BIW Deceived v. Local S6, Indus. Union of Marine and Shipbuilding Workers of America, IAMAW Dist. Lodge 4

• Decision Date: 11 April 1997
• Docket Number: No. 96-2311,96-2311
• Citation: 132 F.3d 824
• Parties: 157 L.R.R.M. (BNA) 2148, 134 Lab.Cas. P 10,099 BIW DECEIVED, et al., Plaintiffs, Appellants, v. LOCAL S6, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, IAMAW DISTRICT LODGE 4, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 824

132 F.3d 824

157 L.R.R.M. (BNA) 2148, 134 Lab.Cas. P 10,099

BIW DECEIVED, et al., Plaintiffs, Appellants, v. LOCAL S6, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING

WORKERS OF AMERICA, IAMAW DISTRICT LODGE 4,

Defendant, Appellee.

No. 96-2311.

United States Court of Appeals, First Circuit.

Heard April 11, 1997

Decided Dec. 30, 1997.

Jed Davis, with whom Linda Christ, Jim Mitchell, Mobile, AL, and Jed Davis, P.A. were on brief, for appellants.

Ralph L. Tucker, with whom James W. Case, Topsham, ME, and McTeague, Higbee, McAdam, Case, Watson and Cohen were on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

In this procedural motley, a band of plaintiffs--the eponymous BIW Deceived--locks horns with Local S6 of the Industrial Union of Marine and Shipbuilding Workers (the Union) over issues pertaining to removal and remand. The peculiarities of this engagement impel us to adumbrate our necessarily circuitous decisional path. After delineating the relevant facts and procedural history, we address whether the plaintiffs have waived their right to appeal either by inviting the judgment or by failing to seek our intervention at an earlier date. Finding no default, we proceed to the merits--a journey that requires us to touch upon doctrinal aspects of preemption under federal labor law and to explore a question of first impression concerning the exercise of federal question jurisdiction in the context of the artful pleading doctrine. At journey's end, we conclude that the plaintiffs' complaint presents a colorable federal question and that, therefore, the district court did not err when it refused to return the case to a state venue.

I. BACKGROUND

Because this action stumbled near the starting gate, the record is stunted and the facts before us are sparse. We present them as best they present themselves.

In the fall of 1995, Bath Iron Works (Bath or BIW) hired a number of electricians and pipefitters. The Union participated in the job interviews pursuant to the terms of an existing collective bargaining agreement (the CBA). The plaintiffs allege that during these interviews the Union told them that they would "be employed at least until the expiration of the current Union contract [August 1997]" and "probably until the end of the decade;" that Bath "had more work for electricians and pipefitters than it could handle;" and that Bath "was hiring fewer electricians and pipefitters than it needed, so that the employees would be assured of continuing employment." The plaintiffs further allege that they relied on these blandishments, accepted offers of employment, and left other jobs to move to Maine and work for Bath. But, the plaintiffs say, the Union had led them down a primrose path; they were laid off early in 1996.

II. PROCEDURAL HISTORY

Angered by this fecklessness, the former employees joined together to form "BIW Deceived" and sue the Union in a Maine state court. ¹ Their complaint alleged negligence, fraudulent misrepresentation, fraud in the inducement, infliction of emotional distress, loss of consortium, intentional nondisclosure, and unjust enrichment. The Union promptly removed the action to the federal district court. When the plaintiffs sought remand on the ground that their suit involved only state-law claims, the Union responded by asserting that all the plaintiffs' claims were subject to preemption under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., and/or the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 et seq.

Judge Carter resolved the removal/remand dispute in the Union's favor. He denied the plaintiffs' motion, asserting in a two-page order that "the claims for relief set forth in the Complaint are all derivative from and dependent for their resolution upon duties defined and imposed by federal law, which law occupies the field and, by mandate of Congress, closes the field to state regulation."

That order produced a strange reaction: the plaintiffs moved for entry of final judgment in the defendant's favor. They reasoned that, in refusing to remand, the district court had "conclu[ded] that federal law preempts all state claims," and that this conclusion "le[ft] nothing more to be litigated" in that court. Judge Carter denied this motion without elaboration.

Shortly thereafter, Magistrate Judge Cohen presided over a status conference during which the plaintiffs represented that they had "no interest in [pressing] any federal-law claims" and that they desired the entry of final judgment in order to "appeal the [district court's] preemption ruling." The Union agreed not to oppose the entry of judgment in its favor. The next day, the plaintiffs moved for reconsideration and for entry of final judgment, specifically "abandon[ing] any and all federal claims." This time Judge Carter granted their motion and entered final judgment, without prejudice to the plaintiffs' right to seek review. This appeal followed.

III. APPELLATE JURISDICTION

It is a federal court's obligation to assure itself of the existence of subject matter jurisdiction even if no party presses the question. See American Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, 1258 (1st Cir.1993). Consequently, we consider whether the odd procedural posture of this case undermines our appellate jurisdiction.

In several circuits a party who consents to the entry of judgment forfeits any right to appeal from that judgment. See, e.g., Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir.1992); Clapp v. Commissioner, 875 F.2d 1396, 1398 (9th Cir.1989). We have taken a slightly more latitudinarian approach: while acknowledging that, with few exceptions, "a party to a consent judgment is thereby deemed to waive any objections it has to matters within the scope of the judgment," Coughlin v. Regan, 768 F.2d 468, 469-70 (1st Cir.1985), ² we nevertheless have suggested that "it is possible for a party to consent to a judgment and still preserve [its] right to appeal" a previous ruling on a contested matter in the case, as long as it "reserve[s] that right unequivocally." Id. at 470. Such a reservation occurred here. The record makes manifest that the plaintiffs sought the entry of final judgment solely to facilitate an appeal of the district court's refusal to remand the suit. Their initial motion for entry of final judgment asked the court to enter a "final and appealable judgment;" the magistrate's report of the status conference related that the plaintiffs "simply seek the entry of final judgment so that they may appeal the court's preemption ruling;" and the renewed motion for entry of final judgment solicited the entry of a "final judgment, without prejudice to the plaintiffs' right to seek appeal."

This evidence clearly shows the plaintiffs' unequivocal intention. Under Coughlin, then, we have discretion to accept the appeal insofar as it relates to a prior (contested) order notwithstanding the plaintiffs' later consent to the entry of the final judgment itself. See Coughlin, 768 F.2d at 470. In this instance, we are inclined to exercise that discretion in the plaintiffs' favor.

Even so, our appellate jurisdiction is not free from doubt. The parties treat this appeal as if Judge Carter dismissed the suit because the various causes of action were preempted, but this is an inaccurate characterization of what actually transpired. There was no dismissal: while Judge Carter expressed his belief that the plaintiffs' claims were preempted, the only ruling that he made on a contested matter consisted of denying the plaintiffs' motion to remand. This ruling did not require a finding of preemption; it only required a finding that the Union had made a colorable showing of federal jurisdiction. See infra Part V. That the judge's remarks swept more broadly does not alter the reality of events. It is settled beyond peradventure that a party can appeal only from an adverse order or judgment, not from a judge's ruminations. See Logue v. Dore, 103 F.3d 1040, 1047 (1st Cir.1997); In re Admin. Warrant, 585 F.2d 1152, 1153 (1st Cir.1978). The plaintiffs could have waited until the Union filed a dispositive motion (say, a motion to dismiss or for summary judgment), but they chose not to do so. Thus, the district court's order denying the plaintiffs' motion to remand is the only order that is even potentially reviewable in this proceeding.

The district court entered that order on July 3, 1996, and the plaintiffs did not file their notice of appeal until October 25, 1996. In some circuits, a disappointed suitor must appeal the denial of a motion to remand within the standard appeal period (here, thirty days, see Fed. R.App. P. 4(a)(1)), or else forever hold his peace. See Marshall v. Manville Sales Corp., 6 F.3d 229, 231 (4th Cir.1993) (noting that the Fourth Circuit will not "disturb a district court's final judgment on the basis of a defective removal when the plaintiff ha[s] failed to seek an interlocutory appeal of the order denying remand"); Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 713 (9th Cir.1990) (holding that an objection to removal "is not preserved unless an interlocutory appeal is filed challenging the district court's order denying remand"). Other circuits--including this one--generally consider orders refusing remand to be interlocutory orders, and thus a plaintiff whose remand request has been rebuffed possesses no immediate right of appeal, but retains the right to press his point by taking an end-of-case appeal after the entry of final judgment. See Neal v. Brown, 980 F.2d 747, 747 (D.C.Cir.1992); Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 n. 2 (5th Cir.1990); Brough v. United Steelworkers, 437 F.2d 748, 749 (1st Cir.1971). Accordingly, the entry of final judgment in this case paved the way for appellate consideration of the order denying the motion to remand and...