Beacon Moving & Storage, Inc. v. LOCAL 814, ETC.

• Citation: 362 F. Supp. 442
• Decision Date: 05 December 1972
• Docket Number: No. 72 Civ. 1027.,72 Civ. 1027.
• Parties: BEACON MOVING AND STORAGE, INC., Plaintiff-Respondent, v. LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, Defendant-Petitioner.
• Court: U.S. District Court — Southern District of New York

362 F. Supp. 442

BEACON MOVING AND STORAGE, INC., Plaintiff-Respondent, v. LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, Defendant-Petitioner.

No. 72 Civ. 1027.

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

December 5, 1972.

Gordon & Tropp, New York City, for plaintiff-respondent; Harvey Tropp, Joel Schweidel, New York City, of counsel.

Cohen, Weiss & Simon, New York City, for defendant-petitioner; Bruce H. Simon, New York City, of counsel.

MEMORANDUM

TENNEY, District Judge.

This is a motion pursuant to 28 U.S.C. § 1447 (1970) to remand this action to the state court. The action was commenced on or about March 8, 1972, in the Supreme Court of the State of New York, County of New York, by service of a summons and complaint. Served therewith was an order to show cause ordering defendant to show cause on March 13, 1972, why a preliminary injunction should not issue against it. On March 10, 1972, prior to such return date, defendant removed the action to this court pursuant to 28 U.S.C. § 1441(a) (1970). In its petition for removal defendant alleged, in substance, that the complaint in the state court action alleged violations of 29 U.S.C. §§ 158(b)(4) and 187(a) (1970) and, further, that the federal court had original jurisdiction of this action pursuant to 29 U.S.C. § 187(b) and 28 U.S.C. § 1337 (1970).

Plaintiff contends herein that this court lacks original jurisdiction under 29 U.S.C. § 187(b) and that the true basis for the removal is to hinder and delay the progress of the action and to subvert the effect of the order to show cause issued on March 8, 1972.

This is an action seeking a permanent injunction against defendant, its officers, members, agents, servants, employees, successors and all other persons acting or allegedly acting on its behalf from continuing to engage in certain acts of violence, coercion and intimidation for the purpose of compelling plaintiff to become a "union" company. Defendant, in seeking to invoke the jurisdiction of this court by way of removal, has the burden of establishing that the action arises under federal law. "The complaint, of course, is controlling and must be read as drawn by the plaintiff, unaided by the petition for removal." Jody Fair, Inc. v. Dubinsky, 225 F.Supp. 695, 696 (S.D.N.Y.1964).

A review of the allegations of plaintiff's complaint clearly indicates that the complaint does not state a cause of action over which this court has jurisdiction. Nowhere does it allege that a claim or right is asserted under any federal law or that there is any contract or agreement between the parties. Reduced to its simplest terms, the complaint alleges that defendant, for the purpose of coercing plaintiff into becoming a union company, engaged in acts and threats of violence, all of which hindered plaintiff in the course of its business. Many of the acts complained of prevented plaintiff from completing its work. On numerous occasions, defendant contacted plaintiff's officers and threatened them with physical harm if the company did not become a union company. Defendant's agents also contacted various customers of plaintiff in an attempt to prevent such customers from doing business with plaintiff. In addition, on numerous occasions defendant's agents physically prevented plaintiff's employees and vehicles from proceeding with their work. It is further alleged that defendant's agents have continually hindered and harassed plaintiff in its efforts to coerce plaintiff into becoming a union company and that such acts of coercion and harassment often have been violent or have involved threats of violence, such as when large mobs of men congregated at or near plaintiff's place of business or locations at which it was conducting business and threatened plaintiff's employees and other persons with whom plaintiff was conducting business with serious injury to their persons or property.

Plaintiff's complaint does not in any manner allege that defendant has engaged in any acts over which this court has original jurisdiction by virtue of 29 U.S.C. § 187(a). The acts complained of are clearly prima facie tortious acts for which plaintiff seeks injunctive relief in the state court.

Defendant contends, in effect, that the complaint is framed in terms of "secondary boycott" allegations. A secondary boycott, within the meaning of 29 U.S.C. § 158(b) (4), is an unlawful act practiced by a labor organization ...