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June 24, 1993

IRAJ ZANDI-DULABI, as Trustee of the Iraj Zandi-Dulabi, M.D., Professional Corporation Defined Benefit Pension Trust and the Iraj Zandi-Dulabi M.D., Professional Corporation Profit Sharing Trust, Plaintiff,
PACIFIC RETIREMENT PLANS INC., a California corporation; TIRET ACCOUNTANCY CORPORATION, a California corporation; FENWICK & WEST, a law partnership; NORMAN H. GLICKMAN, an individual; and DOES 1 through 20, inclusive, Defendants.

The opinion of the court was delivered by: STANLEY A. WEIGEL

 I. Background

 Plaintiff, a California resident, is a trustee of the Iraj Zandi-Dulabi, M.D. Professional Corporation Defined Benefit Pension Trust and the Iraj Zandi-Dulabi, M.D. Professional Corporation Profit Sharing Trust ("the Pension Plan"). Defendant Pacific Retirement Plans, Inc. ("PRP"), a California Corporation, administers, manages, and advises the Pension Plan. Defendant Tiret Accountancy Corporation ("Tiret"), a California Corporation, provides accounting services and advice to the Pension Plan. Defendant Fenwick & West ("F & W") is a law partnership retained by Plaintiff to advise, counsel and represent the Pension Plan. Defendant Norman W. Glickman is a partner at F & W in charge of F & W's representation of the Pension Plan.

 On February 9, 1993, Plaintiff filed suit in San Mateo County Superior Court against PRP, Tiret, F & W, Glickman, and several Doe defendants. Plaintiff contends that Defendants failed to advise Plaintiff of and protect the Pension Plan from the consequences of being "overfunded" after tax laws changed in 1985 to impose severe penalties on overfunded pension plans. Plaintiff's complaint includes state law causes of action for negligence and breach of fiduciary duty. Plaintiff prays for monetary damages, the costs of suit, and for such other relief as the Court deems proper.

 On March 18, 1993, Defendant PRP filed a notice of removal pursuant to 28 U.S.C. § 1441(b) on the ground that the Employee Retirement Income Security Act of 1974 ("ERISA") preempts Plaintiff's state law claims and creates exclusive jurisdiction in the federal courts. *fn1" Plaintiff now moves to remand the action to state court. Plaintiff requests attorney's fees and costs to cover the expense of defending Defendants' allegedly improper removal petition. Defendants PRP and Tiret oppose Plaintiff's motions and move to dismiss the complaint for failure to state a claim upon which relief can be granted.

 A. Motion to Remand

 Defendants removed Plaintiff's complaint to federal court, alleging that his complaint contains underlying federal question sufficient to create federal jurisdiction. Plaintiff moves to remand to state court on the ground that removal was improper.

 In the absence of complete diversity, a defendant can remove a state court complaint to federal court if the complaint contains a federal question over which a federal district court would have original jurisdiction. 28 U.S.C § 1441 (b); Maxxam Group, Inc. v. Hurwitz, 1992 U.S. Dist. LEXIS 5274, at *3 (N.D. Cal. Apr. 8, 1992). Federal question jurisdiction requires that the case "arise under the Constitution, laws, or treaties of the United States." 28 U.S C. § 1441(b); 28 U.S.C. § 1331. The party seeking removal bears the burden of establishing federal court jurisdiction. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985); Galen v. McAllister, 1992 U.S. Dist. LEXIS 14709 at *3 (N.D. Cal. Sept. 9, 1992).

 1. "Well Pleaded Complaint" Rule

 In determining whether a state court action raises a federal question and is, thus, removable to federal court under 28 U.S.C. § 1441(b), courts apply the "well pleaded complaint" rule. Gully v. First National Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936). Under this rule, removal to federal court is proper only when a federal question is presented on the face of a plaintiff's properly pleaded complaint. The rule permits a plaintiff to avoid federal jurisdiction by exclusive reliance on state law. Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 996 (9th Cir. 1987). In this case, Plaintiff has attempted to defeat federal jurisdiction by drafting a well-pleaded complaint that includes only state law claims.

 2. Federal Defenses, Complete Preemption, and ERISA

 Defendants contend that, although Plaintiff's complaint includes only state law claims, ERISA preempts Plaintiff's state law claims and creates federal jurisdiction. Federal preemption is ordinarily a federal defense that does not appear on the face of a well-pleaded complaint. As a result, it is usually insufficient to create federal jurisdiction when a plaintiff has chosen to bring only state law claims. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987); Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9-12, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); Holman v. Laulo-Rowe Agency, 994 F.2d 666, 1993 U.S. App. LEXIS 11937 at *4 (9th Cir. May 24, 1993).

 A well-pleaded complaint containing only state law claims will be deemed to arise under federal law for jurisdictional purposes, however, where Congress has clearly manifested an intent to "completely preempt" a given area of the law. Claims which arise in an area of complete preemption are "necessarily federal in character" and create federal jurisdiction regardless of ...

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