Acme Markets, Inc. v. RETAIL STORE EMPLOYEES U. LOCAL NO. 692

• Decision Date: 21 July 1964
• Docket Number: Civ. No. 15653.
• Parties: ACME MARKETS, INC., a body corporate, v. RETAIL STORE EMPLOYEES UNION LOCAL NO. 692, AFL-CIO.
• Court: U.S. District Court — District of Maryland

231 F. Supp. 566

ACME MARKETS, INC., a body corporate, v. RETAIL STORE EMPLOYEES UNION LOCAL NO. 692, AFL-CIO.

Civ. No. 15653.

United States District Court D. Maryland.

July 21, 1964.

Robert L. Sullivan, Jr., Barry I. Robinson, Sklar & Sullivan, Baltimore, Md. (Blank, Rudenko, Klaus & Rome, Philadelphia, Pa., of counsel), for plaintiff.

S. G. Lippman, Ira Lechner, Tim L. Bornstein, Washington, D. C., and Melvin Steinberg, Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

Plaintiff seeks remand to the Circuit Court of Baltimore City of this suit in equity for an injunction which defendant removed therefrom.

The bill of complaint filed in the State Court on June 22, 1964, alleges that plaintiff, a Delaware corporation, is engaged in the retail sale of food and groceries in many locations in Baltimore City and elsewhere in the State of Maryland; that in April 1964, in support of an economic strike, defendant¹ began to picket plaintiff's stores, which were thereupon closed; that on June 17 plaintiff decided to reopen its stores and on June 19 solicited applications for employment; that on six occasions between June 19 and June 22 defendant committed specified acts of violence against such applicants in Baltimore City; that defendant engaged in mass picketing, as a result of which it was "becoming increasingly difficult to maintain public order in and about plaintiff's stores and places of business"; that the alleged illegal acts of defendant "are so enmeshed with the picketing as to make them inseparable"; that irreparable injury had been and would be sustained by plaintiff, and "a large number of persons" would be intimidated, threatened and coerced, unless the unlawful actions of defendant were restrained.

The bill of complaint prayed for: (1) an order temporarily and permanently restraining defendant from picketing at plaintiff's stores and places of business; (2) an order restraining defendant from placing or allowing more than four pickets in and about any store; (3) an order restraining defendant from "coercing intimidating, threatening, warning, assaulting, battering or in any way interfering with any persons in and about plaintiff's stores or places of business"; and (4) other and further relief.

On the allegations of the bill, supported by an affidavit made on information and belief, the State Court issued a temporary restraining order, prohibiting all picketing of plaintiff's stores and places of business by defendant and restraining defendant from coercing, intimidating, threatening, warning, assaulting, battering or in any way interfering with any person in and about plaintiff's stores or places of business.

On the following day, June 23, defendant sought unsuccessfully to secure a modification of the order. On June 24 defendant entered an appeal to the Court of Appeals of Maryland, which, on plaintiff's motion, was dismissed by that Court the same day. During the hearing on plaintiff's prayer for a preliminary injunction, which was begun the same day, defendant filed a petition to remove the case to this Court. Immediately upon receiving notice thereof the State Court stopped its hearing. Late that afternoon, following a hearing before two judges of this District Court, this Court announced that pending decision of a motion to remand, which plaintiff's attorneys said they intended to file, this Court would enforce the State Court order, modified (1) to limit the injunction to acts which, in Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957), the Supreme Court held to have been properly enjoined, and (2) to limit the number of pickets at each store and at each entrance. An order to that effect was signed that evening, and has been continued in effect by agreement of the parties. The Court is advised that the order, so modified, has been observed.

On July 1, plaintiff filed its motion for remand. Argument thereon has been heard on several occasions, since counsel for defendant raised new points from time to time and requested leave to file additional briefs.

Plaintiff's contention that defendant waived its right to remove is without merit. 1A Moore, Federal Practice, 2d ed. ¶ 0.1579, and cases cited therein.

Defendant recognizes that because it is a citizen of Maryland it cannot base a right to remove on the ground of diversity of citizenship, and must show that this is a civil action of which the district courts have original jurisdiction founded on a claim or right arising under the laws of the United States. 28 U.S.C.A. 1441(a) and (b).²

Defendant has presented several arguments or theories which it has had to abandon upon further study of the authorities.³ Defendant now rests upon the contention that this case arises under a law of the United States because its correct decision depends upon the construction of the National Labor Relations Act (NLRA). Although plaintiff has based its complaint on the alleged acts of violence, which traditionally give rise to a local cause of action, see Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U.S. 740, 749, 62 S.Ct. 820, 86 L.Ed. 1154 (1942), Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957), and other cases discussed below, defendant argues that plaintiff's reliance on the enmeshment theory necessarily brings into play Section 7 of the NLRA, 29 U.S.C.A. § 157.

Defendant relies on the language of Blease v. Safety Transit Co., 4 Cir., 50 F.2d 852 (1931), where Chief Judge Parker said: "A case is said to arise under the Constitution and laws of the United States `"whenever its correct decision depends upon the construction of either" * * * or when "the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction."' Little York Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 201, 24 L.Ed. 656; Cohens v. Virginia, 6 Wheat. 264 379, 5 L.Ed. 257; Osborn v. Bank of U. S., 9 Wheat. 738, 822, 6 L.Ed. 204; Patton v. Brady, 184 U.S. 608, 22 S.Ct. 493, 46 L.Ed. 713; Bellaire, Benwood & Wheeling Ferry Co. v. Interstate Bridge Co. (C.C.A. 4th) 40 F.(2d) 323." 50 F.2d at 854. The complaint filed in the State Court by the South Carolina Railroad Commission in the Blease case sought to enjoin the transit company from operating any bus on the roads of the state without obtaining a certificate of public convenience and necessity, whether or not the buses were engaged in interstate commerce. Immediately after the passage, quoted above, the following statement appeared: "And a suit which asserts the right on the part of a state to regulate interstate commerce raises a question under the Constitution of the United States; for the exclusive power to regulate such commerce is vested by the Constitution in Congress." 50 F.2d at 854-855.

The opinion in the Blease case must be considered in light of the development of the law, as shown by decisions of the Supreme Court and later decisions of the Fourth Circuit.

Article III, Section 2 of the Constitution provides in pertinent part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; * * *"

In Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), construing this constitutional provision in a case which came to the Supreme Court from a state court, Chief Justice Marshall said: "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either." 6 Wheat. at 379.

A few years later, in Osborn v. Bank of the United States, 9 Wheat, 738, 6 L. Ed. 204 (1824), construing the same provision in a case instituted in a federal circuit court pursuant to a statute specifically giving such courts jurisdiction in suits by and against the Bank, the Chief Justice said: "A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends, effectively and beneficially, to that most important class of cases, which depend on the character of the cause." 9 Wheat. at 822.

These statements were quoted and followed in early removal cases, such as Little York Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 201, 24 L.Ed. 656 (1877). A rather limited right of removal had been given in the First Judiciary Act in 1789, but after the Civil War, the right was expanded, particularly by a statute in 1875, which permitted removal of virtually all cases within the constitutional judicial power, subject only to the then-required jurisdictional amount. This privilege was narrowed in 1887 by a statute which raised the jurisdictional amount, limited removal to defendants, and was construed as barring removal where a defendant relied on federal law as his defense. State of Tennessee v. Union and Planters Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1899); Great Northern Railway Company v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 62 L.Ed. 713 (1918); Wright on Federal Courts, sec. 38, p. 110. The present removal statute is closely derived from the 1887 legislation.

Since 1887 the Supreme Court has given an increasingly narrow interpretation to the words...