The opinion of the court was delivered by: Cynthia M. Rufe, J.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion to Dismiss Plaintiff's Complaint, Plaintiff's Response in Opposition, and Defendant's Reply thereto. Defendant's Motion to Dismiss asserts that Plaintiff's Complaint should be dismissed in its entirety, including counts for breach of contract, bad faith and negligence, negligent misrepresentation, breach of fiduciary duty, fraud, and intentional infliction of emotional distress, because the causes of action are preempted by the civil enforcement provision of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132. Plaintiff, acting pro se, argues that the policy in question is established under ERISA's "safe harbor" exception at 29 U.S.C. § 1002(1) that would allow a state court to hear the claims contained in the Complaint. However, the Court ruled in its Order dated September 25, 2008 that the policy at issue does not fall within ERISA's safe harbor exception.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Phillip Martellacci ("Plaintiff") originally filed the instant action pro se in the Pennsylvania Court of Common Pleas seeking benefits under a plan maintained by his employer Penn Jersey Paper Company for eligible employees, their spouses and children. Plaintiff claims that on or about January 1, 2004, he entered into a written contract with Defendant Guardian Life Insurance Company of America ("Defendant") for short term disability coverage.*fn1 According to Plaintiff, he agreed to pay a monthly premium for coverage equal to $500 per week for each week of any short term disability claim which he submitted to and approved by Defendant.*fn2
Plaintiff claims that on April 26, 2007, he completed, signed and returned an "Application for Benefits" to Defendant. Since May 3, 2007, Plaintiff has demanded benefits due to him under the short term disability policy, but Defendant has refused to pay.*fn3 Additionally, Plaintiff alleges that he is owed $4,998 because Defendant's failure to pay the benefits he was owed required him to withdraw money from his personal assets.*fn4 Proceeding under state law, Plaintiff asserts claims for Breach of Contract (Count I), Bad Faith/Negligence (Count II), Negligent Misrepresentation (Count III), Breach of Fiduciary Duty (Count IV), Fraud (Count V), and Intentional Infliction of Emotional Distress (Count VI).
On May 30, 2008, Defendant filed a Notice of Removal in the Eastern District of Pennsylvania on the basis of federal subject matter jurisdiction over all actions relating to employee benefit plans as provided by ERISA 29 U.S.C. § 1144.*fn5 Plaintiff filed a Motion to Remand arguing that the benefits plan in question falls within ERISA's "safe harbor" exception that would allow state courts to hear the claims.*fn6 In an Order dated September 26, 2008, the Court denied the Motion to Remand finding that Plaintiff's claims failed to meet the four factors needed to qualify for the "safe harbor" exception as listed in 29 C.F.R. § 2510.3-l(j).*fn7
The Court now considers Defendant's Motion to Dismiss. The matter has been briefed by both parties, Defendants providing their arguments via written brief,*fn8 while Petitioner presented his arguments via affidavit,*fn9 and the matter is now ready for disposition.
A. Legal Standard for Rule 12(b)(6) Motion to Dismiss
When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.*fn10 The United States Supreme Court has recently clarified this standard of review, explaining that "[a] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do" without the allegation of sufficient facts in support.*fn11 In order to survive a motion to dismiss, a plaintiff must allege facts that "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."*fn12 A court may grant a 12(b)(6) motion only "if it appears to a certainty that no relief could be granted under any set of facts which could be proved."*fn13
Defendant argues that Plaintiff's Complaint should be dismissed on the grounds that the causes of action it asserts are preempted by ERISA 29 U.S.C. § 1144(a)which states that ERISA "shall supercede any and all State laws insofar as they may now or hereafter relate to an employee benefit plan."*fn14 The Court notes that it rejected Plaintiff's argument that each of his claims fall within ERISA's "safe harbor." Therefore the policy in question falls within the definition of an "employee benefit plan" under ERISA.*fn15 Defendant argues that because each of Plaintiff's causes of action "relate" to an ERISA governed plan, they are preempted by the federal statute. Defendant argues that Counts I and II for breach of contract and bad faith are claims the Third ...