York, New
                             York, for Defendant-Appellee.


CHIN, Circuit Judge:

           In this case, the district court found that

plaintiff-appellant Aries Arditi's claims against defendant-

appellee Lighthouse International ("Lighthouse") were

preempted by the Employee Retirement Income Security Act

("ERISA") because they arose under Lighthouse's Pension Plan

(the "Plan") and not separately and independently out of

Arditi's written employment agreement (the "Agreement").


                                 -2-
The district court denied Arditi's motion to remand the case

to state court, holding that Arditi's claims were preempted

by ERISA and that his suit was therefore properly removed to

federal court.    The district court then dismissed the action

for failure to state a claim because Arditi had not stated

any basis for challenging Lighthouse's authority to amend

the Plan.

            On appeal, Arditi argues that the additional

benefits he seeks are based on a promise separate and

independent from the Plan.    We disagree.    Accordingly, we

affirm the district court's denial of Arditi's motion to

remand the case to state court and dismissal of the action

for failure to state a claim upon which relief may be

granted.

                      STATEMENT OF THE CASE

1.   The Facts

            The following facts are undisputed.

            From 1982 to 2000, Arditi was employed by

Lighthouse as a "vision scientist."    During this time, under

the Plan, Arditi accrued 18.83 years of service credit.


                               -3-
            In 2000, Arditi left Lighthouse, accepting

employment elsewhere.     After his departure, Lighthouse

amended the Plan, adding a "Rule of 85," which entitled any

qualified employee to retire and collect her pension

benefits before the age of 65 if the sum of the employee's

age and years of vested service were equal to or greater

than 85.1    The Plan also reserved Lighthouse's right to

amend the Plan, stating: "Lighthouse reserves the right at




     1
            The relevant provisions of the Plan were as follows:

            Effective April 1, 2001, if a Member's
            combined age and years of Vesting Service
            equals 85 or more the early retirement
            benefit shall be equal to his Accrued Benefit
            at such Early Retirement Date; however, such
            early retirement benefit shall not be subject
            to reduction.

            . . .

            If a former Member is reemployed following a
            Period of Severence of more than 12 months,
            he shall again become a Member on his
            Reemployment Date. Such Member's Vesting
            Service and Credited Service shall be
            restored upon his completion of one year of
            Continuous Service . . .

(Barr Decl., ECF Doc. No. 11-2, Ex. B ¶¶ 5.1(c), 7.3(b), Arditi
v. Lighthouse Int'l, No. 10 Civ. 8416 (S.D.N.Y. Nov. 19, 2010)).

                                 -4-
any time, by action of the Board, to modify or amend the

Plan in whole or in part."   (Barr Decl., Ex. B ¶ 14.1).

         On July 1, 2002, Arditi returned to Lighthouse, in

part to take advantage of the Rule of 85 amendment.   The

Agreement, which was dated June 13, 2002 and signed by both

parties, read as follows:

         With respect to the . . . Plan, in which
         you are already fully vested, your new
         employment here will result in
         reinstatement as a plan member. You now
         have credited service for purposes of
         pension calculation of 18.83 years of
         previous service and the amount of time
         you work here in the future will be
         added.

         Our retirement plan has now added a Rule
         of 85 provision that provides an
         unreduced benefit to employees whose age
         plus years equal 85 or more. As you are
         now age 51, your age plus your years of
         service is approximately 70 years.
         Assuming you continue to work at the
         Lighthouse for another eight years, your
         age then, 59 and years of service then,
         26, would equal 85. At that time if you
         opt to retire you will receive an
         unreduced pension benefit.




                             -5-
(Greenberg Decl., ECF Doc. No. 17-1, Ex. A at 2, Arditi v.

Lighthouse Int'l, No. 10 Civ. 8416 (S.D.N.Y. Dec. 10,

2010)).

            On May 14, 2007, Lighthouse notified Plan members,

including Arditi, that the Plan would be frozen.      Indeed, on

June 30, 2007, before Arditi's age and years of service

reached a total of 85, the Plan was frozen.      The freeze

stopped the accrual of service time for all Plan members.

            On March 19, 2010, Arditi retired.   Because of the

freeze, Lighthouse did not credit Arditi for nearly three

years of service -- from July 1, 2007 (the date Lighthouse

froze the Plan) to March 19, 2010 (the date Arditi retired).

2.   Proceedings Below

            On September 30, 2010, Arditi filed a lawsuit

against Lighthouse in state court, seeking a declaratory

judgment and asserting two causes of action for breach of

contract.    The complaint expressly referred to the Plan and

sought benefits under the Plan.      Lighthouse removed the

action to federal court.    Arditi promptly and voluntarily

discontinued the action.


                               -6-
          On November 2, 2010, Arditi repleaded his claims

and refiled the lawsuit in state court.    The new complaint

contained the same two causes of action as the first

complaint, but eliminated certain direct references to the

Plan and to ERISA.

          The second action was also removed to federal

court.   On November 15, 2010, Arditi filed a motion to

remand to state court.   On November 19, 2010, Lighthouse

filed a motion to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6).

          On January 18, 2011, the district court denied

Arditi's motion to remand and dismissed the complaint.

Arditi v. Lighthouse Int'l, No. 10 Civ. 8416, 2011 WL 166919

(S.D.N.Y. Jan. 18, 2011).    The district court held that

Arditi's claim was properly removed to federal court because

it was preempted by ERISA.    Id. at *4; see ERISA § 502, 29

U.S.C. § 1132.   The district court also held that dismissal

of the complaint was warranted because Arditi failed to




                              -7-
state any basis for challenging Lighthouse's authority to

amend the Plan.     Arditi, 2011 WL 166919, at *4.

           This appeal followed.

                            DISCUSSION

           We review a district court's ERISA preemption

ruling and 12(b)(6) dismissal for failure to state a claim

de novo.    Stevenson v. Bank of N.Y. Co., 609 F.3d 56, 59 (2d

Cir. 2010) (preemption ruling); Selevan v. N.Y. Thruway

Auth., 584 F.3d 82, 88 (2d Cir. 2009) (Rule 12(b)(6)

dismissal).     First, we examine the district court's denial

of Arditi's motion to remand the case to state court.

Second, we consider the district court's dismissal of the

case for failure to state a claim.

I.   Motion to Remand

     A.    Applicable Law

           1.   Removal

           "[A]ny civil action brought in a State court of

which the district courts of the United States have original

jurisdiction, may be removed by the defendant" to federal

court.    28 U.S.C. § 1441(a).    District courts have original


                                 -8-
jurisdiction over "federal question" cases, or cases

"arising under the Constitution, laws, or treaties of the

United States."   28 U.S.C. § 1331.    To determine if a case

involves a federal question, courts generally turn to the

"well-pleaded complaint" rule –- that is, courts examine

"what necessarily appears in the plaintiff's statement of

his own claim . . . unaided by anything alleged in

anticipation of avoidance of defenses . . . [that] the

defendant may interpose."    Aetna Health Inc. v. Davila, 542

U.S. 200, 207 (2004) (quoting Taylor v. Anderson, 234 U.S.

74, 75-76 (1914)) (internal quotation marks omitted).

          Complete preemption provides one exception to the

well-pleaded complaint rule.     See id.   "When a federal

statute wholly displaces the state-law cause of action

through complete pre-emption, the state claim can be

removed" to federal court.     Id. (quoting Beneficial Nat.

Bank v. Anderson, 539 U.S. 1, 8 (2003)) (internal quotation

marks omitted).   "ERISA is one of these statutes."     Id. at

208.   "This is so because when the federal statute

completely pre-empts the state-law cause of action, . . .


                               -9-
even if pleaded in terms of state law, [it] is in reality

based on federal law."    Id. at 207-08 (internal quotation

marks omitted).   This exception also prevents plaintiffs

from "avoid[ing] removal" to federal court "by declining to

plead necessary federal questions."    Romano v. Kazacos, 609

F.3d 512, 519 (2d Cir. 2010) (quoting Rivet v. Regions Bank,

522 U.S. 470, 475 (1998) (internal quotation marks omitted).

         2.    ERISA Preemption

         "Congress enacted ERISA to 'protect . . . the

interests of participants in employee benefit plans and

their beneficiaries' by setting out substantive regulatory

requirements for employee benefit plans and to 'provid[e]

for appropriate remedies, sanctions, and ready access to the

Federal courts.'"    Davila, 542 U.S. at 208 (quoting 29

U.S.C. § 1001(b)).    Section 502(a)(1)(B) of ERISA provides

participants or beneficiaries with a civil remedy to recover

benefits due under their plans, to enforce rights under

their plans, or to clarify rights to future benefits under

their plans.   ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a).




                              -10-
          To establish a "uniform regulatory regime over

employee benefit plans," and "to ensure that employee

benefit plan regulation is exclusively a federal concern,"

ERISA includes expansive pre-emption provisions.   Davila,

542 U.S. at 208 (internal quotation marks and citations

omitted); see ERISA § 514, 29 U.S.C. § 1144.   ERISA provides

that it "shall supersede any and all State laws insofar as

they may now or hereafter relate to any employee benefit

plan."   ERISA § 514, 29 U.S.C. § 1144.

          Under the Supreme Court's test in Davila, ERISA

preempts a cause of action where: (1) "an individual, at

some point in time, could have brought his or her claim

under ERISA § 502(a)(1)(B);" and (2) "no other independent

legal duty . . . is implicated by a defendant's actions."

Davila, 542 U.S. at 210; see Montefiore Med. Ctr. v.

Teamsters Local 272, 642 F.3d 321, 328 (2d Cir. 2011)

(applying the Davila two-part conjunctive test).   To avoid

potential confusion under the first prong of Davila, this

Court has further clarified that the plaintiff must show

that: (a) he is the type of party who can bring a claim


                             -11-
pursuant to § 502(a)(1)(B) of ERISA; and (b) the actual

claim asserted can be construed as a colorable claim for

benefits pursuant to § 502(a)(1)(B).       Montefiore, 642 F.3d

at 328.

    B.     Application

           1.   ERISA Preemption

           First, in this case, Davila's first prong is

satisfied because Arditi could have brought his claim under

ERISA.    See Davila, 542 U.S. at 210.     Indeed, he did so in

his complaint in the first action.       Under Montefiore, Arditi

is the type of party who can bring an ERISA claim because he

is a Plan participant and he is seeking benefits under the

Plan and, specifically, under the Rule of 85 provision.       See

Montefiore, 642 F.3d at 328.       Additionally, Arditi's actual

claims asserted seek enforcement of specific provisions of

the Plan, "implicate coverage and benefits established by

the terms of the ERISA benefit plan," and "can be construed

as . . . colorable claim[s] for benefits pursuant to §

502(a)(1)(B)."    Id.




                               -12-
            Second, Davila's second prong is also satisfied

because "no other independent legal duty" is implicated by

Lighthouse's actions.    See Davila, 542 U.S. at 210;

Montefiore, 642 F.3d at 328.    Lighthouse's obligations under

the Plan are "inextricably intertwined with the

interpretation of Plan coverage and benefits" and "[do] not

create a sufficiently independent duty under Davila."    See

Montefiore, 642 F.3d at 332.

            To avoid ERISA preemption, Arditi argues that he

is not seeking benefits under the Plan.    Instead, Arditi

claims that he is seeking damages for breach of a promise

separate and independent from the Plan and set forth in the

Agreement, using the Plan merely as a benchmark for damages.

            The argument fails because Arditi was in fact a

participant in the Plan and his pension rights arose under

the Plan.    When Arditi rejoined Lighthouse, the Agreement

stated: "With respect to the Lighthouse International

Pension Plan, in which you are already fully vested, your

new employment here will result in reinstatement as a plan

member."    (Greenberg Decl., Ex. A at 2 (emphasis added)).


                               -13-
The Agreement further described Lighthouse's "Rule of 85"

provision as a new addition to "[o]ur retirement plan."

(Greenberg Decl., Ex. A at 2).         Hence, the language of the

Agreement makes clear that Arditi was being "reinstate[d]"

into the Plan, and that the Rule of 85 provision had been

"added" to the Plan.   (Id.).    The Agreement described the

benefits that Arditi would acquire upon his return to the

Plan and made clear that Arditi's benefits arose from, and

were governed by, the terms of the Plan.         The Plan provided

more than a mere benchmark for calculating damages; indeed,

it was the basis for the claimed benefits.        Thus, as the

district court correctly held, the Agreement did not

establish a separate and independent promise; rather,

Arditi's claims derived directly from the Plan.

         The Dissent argues that "[a]lthough Arditi was a

participant in the Plan and entitled to receive a reduced

benefit under it, he raises at least a colorable claim that

his right in general to receive 'an unreduced pension

benefit' upon retirement -- that is, a different benefit

from that payable under the Plan -- arises under the express


                                -14-
terms of his employment agreement."      (Dissent Op. at 6-7

(emphasis in dissenting opinion) (quoting Greenberg Decl.,

Ex. A at 2)).   The phrase "unreduced pension benefit"

appears in the last sentence of the second paragraph of the

second page of the Agreement.      (Greenberg Decl., Ex. A at

2).   That paragraph, however, begins as follows:      "Our

retirement plan has now added a Rule of 85 provision that

provides an unreduced benefit to employees whose age plus

years equal 85 or more."    (Greenberg Decl., Ex. A at 2

(emphases added)).   In context, then, it is clear that the

"unreduced pension benefit" arose from the Plan and not the

Agreement.

          Further, Stevenson, the case on which Arditi

relies, is easily distinguishable.       There, the plaintiff

left the employ of the defendant bank.       609 F.3d at 60.    The

bank nonetheless promised to "maintain [the plaintiff's]

benefits" under its pension plan, even though pension

beneficiaries would normally lose coverage upon ending their

employment with the bank.    Id.     This Court held that the

plaintiff's complaint did "not derive[] from the particular


                              -15-
rights and obligations established by [any] benefit plan[]

. . . but rather[,] from a separate promise that references

various benefit plans."     Id. at 60-61 (quoting Davila, 542

U.S. at 213) (internal quotation marks and citations

omitted).

            Here, there is nothing in the Agreement that is

comparable to the promises made in Stevenson.     See id. at

60.     In Stevenson, an agreement separate and independent

from the pension plan governed the plaintiff's benefits

because the plaintiff was no longer in the bank's employ and

was no longer a participant in the bank's plan.     Id. at 60-

61.     Whatever rights the plaintiff had arose not from the

bank's plan, but from the independent agreement that gave

him benefits even though he had no right to them under the

plan.     Here, the Agreement expressly referred to Arditi's

"reinstatement" into the Plan as a Lighthouse employee and

described Arditi's benefits under the Plan upon his return

to Lighthouse.     The Agreement merely described the benefits

Arditi would receive as a Plan member; it made no promises




                               -16-
of benefits separate and independent from the benefits under

the Plan.

            Accordingly, we agree with the district court that

Arditi's claims are preempted by ERISA.

            2.   Removal

            The district court properly denied Arditi's motion

to remand the case to state court because Arditi's state law

claims are preempted by ERISA.        The suit was properly

removed to federal court, the district court had federal

jurisdiction over the case, and remand to state court was

not warranted.     See 28 U.S.C. §§ 1331, 1441(a).

II. Motion to Dismiss

            "To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.        A

claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged."    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(internal quotation marks and citations omitted).


                               -17-
            Here, the district court properly dismissed

Arditi's complaint because he failed to state a claim for

relief that was plausible on its face.    See id.   Arditi did

not challenge Lighthouse's authority to amend the Plan;

indeed, Arditi conceded that Lighthouse had the authority to

freeze the Plan.    Accordingly, the district court properly

dismissed Arditi's action for failure to state a plausible

claim.   Id.

                           CONCLUSION

            We have considered Arditi's remaining arguments

and conclude that they are without merit.    For the reasons

set forth above, the judgment of the district court is

AFFIRMED.




                              -18-
PRESKA, Chief District Judge, dissenting:

         The majority’s decision today reaches beyond the

squarely presented question of whether Arditi’s claims are

preempted by ERISA and in so doing effectively reaches the

merits of his underlying state law contract claim against

Lighthouse.   Because the proper forum for resolving the

underlying contract claim is the state court and the

majority’s holding eviscerates any distinction between the

federal preemption and state law merits questions, I

respectfully dissent.

         As the majority notes, in determining whether a

case involves a federal question such that remand to a state

court would be inappropriate, courts look to the “well-

pleaded complaint” - examining “what necessarily appears in

the plaintiff’s statement of his own claim . . . unaided by

anything alleged in anticipation of avoidance of defenses

. . . [that] the defendant may interpose.”   Aetna Health

Inc. v. Davila, 542 U.S. 200, 207 (2004) (quoting Taylor v.

Anderson, 234 U.S. 74, 75-76 (1914)) (internal quotation

marks omitted).   For the policy reasons described by the

majority, ERISA serves as an exception to this rule because
it “wholly displaces the state-law cause of action through

complete pre-emption.”    Id. (quoting Beneficial Nat’l Bank

v. Anderson, 539 U.S. 1, 8 (2003)) (internal quotation marks

omitted).    This exception does, as the majority suggests,

prevent plaintiffs from “avoid[ing] removal” to federal

court “by declining to plead ‘necessary federal questions.’”

Romano v. Kazacos, 609 F.3d 512, 519 (2d Cir. 2010) (quoting

Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)).

            ERISA preemption does not occur, however, solely

because a state law claim may alternatively be a colorable

claim under the ERISA statute.       Under the Supreme Court’s

test in Davila, ERISA preempts a cause of action where: (1)

“an individual, at some point in time, could have brought

his or her claim under ERISA § 502(a)(1)(B);” and (2) “no

other independent legal duty . . . is implicated by a

defendant’s actions.”    Davila, 542 U.S. at 210.     This Court

has clarified that the first prong of Davila is satisfied

where: (a) a plaintiff is the type of party who can bring a

claim pursuant to § 502(a)(1)(B) of ERISA; and (b) the

actual claim asserted can be construed as a colorable claim

for benefits pursuant to § 502(a)(1)(B).       See Montefiore

                               -2-
Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 328 (2d Cir.

2011).   The majority concludes that the first prong of the

Davila test is satisfied because Arditi could have brought

his claim under ERISA and because Arditi is the type of

party who can bring an ERISA claim as a Plan participant

seeking benefits under the Rule of 85 provision.    See

Majority Opinion (“Majority Op.”) at 12.   Though it is not

at all clear to me that Arditi could make a colorable claim

for his specific requested relief under the Plan’s Rule of

85 provision (as the Plan was validly amended to exclude

this benefit, (Barr Decl., ECF Doc. No. 11-2, Ex. B ¶ 14.1,

Arditi v. Lighthouse Int’l, No. 10 Civ. 8416 (S.D.N.Y. Nov.

19, 2010)), I will accept it as true for the purposes of

this opinion.

          Even if the majority is correct in concluding that

Davila’s first prong is met, ERISA preemption still does not

occur unless “no other independent legal duty . . . is

implicated by a defendant’s actions.”   Davila, 542 U.S. at

210 (emphasis added).   The two Davila prongs are

independent; otherwise courts could essentially collapse

them into one by finding that a plaintiff’s claim is a

                             -3-
colorable one under ERISA and going no further.     The

majority appears to do so here.      See Majority Op. at 12-13.

The majority concludes that Lighthouse’s obligations to

Arditi under the Plan are “inextricably intertwined with the

interpretation of Plan coverage and benefits” and therefore

“[do] not create a sufficiently independent duty under

Davila.”    See id. at 13 (citing Montefiore, 642 F.3d at

332).   As this Court recently stated, however, an

independent legal duty incorporating Plan benefits or

relying on Plan terms and calculations does not in itself

lead to ERISA preemption.    See Stevenson v. Bank of N.Y.

Co., 609 F.3d 56, 61 (2d Cir. 2010).     Courts must look to

the nature of a plaintiff’s claim of an independent legal

duty (and therefore to “defendant’s actions,” Davila, 542

U.S. at 210) for guidance.

            The majority’s analogy to this Court’s prior

holding in Montefiore on this point is flawed in two

respects.    First, the plaintiff health services provider in

Montefiore claimed that the relevant independent legal duty

arose in quasi-contract - specifically, that prior to

providing services to each beneficiary under the Defendant

                               -4-
Fund’s Plan, Montefiore called the Fund and verified that

the patient was eligible and the anticipated services were

covered, and that these verbal communications gave rise to

an independent legal duty between Montefiore and the Fund.

Montefiore, 642 F.3d at 332.      This Court concluded that

these verbal communications were insufficient on their face.

Id.   Second, and most critically, this Court observed in

Montefiore that “this pre-approval process was expressly

required by the terms of the Plan itself” and was therefore

“inextricably intertwined with the interpretation of Plan

coverage and benefits.”    Id.    These facts starkly contrast

with those in this case.

            First, Arditi claims that an independent legal

duty arose in this case as a matter of pure contract law,

citing the text of his 2002 employment agreement with

Lighthouse which states: “Assuming you continue to work at

the Lighthouse for another eight years, your age then, 59

and years of service then, 26, would equal 85.      At that time

if you opt to retire you will receive an unreduced pension

benefit.”    (Greenberg Decl., ECF Doc. No. 17-1, Ex. A at 2,

Arditi v. Lighthouse Int’l, No. 10 Civ. 8416 (S.D.N.Y. Dec.

                                 -5-
10, 2010) (emphasis added)).      Essentially Arditi argues that

this independent undertaking by his employer exempted him

from the admittedly valid freezing of the Plan applicable to

all other Plan participants and constituted a promise by the

employer to make up the difference between the “unreduced

pension benefit” allegedly promised in the agreement and the

reduced pension benefit payable under the frozen Plan.

Moreover, unlike in Montefiore, Lighthouse was under no

specific obligation under the terms of the Plan itself to

make this separate promise in Arditi’s employment contract.

Arditi argues on appeal, consistent with our prior holding

in Stevenson, that he is seeking damages for breach of a

promise made separately and independently from the Plan

enrollment, but referencing its terms as a benchmark for

calculation.

          In rejecting Arditi’s arguments, the majority

states that they must fail because he was a participant in

the Plan and his right to a pension arose solely under the

Plan.   See Majority Op. at 13.      This goes too far.   Although

Arditi was a participant in the Plan and entitled to receive

a reduced benefit under it, he raises at least a colorable

                               -6-
claim that his right in general to receive “an unreduced

pension benefit” upon retirement - that is, a different

benefit from that payable under the Plan - arises under the

express terms of his employment agreement.   This is

precisely the species of claim this Court has already stated

is not preempted by ERISA.   See, e.g., Stevenson, 609 F.3d

at 61 (“The BNY benefits plans may provide a benchmark for

determining claimed damages, but such damages would be

payable from BNY’s own assets, not from the plans

themselves.”).   So too in this case.   Arditi’s Complaint

alleges an independent contractual duty to pay an unreduced

pension benefit as a condition of his employment with

Lighthouse “separate and apart from any obligation

[Lighthouse] might have had under the Pension Plan.”    (Barr

Decl., Ex. A at 8).   As this allegation makes clear, Arditi

is not merely seeking a claim of right under the Plan but

damages for breach of an independent contractual obligation,

not necessarily payable from the Plan itself but from

Lighthouse’s own assets.   This claim for relief is entirely

consistent with this Court’s holding in Stevenson and is not

preempted by ERISA.

                             -7-
          The majority attempts to distinguish Stevenson by

pointing to the fact that Stevenson had left the employ of

the defendant bank, and the bank had nonetheless promised to

“maintain [the plaintiff’s] benefits” under its pension plan

even though pension beneficiaries normally lost coverage

upon terminating their employment.     See Majority Op. at 15-

16; Stevenson, 609 F.3d at 60.     Because the Stevenson

plaintiff was expressly not an employee and therefore no

longer a member of the Plan, the majority argues, he can

establish an independent obligation that Arditi cannot.     See

Majority Op. at 15-16.   This current/former employee

distinction is arbitrary and is not compelled by Stevenson

itself.   Unless the majority is prepared to hold today that

current employees enrolled in ERISA-style benefit plans can

never demonstrate that their employers have made them an

independent promise calculated by reference to an existing

plan, as in Stevenson, then the majority is simply

evaluating the relative strength of the Stevenson and Arditi

promises when it says “there is nothing in the Agreement

that is comparable to the promises made in Stevenson.”     See

id. at 16.   Evaluating the strength of Lighthouse’s promise

                             -8-
to Arditi in his employment agreement, however, is of course

a matter of state contract interpretation rather than a

matter of ERISA preemption.   It is sufficient that Arditi

points to a contract outside his enrollment in the Plan and

raises a colorable claim that it establishes an independent

legal duty between Lighthouse and himself.    Actually

adjudicating that contract claim is the province of the

state court of competent jurisdiction.

         Indeed, it is troubling that in reaching its

holding today, the majority is forced to decide several

ultimate issues of contract interpretation.    This Court is

forced to conclude, for example, that the language in the

employment agreement referring to “reinstatement as a plan

member,” (Greenberg Decl., Ex. A at 2), outweighs the

language stating “[a]t that time if you opt to retire you

will receive an unreduced pension benefit,” (id.).       See

Majority Op. at 13-15.   The majority concludes that the

employment agreement only “described the benefits that

Arditi would acquire upon his return to the Plan and made

clear that Arditi’s benefits arose from, and were governed

by, the terms of the Plan.”   Id. at 14.   The fact this panel

                              -9-
cannot agree on what, if anything, the employment agreement

“made clear” with regard to the pension benefit seems to cut

against this holding and speaks to at least a fact question

on contract interpretation.     Moreover, it is clear that the

majority here again views Arditi’s enrollment in the Plan

and ongoing employment with Lighthouse to be fatal to his

claim, even if it does not state this in such pejorative

terms.   That Arditi is a Plan beneficiary does not, in my

view, heighten his burden in raising a colorable claim of an

extra-Plan independent legal duty based on “[D]efendant’s

actions.”    Davila, 542 U.S. at 210.   Here, Arditi has done

so.   That it may be less clear-cut than the promise at issue

in Stevenson is of no moment.    A plaintiff raising a

colorable independent claim of state contract law is not

required to prove his case in federal court in order to

avoid ERISA preemption.

            Thus, the majority has collapsed the two Davila

prongs into one: having found that Arditi’s claim could

possibly have been brought as a direct claim for Plan

benefits under ERISA, it essentially stops there.     The

majority is only able to conclude cursorily that the second

                              -10-
Davila prong is satisfied by arbitrarily distinguishing

Stevenson and pointing to the clearly distinguishable facts

in Montefiore as evidence that Arditi’s claim is also

“inextricably intertwined with the interpretation of Plan

coverage and benefits.”    Montefiore, 642 F.3d at 332.

Ironically, it was in Montefiore that this Court expressly

warned of the danger of confusing the two Davila prongs in

this way:

            [I]n situations in which a party seeks
            remand to a state court, it [is] easy to
            overlook the distinction between a claim
            (1) brought solely pursuant to an
            independent duty that has nothing to do
            with ERISA, and a claim which (2) could
            have been brought under ERISA, but also
            rests on “[an]other independent legal
            duty that is implicated by [the]
            defendant's actions.” The former fails to
            satisfy the first prong of Davila because
            it does not state a “colorable claim” for
            benefits, Firestone Tire & Rubber Co. v.
            Bruch, 489 U.S. 101, 117-18 (1989), and
            therefore could not have been brought
            under ERISA, and the latter fails to
            satisfy the second prong of Davila.
            Davila, 542 U.S. at 210.

Montefiore, 642 F.3d at 328.     It is for this reason that the

fact that Arditi first styled his action as one for benefits




                               -11-
under the Plan is not relevant to our decision today.   See,

e.g., Majority Op. at 6-7.

         For these reasons, I respectfully dissent.




                             -12-
