Albertson's, Inc. v. Carrigan

• Decision Date: 05 January 1993
• Docket Number: Nos. 92-1197,92-1198,s. 92-1197
• Citation: 982 F.2d 1478
• Parties: 142 L.R.R.M. (BNA) 2220, 124 Lab.Cas. P 10,509, 8 IER Cases 208 ALBERTSON'S, INC., doing business as Grocery Warehouse; Dale Rigsby; Bryan Brown; Don Inman; Ronald Cook, Petitioners, v. Jim R. CARRIGAN, District Judge, Respondent, Alfreda Aguirre; Ralph I. Aguirre, Plaintiffs-Real Parties In Interest. Alfreda AGUIRRE; Ralph I. Aguirre, Plaintiffs-Appellees, v. ALBERTSON'S, INC., doing business as Grocery Warehouse; Dale Rigsby; Bryan Brown; Don Inman; Ronald Cook, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1478

982 F.2d 1478

142 L.R.R.M. (BNA) 2220, 124 Lab.Cas. P 10,509,

8 IER Cases 208

ALBERTSON'S, INC., doing business as Grocery Warehouse;

Dale Rigsby; Bryan Brown; Don Inman; Ronald

Cook, Petitioners, v. Jim R. CARRIGAN, District Judge, Respondent,

Alfreda Aguirre; Ralph I. Aguirre, Plaintiffs-Real Parties

In Interest.

Alfreda AGUIRRE; Ralph I. Aguirre, Plaintiffs-Appellees, v. ALBERTSON'S, INC., doing business as Grocery Warehouse;

Dale Rigsby; Bryan Brown; Don Inman; Ronald

Cook, Defendants-Appellants.

Nos. 92-1197, 92-1198.

United States Court of Appeals Tenth Circuit.

Jan. 5, 1993.

James E. Hautzinger and Andrew W. Volin of Sherman & Howard, Denver, CO, for defendants-appellants.

Michael F. Scott, Denver, CO, for plaintiffs-appellees.

Before LOGAN, TACHA and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Alfreda Aguirre, a union employee covered by a collective bargaining agreement, was suspended from her employment at Albertson's after she was accused of shoplifting. ¹ Mrs. Aguirre and her husband, Ralph I. Aguirre, filed a complaint in Colorado district court alleging that defendants Albertson's Inc., Dale Rigsby, Bryan Brown, Don Inman, and Ronald Cook unlawfully suspended Mrs. Aguirre from employment and conspired to accuse her falsely of shoplifting from her employer, Albertson's. ² The complaint alleged a single claim for "extreme and outrageous conduct," inflicting upon plaintiff "severe emotional distress." App. of Petitioners at 1 (hereafter App.). Defendants removed the action to federal district court based upon federal labor law preemption pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.

Defendants then filed a motion to dismiss, alleging that the action was preempted by § 301. Plaintiffs filed a motion to remand to state court. The district court determined that plaintiffs' claim for outrageous conduct actually consisted of two claims: one based on suspension and one based on conspiracy to charge Mrs. Aguirre with shoplifting. The district court construed the motion to dismiss as a motion for summary judgment. It dismissed the suspension claim on federal preemption grounds, but concluded that the conspiracy claim was not preempted because it did not require interpretation of the collective bargaining agreement (CBA). However, because diversity jurisdiction no longer existed, the district court exercised its discretion and remanded that claim to state court.

Defendants both appealed (No. 92-1198) and filed a petition for writ of mandamus (No. 92-1197). They argue that plaintiffs' claim of outrageous conduct is completely preempted and, therefore, the complaint should have been dismissed in its entirety without remand of the conspiracy claim to the state court.

I

The threshold question we must decide is whether the district court's remand order is reviewable. Although remand orders issued on the grounds stated in 28 U.S.C. § 1447(c) are not reviewable, 28 U.S.C. § 1447(d); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); Indian Country, U.S.A., Inc. v. State of Okla. ex rel. Okla. Tax Comm'n, 829 F.2d 967, 970 n. 1 (10th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988), here review is permissible because the district court did not remand on the basis of a defect in removal procedure or for lack of subject matter jurisdiction pursuant to § 1447(c). Rather, the court acknowledged its jurisdiction under § 301, although it had to dismiss the suspension claim to permit arbitration under the CBA. See Avco Corp. v. Aero Lodge No. 735, Int'l Association of Machinists, 390 U.S. 557, 560-61, 88 S.Ct. 1235, 1237-38, 20 L.Ed.2d 126 (1968). The court considered the claim based on conspiracy to charge with shoplifting as a pendent state claim, and remanded as an exercise of its discretion based on considerations of efficient use of judicial resources, the interests of the parties, and comity. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 622-23, 98 L.Ed.2d 720 (1988). A remand based on a district court's perceived discretion is not ordered pursuant to § 1447(c). See Price v. PSA, Inc., 829 F.2d 871, 874 (9th Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1732, 100 L.Ed.2d 196 (1988). The policy of Thermtron Products, 423 U.S. at 351-52, 96 S.Ct. at 593, to avoid protracted litigation of jurisdictional issues, is inapplicable when a court remands a case on grounds not specified in § 1447(c). Thus, we have authority to review the remand. See J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 270-71 (7th Cir.1990); Price, 829 F.2d at 874; Scott v. Machinists Automotive Trades Dist. Lodge No. 190, 827 F.2d 589, 592 (9th Cir.1987).

We next conclude review must be by mandamus. The remand order is not appealable because unlike Milk 'N' More, Inc. v. Beavert, 963 F.2d 1342 (10th Cir.1992), it did not result from a determination on the merits of a nonjurisdictional issue. Price, 829 F.2d at 874. However, appeals courts may use mandamus to compel a district court to exercise its jurisdiction when it has a duty to do so. Mallard v. United States Dist. Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). We recognize that mandamus is a drastic remedy which may be invoked only in extraordinary situations, and that a party seeking mandamus must demonstrate a clear abuse of discretion amounting to usurpation of judicial power, lack of an adequate alternative means of relief, and a clear and indisputable right to issuance of the writ. Id. at 309, 109 S.Ct. at 1822. Nevertheless, mandamus is the only appropriate remedy here. "[B]ecause an order remanding a removed action does not represent a final judgment reviewable by appeal, '[t]he remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done.' " Thermtron Products, 423 U.S. at 352-53, 96 S.Ct. at 593-94 (quoting Chicago & Alton R.R. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L.Ed. 103 (1875)); see J.O., 909 F.2d at 271; In re Life Ins. Co. of N. Am., 857 F.2d 1190, 1193 (8th Cir.1988).

II

Defendants assert that plaintiffs' claims are completely preempted by § 301 of the Labor Management Relations Act. Section 301 provides that "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties...." 29 U.S.C. § 185(a). Section 301

preempts state causes of action addressing "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, ... whether such questions arise in the context of a suit for breach of contract or a suit alleging liability in tort."

Saunders v. Amoco Pipeline Co., 927 F.2d 1154, 1155 (10th Cir.) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S.Ct. 1904, 1911, 85 L.Ed.2d 206 (1985)), cert. denied, --- U.S. ----, 112 S.Ct. 264, 116 L.Ed.2d 217 (1991). Thus, "[w]hen resolution of a state law claim depends upon analysis of the terms of a labor agreement, section 301 will preempt that claim." Saunders, 927 F.2d at 1155. Plaintiffs often attempt to avoid federal jurisdiction under § 301 by framing their complaints in terms of state law theories such as conspiracy. Courts, therefore, look beyond the allegations of the complaint, often to the petition for removal, to determine whether the wrong complained of arose from a breach of obligations under the collective bargaining agreement. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 530 (10th Cir.1992); United Ass'n of Journeymen & Apprentices of the Plumbing & Pipe Fitting Indus. v. Bechtel Power Corp., 834 F.2d 884, 888 (10th Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988).

The Supreme Court has recognized that the presence of a § 301 question in a defensive argument does not overcome a "well-pleaded complaint" setting forth a state claim not involving the CBA; that a plaintiff, as master of the claim, may forgo a claim based on federal law to sue in state court by pleading what is "plainly a state-law-claim." Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 2432-33, 96 L.Ed.2d 318 (1987). The district court, however, ruled that the complaint before us was not well-pleaded, but was "poorly drafted." App. at 88. The court read what purported to be a single claim for extreme and outrageous conduct as stating one federal § 301 claim for unlawful suspension from employment and a second claim for conspiracy to charge Mrs. Aguirre with shoplifting. If we view the complaint this way, this is not a situation like Caterpillar in which plaintiff decided to forgo the federal claim in order to litigate in state court. As we read the complaint, however, it attempted to plead only one state law claim for outrageous conduct intending to cause emotional distress. Plaintiffs, of course, did not forgo Mrs. Aguirre's claim for loss of employment. The union is still processing a claim for her suspension "without good and sufficient cause" under the arbitration provisions of the CBA, by which she seeks to be "made whole for all losses." App. at 12. Thus, whether we view the case as did the district court or as an attempt to state a single state-based claim, plaintiffs have not wholly eschewed their federal remedy for Mrs. Aguirre's discharge from employment in favor of an entirely different state-based claim.

We believe it does not matter whether the complaint is viewed as stating one claim or two. If we agree with the district court that plaintiffs have stated one federal claim that had to be dismissed for arbitration under the CBA, and a truly separate, pendent, state claim, we will not reverse the remand order. The Supreme Court has held that a district court has the...