No. 03 - 11318 SUMMARY CALENDAR STACIE HOLLOWAY v. Avalon Residential Care Homes, Inc.

1Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
August 5, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 03 - 11318
SUMMARY CALENDAR
_________________________
STACIE HOLLOWAY,
Plaintiff - Appellee,
v.
AVALON RESIDENTIAL CARE HOMES, INC. ET AL.,
Defendants,
AVALON RESIDENTIAL CARE HOMES, INC.,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(4:03-CV-1173)
_________________________________________________________________
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit
Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review the district court's order
remanding this case to the state court. For the following
reasons, we uphold the district court’s decision.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff - Appellee, Stacie Holloway, filed suit against
Freeman Administrative Solutions, Inc. (hereinafter, “FAS”) and
her employer, Avalon Residential Care Homes, Inc. (hereinafter,
“Avalon”) for injuries sustained as the result of an unsafe
workplace, and for wrongful termination.
Defendants removed the suit to the District Court for the
Northern District of Texas, basing their removal on the Federal
Arbitration Act and the Employment Retirement Income Act of 1974
(hereinafter, “ERISA”). Defendants asserted that Holloway’s
claims were recharacterized and preempted by ERISA due to the
inclusion of FAS as a party. According to Defendants, Avalon was
the holder and FAS was the administrator of an occupational
injury insurance policy that was in force at the time of
Holloway’s injury and further, that Holloway’s benefits were
terminated pursuant to the terms of the insurance plan.
Defendants also asserted that Holloway had failed to exhaust her
administrative remedies pursuant to ERISA and that Holloway
failed to comply with the mediation and arbitration provisions
outlined in Avalon’s insurance plan.
Holloway responded by moving to amend her complaint to
allege only her state law negligence claim against Avalon. She
then moved to remand the case back to state court. The district

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granted both of Holloway’s motions, finding that Holloway’s
amended complaint asserted only a claim of negligence in failing
to maintain a safe workplace and only against Avalon, her former
employer. The district court therefore determined that the
amended complaint was not preempted by ERISA and ordered the case
remanded to state court pursuant to 28 U.S.C. § 1367.
Defendant’s motion to dismiss was denied as moot, and Avalon
timely filed a notice of appeal.
II.
JURISDICTION
Normally, an order remanding a case to the state court from
which it was removed is not reviewable on appeal. 28 U.S.C. §
1447(d). However, because the district court in its discretion
remanded the case to the state court after determining that all
federal claims had been eliminated and only pendent claims
remained, we have jurisdiction to hear this appeal. See Hook v.
Morrison Milling Co., 38 F.3d 776, 780 (5th Cir. 1994).
III.
ERISA PREEMPTION
Avalon argues that Holloway’s state law negligence claims
are fraudulently pleaded to avoid ERISA preemption and are
actually an attempt to receive damages from Avalon’s insurance
plan. Avalon asserts that the damages sought by Holloway trigger
the insurance plan because the cause of action sufficiently

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relates to the plan. Avalon also argues that Holloway has
received all or a portion of the damages claimed through payments
from the insurance plan and that it was Holloway’s violations of
the insurance plan’s terms that led to the termination of her
benefits.
We review the district court’s preemption analysis de novo.
Id.
ERISA preempts any state law that references or shares a
connection with an ERISA plan when the state law is not
specifically designed to affect such plans, affects such plans
only indirectly, or is inconsistent with ERISA’s substantive
requirements. Id. at 781. However, some state plans may be too
remote to warrant a finding of preemption. Id. To determine
whether a state law claim is preempted, we look to (1) whether
the claim addresses areas of exclusive federal concern, and (2)
whether the claim directly affects the relationship among
traditional ERISA entities. Id.
Holloway’s complaint asks for personal injury damages,
alleging that she was injured while attempting to move a patient.
According to Holloway, Avalon knew of the patient’s propensity
for violence but failed to provide adequate support staff during
Holloway’s shift. Holloway asserts that she is not seeking to
recover benefits from Avalon’s insurance plan. Thus, Holloway’s
negligence claim affects only her employer/employee relationship

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and is wholly independent from the existence of Avalon’s
insurance plan. Id. at 783-84. This court’s previous decision
in Hook is controlling, and Holloway’s negligence claim is not
preempted by ERISA.
However, Avalon asks this court to overrule Hook, alleging
that the decision is inconsistent with both Metro. Life Ins. Co.
v. Taylor, 481 U.S. 58 (1987), and Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41 (1987). We decline to do so. Both of these
cases were decided before and were considered in Hook, and one
panel of this Court may not overrule another panel absent an
intervening decision to the contrary by the Supreme Court or this
Court en banc. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.
1997); Hook, 38 F.3d at 781.
Avalon next argues that Hook is inconsistent with Arana v.
Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003). In Arana, the
plaintiff sought a declaratory judgment requiring the health plan
to release its notice of lien and withdraw its subrogation claims
for reimbursement of health care benefits following the
plaintiff’s tort claim settlements. The en banc Court held that
the plaintiff was seeking benefits under the terms of the plan
despite the fact that the plaintiff asked for relief under
Louisiana state law. Id. at 438. The Court held that a claim
seeking benefits premised on an ERISA plan read in conjunction
with state law is completely preempted. Id. at 438-39. Thus

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Arana and Hook are distinguishable and not inconsistent.
The district court did not abuse its discretion in remanding
the case to the state court. See Hook, 38 F.3d at 780.
IV.
ARBITRATION
Avalon next argues that the district court abused its
discretion by declining to compel Holloway to comply with the
Avalon insurance plan’s arbitration provision. We disagree. The
insurance plan’s arbitration clause only pertains to disputes
arising under the plan. Thus, the district court correctly
concluded that Holloway’s claims did not arise under the Avalon
insurance plan.
V.
ATTORNEY’S FEES
In her appellee’s brief, Holloway argues that she is
entitled to attorney’s fees pursuant to both the removal statute
and ERISA. However, the Federal Rules of Appellate Procedure and
the rules of this Court provide that applications for fees are to
be made by motion and should be supported by documentation of
time expended. FED. R. APP. P. 27(a)(1); 5th Cir. R. 47.8.
Holloway has failed to provide such documentation. Further,
Holloway is not entitled to fees under 28 U.S.C. § 1447(c)
because the district court remanded the case based not on the
removal statute, but on its decision not to extend supplemental

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jurisdiction. Finally, Holloway dismissed the portion of her
complaint which stated an ERISA claim, and thus, she is not
entitled to attorney’s fees. 29 U.S.C. § 1132(g)(1).
VI.
CONCLUSION
For the foregoing reasons, the district court’s decision is
AFFIRMED.

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