Agee v. Huggins

• Decision Date: 09 May 1995
• Docket Number: Civ. A. No. 1:94-cv-2717-FMH.
• Citation: 888 F. Supp. 1573
• Parties: Gregory M. AGEE, Plaintiff, v. Jeffrey G. HUGGINS, Defendant.
• Court: U.S. District Court — Northern District of Georgia

888 F. Supp. 1573

Gregory M. AGEE, Plaintiff, v. Jeffrey G. HUGGINS, Defendant.

Civ. A. No. 1:94-cv-2717-FMH.

United States District Court, N.D. Georgia, Atlanta Division.

May 9, 1995.

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David Stahl, Atlanta, GA, for plaintiff.

Donald Harden, Kenneth Barr, Atlanta, GA, for defendant.

ORDER

HULL, District Judge.

This action is before the Court on (1) Defendant's Motion for Reconsideration 9-1, (2) Plaintiff's Motion to Remand 4-1, (3) Defendant's Motion to Dismiss 5-1, or in the alternative Motion for Summary Judgment 5-2.

I. DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S NOVEMBER 17, 1994 REMAND ORDER

On September 6, 1994, Plaintiff filed this action in the Superior Court of Forsyth County, Georgia. On October 11, 1994, Defendant removed this action to federal court. On October 31, 1994 Plaintiff filed a Motion to Remand this action to Forsyth County.

On November 17, 1994, the Court entered an Order remanding this action to the state court from which it was removed (the "November 17th Remand Order," or "Remand Order"). In the November 17th Remand Order, the Court found that Defendant had not removed this action timely to federal court, and based its ruling upon Defendant's untimely removal. Also on November 17, 1994, Defendant filed his response to Plaintiff's Motion to Remand, explaining that his removal notice was filed timely because the last day of the time period had been a Sunday, and the next day was Columbus Day, a federal holiday.¹

On November 28, 1994, Defendant filed a Motion for Reconsideration of the November 17th Remand Order, and an Emergency Motion to Stay Execution of the November 17th Remand Order. Upon review of those motions, the Court determined that Defendant was not untimely in removing this action to federal court. Therefore, on November 28, 1994, the Court granted Defendant's Emergency Motion to Stay Execution of the November 17th Remand Order, and entered an Order staying execution of its Remand Order. (See November 28, 1994 Order of the Court 11-1).

At the time the Court's error was realized, the Clerk of this Court had not sent a certified copy of the Remand Order to the state court. Therefore, this Court retained jurisdiction to correct the error in the Remand Order. See 28 U.S.C. § 1447(c); Hubbard v. Combustion Engineering, Inc., 794 F.Supp. 221, 222 (E.D.Mich.1992).² In any event, on November 30, 1994, the parties agreed that the November 17th Remand Order should be vacated, and expressly consented to this Court's considering Plaintiff's Motion for Remand, as well as Defendant's Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (See November 30, 1994 Order 12-1). On November 30, 1994, the Court entered the consent order and vacated its November 17th Remand Order. (See November 30, 1994 Consent Order).

Upon review of the current posture of this action, the Court lifts the stay of execution provided for in the November 28, 1994 Order. Defendant's Motion for Reconsideration 9-1 is granted. The Court will examine Plaintiff's Motion to Remand anew.³

II. PLAINTIFF'S MOTION TO REMAND

On September 6, 1994, Plaintiff filed a civil action against Defendant in the Superior Court of Forsyth County, Georgia. On October 11, 1994, Defendant timely removed the action to this Court contending that this Court had subject matter jurisdiction based upon the federal question. Plaintiff moves for remand of this action based upon (1) alleged deficiencies in the removal procedure, and (2) this Court's lack of subject matter jurisdiction. In response, Defendant contends (1) that there was no deficiency in the removal procedure that requires remand, and (2) that the state law claims raised in Plaintiff's Complaint are preempted by the Labor Management Relations Act, ("LMRA") 29 U.S.C. § 185, and thus, this Court has subject matter jurisdiction.

A. REMOVAL PROCEDURE DEFICIENCIES

Plaintiff contends that removal is improper because Defendant did not include certain state court documents in his removal petition.⁴ 28 U.S.C. § 1446 explains the procedure for removal of an action to federal court and requires that the Defendant include certain documents in the removal petition, as follows:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ... and a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C. § 1446(a). Defendant emphasizes that he is required to file only documents with which he has been served. Defendant claims that he was never served with any of the state court documents that Plaintiff argues are lacking from the removal petition. If Defendant was not served with a document, then Section 1446 does not require Defendant to file it as part of his removal petition. See 28 U.S.C. § 1446(a); Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 (11th Cir.1985). Therefore, Defendant's failure to file documents with which he was never served does not violate Section 1446. In any event, a party's initial failure to file papers as part of the removal petition may be cured by amendment. Id. at 1286-87; Woodall v. Insurance Co. of North America, 582 F.Supp. 247, 248 (N.D.Ga.1984). Defendant's failure to file the documents complained of by Plaintiff is not grounds for remand. Rather, the subsequent filing of these documents is the proper remedy. The Court finds that there are no procedural deficiencies in Defendant's removal petition, and thus, the Court reaches the question of whether it has subject matter jurisdiction.

B. PLAINTIFF'S CLAIMS ARE PREEMPTED BY SECTION 301 OF THE LMRA

A defendant may remove 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." 28 U.S.C. § 1441(b). A claim "arises under" federal law where Plaintiff's complaint raises federal issues; the so-called "well-pleaded complaint rule." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Belasco v. W.K.P. Wilson and Sons, Inc., 833 F.2d 277, 281 (11th Cir. 1987). Generally, preemption by federal law is a defense which does not give rise to federal question jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Belasco, 833 F.2d at 282. Where, however, a Complaint "raises a select type of claim that has been singled out by Congress for federal preemption," then the claim is said to "arise under" and may be removed pursuant to 28 U.S.C. § 1441(b). Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-47, 95 L.Ed.2d 55 (1987).

Section 301 of the LMRA provides that "suits for violation of contracts between an employer and a labor organization representing employees ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 29 U.S.C. § 185(a).⁵ Section 301 preempts any state law cause of action for violation of a collective bargaining agreement. Duncan v. Icenogle, 873 F.Supp. 579, 581 (M.D.Ala. 1994) (citing Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)). "A state law claim must exist independently of the collective bargaining agreement to elude to preemptive grasp of § 301." Id. (citing Allis-Chalmers v. Lueck, 471 U.S. 202, 218, 105 S.Ct. 1904, 1914-15, 85 L.Ed.2d 206 (1985)). Here, Defendant contends that Plaintiff's state law claims are preempted by Section 301.

The Court's present task is to determine whether Plaintiff has pleaded a state law cause of action that is preempted by Section 301, thus creating federal question jurisdiction and permitting removal to federal court. To make this determination the Court does not examine Plaintiff's characterization of his Complaint, but rather looks to see whether Plaintiff's claims require interpretation of the collective bargaining agreement between Plaintiff's employer and union. See, e.g., Allis-Chalmers v. Lueck, 471 U.S. 202, 218, 105 S.Ct. 1904, 1914-15, 85 L.Ed.2d 206 (1985); DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir.1994); Duncan v. Icenogle, 873 F.Supp. 579, 581 (M.D.Ala.1994).

At all times relevant to this action Plaintiff was employed as a commissioned sales agent by The Prudential Insurance Company of America ("Prudential"). Defendant was the District Manager of the Decatur, Georgia office of Prudential, and was Plaintiff's supervisor. Plaintiff is represented by the United Food and Commercial Workers International Union (the "UFCW"). Prudential and the UFCW are parties to a collective bargaining agreement (the "CBA"), which covers both Plaintiff and Defendant as employees of Prudential.

According to Plaintiff's Complaint, "on or about February 25, 1994, Plaintiff Agee's union, the United Food and Commercial Workers International Union ... caused certain grievances to be filed on its behalf against Defendant Huggins for alleged inappropriate conduct directed toward the Plaintiff and other employees." (Complaint, ¶ 5). Additionally, "on or about March 18, 1994, the UFCW filed an additional grievance through its union steward in Decatur against Defendant Huggins, complaining that Huggins had violated substantial sections of the collective bargaining agreement between The Prudential and its covered workers, especially the Plaintiff." (Complaint, ¶ 6). Plaintiff also alleges that "during the pendency of the NLRB actions, and as a substantive part of the UFCW collective bargaining agreement, Defendant Huggins is required not to take retaliatory...