Barbour v. International Union

• Decision Date: 04 February 2010
• Docket Number: No. 08-1740.,08-1740.
• Citation: 594 F.3d 315
• Parties: Shirley M. BARBOUR; Harry M. Barker; Anthony Burton; William J. Cline; Barbara Faulkner; Raymond N. Fleck, Jr.; Arthur Hamilton, II; Daniel L. Hamm; Troy L. Harris; Gary Landau; Vincent Marra; Peggy A. Murphy; Richard Douglas Permenter; Patricia Pierson; Jeffrey N. Roberts; Annie Smith Rodgers; Reess H. Scott; Joyce See; Roney Smith; Fred M. Stewart; Daniel Lee Tichnell; Robert Thomas; Charles F. Wadkins, Plaintiffs-Appellants, v. INTERNATIONAL UNION, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1183 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1212 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

594 F.3d 315

Shirley M. BARBOUR; Harry M. Barker; Anthony Burton; William J. Cline; Barbara Faulkner; Raymond N. Fleck, Jr.; Arthur Hamilton, II; Daniel L. Hamm; Troy L. Harris; Gary Landau; Vincent Marra; Peggy A. Murphy; Richard Douglas Permenter; Patricia Pierson; Jeffrey N. Roberts; Annie Smith Rodgers; Reess H. Scott; Joyce See; Roney Smith; Fred M. Stewart; Daniel Lee Tichnell; Robert Thomas; Charles F. Wadkins, Plaintiffs-Appellants, v. INTERNATIONAL UNION, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1183 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Local No. 1212 of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants-Appellees.

No. 08-1740.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: February 4, 2010.

ARGUED:

Thomas C. Costello, West & Costello, LLC, Baltimore, Maryland, for Appellants. Ava Barbour, International Union, UAW, Detroit, Michigan, for Appellees.

ON BRIEF:

John H. West, III, West & Costello, LLC, Baltimore, Maryland, for Appellants. Wendy L. Kahn, Jeffrey W. Burritt, Zwerdling, Paul, Kahn & Wolly, PC, Washington, D.C., for Appellees.

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and MARGARET B. SEYMOUR, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part; vacated and remanded with instructions by published opinion. Judge AGEE wrote the opinion, in which Judge SEYMOUR joined. Senior Judge HAMILTON wrote a separate opinion concurring in the judgment in part and dissenting in part.

OPINION

AGEE, Circuit Judge:

In this appeal we first consider whether removal of the case from state to federal court was timely. Holding that the notice of removal was timely filed, we then determine whether the district court possessed subject matter jurisdiction over the case based on the doctrine of complete preemption. For the reasons that follow, we hold that the district court was without subject matter jurisdiction.

I. Factual Background

Because this case was decided on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept the facts alleged in the complaint as true and view "them in the light most favorable to the plaintiff[s]." Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 228-29 (4th Cir.2004). The facts, as pled, reflect the following.

Shirley Barbour and certain fellow retirees ("the Retirees") at a Chrysler automobile assembly plant in Newark, Delaware filed suit in the Circuit Court of Cecil County, Maryland against (1) International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("International Union"), (2) Local 1183 of the International Union ("Local 1183"), and (3) Local 1212 of the International Union ("Local 1212") (the defendants are collectively "the UAW") alleging that the UAW provided them with false information regarding their eligibility to receive retirement incentive packages in 2007.

According to the Retirees' complaint, near the end of 2006 they each had accrued the requisite years of service to retire from Chrysler with full benefits. At about that same time, the Retirees became aware that Chrysler might reduce its workforce and that such workforce reductions might occur at the Newark plant. Knowing that workforce reductions often include financial incentives to retirement-eligible employees, the Retirees sought information from the UAW's benefit representatives concerning their potential eligibility for any financial incentives that might materialize. The Retirees were concerned that if they retired prematurely, they might fail to qualify for workforce reduction financial incentives to which they would otherwise be entitled. Moreover, it was the Retirees' understanding that Chrysler could not offer any such incentives without the approval of the UAW.

The UAW told the Retirees and other employees who inquired that they should delay their retirement from Chrysler until January 31, 2007, which would ensure their eligibility for any workforce reduction financial incentive offered throughout the 2007 calendar year. Relying on this advice, the Retirees submitted the applications necessary to effectuate their respective retirements as of January 31, 2007.

Between the submission of the retirement paperwork and the effective date of their retirement, however, many of the Retirees heard that the offering of a workforce reduction financial incentive package was imminent. In response, some of the Retirees again expressed concern to the UAW that their retirements should be postponed. In response to these inquiries, the UAW's officers and benefits representatives informed the Retirees that "no retirement package was `coming down,' and that any retirement package offered in 2007 would be retroactive to January 31, 2007 and include all [employees] who retired on or after that date...." J.A. 29. Relying on this advice, the Retirees retired on January 31, 2007. In mid-February Chrysler announced that financial incentives of approximately $70,000 per person would be offered to employees at the Newark plant but would only apply to persons employed as of the date of the announcement, not retroactively. The Retirees were therefore ineligible to receive the financial incentives.

On April 28, 2008 the Retirees filed their complaint in the Maryland state court asserting that "[a]s a result of their union membership, the UAW owed [them] duties of loyalty, fidelity and full disclosure of all material facts." J.A. 26. Alleging a breach of these fiduciary duties, the Retirees pled a cause of action for negligent misrepresentation based on the UAW's assertions to them that no financial incentives were being negotiated between the union and Chrysler and that any such incentive would be retroactively available to employees retiring on or after January 31, 2007. The Retirees also asserted a claim for negligence based on a breach of "duties of care, fidelity and loyalty" because of (1) the UAW's failure to advise them of the negotiations with Chrysler, (2) the UAW's failure to warn them that their retirement before the financial incentives were announced would preclude them from receiving the incentives, and (3) the International Union's failure to keep the local unions apprised of the status of its negotiations with Chrysler. J.A. 55-56.¹

The Retirees served the International Union with the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2009, more than thirty days after service on the International Union, but within thirty days of service on Local 1183, but before Local 1212 was served, all three defendants filed a joint notice of removal pursuant to 28 U.S.C. §§ 1331, 1337 and 1441 even though Local 1212 had not been served.

The UAW pled in the notice of removal that "the duty of care [the Retirees] maintain[] [they are] owed from Defendant[s] is the duty of fair representation ... which arises from UAW's status from its exclusive bargaining authority pursuant to section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159." J.A. 13. The UAW then filed a motion to dismiss under Rule 12(b)(6) based on the assertion that the Retirees' claims were barred by the applicable statute of limitations under federal labor law. See § 10(b) of the NLRA, 29 U.S.C. § 160(b).

The Retirees filed a motion to remand the case to state court, arguing that (1) the UAW's notice of removal was not timely filed and (2) there was no basis for federal jurisdiction. On June 12, 2008, the district court issued a memorandum and order denying the Retirees' motion to remand and granting the UAW's motion to dismiss. The district court concluded that the Retirees had "artfully" attempted to "`plead around' the pre-emptive force of federal labor law" and that their state law claims were "completely pre-empted by the federal duty of fair representation" in section 9(a) of the NLRA. J.A. 127. The district court found that "[t]he breach of that duty, if any, is a matter of federal, not state, law." J.A. 127. Concurrent with its denial of the Retirees' motion to remand the district court granted the UAW's motion to dismiss based upon the asserted six-month statute of limitations.² The Retirees, having pursued their claims solely in state court, were thus time-barred from filing a claim in federal court.

On the following day, the Retirees moved the district court for reconsideration of its ruling and sought explanation of its determination that the UAW's notice of removal had been timely filed. The district court entered an order denying the Retirees' motion for reconsideration and stating the court's belief that this case presents "an excellent opportunity for the Fourth Circuit to clarify whether the `first-filed' `dictum' in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir.1992), means what it actually seems to say." J.A. 132.

The Retirees have timely appealed and we have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we affirm the judgment of the district court in part, reverse in part and remand the case with instructions to the district court.

II. Timeliness of the Notice of Removal

The threshold issue we consider is whether removal of the case to federal court was timely. If the notice was untimely, we need not consider the UAW's claim of complete preemption, as an untimely notice of removal would require that the case be remanded to the Maryland state court because the federal court would lack jurisdiction over the claims or the parties. If, on the other hand, the UAW's notice of removal was timely, only then must we consider whether the district court properly determined that subject matter jurisdiction otherwise existed over the Retirees' claims.

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