Allor v. Amicon Corp.
| Decision Date | 25 March 1986 |
| Docket Number | Civ. A. No. 85-CV-5197-DT. |
| Citation | 631 F. Supp. 326 |
| Parties | Tina ALLOR, Vincent Barcich, Randall Berner, Mary Blakely, Helen Bocknak, Lillian Bommarito, Michael K. Brown, William Brown, Brenda Browning, Henry Bubrowski, Margaret Causby, Michael D. Causby, Ronald Caza, Stephanie Caza, Violet Cooper, Nora Christian, Joan Chrzanowski, Gloria Danik, Ben Delfin, Esther Desaussure, Dominick De Tomaso, William Drumgold, Jeannie Fontella, Elaine Fontera, Bill Gersch, Christine Goolsby, Pat W. Grant, Sandra J. Gray, Jeannie Gremlich, Toni R. Griffin, Cathy Hall, Harold Hall, Karmen Hall, Bruce S. Hamilton, Juanita Hamilton, Michael Haranczak, Amelia Harling, Kay Harrington, Lee Harrison, Phyllis Harrison, Willie Hart, Gregory R. Hershberger, Bess Hollenbeck, Margaret Hydo, Elsie Karasinski, Bill Kelsey, Ed Kessler, Eddie King, James Klemoszemski, Helen Koncyk, Raymond Kott, Leonard Lake, Raymond Leopold, Jack Lucido, Essie Luckett, Harry Miller, Dan Moore, Donna Moore, Darlene F. Mullins, Ken Newton, Gail Nichol, Williamina Niezguski, Ralph Pardon, Joe Peltier, Deborah Perry, Martin Peters, Joe Peterson, Joanna Petlock, David L. Pohl, Sam Purpura, Geraldine Reaves, Neal Rice, Vernell Riley, Jim Rose, Tania M. Sadler, Claire Salls, Gail Sanders, Guiseppe Scianimanico, Jerry Scott, Gary Simon, Jeff Simon, John Simon, Sr., John Simon, Jr., Denise Sklar, Dewey Smith, Jr., Patricia Smith, William Sperry, John Standard, Ken Stanic, Steve Steinetz, Virginia Stepka, Joyce E. St. Onge, Janine Stratton, Aletha Suchy, Peter Szadyr, Elizabeth Tanase, Barbara Terrace, Gloria J. Thomas, Diane Travis, Patsy L. Travis, Elsie Vamderhedge, Ronald Vansickle, Linda Wallace, Melvin Wendorf, Theresa V. Wendorf, Phillip Werner, Janella Whitefield, Bruce Wiese, Helen White, Leeann Young, Golda Young, Mardelle Young, Roy Neal, Kenneth Stanic, Calvin Cardwell, Ernest Walker, Johnnie Jones, Flora Plasencia, Dorothy Walters, Lucille Tumbarella, Personal Representative for the estate of Tumbarella, Deceased, Agnes Lobaido, Personal Representative of the Estate of Sam Lobaido, Deceased, and Neva Simon, Personal Representative for the Estate of James Simon, Deceased, Plaintiffs, v. AMICON CORPORATION, Electrotools, Inc., Michlin Diazo Products Corporation, Penetone Corporation, Swen Sonic Corporation, Detrex Chemical Industries, Inc., Carborundum Company, Inc., Aluminum Company of America, Great Lakes Minerals Company, Fabricon Corporation, Stecom Corporation, Du Bois Chemicals, Martin Marietta, Goodyear Tire and Rubber Company, 3M Corporation, Monsanto Company, Rohm and Haas Company, Allen Products Corporation, Ethyl Corporation, Owens/Corning Fiberglass Corporation, Crown Industrial Products Company, Celanese Chemical Company, Wedron Silica Company, Arco Chemical Company, Master Chemical Corporation, Riber Resin Corporation, Witco Corporation, Gage Products Company, Bendix Corporation, Facet Enterprises, Inc., Detroit Edison Company, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
Kay Honigman-Singer, Detroit, Mich., Norman Landau, New York City, for plaintiffs.
Bernard P. McClorey, Ronald G. Acho, Susan D. Nelson, T. Joseph Seward, Livonia, Mich., for Facet and Bendix.
Richard J. Tonkin, C.F. Boyle, Detroit, Mich., for Good Year Tire and Ethyl Corp.
Jack M. Abella, Detroit, Mich., for Detroit Edison.
Timothy D. Wittlinger, Linda S. Walton, Detroit, Mich., for Marietta.
John E.S. Scott, Richard L. Caretti, Detroit, Mich., for Monsanto Co.
J. Steven Johnston, Troy, Mich., for Swen Sonic.
Herschel Fink, George W. Steel, Detroit, Mich., for Detrex Ind.
Sheldon Miller, Eric D. Geller, Detroit, Mich., for Gage Products.
Steven M. Hickey, Detroit, Mich., for Alcoa.
Michael A. Rajt, Detroit, Mich., for Great Lakes Minerals Corp.
Sheila Mooney, Birmingham, Mich., for Allen Products.
David T. Rogers, Detroit, Mich., for Michlin Diazo.
Thomas Herrman, Birmingham, Mich., for Swen Sonic.
Jay Brant, Detroit, Mich., for 3M and Celanese.
Thomas Meyers, Detroit, Mich., for Fabricon.
Ronald Wagner, Detroit, Mich., for Owens/Corning.
J.R. Zanetti, Jr., Southfield, Mich., for Great Lakes.
Dennis G. Bonucchi, Detroit, Mich., for Wedron Silica.
William Kahn, Troy, Mich., for Rohm & Haas.
Robert Roth, Bloomfield Hills, Mich., for Penetone and Stecom.
Eric Clay, Detroit, Mich., for Amicon.
Boleslaus Stanczyk, Detroit, Mich., for Du Bois Chemical.
Bruce M. Bieneman, Grand Rapids, Mich., for Witco.
This is a toxic tort action brought by 122 plaintiffs against 31 defendants. The basic allegation is that the plaintiffs were negligently and/or intentionally exposed to toxic and hazardous chemicals at their workplace for a number of years. Among the defendants are the Bendix Corporation and Facet Industries, which during the period at issue owned the facility where the plaintiffs worked. They are charged with fraudulent misrepresentation as to the safety of the plant, intentional infliction of emotional distress and battery. The remaining defendants are the manufacturers and distributors of the toxic substances to which the plaintiffs were allegedly exposed. This action was originally brought in state court, but was removed to this court by Bendix and Facet. An order to show cause was issued by the court as the presence of a federal question was not apparent on the face of the plaintiffs' complaint and there was an absence of complete diversity between the parties. Subsequently, the plaintiffs filed a motion to remand. During the hearing on these issues, this court expressed concern as to its jurisdiction over the non-employer defendants, and requested briefs from the parties on the issue of pendent party jurisdiction.
The first issue is whether the plaintiffs' claims against Bendix and Facet "arise under" the laws or the Constitution of the United States. 28 U.S.C. § 1441(b) states:
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. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
Defendants Bendix and Facet argue that plaintiffs' complaint "arises under" federal law because it is preempted by § 301 of the Labor Management Relations Act.1 The relationship between the plaintiffs and Bendix and Facet ("defendants") was governed by a collective bargaining agreement for most of the period at issue in this lawsuit. Defendants contend that their duties as to employee safety were governed by the union contract and that therefore this suit should be determined by reference to federal labor law. Plaintiffs respond that their claims are purely state law tort claims, hence not removable.
A defendant may not remove a case to federal court unless the plaintiff's complaint on its face establishes that the case arises under federal law. Guilly v. First National Bank of Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). This is otherwise known as the "well pleaded complaint" rule. Generally, federal preemption, an issue raised by the defendant, cannot be a basis for removal jurisdiction. Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 2849, 77 L.Ed.2d 420 (1982); Taylor v. General Motors Corp., 763 F.2d 216 (6th Cir.1985). However, a plaintiff may not defeat removal by failing to plead necessary federal questions in a complaint. Avco Corp. v. Aero Lodge No. 735, Int'l Assn. of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).2 In Avco, the Supreme Court held that a suit by an employer against a union alleging violations of the collective bargaining contract was removable because it arose under § 301 even though it acknowledged that the petitioner had plead an adequate claim for relief under state law. In a recent decision interpreting Avco, the Supreme Court said:
The necessary ground of decision was that the preemptive force of § 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily "arises under" federal law.
Franchise Tax Bd., 463 U.S. at 23-24, 103 S.Ct. at 2853-54 (1982). Thus pursuant to Avco and Franchise Tax, if a defendant successfully asserts that a state claim is pre-empted by § 301, it is removable in spite of the general prohibition against removal on the basis of preemption.
The Supreme Court has recently held that where the resolution of a state law claim is substantially dependent on the analysis of the terms of a collective bargaining agreement, that claim must be treated as either a § 301 claim, or dismissed as preempted by federal labor law (). Allis-Chalmers v. Lueck, ___ U.S. ___, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In Lueck, an employee brought a state law tort action (in state court) against an employer and insurer for bad faith handling of a disability claim. The insurance disability plan had been collectively bargained for and was fully funded by the employer and administered by the insurance company. The agreement established a special three part procedure to settle disability grievances, administered by a joint union-employer committee. The Supreme Court held that the claim was pre-empted by federal contract labor law even though the action sounded in tort.
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