Beard v. Carrollton R.R., s. 88-5910
| Decision Date | 02 March 1990 |
| Docket Number | Nos. 88-5910,88-6280,s. 88-5910 |
| Citation | 893 F.2d 117 |
| Parties | 133 L.R.R.M. (BNA) 2220, 133 L.R.R.M. (BNA) 2919, 113 Lab.Cas. P 11,795, 5 Indiv.Empl.Rts.Cas. 100 R. Paul BEARD and Scarlett Beard, Plaintiffs-Appellees, v. CARROLLTON RAILROAD and CSX Transportation, Inc., (88-5910); The Travelers and The Travelers Companies, (88-6280), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ruth Helen Baxter (argued), Carrollton, Ky., for plaintiffs-appellees.
James G. Apple, James D. Moyer (argued), Robert M. Connolly, Stites & Harbison, Louisville, Ky., John David Cole (argued), Elizabeth Y. Downing, Cole, Broderick, Minton, Moore & Thornton, Bowling Green, Ky., for defendants-appellants.
Before WELLFORD and NELSON, Circuit Judges, and TAYLOR, District Judge. *
This is an appeal from an order of remand. The action was filed originally in state court, but was removed to the federal district court as a case arising under the Railway Labor Act. After rejecting a suggestion by the plaintiffs that the removal was improper, the district court dismissed the first of the two counts in the complaint because of a failure to exhaust administrative remedies; in light of that determination (which is not challenged here), the court decided that a remand was necessary because dismissal of the first count left the court without jurisdiction to decide the merits of the second.
Under 28 U.S.C. Sec. 1447(d), "[a]n order remanding a case to the State Court from which it was removed is not reviewable on appeal or otherwise...." As construed by the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), however, Sec. 1447(d) does not bar review by way of mandamus where a case that has been properly removed is remanded for reasons not authorized by statute. This is such a case, in our view. The claims asserted in the second count of the complaint involve the interpretation and application of a health and welfare plan adopted pursuant to a collective bargaining agreement, as we see it, and the claims are therefore not susceptible to adjudication in a state court.
Accordingly, we shall direct the district court to vacate the order of remand.
Plaintiff R. Paul Beard was employed as a laborer in the maintenance-of-way department of defendant Carrollton Railroad, a wholly owned subsidiary of defendant CSX Transportation, Inc. As an employee of the railroad, Mr. Beard had medical, hospital and life insurance coverage for himself and his dependants under a group policy issued by defendant Travelers. A collective bargaining agreement negotiated under the Railway Labor Act, 45 U.S.C. Secs. 151 et seq., made such insurance mandatory.
The health and welfare plan in question provided, subject to certain qualifications not in question here, that an employee who was suspended or dismissed from employment would continue to be covered until the end of the fourth month following the month in which the employee last rendered compensated service. An employee who quit voluntarily, on the other hand, would lose his coverage immediately.
Mr. Beard's employment was terminated by the railroad on February 20, 1987. His three-year-old son died of cancer in August of that year, after heavy medical expenses had been incurred. It is alleged that the railroad lied to the insurance company about the circumstances of Mr. Beard's departure, falsely stating that Mr. Beard had quit voluntarily; as a result, the insurance company improperly denied responsibility for medical expenses attributable to the period between February 20 and June 30, 1987.
Mr. Beard and his wife instituted the present action in the Circuit Court of Carroll County, Kentucky, on February 25, 1988. Count one of the complaint alleged that Mr. Beard's employment had been terminated by the railroad, as a result of which he and his dependents were entitled to continuing insurance coverage; that the defendants maintained he had resigned voluntarily; that the plaintiffs filed claims for insurance benefits to which they were entitled; and that the defendants wrongfully failed and refused to provide the benefits contracted for. Count two of the complaint asserted that the railroad had willfully misinformed CSX and Travelers about the termination of Mr. Beard's employment in an effort to deprive the plaintiffs of benefits to which, as the railroad knew, they were entitled; that CSX and Travelers refused to pay the benefits in question notwithstanding that the companies were in possession of sufficient information to conclude that the plaintiffs were entitled to payment; that the defendants' acts constituted an intentional and malicious interference with the plaintiffs' contractual rights; and that the defendants intentionally inflicted emotional distress upon the plaintiffs. The complaint concluded with a prayer for actual and punitive damages and a demand for trial by jury on those issues so triable.
The railroad and CSX filed a timely petition for removal to federal court, asserting that the action arose under the laws of the United States and was removable under 28 U.S.C. Sec. 1441(a) and (b). A few days later the same defendants moved for dismissal of the action on the ground that it was preempted by the exclusive and compulsory claim procedures of the Railway Labor Act and the governing collective bargaining agreement. An accompanying memorandum of law argued that even in its tortious aspect, the dispute grew out of "grievances" or out of "the interpretation or application" of collective bargaining agreements, and was therefore subject to mandatory arbitration before an adjustment board. See 45 U.S.C. Secs. 152 and 153; Andrews v. Louisville and N.R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972); Union Pac. R.R. v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). Defendant Travelers subsequently filed a similar motion, adopting the railroad/CSX brief by reference.
The plaintiffs filed an opposing memorandum in which they argued that removal was improper, that their claims were not within the exclusive jurisdiction of the federal court, and that neither the Railway Labor Act nor any collective bargaining agreement preempted their action. The In a judgment entered on July 18, 1988, the district court dismissed count one of the complaint without prejudice and remanded count two to the Circuit Court of Carroll County. The district court's judgment was accompanied by an opinion stating that removal of the case had been proper because count one was really a claim under the Railway Labor Act; that removal was proper under the "complete preemption" doctrine of Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); that even though the case was properly removed, count two of the complaint was only tangentially related to the collective bargaining agreement; and that under Miller v. Norfolk & W. Ry., 834 F.2d 556 (6th Cir.1987), the district court lacked jurisdiction to decide the merits of count two.
plaintiffs' memorandum stated that their proofs would establish that Mr. Beard's former supervisor had developed a personal animosity against the plaintiffs after Mrs. Beard refused his sexual advances, and that the supervisor deliberately arranged to have Travelers misinformed about Mr. Beard's departure in order to retaliate. Citing Farmer v. United Bhd. of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the plaintiffs argued that redress for such outrageous conduct was not limited to that available under the Railway Labor Act, and that Mr. Beard could not proceed under that act in any event because he was no longer an "employee." Mrs. Beard, moreover, had never been an employee, and could not submit herself to the jurisdiction of the adjustment board even if she wanted to
The plaintiffs did not appeal the dismissal of count one, but the railroad and CSX perfected a timely appeal from the remand of count two. Travelers did not appeal within the time allowed by the rules. On September 21, 1988, however--64 days after the entry of judgment--Travelers moved the district court for an extension of time within which to file a notice of cross-appeal. There being no objection from the plaintiffs, the district court granted the motion. Travelers filed a notice of cross-appeal on October 28, 1988.
None of the parties questioned the timeliness of Travelers' appeal, but we have an obligation to consider the issue sua sponte. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976). Under Fed.R.App.P. 4(a)(1), Travelers had 30 days after entry of judgment in which to file a notice of appeal. Failing that, Rule 4(a)(5) allows a party to file a motion for extension of time "not later than 30 days after the expiration of the time prescribed by ... Rule 4(a)"--i.e., up to 60 days after entry of judgment, but no later than that. Time limits such as these are strictly enforced. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989). The motion Travelers filed on the 64th day (a Wednesday, as it happens) simply came too late.
Travelers cites no authority, nor has this court found any, suggesting that a district court may grant an extension of time after the statutory period for requesting such an extension has passed. "[T]he taking of an appeal within the prescribed time limits is mandatory and jurisdictional." Budinich v. Becton Dickinson and Co., 486 U.S. 196, ----, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178, 186 (1988). The district court was without authority to extend the period for filing a notice of appeal, and we lack jurisdiction to consider Travelers' appeal. See Pryor v. Marshall, 711 F.2d 63, 64 (6th Cir.1983).
The appeal of the railroad and CSX presents a different jurisdictional issue. We have authority to decide...
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