Morgan County War Memorial Hospital Ex Rel. Board of Directors of War Memorial Hospital v. Baker

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1715

MORGAN COUNTY WAR MEMORIAL HOSPITAL, by and through the

Board of Directors of War Memorial Hospital,

Plaintiff − Appellant,

v.

JENNIFER BAKER; JANET HORNER; SHARON HENDERSHOT; BARBARA

JOHNSON; TANYA MANLEY; HELEN MILLER; CHRISTINE MULLEN; RUTH

SMITH; BERNICE STOTLER; DEE ANN STOTLER; LINDA STOTLER;

BARBARA YOST; TERRY KESECKER; CAROL LAYTON; DIANE WARD;

NANCY WAUGH,

Defendants − Appellees.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. John Preston Bailey,

District Judge. (3:06-cv-00066-JPB)

Argued: September 22, 2008 Decided: November 19, 2008

Before WILLIAMS, Chief Judge, and TRAXLER and GREGORY, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Mark Edward Kellogg, BECKER, KELLOGG & BERRY, P.C.,

Springfield, Virginia, for Appellant. Mark Jenkinson, BURKE,

SCHULTZ, HARMAN & JENKINSON, Martinsburg, West Virginia, for

Appellees. ON BRIEF: Richard G. Gay, Nathan P. Cochran, THE LAW

OFFICE OF RICHARD GAY, Berkeley, West Virginia, for Appellant.

Lawrence M. Schultz, BURKE, SCHULTZ, HARMAN & JENKINSON,

Martinsburg, West Virginia; William R. McCune, Jr., Martinsburg,

West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Morgan County War Memorial Hospital (“War Memorial”),

appeals the dismissal of its declaratory judgment action, which

requested a ruling on War Memorial’s ability to unilaterally

terminate its defined benefit pension plan (“the Plan”) and

retain the Plan’s residual assets,1 for lack of subject matter

jurisdiction. Because War Memorial’s requested relief does not

depend upon a necessary and substantial question of federal law,

we affirm.

I.

War Memorial is a small community hospital created by the

West Virginia legislature in 1947 and located in Berkeley

Springs, West Virginia. Since its inception, War Memorial has

been owned and operated by the County Commission of Morgan

County. In 1972, prior to the enactment of the Employment

Retirement Income Security Act of 1974 (“ERISA”), War Memorial

created the Plan for its employees; that Plan remains in effect

today, although its membership was frozen in 1987. The Plan is

funded wholly by contributions from War Memorial and covers

seventy-three employees. To date, fifty-seven employees have

1

Residual assets “are those assets remaining in a pension

plan at the time of termination after payment to the employees

of all accrued benefits under the plan.” Wilson v. Bluefield

Supply Co., 819 F.2d 457, 458 (4th Cir. 1987).

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taken their retirement benefits under the Plan and sixteen

employees have yet to do so.

In or around 2002, War Memorial decided to terminate the

Plan, disburse the remaining assets, and use the residual Plan

assets—estimated to be in excess of $500,000—to begin funding

the construction of a new hospital building. By June 30, 2002,

all participants were fully vested in the Plan, and War Memorial

forwarded its intention to terminate the Plan to the Internal

Revenue Service (“IRS”). On November 3, 2003, the IRS issued

War Memorial a favorable determination letter, stating that

“termination of this plan does not adversely affect [the Plan’s]

qualification for federal tax purposes.” (J.A. at 230.)

The following year, War Memorial’s Board of Directors

issued Written Consent Resolutions, which authorized termination

of the Plan and distribution of the assets, assuming another

ruling from the IRS “upon termination of the plan, to the effect

that the plan is qualified under Code Section 401(a).” (J.A. at

177.) The IRS issued another favorable determination on October

6, 2005, and, buoyed by this news, on December 5, 2005, War

Memorial informed the remaining sixteen participants of its

intention to terminate the Plan and offered them three options

for claiming their benefits: (1) a lump sum distribution

(subject to income tax withholding); (2) an annuity; or (3) a

tax-free rollover of the lump sum made to an Individual

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Retirement Account. The sixteen participants rejected these

proposals and claimed a right to all of the Plan assets,

including the residual assets.

In response, War Memorial’s Board of Directors reinstated

the Plan and filed a declaratory judgment action against the

sixteen Plan participants (the “Appellees”) in the United States

District Court for the Northern District of West Virginia. War

Memorial’s six-count complaint requested a declaratory judgment

on War Memorial’s right to unilaterally terminate the Plan,

distribute the assets, and retain the residual assets for its

own use. War Memorial stated that its action arose under ERISA,

the tax laws of the United States, and the district court’s

review of IRS determinations.

The Appellees filed a timely answer, admitting jurisdiction

and venue and asserting counterclaims against War Memorial for

breach of fiduciary duty under ERISA. See 29 U.S.C.A. §

1104(a)(1) (West 1999). Following discovery, the Appellees

filed a motion to dismiss for lack of subject matter

jurisdiction. In particular, the Appellees alleged that, as a

governmental plan, the Plan was exempt from ERISA under 29

U.S.C.A. § 1003(b)(1) (West 1999). The district court agreed

with the Appellees and, on June 25, 2007, entered an order

granting the motion to dismiss for lack of subject matter

jurisdiction. War Memorial filed a timely notice of appeal, and

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we possess appellate jurisdiction under 28 U.S.C.A. § 1291

(West 2006).

II.

On appeal, War Memorial argues that the district court

erred in concluding that it lacked subject matter jurisdiction

over War Memorial’s complaint. We review questions of subject

matter jurisdiction de novo. Mayes v. Rapoport, 198 F.3d 457,

460 (4th Cir. 1999). War Memorial filed its complaint pursuant

to the Declaratory Judgment Act, 28 U.S.C.A. § 2201(a) (West

2006), which provides: “In a case of actual controversy within

its jurisdiction, . . . any court of the United States, upon the

filing of an appropriate pleading, may declare the rights and

other legal relations of any interested party seeking such

declaration, whether or not further relief is or could be

sought.” We have explained that “a claim under the Declaratory

Judgment Act . . . does not confer jurisdiction.” Interstate

Petroleum Corp. v. Morgan, 249 F.3d 215, 221 n.7 (4th Cir. 2001)

(en banc); see also Skelly Oil Co. v. Phillips Petroleum Co.,

339 U.S. 667, 671 (1950) (noting that in enacting the

Declaratory Judgment Act “Congress enlarged the range of

remedies available in the federal courts but did not extend

their jurisdiction.”). War Memorial thus contends that

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jurisdiction over its declaratory judgment action is proper

under 28 U.S.C.A. § 1331 (West 2006).

Section 1331 grants district courts “original jurisdiction

of all civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C.A. § 1331. In

determining whether War Memorial’s complaint satisfies § 1331,

we apply the well-pleaded complaint rule; that is, we

“ordinarily . . . look no farther than the plaintiff’s [properly

pleaded] complaint in determining whether a lawsuit raises

issues of federal law capable of creating federal-question

jurisdiction under 28 U.S.C.A. § 1331.” Custer v. Sweeney, 89

F.3d 1156, 1165 (4th Cir. 1996).

Our application of this rule is slightly different in

declaratory judgment actions. In Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 19 (1983), the

Supreme Court noted that “[f]ederal courts have regularly taken

original jurisdiction over declaratory judgment suits in which,

if the declaratory judgment defendant brought a coercive action

to enforce its rights, that suit would necessarily present a

federal question.” Accordingly, we have explained that, “if the

declaratory judgment plaintiff is not alleging an affirmative

claim arising under federal law against the declaratory judgment

defendant, the proper jurisdictional inquiry is whether the

complaint alleges a claim arising under federal law that the

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declaratory judgment defendant could affirmatively bring against

the declaratory judgment plaintiff.”2 Columbia Gas Trans. Corp.

v. Drain, 237 F.3d 366, 370 (4th Cir. 2001). See also New

Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 329 (5th

Cir. 2008) (noting that, “in applying the well-pleaded complaint

rule we ask whether if the declaratory judgment defendant

brought a coercive action to enforce its rights, that suit would

necessarily present a federal question”) (internal quotation

marks omitted); Samuel C. Johnson 1988 Trust v. Bayfield County,

520 F.3d 822, 828 (7th Cir. 2008) (same).

And, “[i]f the answer to this question is yes, federal

question jurisdiction exists.” Columbia Gas, 237 F.3d at 370.

In this regard, the Declaratory Judgment Act permits a party “to

bootstrap its way into federal court by bringing a federal suit

that corresponds to one the opposing party might have brought.”

Household Bank v. JFS Group, 320 F.3d 1249, 1257 (11th Cir.

2003) (internal quotation marks omitted) (emphasis in original).

This rule has its limitations, however, because “[a] plaintiff

cannot evade the well-pleaded complaint rule by using the

2

We note that both War Memorial and the Appellees failed to

identify our decision in Columbia Gas Trans. Corp. v. Drain, 237

F.3d 366 (4th Cir. 2001) as controlling our inquiry and instead

center their arguments around War Memorial’s declaratory

judgment action. Our analysis follows Columbia Gas, which

provides a straightforward mechanism for applying the well-

pleaded complaint rule to declaratory judgment actions. Id. at

370.

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declaratory judgment remedy to recast what are in essence merely

anticipated or potential federal defenses as affirmative claims

for relief under federal law.” New Orleans & Gulf Coast Ry.

Co., 533 F.3d at 329.

War Memorial’s complaint does not contain an “affirmative

claim arising under federal law,” Columbia Gas, 237 F.3d at 370,

so we are left to ask whether the Appellees could bring an

affirmative claim arising under federal law against War

Memorial. In making this inquiry, we are hardly flying blind

because, subsequent to the district court’s dismissal of War

Memorial’s declaratory judgment action, the Appellees filed just

such an action in the Circuit Court for Morgan County, West

Virginia. In that complaint, the Appellees allege a state-law

claim for breach of fiduciary duty against War Memorial.

This fact bodes poorly for War Memorial, because most

lawsuits “arise under the law that creates the cause of action.”

Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260

(1916) (Holmes, J.); Merrell Dow Pharm., Inc. v. Thompson, 478

U.S. 804, 808 (1986). When, as here, the cause of action is

created by state law, we possess jurisdiction only in the “small

class of cases where, even though the cause of action is not

created by federal law, the case’s resolution depends on

resolution of a federal question sufficiently substantial to

arise under federal law within the meaning of 28 U.S.C.A. §

9

1331.” Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (4th

Cir. 1996). Thus, “a case may arise under federal law ‘where the

vindication of a right under state law necessarily turn[s] on

some construction of federal law,’” Merrell Dow, 478 U.S. at 808

(quoting Franchise Tax Bd., 463 U.S. at 9), but “only [if] . . .

the plaintiff's right to relief necessarily depends on a

substantial question of federal law,” Franchise Tax Bd., 463

U.S. at 27-28.

The Supreme Court has summarized the inquiry as follows:

“the question is, does a state-law claim necessarily raise a

stated federal issue, actually disputed and substantial, which a

federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial

responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue

Eng'g & Mfg., 545 U.S. 308, 314 (2005).

Within the context of this case, War Memorial points us to

what it believes are three necessary sources of federal law—

ERISA, the Internal Revenue Code, and federal common law. We

address each in turn.

A. ERISA

We first consider whether a breach of fiduciary duty claim

by the Appellees necessarily depends upon a substantial issue

involving ERISA. Congress enacted ERISA to “protect . . . the

interests of participants in employee benefit plans and their

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beneficiaries, . . . by establishing standards of conduct,

responsibility, and obligation for fiduciaries . . . and by

providing for appropriate remedies, sanctions, and ready access

to the Federal courts.” 29 U.S.C.A. § 1001(b) (West 1999).

While ERISA’s scope is broad, Congress also chose to exempt

certain benefit plans from compliance with ERISA’s mandates. In

particular, “Title I of ERISA specifically excludes from its

coverage any employee benefit plan that is a governmental plan.”

Gualandi v. Adams, 385 F.3d 236, 242 (2d Cir. 2004); see also

Cliburn v. Police Jury Ass’n of La., Inc., 165 F.3d 315, 316

(5th Cir. 1999) (noting ERISA is inapplicable to governmental

plans); 29 U.S.C.A. § 1003(b). This governmental plan

exemption is rooted “in part based on principles of federalism.”

Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 914 (2d

Cir. 1987). In addition:

[I]t was generally believed that public plans were

more generous than private plans with respect to their

vesting provisions, . . . that the ability of the

governmental entities to fulfill their obligations to

employees through their taxing powers was an adequate

substitute for both minimum funding standards and plan

termination insurance. . . . [and] [f]inally, there

was concern that imposition of the minimum funding and

other standards would entail unacceptable cost

implications to governmental entities.”

Id. (internal citations and quotation marks omitted).

ERISA currently defines a governmental plan as a “plan

established or maintained for its employees by the government of

11

the United States, by the government of any state or political

subdivision thereof, or by any agency or instrumentality of any

of the foregoing.” 29 U.S.C.A. § 1002(32) (West 1999).

During this litigation, War Memorial has conceded, as it

must, that it is a governmental plan. This concession leads to

the inescapable conclusion that a breach of fiduciary duty claim

against War Memorial does not depend upon ERISA. Our conclusion

is compelled by the simple fact that federal courts have

routinely found that they lack subject matter jurisdiction over

actions by ERISA benefit plan participants against governmental

plans for breach of fiduciary duty and other similar claims for

benefits. See, e.g., Gualandi, 385 F.3d at 245; Fromm v.

Principal Health Care of Iowa, Inc., 244 F.3d 652, 653 (8th Cir.

2001); Cliburn, 165 F.3d at 316. In so ruling, these courts

recognized that Congress specifically declined to intervene in a

state’s decision to fund a pension plan. See Gualandi, 385 F.3d

at 243 (“One Senator commented that ‘State and local governments

must be allowed to make their own determination of the best

method to protect the pension rights of municipal and state

employees.’”). The Appellee’s breach of fiduciary duty claim

against War Memorial simply cannot depend upon the resolution of

any issues involving ERISA because ERISA does not even apply to

governmental plans.

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B. Internal Revenue Code

We also believe that a breach of fiduciary duty claim

against War Memorial does not necessarily depend upon resolution

of substantial questions of federal tax law. War Memorial

correctly notes that it must comply with Title II of ERISA—

actually an amendment to the Internal Revenue Code, 26 U.S.C.A.

§§ 401 et seq.—which contains requirements pertaining to the

qualification of pension plans for favorable tax treatment. War

Memorial is also correct that the IRS issued two favorable

determination letters regarding War Memorial’s intention to

terminate the Plan. These facts do not, however, permit the

inferential leap that War Memorial would have us make—that the

Appellee’s rejection of War Memorial’s interpretation of the

Plan creates a federal question.

Indeed, War Memorial’s argument here paints too broadly.

Although cliché, it remains true that “nothing can be said to be

certain, except death and taxes.” Letter from Benjamin Franklin

to Jean Baptiste Le Roy (Nov. 13, 1789), in 10 The Writings of

Benjamin Franklin 69 (Albert Henry Smyth ed., 1907). Every

pension plan, family trust, and economic decision must comply

with federal tax laws. As the district court aptly noted during

its oral hearing:

I used to draft trust agreements, you paid attention

to what the IRS rules were. You made sure that it

conformed to IRS rules. But it was your document, and

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the fact that IRS rules governed how you wrote it, I

don’t think makes the interpretation of that document

a federal issue.

(J.A. at 264.)

A breach of fiduciary duty claim against War Memorial

involves interpreting a trust document, the Plan, that is a

creature of state law, and Appellees can prove a breach of

fiduciary duty claim without resolution of any issues of federal

tax law. We have made clear that “[i]f a plaintiff can

establish, without the resolution of an issue of federal law,

all of the essential elements of his state law claim, then the

claim does not necessarily depend on a question of federal law.”

Pinney v. Nokia Inc., 402 F.3d 430, 442 (4th Cir. 2005).

War Memorial places its strongest reliance on the Supreme

Court’s recent decision in Grable, but a comparison to Grable

illustrates that this case is “poles apart.” Empire

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700

(2006). In Grable, the IRS had seized property belonging to

Grable to satisfy a federal tax deficiency. Following an

auction, the IRS sold the property to a third party. Five years

after the fact, Grable sued the third party in state court to

quiet title, contending that the IRS failed to comply with the

federal statute governing notification of parties subject to a

tax deficiency. The Supreme Court found federal jurisdiction

appropriate, noting “[t]he meaning of the federal tax provision

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. . . is an important issue of federal law that sensibly belongs

in a federal court.” Grable, 545 U.S. at 315. The Supreme

Court further noted that the case involved a “pure issue of law”

and the existence of federal jurisdiction would not affect the

federal/state balance because “it is the rare state quiet title

action that involves contested issues of federal law.” Id. at

319.

Perhaps seizing on the fact that the Plan is a “qualified”

plan under the Internal Revenue Code, and Grable was about taxes

as well, War Memorial presses that Grable provides a clear basis

for jurisdiction. We disagree. As the Seventh Circuit recently

explained, “[t]he only contested issue in [Grable] was one of

federal law, and the main effect of the suit if Grable should

prevail would be to require the federal government to reimburse

the parcel’s buyer.” Bennett v. Southwest Airlines Co., 484

F.3d 907, 910 (7th Cir. 2007). Moreover, any view that Grable

expanded upon the small class of cases recognized in Franchise

Tax Board was “squelched” in Empire Healthchoice. Id. The

Empire Healthchoice Court in fact rejected the specific type of

argument made by War Memorial in this case, explaining that

“Grable emphasized that it takes more than a federal element to

open the arising under door . . . [and] [t]his case cannot be

squeezed into the slim category Grable exemplifies.” Empire

Healthchoice, 547 U.S. at 701.

15

In Empire Healthchoice the Court explained the factors

underlying its decision in Grable:

The dispute there [1] centered on the action of a

federal agency (IRS) and its compatibility with a

federal statute, [2] the question qualified as

‘substantial,’ and [3] its resolution was both

dispositive of the case and [4] would be controlling

in numerous other cases.

Id. at 700.

Applying these factors in this case makes clear that any

breach of fiduciary duty claim by the Appellees cannot be

squeezed into Grable’s slim category. The current dispute

centers on the actions of private parties, resolution of any

question of federal tax law is not “dispositive” of a breach of

fiduciary duty claim, and it is hard to see how resolution of

any federal tax law issue in this case would be controlling in

“numerous” cases.

At bottom, the fact that federal tax implications may arise

from the distribution of the Plan’s assets, and that the

Appellees rejected a proposed distribution that was approved by

the IRS, cannot be a basis for federal jurisdiction. Such a

conclusion would shift virtually every business transaction and

trust distribution into federal court, violently upsetting the

federal/state balance. To this end, War Memorial points to no

provision of the Internal Revenue Code which provides for such

causes of action. See Grable, 545 U.S. at 319 (noting

16

Congressional failure to provide private right of action

relevant when deciding if finding federal jurisdiction would

“materially affect, or threaten to affect, the normal currents

of litigation”). The fact that the Plan is a “qualified” plan,

standing alone, is simply too thin a hook upon which to rest

federal jurisdiction. Cf. Mikulski v. Centerior Energy Corp.,

501 F.3d 55 (6th Cir. 2007) (en banc) (finding no federal

jurisdiction over a state law claim implicating an accounting

rule in the federal tax code); New Orleans & Gulf Coast Ry. Co.,

533 F.3d at 338 (rejecting a railroad’s “broad argument . . . to

establish federal jurisdiction on the basis of the general

federal interest in interstate railroad transportation.”).

C. Federal Common Law

Finally, we also believe the Appellees’ breach of fiduciary

duty claim against War Memorial does not depend upon a necessary

and substantial question of federal common law. We start from

the premise that federal common law is an even narrower basis

for federal jurisdiction. Of course, “[i]t is well settled that

[§ 1331] will support claims founded upon federal common law,”

Nat’l Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 850

(1985), and the Supreme Court has suggested that federal

jurisdiction may exist over the extremely small class of cases

governed by federal common law, but only when the operation of

state law would significantly conflict with uniquely federal

17

interests. Empire Healthchoice, 547 U.S. at 693 (noting that,

“[u]nless and until” party could demonstrate “a significant

conflict . . . between an identifiable federal policy or

interest and the operation of state law[,] . . . there is no

cause to displace state law, much less to lodge this case in

federal court” (internal quotation marks omitted)). In the

specific context of ERISA, we have indicated federal question

jurisdiction based upon the federal common law may be found

“where the issue in dispute is of ‘central concern’” to the

statute. Provident Life & Acc. Ins. Co. v. Waller, 906 F.2d

985, 990 (4th Cir. 1990).

On this point, War Memorial argues that the Plan is not

subject to West Virginia’s analogue to ERISA, the West Virginia

Public Employees Retirement Act, W.Va. Code Ann. § § 5-10-1 to

-55 (2006). That Act covers political subdivisions of West

Virginia which “ha[ve] elected to cover its employees, as

defined in this article, under the West Virginia Public

Employees Retirement System.” W.Va. Code § 5-10-2(17). War

Memorial notes that it did not elect to include its Plan under

the West Virginia Act, and it accordingly contends that this Act

does not apply to the Plan. Thus, argues War Memorial, federal

common law, specifically caselaw interpreting ERISA, must apply

in the absence of an affirmative state law.

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We find significant irony in War Memorial’s position.

Assuming War Memorial is correct that the West Virginia Public

Employees Retirement Act does not govern the Plan or define the

fiduciary duties War Memorial owed the Appellees, a state court

would most likely look to the common law of trusts in deciding

whether War Memorial’s decision to unilaterally terminate the

Plan and retain the residual assets constituted a breach of

fiduciary duty. Of course, many of the rules of decision

interpreting ERISA borrow from the common law of trusts.

Indeed, a fiduciary’s substantive duties under ERISA “draw much

of their content from the common law of trusts, the law that

governed most benefit plans before ERISA's enactment.” Varity

Corp. v. Howe, 516 U.S. 489, 496 (1996). Even today the common

law of trusts “will inform, but will not necessarily determine

the outcome of, an effort to interpret ERISA’s fiduciary

duties.” Id. at 497. The federal common law that War Memorial

contends must apply would, more likely than not, be derived from

the common law of trusts.

Moreover, War Memorial cannot show that pursuing this

action in state court would significantly impact unique federal

interests. Instead, the opposite is true: Congress exempted

“governmental plans” from ERISA, indicating a lack of federal

interest in the operation of such plans. To the extent a state

court wishes to look to ERISA for determining how to define a

19

fiduciary’s duty in the context of employee benefit plans, it is

free to do so, without any threat that its action will undermine

federal policy. After all, “state courts correctly apply

federal law every day,” Blue Cross Blue Shield Health Care Plan

v. Gunter, 541 F.3d 1320, 1323 (11th Cir. 2008), and West

Virginia has experience addressing just the type of claim raised

by the Appellees here. See, e.g., Brown v. City of Fairmont,

655 S.E.2d 563, 569 (W. Va. 2007) (considering breach of

fiduciary duty claim against an ERISA-exempt governmental plan).

At bottom, War Memorial’s argument that Appellees’ breach

of fiduciary duty claim necessarily depends upon federal common

law turns upside down the entire notion of federal jurisdiction.

“Federal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and statute,

which is not to be expanded by judicial decree.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(internal citation omitted). “A court is to presume, therefore,

that a case lies outside its limited jurisdiction unless and

until jurisdiction has been shown to be proper.” United States

v. Poole, 531 F.3d 263, 274 (4th Cir. 2008). See also Turner v.

Bank of N. Am., 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799)

(same). The absence of relevant state law does not create

federal jurisdiction. Accordingly, we also conclude that

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Appellees’ breach of fiduciary duty claim does not necessarily

depend upon federal common law.

III.

This case centers around War Memorial’s attempt to

unilaterally terminate an ERISA-exempt plan and keep the Plan’s

residual assets for its own uses. It is “basically a state case

gone awry,” Waybright v. Frederick County, 528 F.3d 199, 209

(4th Cir. 2008), and we believe West Virginia state courts have

the right to resolve this dispute. For the foregoing reasons,

the district court’s decision, dismissing War Memorial’s

declaratory judgment action for lack of jurisdiction, is

AFFIRMED.

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