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Schicker v. Lincoln Financial Group

United States District Court, D. Nebraska

October 29, 2019

RICHARD SCHICKER, Plaintiff,
v.
LINCOLN FINANCIAL GROUP, Defendant.

          MEMORANDUM AND ORDER

          TFRIAN C. BUESCHER UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND [1]

         This 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.

         Shortly 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 at 3.

         Two 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.

         Cady 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.

         Schicker 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.

         Lincoln 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.

         II. DISCUSSION

         A. Standard of Review

         A 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 868 (2009)).

         In 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)).

         B. ERISA Preemption of the ...


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