United States District Court, D. Nebraska
MEMORANDUM AND ORDER
C. BUESCHER UNITED STATES DISTRICT JUDGE.
case comes before the Court on Defendant's Motion to
Dismiss under Fed.R.Civ.P. 12(b)(6). The Court finds that
Plaintiff has failed to state a claim upon which relief can
be granted because his tortious-interference claim is
preempted by the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. §§ 1001-1461, and because there
is no private right of action for his claims under the
Nebraska Unfair Insurance Trade Practices Act, Neb. Rev.
Stat. §§ 44-1521-1535 (Reissue 2010). Accordingly,
the Court grants Defendant's Motion to Dismiss.
case arises out of the payment of benefits under a life
insurance contract administered by Defendant, Lincoln
Financial Group (Lincoln Financial). Filing 1-2 at
2. Plaintiff, Richard Schicker, is a Nebraska attorney.
Filing 1-2 at 2. In September 2017, an individual
named Brandi Cady hired Schicker to represent her in her
claim against Lincoln Financial. Filing 1-2 at 2.
Cady sought payment on a life insurance contract following
the death of her spouse in June 2017. Filing 1-2 at
2. At the time Cady hired Schicker, Lincoln Financial
was refusing to pay the benefits she sought. Filing 1-2
at 2. Under Cady and Schicker's contract, Schicker
was to receive 40% of any amounts Cady recovered from Lincoln
Financial. Filing 1-2 at 2.
after being hired, Schicker contacted Lincoln Financial
employee Kara Vincent to notify her of his representation of
Cady. Filing 1-2 at 2-3. Vincent returned
Schicker's phone call four days later and offered to
settle Cady's claim for $130, 000. Filing 1-2 at
3. Schicker immediately communicated the offer to Cady.
Filing 1-2 at 3. Schicker told Lincoln Financial that he felt
it had no legally valid reason not to pay the full policy,
and that he would seek to have Lincoln Financial pay his
attorney fees for having to initiate a claim. Filing 1-2
days later, a different Lincoln Financial employee, Cynthia
Klenda, contacted Cady directly. Filing 1-2 at 3.
During this phone call, Klenda agreed to pay Cady the full
policy limits, and Cady accepted. Filing 1-2 at 4.
In a follow-up email to Cady, Klenda stated, “[S]ince
we are working together to get this claim completed . . .
you do not need an attorney to work with us to get
this claim paid.” Filing 1-2 at 4
(alteration in original). Klenda also emailed Cady a
beneficiary statement so that Cady could direct how she would
be paid. Filing 1-2 at 4.
informed Schicker of her agreement with Lincoln Financial and
provided him with copies of Klenda's emails. Filing
1-2 at 4-5. Schicker gave Lincoln Financial written
notice that he sought to impose an attorney's lien on the
policy proceeds, but Lincoln Financial paid the entire policy
directly to Cady. Filing 1-2 at 5.
then filed suit against Lincoln Financial in the District
Court of Douglas County, Nebraska. Filing 1-2 at 1.
Schicker alleged Lincoln Financial had tortiously interfered
with his contract with Cady by communicating with Cady
directly and paying policy proceeds directly to her despite
receiving notice of his attorney's lien. Filing 1-2
at 5. Schicker also alleged that Lincoln Financial
violated two sections of the Nebraska Unfair Insurance Trade
Practices Act by making deceptive statements in violation of
Neb. Rev. Stat. §§ 44-1525(2) & (10).
Filing 1-2 at 5-6. Schicker sought 40% of the
proceeds paid to Cady, plus costs and interest. Filing
1-2 at 6.
Financial filed a Notice of Removal to this Court, asserting
jurisdiction under 28 U.S.C. § 1331 because
Schicker's claims arose out of an employee welfare
benefit plan and were therefore governed by ERISA. Filing
1 at 2. Schicker did not file a motion to remand or
otherwise oppose the removal. Subsequently, Lincoln Financial
filed a Motion to Dismiss, claiming Schicker failed to state
a claim upon which relief can be granted because his
“state law claim for attorney fees incurred in the
representation of the beneficiary of an employee welfare
benefit plan in a claim for benefits due from the plan is
preempted by [ERISA].” Filing 6 at 1.
Standard of Review
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). “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.” Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678, 192 S.Ct. 1937, 173 L.Ed.2d
analyzing a motion to dismiss, the Court must “accept
as true all factual allegations in the complaint and draw all
reasonable inferences in favor of the nonmoving party, but
[is] not bound to accept as true ‘[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements' or legal conclusions couched as
factual allegations.” McDonough v. Anoka
Cty., 799 F.3d 931, 945 (8th Cir. 2015)
(citations omitted) (quoting Iqbal, 556 U.S. at
678). “When considering a Rule 12(b)(6) motion, the
court generally must ignore materials outside the pleadings,
but it may consider some materials that are part of the
public record or do not contradict the complaint, as well as
materials that are necessarily embraced by the
pleadings.” Ashford v. Douglas Cty., 880 F.3d
990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St.
Paul, 746 F.3d 391, 395 (8th Cir. 2014)).
ERISA Preemption of the ...