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GROH v. GROH

May 10, 1995

HENRY G. GROH, Plaintiff,
v.
THERESA P. GROH, Defendant.



The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge

 This marital dispute was originally brought on 3 May 1994 by the now-deceased plaintiff, Henry G. Groh ("Plaintiff"), against defendant Theresa P. Groh ("Defendant") in the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County (the "Superior Court"). Defendant filed the instant notice of removal the "Notice of Removal") on 17 April 1995. Removal jurisdiction is alleged pursuant to 28 U.S.C. § 1441.

 Presently before the court is the question as to whether this matter should be remanded to the Superior Court pursuant to 28 U.S.C. § 1447(c). *fn1" For the reasons set forth below, this matter is remanded to the Superior Court, pursuant to 28 U.S.C. § 1447(c).

 Facts

 On 3 May 1994, Plaintiff filed a complaint (the "Complaint") in the Superior Court bearing docket number FM-19-443-94. The Complaint sought a dissolution of the parties' marriage, a support order, equitable distribution of personal property, counsel fees and costs. Complaint at 2.

 On or about 21 September 1994, Plaintiff filed a notice of motion in the Superior Court, seeking to expedite the case and to schedule an early settlement panel in the matter. Notice of Removal, Exhibit E. On or about 13 October 1994, Defendant filed a cross-notice of motion seeking to dismiss the Complaint. Notice of Removal, P 3. Thereafter, as Defendant states in her Notice of Removal, on 16 November 1994, Plaintiff filed an amended notice of motion (the "16 November Motion") seeking, among other relief, "the sequestration of Plaintiff's ERISA pension benefits if the Plaintiff died during the pendency of the [divorce] action." Notice of Removal, P 3. Plaintiff's pension benefits were allegedly provided by a plan that falls within the coverage of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Notice of Removal, P 3.

 On 15 December 1994, Judge Lorraine C. Parker ("Judge Parker") of the Superior Court entered an order (the "15 December Order") denying Plaintiff's request to sequester the ERISA survivorship benefits in Plaintiff's pension. Notice of Removal, P 4, Exhibit D.

 On 8 January 1995, Plaintiff died. Id., P 5. Defendant, the named beneficiary of Plaintiff's pension benefits, began to receive Plaintiff's pension death benefits from CoreStates Bank, the trustee of Plaintiff's pension benefits. Id., P 7.

 On or about 3 February 1995, Plaintiff filed another notice of motion (the "3 February Motion") in the Superior Court. *fn2" Notice of Removal, P 8. The 3 February Motion sought to amend the Complaint and to restrain the Defendant from "eroding or dissipating the marital assets, including, but not limited to, the [ERISA] pension benefits," pending a determination as to the parties' respective rights to those benefits. Notice of Removal, Exhibit E.

 On or about 21 February 1995, Defendant filed a notice of cross-motion (the "Cross-Motion"), seeking the denial of Plaintiff's 3 February Motion to restrain Defendant from dissipating the marital assets, including the ERISA benefits. Id., P 9. The Cross-Motion also sought to dismiss the divorce action on the grounds that it had abated upon Plaintiff's death. Id.

 Judge Parker entered an order (the "14 March Order") providing that the Superior Court would retain jurisdiction for the purposes of determining whether Plaintiff's ERISA death benefits were, in fact, part of the marital estate "and whether the estate has standing to seek a constructive trust for any portion of the marital estate." Id., P 10.

 Defendant contends in the Notice of Removal:

 
At oral argument on the [3 February Motion] and Cross-Motion, despite the fact that the Plaintiff did not raise ERISA as an issue, Judge Parker did, sua sponte. During her colloquy, Judge Parker pondered whether ERISA created a 'black hole' . . ., (in which equitable remedies were recognized for a surviving spouse, who was excluded from her husband's will, [who] was precluded from participating in equitable distribution because her husband died prior to the entry of a divorce decree and was statutorily prohibited from taking an elective share) for the estate ...

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