Mayfield v. Hartford Life Ins. Co., 699 F. Supp. 605 (W.D. Tex. 1988)

*606 Ray Chester, Pluymen & Bayer, Austin, Tex., for plaintiff.

John Morehead, Bankston, Wright & Greenhill, Austin, Tex., for defendants.

NOWLIN, District Judge.

Before the Court for consideration is the Plaintiff's Motion to Remand filed on May 26, 1988. The Defendants filed a response to this motion on June 10, 1988. The Court, after reviewing the Motion and the response thereto, as well as the entire record in this case, is of the opinion that the Motion is meritorious and should be granted.

The Court specifically finds that the Plaintiff's cause of action brought pursuant to Article 21.21, Section 16 of the Texas Insurance Code is not pre-empted by ERISA, 29 U.S.C. § 1001 et seq. The Court agrees with Plaintiff's assertion that this case should be remanded to state court to the extent that Article 21.21 falls within the ERISA saving clause, Section 514(b) (2) [29 U.S.C. § 1144(b) (2)]. See Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987); Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985). For these reasons, the Court finds that this case was removed improvidently and without jurisdiction.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion to Remand is hereby GRANTED and that the above-styled and numbered cause is hereby REMANDED to the 331st Judicial District Court of Travis County, Texas.

IT IS FURTHER ORDERED that the Clerk of the Court mail a certified copy of this Order of Remand to the Clerk of the 331st Judicial District Court of Travis County, Texas in accordance with 28 U.S.C. § 1447(c).