15 McKay Place v. AFL-CIO, SERV. EMP. INTERN.

• Decision Date: 23 December 1983
• Docket Number: No. 82 Civ. 1846.,82 Civ. 1846.
• Citation: 576 F. Supp. 1423
• Parties: 15 McKAY PLACE REALTY CORP., Dolly Barksdale, Sheldon Crutchfield, Chet Dash, Martin Carson and Adam Keller, Plaintiffs, v. AFL-CIO, 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, Gus Bevona, President, and Thomas Latimer, Contract Director of said Union, Joseph Simpson, Isaac Bornweld, Roosevelt Singleton and Dario Nunez, Defendants.
• Court: U.S. District Court — Eastern District of New York

576 F. Supp. 1423

15 McKAY PLACE REALTY CORP., Dolly Barksdale, Sheldon Crutchfield, Chet Dash, Martin Carson and Adam Keller, Plaintiffs, v. AFL-CIO, 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, Gus Bevona, President, and Thomas Latimer, Contract Director of said Union, Joseph Simpson, Isaac Bornweld, Roosevelt Singleton and Dario Nunez, Defendants.

No. 82 Civ. 1846.

United States District Court, E.D. New York.

December 23, 1983.

Frederick Schwartz, New York City, for plaintiffs.

Michael Geffner, Israelson, Manning & Raab, New York City, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff, 15 McKay Place Realty Corp., a New York corporation, and five individual plaintiffs¹ instituted this action against defendant AFL-CIO, Local 32B-32J, Service Employees International Union ("Union") and six individual defendants² in the Supreme Court for the State of New York, Kings County, on June 21, 1982, seeking relief from alleged violent illegal picketing and other tortious conduct of defendants. In June 1982,³ defendants removed this action to this Court pursuant to 28 U.S.C. § 1446,⁴ alleging original federal jurisdiction under the Labor Management Relations Act ("LMRA"), 29 U.S.C. §§ 141-197, and sections 8(a)(1), (3) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-168. Plaintiffs now move for an order remanding the case to the state court. For the reasons stated below, plaintiff's motion is granted.

Facts

Plaintiff, 15 McKay Place Realty Corp. ("Corporation") was the mortgagee of an apartment building located at 255 Eastern Parkway in Brooklyn. After the mortgagor, Eastern Parkway Corporation, defaulted, the Corporation purchased the building at a foreclosure sale on May 26, 1982. The prior owner of the building, through its agent, apparently had been party to a collective bargaining agreement with defendant Union under which the individual defendants performed services at that building. When it acquired ownership of the building, the plaintiff Corporation discharged the individual defendants. As to its potential contractual relationship with defendant Union, plaintiff Corporation alleges in the complaint:

SIXTH: That said plaintiff corporation, at no time prior to May 26, 1982, owned said building, nor entered into any agreement with the former owner (mortgagor) to purchase the said building but came into possession and title of said building by being the successful bidder and purchaser of said building, at public auction, held pursuant to a duly constituted foreclosure sale.

* * * * * *

TENTH: .... that the defendants and all of them are not in privity with the plaintiff either by contract with the plaintiff and plaintiffs have had no transaction with the foreclosed mortgagor or previous owner of said apartment building.

Shortly thereafter, the discharged employees began picketing in front of plaintiffs' building. Plaintiffs allege that defendants illegally congregated in large numbers, interfered with the tenants' and new employees' ingress and egress to the building, harassed the tenants and new employees, and otherwise variously caused damage to the premises and to an adjacent building owned by plaintiffs. Defendants contend, on the other hand, that the picketing defendants were engaged in activity which is protected under the LMRA. Plaintiffs seek injunctive relief.

Procedural Background

This case had a confusing procedural beginning. Prior to plaintiffs' institution of this suit in state court by filing and service of a complaint and order to show cause on June 21, 1982, defendant Union had filed charges against the Corporation with Region 29 of the National Labor Relations Board ("NLRB") on June 7, 1982. The hearing on the order to show cause was scheduled for June 25, 1982 and defendants filed their petition for removal with this Court on that date.

On July 21, 1982, the NLRB filed a formal complaint against the plaintiff Corporation ("NLRB Complaint"). The NLRB Complaint designated January 10, 1983 as a hearing date on the charges contained therein. That hearing was since adjourned to January 16, 1984.

Discussion

Section 1441 of Title 28 governs the type of actions which may be removed from state to federal court. In the context of the instant case, the relevant part of Section 1441 reads:

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.

Generally, a cause is removable only if a federal question appears on the face of the complaint. Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1966). In Gully, the Supreme Court held:

To bring a case within the statute 28 U.S.C. § 1441, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action .... The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or another.... A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto, ... and the controversy must be disclosed upon the face of the complaint, unaided by the answer or the petition for removal.... Indeed, the complaint itself will not avail as a basis of jurisdiction insofar as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense.

299 U.S. at 112-13, 57 S.Ct. at 97-98. A federal court may, however, attempt to ascertain whether a plaintiff's claim is state or federal in nature if this is not obvious from the face of the complaint. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure (1976), § 3722 at 561-62, 564, 566.

A plaintiff is generally the master of his claim. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913) and when his claim can be based upon either a state or federal ground, he "is normally free to ignore the federal question and pitch his claim on state ground." Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. 551, 556 (S.D.N.Y.1969); see also 1A Moore's Federal Practice, ¶ 0.160, at 185 (2d ed. 1979). In such a case, the federal court may not look beyond the complaint in its attempt to ascertain the nature of plaintiff's claim. When, as here, the complaint is ambiguous as to the federal or state nature of the claim, a plaintiff may restrict himself to a state cause of action in a timely motion to remand. See Vitarroz Corp. v. Borden, Inc., 644 F.2d 960 (2d Cir.1981). However, "where Congress has explicitly said that the exclusive source of a plaintiff's right to relief is to be federal law, it would be unacceptable to permit that very plaintiff, by the artful manipulation of the terms of a complaint, to defeat a clearly enunciated congressional objective." Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. at 556.

When a plaintiff's purported state law claim has been preempted by federal law, federal jurisdiction will lie. Billy Jack for Her, Inc. v. New York Coat, Suit, Dress, Rainwear & Allied Workers' Union Local 1-35, 511 F.Supp. 1180, 1186 & n. 8 (S.D.N.Y.1981) ("Billy Jack I"). Furthermore, federal removal jurisdiction is derivative or dependent on state court jurisdiction. Id. at 1188. Therefore, should the federal district court determine that the case is subject to exclusive federal jurisdiction or that a body other than the state or federal court has exclusive jurisdiction, the district court must dismiss the case. Id.; see also id. at 1192-93. Finally, should a complaint filed in state court state a claim which is preempted by federal law as well as a pure state claim, the state claim may be removable in accordance with the doctrine of pendent jurisdiction or under 28 U.S.C. § 1441(c).⁵ Billy Jack for Her, Inc. v. New York Coat, Suit, Dress, Rainwear & Allied Workers' Union Local 1-35, 515 F.Supp. 456, 458 (S.D.N.Y.1981) ("Billy Jack II"). See also United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

In their petition for removal, defendants allege original federal jurisdiction because (1) the Corporation is engaged in interstate commerce;⁶ (2) plaintiffs seek to enjoin activity protected under Section 7 of the LMRA, 29 U.S.C. § 157,⁷ which activity is (3) in response to violations by the Corporation of Sections 8(a)(1), (3) and (5) of the LMRA, 29 U.S.C. § 158.⁸ Petition for Removal, ¶ 6. On the other hand, plaintiffs' motion to remand asserts that the Corporation is not engaged in interstate commerce, Schwartz Affidavit II at ¶ 9, and that the state court has primary jurisdiction to adjudicate plaintiff's claim under Kay-Fries, Inc. v. Martino, 73 A.D.2d 342, 426 N.Y. S.2d 304 (2d Dep't 1978), appeals dismissed, 50 N.Y.2d 1056, 410 N.E.2d 750, 431 N.Y.S.2d 817 (1980); 51 N.Y.2d 994, 417 N.E.2d 92, 435 N.Y.S.2d 979 (1980).

In Kay-Fries v. Martino, supra, the appellate court reviewed the trial court's issuance of an injunction against a union for tortious conduct committed incident to a strike against the plaintiff employer. In this suit brought under Section 807 of the New York Labor Law,⁹ the appellate division specifically held that the statutory requirement that findings of fact must be filed or recited in the record was not a jurisdictional prerequisite to the issuance of the injunction. 426 N.Y.S.2d at 308, 309. The Kay-Fries court cited a decision of the New York Court of Appeals which interpreted the predecessor of Section 807(1) as follows:

The effect of that statute is to prevent courts from enjoining peaceful picketing. It was never intended to deprive the Supreme Court of New York of jurisdiction to enjoin dangerous, illegal acts which constituted disorderly conduct and

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