Prior to settling and releasing the tortfeasors in exchange for a proffered settlement of $606,488.99, this personal injury plaintiff (and ERISA participant) persuaded the Washington state trial court to enter an Order To Show Cause against the ERISA Plan, causing it to appear in the state court action for the purpose of resolving the lien issues.

The participant argued that the lien of $525,601 would “consume his entire settlement.” The Order To Show Cause directed the ERISA plan to “show cause why [it] should not substitute its draft in favor of the plaintiffs in the amount of [settlement]” offered by the tortfeasors.

Upon receipt of the Order to Show Cause, the ERISA Plan filed a Notice of Removal in Federal Court. The U.S. District Court for the Western District of Washington in Thomas v. Powell, Case No. C10-53 MJP, grants the Plaintiff’s Motion for Remand and awards the Plaintiff reasonable costs and attorney fees.

The Court enforces the language of 28 U.S.C. 1441(a), holding that only the defendant or defendants are permitted to remove a case from state court. Merely being the recipient of an Order to Show Cause does not transform the ERISA Plan into a defendant.

post by Professor Roger Baron,

Thanks to my friend Roger Baron for notifying me of this recent important opinion in an ERISA subrogation case.  For more information, including an upload of the district court opinion, please visit