Central Transport Inc. v. Package Printing Co.3/9/1999
urity Act of 1974, 29 U.S.C. Sects. 1001 et seq. (ERISA), raises an issue of subject matter jurisdiction that can be raised for the first time on appeal.
We note that the majority of Federal courts have concluded that, where a Federal statute only controls what substantive law applies rather than the forum in which the matter must be adjudicated, preemption is a waivable affirmative defense. See Wolf v. Reliance Standard Life Ins. Co., 71 F.3d 444, 449 (1st Cir. 1995); Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 11-12 (1st Cir. 1995), cert. denied, 517 U.S. 1167 (1996); Sweeney v. Westvaco Co., 926 F.2d 29, 37-41 (1st Cir.), cert. denied, 502 U.S. 899 (1991); Dueringer v. General Amer. Life Ins. Co., 842 F.2d 127, 130 (5th Cir. 1988); Johnson v. Armored Transp. of Cal., Inc., 813 F.2d 1041, 1043-1044 (9th Cir. 1987); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir. 1986).
These decisions arose from International Longshoremen's Ass'n v. Davis, 476 U.S. 380 (1986), in which the Supreme Court decided that, where Congress has vested jurisdiction exclusively in one forum, preemption can be raised at any time because the " ederal law itself 'oust the jurisdiction of the state court' he state judgment thus 'was not merely erroneous but was beyond [the state court's] power, void, and subject to collateral attack.'" Id. at 393 n.11, quoting Kalb v. Feuerstein, 308 U.S. 433, 438 (1940). However, the Court limited the application of its holding and stated:
" ur decision today does not apply to pre-emption claims generally but only to those pre-emption claims that go to the State's actual adjudicatory or regulatory power as opposed to the State's substantive laws. The nature of any specific pre-emption claim will depend on congressional intent in enacting the particular pre-empting statute." International Longshoremen's Ass'n v. Davis, supra at 391 n.9.
The United States Court of Appeals for the First Circuit has held that preemption by the Labor Management Relations Act (LMRA) is waivable because "LMRA Sect. 301 pre-emption (unlike NLRA [National Labor Relations Act] Sects. 7 and 8 pre-emption) concerns what law a decision maker must apply, not what forum must decide the dispute" (emphasis in original). Sweeney v. Westvaco Co., supra at 39. The Sweeney court agreed with the approach of the United States Court of Appeals for the Ninth, Sixth, and Seventh Circuits and concluded that, where the issue of preemption does not affect the court's adjudicatory power but rather concerns the choice of law that should be applied, parties could waive preemption, and thus cannot ordinarily raise it for the first time on appeal. Id. at 39-40, and cases cited.
In Wolf v. Reliance Standard Life Ins. Co., supra at 448, the court applied the same rule in an ERISA action reasoning:
"The plain language of Sect. 1132 tells us that if a plaintiff brought a 'benefits-due' action in state court and the defendant pleaded ERISA preemption, this would not deprive the court of jurisdiction over the subject matter; rather, ERISA preemption in that situation would dictate the applicable law. Preemption is, as Sweeney says, ultimately 'a matter of Congressional intent, as embodied, explicitly or implicitly, in a particular federal statute.' Sweeney, 926 F.2d at 38. In considering that intent, we are guided by a number of factors. It is instructive, though not necessarily dispositive, that ERISA, like the statute in Sweeney, is a choice of law rather than a choice of forum statute. We also believe that the interests in uniformity which Congress hoped to serve in ERISA did not extend to permitting defendant corporations, often more sophisticated abo
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