United States District Court, D. Nebraska
MEMORANDUM AND ORDER
John M. Gerrard United States District Judge
The plaintiff, Don Hendrickson, is suing the defendant, United of Omaha Life Insurance Company, for breach of contract stemming from the defendant’s denial of payment under a life insurance policy. The defendant has moved to dismiss the complaint. Filing 6. For the reasons set forth below, the motion to dismiss will be granted, but plaintiff will be given until March 3, 2016 to file a motion for leave to amend his complaint.
The plaintiff was married to the now deceased Susan Hendrickson, a former employee of ConAgra, Inc. (“ConAgra”). ConAgra made life insurance available to its employees to provide death benefits to its employees or the employees’ beneficiaries. Through this program the defendant issued two life insurance policies (the “Policies”) to Susan Hendrickson. ConAgra is the listed owner of both policies.
After Susan Hendrickson’s death, Don Hendrickson made a claim for benefits under the Policies. His claim was denied, and he appealed the defendant’s decision through the administrative process established in the Polices. The defendant overruled the appeal and affirmed the denial of the claim.
Don Hendrickson filed a complaint in the District Court of Douglas County, Nebraska on June 9, 2015. Filing 1-1. Plaintiff’s only claim was based on an alleged breach of contract under state law. Defendant promptly removed the action to this Court and moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, defendant argues plaintiff’s state law claim for breach of contract is completely preempted by the Employee Retirement Income Security Act (“ERISA”); therefore, it must be dismissed.
STANDARD OF REVIEW
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. Id.While the Court must accept as true all facts pleaded by the nonmoving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679.
ERISA applies to an employee benefit plan which is established or maintained:
(1) by any employer engaged in commerce or in any industry or activity affecting commerce; or
(2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or
(3) by both.
29 U.S.C. § ...