My thanks to Rob Hoskins for his post at about a recent decision from the Northern District of West Virginia that presents a twist on the typical removal-remand scenario. 

Before I get to the case, though, let me plug ERISABoard, which is a discussion forum for attorneys who are interested in ERISA issues.  (I am a moderator on a couple of forums.)  Currently the membership is limited to attorneys, but if your practice includes ERISA and employee benefits issues, I encourage you to join the nearly 400 lawyers who have already registered, and participate in the discussion.  Registration is free. 

Now, back to Consol Energy, Inc. v. Corley, 2008 WL 4610329 (N. D. W. Va. October 15, 2008), which reminds us that although the plaintiff is the “master of the claim,” its choice about where to file suit is not without consequences.

Consol filed suit against James Corley in West Virginia state court in order to recover more than $70,000 in alleged overpayments of long-term disability benefits.  Corley filed an answer and counterclaim, and alleged that Consol had wrongfully denied or withheld benefits under ERISA.  Consol relied on that allegation to remove the action to federal court on the grounds that federal question jurisdiction existed.  Corley moved to remand.

Here is the district’s court analysis:

The issue before this Court is one of removal, and a peculiar removal at that, because it is the plaintiff in this case, and not the defendant, that is seeking removal of this action to federal court.  Consol removed this action to this Court, arguing that federal jurisdiction is proper.  Specifically, Consol asserts that Corley’s counterclaim alleges violations of ERISA without particularly identifying the provisions upon which he bases his claim.  Thus, Consol argues that because Corley’s counterclaims can be construed under several ERISA provisions that a federal court maintains exclusive jurisdiction over, jurisdiction in this Court is appropriate.  This Court disagrees and instead, finds that remand of this action to the state court is necessary.  (Emphasis in original.)

Simply put, a plaintiff cannot remove an action to federal court on the grounds that the counterclaim permits removal: "Once a plaintiff, always a plaintiff.  Likewise, once a defendant, always a defendant."   Because Consol, as the plaintiff, chose to file its complaint in state court, that’s where its case must be heard, even if Corley’s counterclaim asserts federal question jurisdiction.