       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Husvar, et al. v. Rapoport, et al.           No. 01-4254
   ELECTRONIC CITATION: 2003 FED App. 0242P (6th Cir.)
                File Name: 03a0242p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ARGUED: Robert A. Steinberg, WAITE, SCHNEIDER,
              FOR THE SIXTH CIRCUIT                      BAYLESS & CHESLEY, Cincinnati, Ohio, for Appellants.
                _________________                        Robert E. Zimet, SKADDEN, ARPS, SLATE, MEAGHER &
                                                         FLOM, New York, New York, for Appellees. ON BRIEF:
                                                         Robert A. Steinberg, WAITE, SCHNEIDER, BAYLESS &
JAMES R. HUSVAR, SIDNEY B. X                             CHESLEY, Cincinnati, Ohio, Richard S. Wayne, STRAUSS
GUTZWILLER, ROBERT V.              -                     & TROY, Cincinnati, Ohio, for Appellants. Robert E. Zimet,
                                   -                     Susan L. Saltzstein, SKADDEN, ARPS, SLATE, MEAGHER
CARUSO , and RONALD W.                                   & FLOM, New York, New York, for Appellees.
                                   -    No. 01-4254
BARNETT , individually and as      -
the representatives of the          >                                         _________________
                                   ,
plaintiff class,                   -                                              OPINION
           Plaintiffs-Appellants, -                                           _________________
                                   -
             v.                    -                        MARTHA CRAIG DAUGHTREY, Circuit Judge. The
                                   -                     plaintiffs, all of whom are shareholders and former employees
                                   -                     of Mosler, Inc., brought this class action in Ohio state court
MICHEL RAPOPORT , WILLIAM
                                   -                     against the company itself and against four members of the
A. MARQUARD , THOMAS R.            -                     Mosler board of directors, seeking recompense for the
WALL , IV, and ROBERT A.           -                     diminution in value of company stock that, in part, was used
YOUNG , III,                       -                     to fund employee retirement plans. Although the plaintiffs
          Defendants-Appellees. -                        couch their causes of action in terms of direct and derivative
                                  N                      claims for breach of fiduciary duty under state law, the district
                                                         court concluded that the complaint and amended complaint
      Appeal from the United States District Court       filed by the plaintiffs actually implicated the Employee
     for the Southern District of Ohio at Cincinnati.    Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
   No. 01-00430—Sandra S. Beckwith, District Judge.      §§ 1001-1461, and thus was properly removable to federal
                                                         court. Ultimately, however, the district court dismissed the
                  Argued: May 7, 2003                    action in its entirety on motion of the defendants, based not on
                                                         ERISA but on a finding that the plaintiffs lacked standing to
            Decided and Filed: July 23, 2003             bring a derivative action because the nominal defendant,
                                                         Mosler, was involved in bankruptcy proceedings.
Before: GUY, BOGGS, and DAUGHTREY, Circuit Judges.



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No. 01-4254            Husvar, et al. v. Rapoport, et al.      3     4     Husvar, et al. v. Rapoport, et al.           No. 01-4254

   On appeal, the plaintiffs contend that the district court erred   employees and caused a “drastic reduction in the value of
in denying their motion to remand the action to state court and      Mosler’s stock and the resultant destruction of most of
thus had no jurisdiction to enter an order of dismissal on the       Mosler’s employees’ retirement funds.” The complaint
merits. For the reasons set out below, we agree that the district    contained both a direct common law claim for relief that
court lacked jurisdiction over what appear to be solely state-       alleged financial injury to the class members “[a]s a proximate
law claims. We therefore find it necessary to reverse the            result of these breaches of fiduciary duty,” and a derivative
district court’s judgment, vacate the order of the district court    common law claim, alleging damage and injury to the
denying the plaintiffs’ motion to remand, and remand the case        company and to the shareholders as a result of those same
to the district court with directions to remand this matter to the   breaches.
Ohio state courts for resolution of the plaintiffs’ claims.
                                                                        The defendants subsequently sought removal of the
    FACTUAL AND PROCEDURAL BACKGROUND                                litigation to federal district court. In so doing, they recognized
                                                                     that the complaint did not “on its face contain a federal
   As non-union employees of Mosler, Inc., the plaintiffs            question.” Nevertheless, they argued that the ESOP was an
received shares of company stock in conjunction with their           ERISA-covered plan and that the complaint’s perceived
participation in an employee stock option plan (ESOP). As            allegations of improper management of that plan resulted in
alleged in the amended complaint filed in this matter,               the complete federal preemption of all matters relating to that
“Mosler’s ESOP is a defined contribution stock bonus plan for        entity. Claiming that the plaintiffs failed to exhaust
which all salaried non-union employees are eligible. Mosler          administrative remedies and failed to comply with
has funded the ESOP primarily with its own common and                requirements for filing derivative actions, the defendants also
preferred stock.”                                                    moved to dismiss the complaint “for failure to state a claim
                                                                     upon which relief may be granted.”
   According to the plaintiffs, the company’s fortunes, under
the direction of defendants Michel Rapoport, William A.                In response to the attempt to terminate the litigation, the
Marquard, Thomas R. Wall, IV, and Robert A. Young, III,              plaintiffs then filed both an amended complaint in district
spiraled downward dramatically. Regardless of that negative          court and a motion to remand the matter to state court. In the
trend, however, Rapoport continued to receive substantial            amended complaint, they attempted to remove any indications
performance bonuses and additional stock issuances authorized        that the action was brought pursuant to ERISA. Instead, the
by the board of directors. The remaining defendants also             plaintiffs sought payment only for “the value of the stock lost”
benefitted from various bonuses and fees, while the value of         as a result of defendants’ actions, not “the value of all benefits
the common and preferred stock distributed to the named              lost,” as prayed for in the original complaint. The district
plaintiffs and other putative class members tumbled at least 80      court nevertheless denied the motion to remand, ruling that,
percent.                                                             despite the artful crafting of the language of the complaint,
                                                                     “Plaintiffs seek to recover the loss of value of the retirement
  Faced with the prospect of complete dissolution of their           savings that was occasioned by the individual Defendants’
retirement funds due to the perceived mismanagement of the           mismanagement of the corporation and the ESOP.” According
company by the defendants, the plaintiffs originally filed a         to the district judge, such a prayer can be asserted only by
class action suit in Ohio state court claiming that those            participants of the employee benefit plan and is governed
defendants breached their fiduciary responsibilities to the
No. 01-4254             Husvar, et al. v. Rapoport, et al.       5     6      Husvar, et al. v. Rapoport, et al.         No. 01-4254

preemptively by ERISA, thus vesting the federal courts with                essentially an accession to the dismissal of that claim.
jurisdiction over the dispute.                                             This Court may not entertain jurisdiction over a claim
                                                                           asserted by a party without standing on the basis of an
   During the pendency of that motion, Mosler, Inc., filed a               hypothesis that it may gain subject matter jurisdiction in
bankruptcy petition, effectively staying all claims for monetary           the course of future events.
damage against the company itself. The remaining, individual
defendants, however, continued their efforts to be dismissed           From that order of dismissal, as well as from the district
from the suit as well and filed a second motion to dismiss. In         court’s denial of the motion to remand, the plaintiffs now
that filing, the defendants contended that the plaintiffs lacked       appeal.
standing to prosecute the derivative action described in the
complaint because, in the absence of abandonment, only the                                      DISCUSSION
debtor-in-possession of Mosler’s bankruptcy estate (the
bankruptcy trustee) can prosecute such a claim. The                      We review a denial of a motion for remand de novo. See
defendants further argued that the direct claims of breach of          Peters v. Lincoln Elec. Co., 285 F.3d 456, 465 (6th Cir. 2002).
fiduciary duty should also be dismissed.                               Thus, in this case, we must examine the amended complaint to
                                                                       determine whether the claims raised therein are not only
  In response, the plaintiffs asserted that they “no longer            preempted by ERISA, but also are so tied to the statutory
intend to pursue the direct claims currently alleged in the            scheme that federal courts, and only federal courts, must
Amended Complaint. As such, the issues contained in                    exercise jurisdiction over their resolution.
Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint with respect to Plaintiffs’ direct claims and class             Generally, a defendant is entitled to remove a cause of action
action allegations are moot.” Furthermore, the plaintiffs did          from state court to federal court when the federal district court
not “dispute that Mosler’s filing of a Chapter 11 Petition             would “have original jurisdiction founded on a claim or right
extinguished their rights to pursue a shareholder derivative           arising under the Constitution, treaties or laws of the United
action at this time.” They requested, however, that the district       States.” 28 U.S.C. § 1441(b). In determining whether an
court stay its ruling on the defendants’ motion to dismiss that        action meets this removal requirement, courts analyze the
claim pending a ruling by the bankruptcy court on another              litigation under the “well-pleaded complaint rule.” See
motion by the plaintiffs in that forum seeking abandonment by          Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Pursuant
the trustee of the derivative cause of action.                         to that “rule,” the federal judiciary recognizes that “the
                                                                       plaintiff is the master of the complaint, that a federal question
  In light of the plaintiffs’ assertions in their court filings, the   must appear on the face of the complaint, and that the plaintiff
district court dismissed the federal court action in its entirety.     may, by eschewing claims based on federal law, choose to
Specifically, the court “construe[d] Plaintiffs’ statement             have the cause heard in state court.” Id. at 398-99.
regarding the direct claim in the amended complaint as an
accession to the dismissal of that claim.” Moreover, the                 Consequently, because a defendant’s argument that a cause
district judge ruled:                                                  of action is preempted by federal law does not appear on the
                                                                       face of a well-pleaded complaint, the doctrine of preemption
  Plaintiffs’ concession that they do not have standing to             does not alone necessarily authorize removal to federal court.
  assert the derivative claim in the amended complaint is              See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
No. 01-4254            Husvar, et al. v. Rapoport, et al.    7     8      Husvar, et al. v. Rapoport, et al.         No. 01-4254

“One corollary of the well-pleaded complaint rule developed        defense to a state-law claim does not, in general, confer federal
in the case law, however, is that Congress may so completely       subject-matter jurisdiction”).
pre-empt a particular area that any civil complaint raising this
select group of claims is necessarily federal in character.” Id.      Clearly, the plaintiffs’ amended complaint does not
                                                                   specifically mention ERISA and does not overtly purport to
  The defendants in this case assert that ERISA’s overarching      invoke federal jurisdiction under that statutory scheme.
preemption provision constitutes an example of just such an        Nevertheless, an action can still be removed to federal court,
intent on the part of Congress to vest federal courts with         and a subsequent motion for remand be denied, “where the real
exclusive jurisdiction over all disputes involving employee        nature of the claim asserted in the complaint is federal,
benefit and pension plans. In Warner v. Ford Motor Co., 46         irrespective of whether it is so characterized.” Sable v. Gen.
F.3d 531, 535 (6th Cir. 1995), however, this court                 Motors Corp., 90 F.3d 171, 174 (6th Cir. 1996) (quoting 1A J.
unanimously held, in an en banc decision, that “[r]emoval and      MOORE & B . RINGLE , MOORE ’S FEDERAL PRACTICE ¶ 0.160[3.-
preemption are two distinct concepts.” As the court explained:     3] (2d ed. 1987)). In Smith, this court noted that claims to
                                                                   recover ERISA benefits under 29 U.S.C. § 1132(a)(1)(B) are
  Removal is allowed in § 1132(a)(1)(B) type cases under           clearly federal in nature and must be brought in federal court.
  Metropolitan Life because of the Court’s conclusion that         See Smith, 170 F.3d at 613. We then found “little reason to
  Congress intended federal law to occupy the regulated            distinguish between” § 1132(a)(1)(B) claims and claims for
  field of pension contract enforcement. State claims for          breaches of fiduciary duties brought pursuant to 29 U.S.C.
  damages or injunctive relief to enforce a pension plan           § 1132(a)(2), and stated:
  against an employer or trustee are subject to removal.
  State causes of action not covered by § 1132(a)(1)(B) may            ERISA is at least as concerned with defining and
  still be subject to a preemption claim under § 1144(a) . . .         standardizing the duties of a fiduciary as it is with
  because the state law at issue may “relate to” a pension or          providing for recovery of benefits. A claim for breach of
  employee benefit plan. But such actions are not subject to           fiduciary duty against a fiduciary of an ERISA plan
  removal.                                                             necessarily presents a federal question. Thus, [a] state-
                                                                       law fiduciary duty claim is not only preempted but also
                            .....                                      provides federal subject-matter jurisdiction.
    “The fact that a defendant might ultimately prove that         Id. (citations omitted).
  a plaintiff’s claims are pre-empted” – for example under
  § 1144(a) – “does not establish that they are removable to         In this case, however, the complaint being examined does
  federal court.” Caterpillar, 482 U.S. at 398 . . . . The         not challenge the actions of a plan fiduciary. Instead, the
  federal preemption defense in such nonremovable cases            complaint merely questions the propriety of certain business
  would be decided in state court and would be subject to          decisions made by the company’s board of directors.
  review on certiorari in the U.S. Supreme Court.                  Although those decisions, without question, affected the value
                                                                   of the company stock that comprised the employees’ benefit
Id. See also Smith v. Provident Bank, 170 F.3d 609, 613 (6th       plan assets, that fact alone does not transform a state-law
Cir. 1999) (“the mere availability of a federal preemption         breach of fiduciary duty claim into a federal ERISA action. As
                                                                   this court concluded in Grindstaff v. Green, 133 F.3d 416, 423-
No. 01-4254            Husvar, et al. v. Rapoport, et al.    9     10   Husvar, et al. v. Rapoport, et al.           No. 01-4254

24 (6th Cir. 1998), quoting from the Eighth Circuit decision in      In view of this conclusion, the plaintiffs’ contention that the
Hickman v. Tosco, 840 F.2d 564, 566 (8th Cir. 1988):               district court erred in dismissing their amended complaint for
                                                                   failure to state a claim upon which relief could be granted is
  “ERISA does not prohibit an employer from acting in              moot.
  accordance with his interests as an employer when not
  administering the plan or investing the assets.” In fact, in                            CONCLUSION
  Hickman, the Eighth Circuit specifically observed that
  “day-to-day corporate business transactions, which may              The mere fact that the plaintiffs’ amended complaint
  have a collateral effect on prospective, contingent              referenced alleged actions undertaken by the defendants that
  employee benefits [do not have to] be performed solely in        ultimately resulted in a diminution in value of the assets of the
  the interest of plan participants.” In Martin v. Feilen,         plaintiffs’ retirement plan does not necessarily vest the federal
  [965 F.2d 660 (8th Cir. 1992)], the court concluded that         judiciary with jurisdiction over this matter. Because we hold
  Hickman applied to ESOPs, noting that “[v]irtually all of        that the amended complaint actually raised only state-law
  an employer’s significant business decisions affect the          issues involving the legitimacy of business decisions made by
  value of its stock, and therefore the benefits that ESOP         the defendants, and the record does not establish diversity
  plan participants will ultimately receive.” 965 F.2d at 666      jurisdiction, we find it necessary to VACATE the order
  (observing that section 1104 only applies to “transactions       denying the plaintiffs’ motion for remand to state court.
  that involve investing the ESOP’s assets or administering        Because such a remand was proper, the district court then had
  the plan.”)                                                      no jurisdiction to enter an order of dismissal. The case is
                                                                   therefore REMANDED to the district court with directions to
   A close examination of the plaintiffs’ amended complaint        remand the matter to the state court.
reveals that nowhere in that document do the former
employees allege that the defendants themselves mismanaged
any fund designated as a pension benefit plan for company
workers. Instead, the complaint is replete only with
allegations that the individual defendants mismanaged the
company so as to result in a dramatic decrease in the value of
Mosler stock – a result that, in turn, happened to devalue the
ESOP funded with such stock. A claim that company directors
did not operate the business itself in conformity with sound
business practices does not, however, implicate the protections
afforded by ERISA. Absent any indication in the amended
complaint that the plaintiffs intend to challenge the decisions
or actions of plan fiduciaries, the filing contains no claims
arising under federal law. We conclude, therefore, that the
district judge erred in denying the plaintiffs’ motion to remand
this matter to the state court system for resolution.
