Adolph Coors Co. v. Sickler

• Decision Date: 08 May 1985
• Docket Number: No. CV 84-2346 MRP.,CV 84-2346 MRP.
• Parties: ADOLPH COORS COMPANY; T.F. Louderback, Inc., d/b/a Coors Distributing of Oakland; Concord Beverage, Inc., d/b/a Coors of Contra Costa; Coors Distributing Company of San Jose, d/b/a California Beverage Company, Lloyd B. Henry, Inc.; Coors Distributing Company of San Jose; Regal Beverages, Inc., d/b/a Coors West; Coors Distributing Company of Hayward, Inc.; House of Daniels, Inc. d/b/a Golden Gate Distributing Co.; Corda Distributing Company; Clark Miller Distributing Inc., Plaintiffs, v. A. David SICKLER, Individually and as Coordinator of the Northern California Chapter of AFL-CIO Coors Boycott Committee and AFL-CIO Coors Boycott Committee doing business as Northern California Chapter of AFL-CIO Coors Boycott Committee; Howard Wallace, Individually and as Coordinator of the Northern California Chapter of AFL-CIO Coors Boycott Committee; AFL-CIO Coors Boycott Committee doing business as Northern California Chapter of AFL-CIO Coors Boycott Committee; Northern California Chapter of AFL-CIO Coors Boycott Committee; and Does I-L, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

608 F. Supp. 1417

ADOLPH COORS COMPANY; T.F. Louderback, Inc., d/b/a Coors Distributing of Oakland; Concord Beverage, Inc., d/b/a Coors of Contra Costa; Coors Distributing Company of San Jose, d/b/a California Beverage Company, Lloyd B. Henry, Inc.; Coors Distributing Company of San Jose; Regal Beverages, Inc., d/b/a Coors West; Coors Distributing Company of Hayward, Inc.; House of Daniels, Inc. d/b/a Golden Gate Distributing Co.; Corda Distributing Company; Clark Miller Distributing Inc., Plaintiffs, v. A. David SICKLER, Individually and as Coordinator of the Northern California Chapter of AFL-CIO Coors Boycott Committee and AFL-CIO Coors Boycott Committee doing business as Northern California Chapter of AFL-CIO Coors Boycott Committee; Howard Wallace, Individually and as Coordinator of the Northern California Chapter of AFL-CIO Coors Boycott Committee; AFL-CIO Coors Boycott Committee doing business as Northern California Chapter of AFL-CIO Coors Boycott Committee; Northern California Chapter of AFL-CIO Coors Boycott Committee; and Does I-L, inclusive, Defendants.

No. CV 84-2346 MRP.

United States District Court, C.D. California.

March 1, 1985.

On Modification of Opinion May 8, 1985.

COPYRIGHT MATERIAL OMITTED

Robert K. Carrol, Robert L. Zaletel, Littler, Mendelson, Fastiff & Tichy, A Professional Corp., San Francisco, Cal., Earl K. Madsen, Bradley, Campbell & Carney, A Professional Corp., Golden, Colo., for plaintiffs Adolph Coors Co., et al.

Fred H. Altshuler, Marsha S. Berzon, Michael Rubin, Altshuler & Berzon, San Francisco, Cal., for defendants.

OPINION

PFAELZER, District Judge.

Plaintiffs' motion to remand and defendants' motion to dismiss, or in the alternative for summary judgment, came on for hearing on July 2, 1984. The Court, having considered the papers filed and oral arguments made, now files this Opinion.

I. BACKGROUND

In the spring of 1981, plaintiffs¹ ("Coors") and KQED, Inc. ("KQED"), a public television station located in San Francisco, agreed that, in exchange for financial support and manpower, Saturday, May 30, 1981 was to be "Coors Day" at the annual KQED auction. After some adverse publicity in the local press regarding Coors and its sponsorship of the KQED auction, Howard Wallace ("Wallace") and A. David Sickler ("Sickler"), coordinators of the Northern California Chapter of the AFL-CIO Coors Boycott Committee ("the Northern California Committee"), began organizing a protest against "Coors Day". On May 26, 1981, Wallace, as agent for the Northern California Committee, met with KQED president Anthony Tiano and other KQED personnel. At this meeting, Wallace allegedly

threatened Mr. Tiano and other KQED personnel that KQED had stumbled into a `shooting war' between Defendants and the Adolph Coors Company and that KQED and its volunteers would be in the `cross-fire' of that war.... Defendant Wallace further threatened Mr. Tiano and other KQED personnel at this May 26, 1981 meeting that he could not guarantee the safety of the KQED auction volunteers from acts and conduct of the Defendants....²

It is further alleged that Wallace threatened that if Coors underwrote the KQED auction, the auction would be subject to mass picketing and that the Northern California Committee would jam the station's phone lines with calls³. Plaintiffs claim that, as a consequence of these threats, KQED was induced to breach its contract with them.

In February 1982, plaintiffs brought suit⁴ ("Coors v. Wallace") in the District Court for the Northern District of California alleging that Wallace, individually and as President of the Northern California Committee, and Sickler, individually and as Coordinator of the Northern California Committee, had violated Section 1 of the Sherman Act and had committed several state law torts. In the summer of 1982, defendants brought a motion for summary judgment. After this motion had been submitted, plaintiffs filed a motion for leave to file an amended complaint adding a secondary boycott claim under Section 303 of the National Labor Relations Act ("N.L.R.A.") as amended, 29 U.S.C. § 187. On February 17, 1984, the Honorable Spencer Williams granted defendants' motion for summary judgment with respect to the federal antitrust claim. Finding that plaintiffs had unduly delayed in filing their secondary boycott claim and that amendment of the complaint would be prejudicial to the defendants, Judge Williams denied plaintiffs' motion for leave to amend their complaint. Finally, Judge Williams dismissed the remaining state law tort claims, without prejudice, "to permit the plaintiffs to refile them in the state court, if they so choose."

On March 9, 1984, plaintiffs filed this action in the Superior Court of the State of California for the County of Los Angeles naming as defendants Wallace and Sickler, individually and as coordinators of the Northern California Committee, the Northern California Committee itself, and the AFL-CIO Coors Boycott Committee doing business as the Northern California Chapter of AFL-CIO Coors Boycott Committee ("the AFL-CIO Committee"). The complaint contains five claims. In the first four, plaintiffs reallege the state law tort claims that were dismissed without prejudice in Coors v. Wallace (e.g., intentional interference with contractual relations). The fifth claim unlike the first four which are directed against all defendants, is directed only against the defendant Northern California Committee and the defendant AFL-CIO Committee (the "organization defendants"). This claim alleges that, by their conduct, the organization defendants violated the secondary boycott prohibitions contained in Section 8(b) of the N.L.R.A., 29 U.S.C. § 158(b). Federal and state courts have concurrent jurisdiction over this claim pursuant to Section 303 of the N.L.R.A., 29 U.S.C. § 187.

II. DISCUSSION

Defendants have moved to dismiss the action in its entirety. They contend that since Coors could have litigated the secondary boycott claim in its prior suit, it is barred by the doctrine of res judicata from bringing that claim in this action. With respect to the plaintiffs' state law tort claims, defendants argue that these claims are preempted by the federal labor laws.

As a threshold matter, in order for this Court to entertain these motions, there must be a determination that removal was proper. If it was not, the Court must remand the case to the state court for resolution of the motions. See Chism v. National Heritage Life Insurance Co., 637 F.2d 1328, 1330 n. 3 (9th Cir.1981); 14A Wright, Miller & Cooper, Federal Practice and Procedure § 3739 at 757-58 (1976).

III. REMOVAL

Possible bases for removal are to be found in 28 U.S.C. §§ 1441(b) and 1441(c).

A. 28 U.S.C. § 1441(b)

28 U.S.C. § 1441(b) provides, in relevant part, that

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.

1. "Artful Pleading"

Plaintiffs' fifth claim expressly invokes federal law. However, as noted above, this claim is directed against the organization defendants only. Although the remaining claims ostensibly are predicated on state law, defendants assert that federal law preempts these claims and provides an exclusive federal remedy for the wrongs alleged by plaintiffs. Therefore, defendants argue, plaintiffs' action is based in its entirety on federal law and, as a consequence, removal is warranted pursuant to § 1441(b) irrespective of the manner in which Coors has alleged its first four claims. Although the question is a close one, the Court has concluded that plaintiffs' state law tort claims are not wholly preempted. Therefore, removal on the ground that this action is based solely on federal law is not warranted.

A case "arises under" federal law if "a right or immunity created by the Constitution or laws of the United States constitutes an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). Accordingly, a defendant "may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983). Thus, where preemption is asserted by way of defense, it cannot serve as a basis for removal. See, e.g., Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 192 (9th Cir.1983).

The plaintiff is the master of his complaint, and is free to disregard a federal claim and rely instead on a state claim. See, e.g., Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984). However, if the true basis of the plaintiff's complaint is federal law, the Court will look beyond the plaintiff's "artful pleading" and find removal proper. See Schroeder, 702 F.2d at 191.

In Garibaldi, 726 F.2d at 1370 n. 5, the Ninth Circuit articulated the distinction between an "artfully pled complaint and one that is preempted, but not removable". When "federal law not only displaces state law but also confers a federal remedy on the plaintiffs", removal is proper because the plaintiff's claim "states on its face" an action arising under federal law. Id. In contrast, if the preemption argument "focuses on the proposition that the state could not regulate the field rather than that the complaint states a federal cause of action", then removal is defensive and not a proper ground for removal. Id. Therefore, the court stated, in a case involving labor law, rather than dismissing a case initially under the proposition that preemption cannot constitute a basis for removal, a court must "look to the substance of the plaintiff's claim to see if it states on its face a federal cause of action, i.e., if federal law requires the plaintiff to rely...