ERISA Preempts Florida State Whistleblower Claim

In Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008), the Fourth DCA held that plaintiff's state law whistleblower claim was preempted by ERISA.  The plaintiff was the former executive director of the American Maritime Officers Plans (pension, benefit, etc.). According to the allegations in the complaint, the plaintiff agreed to wear a wire for the United States Department of Labor in exchange for immunity from prosecution.  The plaintiff alleged that the defendants discovered he was cooperating with the government and had him terminated.  Entering a writ of prohibition, the court stated:

Arguing federal preemption under ERISA, the Union and the Plans moved to dismiss the complaint. One argument was that ERISA grants a specific remedy for the same retaliatory discharge and/or interference with a protected right that Merriken asserts. See 29 U.S.C. § 1140. The trial court denied the motion concluding that the stated causes of action were not preempted by federal law, as the state actions did not encroach on the relationships regulated by ERISA. The trial court reasoned that the relationship between the Union and the Plans and the plaintiff is one of employer-employee, and there are no allegations that could be interpreted that the termination was in order to avoid benefit payments. The trial court concluded that there will be no need for it to rule on any issues of federal law, based on the allegations in the complaint. This petition follows.

Federal preemption is an affirmative defense, which may be raised in a motion to dismiss. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 568 (Fla. 2005). In Boca Burger, the supreme court noted that Florida courts, “including this Court, have held that the issue of federal preemption is a question of subject matter jurisdiction.” Id. (emphasis supplied). Because prohibition lies to prevent a court from proceeding in a suit in which it has no subject-matter jurisdiction, we have jurisdiction. See Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 n.5 (Fla. 1992).

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In this case, the conduct under the Florida Whistle-blower statute on which Merriken has sued is protected under 29 U.S.C. § 1140 (ERISA section 510), which expressly states: “It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter . . . .”

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In opposition to this clear and substantial authority, Merriken argues that section 1140 does not apply, because he sued the Plans themselves and not a person, and section 1140 can be violated only by a “person.” A trust is a “person” under ERISA, and he has alleged that the Plans are trusts. A labor union is an “employee organization” and thus the Union is also a person within the meaning of the statute. Therefore, section 1140 applies. The cases Merriken cites in support of his position that the Plans cannot be sued are simply inapposite and do not involve an employee of the plan itself suing the employer-plan for wrongful discharge.

Because the whistleblower activities alleged in Merriken’s complaint are protected by section 1140, the matter is preempted by federal law. Ingersoll-Rand [Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990)]. The circuit court has no subject-matter jurisdiction to consider these actions.

Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008)

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Article About American Maritime Officers Union v. Merriken Trial Victory

The case that led to the decisions discussed here (Am. Maritime Off. Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008)) and here (Merriken v. Am. Maritime Off. Vacation Plan, et al, 08-60687, 2008 WL 4899126, (S.D. Fla. Sept. 29, 2008)) was discussed here. The discussion is below:

And the Defense Wins - 3-11-2009

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Filing Under Seal

For a discussion about filing under seal, see here.

Venue More Appropriate Where All Witnesses Reside

The Third DCA released a decision reversing the circuit court and finding Miami-Dade county to be an inconvenient forum to a majority of the witnesses. In Cooper Tire & Rubber Co. v. Estate of Carlos Hernandez Chavez (3d09-61), the car accident was in Lee County, the passengers of the vehicles resided in Lee County, and all of the witnesses named on the plaintiff's witness list resided in Lee County. The Defendant, however, transacted business in Miami-Dade County. Based upon those facts, the Third DCA held the circuit court abused its discretion in not transferring the action to Lee County.

Arbitration Agreement on Website Not Enforceable

In General Impact Glass & Windows Corp. v. Rollac Shutter of Texas, Inc. (3D08-1468), the Third DCA reviewed whether an arbitration agreement on a web site can bind a party to arbitration. The court concluded the arbitration agreement could not be enforced because the plaintiff had not signed the arbitration agreement and the arbitration was not incorporated into the contract.

Noriega Extradition Upheld

This is not the typical topic for this blog, but interesting. Today, the Eleventh Circuit upheld the extradition of former Panamanian dictator General Manuel Noriega to France to face money laundering charges. The opinion can be found here and a Miami Herald article on the opinion here.

Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention. We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention.

Challenge to Contract Containing Arbitration Agreement Entitles Party to Expedited Evidentiary Hearing

In Curcio v. Sovereign Healthcare of Boynton Beach L.L.C. (4D08-1947), the Fourth DCA reversed the circuit court and held that the plaintiff was entitled to an expedited evidentiary hearing after challenging the "making of" the underlying contract that contained the arbitration agreement.

Here, plaintiff demonstrated through her written response in opposition to the motion to compel and her arguments at the nonevidentiary hearing on the motion that she disputed the “making of” the arbitration agreement. The trial court implicitly acknowledged that there were issues in dispute regarding the making of the Agreement and “retain[ed] jurisdiction to reconsider the dismissal of th[e] case pending the development of sufficient grounds during the arbitration process.” The court, however, was required by statute to conduct an evidentiary hearing to resolve the disputed issues before sending the case to arbitration. We therefore reverse the trial court’s order compelling arbitration and remand for an evidentiary hearing. On remand, if, after holding an evidentiary hearing, the court decides to grant the defendant’s motion to compel arbitration, it should stay rather than dismiss the plaintiff’s case. See Liberty Commc’ns, Inc. v. MCI Telecommunications Corp., 733 So. 2d 571, 573 (Fla. 5th DCA 1999) (holding that when an order for arbitration is entered, the cause should be stayed rather than dismissed).

Dismissal Without Prejudice for Failure to Comply with Presuit Notice if Statute of Limitation Has Not Run

Today, the Fourth DCA issued its opinion in Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District (4D07-4433). The opinion discusses (among other things) whether a complaint should be dismissed with or without prejudice when the plaintiff fails to comply with a statutory presuit notice provision. The court reversed the circuit court and held that if the statute of limitations has run, it should be with prejudice. The relevant portion of the opinion is below:

Next, the hospital contends that the nursing home failed to comply with section 768.28(6)(a), Florida Statutes (2007), by failing to present its claim in writing to the Department of Financial Services within three years after the claim arose. At the summary judgment hearing, counsel for the nursing home requested a n opportunity to cure the notice problem by providing notice to the Department of Insurance.

Compliance with the notice requirement of section 768.28 was a condition precedent to this lawsuit against the hospital. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979); Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the lawsuit but within the statute of limitations period. Another appropriate response to a motion raising a plaintiff’s failure to comply with the statute is to dismiss the case without prejudice, where the applicable statute of limitations has not run at the time of dismissal and it is therefore possible to give the statutory notice prior to the case being barred by the statute of limitations. See Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); Von Drasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000).

Motion to Amend Complaint Properly Denied

Today, in Hickman v. Barclay’s International Realty, Inc. (4D07-3382), the Fourth DCA affirmed the circuit court's denial of plaintiff's Motion to Amend Pleadings. The case had been pending for over six years and the plaintiff had made five previous amendments to its complaint. At the summary judgment hearing, the plaintiff made an ore tenus motion to amend. The circuit court denied the ore tenus motion and the Fourth DCA affirmed stating:

“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (citation omitted); see also Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892, 895 (Fla. 3d DCA 1982) (“[T]hree attempts to amend the complaint are enough.”). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an
equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” 395 So. 2d at 216 (citation omitted); see also Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So. 2d 567, 568–569 (Fla. 4th DCA 1997) (“There comes a point in litigation where each party is entitled to some finality.”).

Here, the trial court properly exercised its discretion in denying the Hickmans’ motion, having determined that they had taken advantage of numerous opportunities to amend their pleadings and that the case had been pending for a long time. We affirm the trial court’s decision denying leave to amend.