• David Martin

Around ERISA in 30 Days

Employee benefit claims usually arise under a federal law called the Employee Retirement Income Security Act (ERISA). As we explain on our website, ERISA has very specific, hard and fast deadlines, and many unique statutory provisions. Since ERISA is a federal law, this means that employee benefit claims can be filed in federal court and do not need to meet a monetary threshold to be heard. However, these cases can also be filed in state court. Plaintiffs may often prefer to file these cases in state court since the judge may be someone they know, while both the defendant plan and the benefit provider are typically located out-of-state. To avoid any impression of “home cooking,” federal law allows the defendant to force the case from state court to federal court through a process called “removal.” Around ERISA in 30 Days... However, there are a few rules for removal, as a federal judge in the Southern District of Mississippi recently explained.

  • First, the removal must occur within 30 days after proper service of the lawsuit.

  • Second, if there is more than one defendant, then all of the defendants must consent to the removal within 30 days after service.

  • The third rule is that if the removal is improper, the plaintiff only has 30 days after the removal in which to file a motion to remand, to return the case back to state court.

An example of how this works is found in the case of Chapman, et al v. Revclaims, LLC et al, (S.D. Miss. Feb. 14, 2018), where two ERISA defendants were sued. Here are the facts:

  • The first defendant that was served filed to remove the case to federal court but failed to obtain the consent of the second defendant within 30 days after the second defendant was served.

  • The second defendant also wanted the case in federal court and filed a motion to join in the removal; however, it had waited more than 30 days after service of the complaint before filing that motion.

  • The plaintiff, recognizing the error, filed a motion to remand because the consent of both defendants was not shown on the record prior to the notice of removal being filed.

The court, while noting the agreement of both defendants to have the case heard by the federal court, had no choice but to follow the statutory rules and remand the case back to state court. The plaintiff wanted attorney’s fees due to the improper removal, but the court refused to award fees as it was just a technical error by defendants. As this case shows, the rules of court can be very tricky. They can trip up plaintiffs as well as defendants. Cases are not always about “just the facts” as Sgt. Friday often required on Dragnet. They are also about navigating the complex rules of ERISA litigation. The Martin Law Group's ERISA Case Lawyers been handling ERISA benefits claims for over 25 years. ERISA claims are our focus. Let us handle your client's ERISA claims while you concentrate on all the others. Our attorneys are comfortable and have the experience to handle claims in both state and federal court.

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The Martin Law Group is dedicated to being your go-to ERISA attorneys and long term disability lawyers. Whether you are pursuing a long-term disability claim, life insurance benefits, or your pension or retirement benefits, we will meet with you face-to-face to discuss your claim at a location convenient for you. 


In an effort to make disability claims as easy as possible, we offer a free initial consultation. We often work with clients in Huntsville, Mobile, Birmingham, Montgomery, Dothan, Tuscaloosa, and Florence, in Alabama, as well as with clients in Columbus, Meridian, Jackson, Hattiesburg, Tupelo, and Gulfport, Mississippi, and surrounding areas.

Contact us today for a free consultation.

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