BILLY JACK, ETC. v. NEW YORK COAT, SUIT, ETC.

• Decision Date: 02 April 1981
• Docket Number: No. 81 Civ. 1605 (RJW).,81 Civ. 1605 (RJW).
• Citation: 511 F. Supp. 1180
• Parties: BILLY JACK FOR HER, INC., Plaintiff, v. NEW YORK COAT, SUIT, DRESS, RAINWEAR AND ALLIED WORKERS' UNION, ILGWU, AFL-CIO, LOCAL 1-35, 10, 22, 48, 77, 89 AND 189, Defendant.
• Court: U.S. District Court — Southern District of New York

511 F. Supp. 1180

BILLY JACK FOR HER, INC., Plaintiff, v. NEW YORK COAT, SUIT, DRESS, RAINWEAR AND ALLIED WORKERS' UNION, ILGWU, AFL-CIO, LOCAL 1-35, 10, 22, 48, 77, 89 AND 189, Defendant.

No. 81 Civ. 1605 (RJW).

United States District Court, S. D. New York.

March 31, 1981.

As Amended April 2, 1981.

Herman E. Cooper, P.C., New York City, for plaintiff; Jonathan L. Sulds and Herman E. Cooper, New York City, of counsel.

Lewis, Greenwald & Oberman, P.C., New York City, for defendant; Everett E. Lewis and Thomas M. Kennedy, New York City, of counsel.

ROBERT J. WARD, District Judge.

This action was commenced in the Supreme Court of the State of New York, New York County ("state court"), by Billy Jack for Her, Inc. ("Billy Jack"), a New York corporation engaged in the apparel industry within the Southern District of New York. The complaint filed in the action alleges that defendant, the New York Coat, Suit, Dress, Rainwear and Allied Workers' Union ("the Union"), has engaged and continues to engage in picketing activities that constitute a tortious interference with Billy Jack's contractual relations, in violation of New York law. Billy Jack seeks monetary damages and injunctive relief against the Union on account of this allegedly unlawful conduct.

In an ex parte temporary restraining order signed March 14, 1981, Justice Andrew R. Tyler of the state court prohibited all picketing by the Union at Billy Jack's premises or at the premises of any of Billy Jack's contractors. Shortly thereafter, the Union removed the action to this Court by filing a petition for removal with the clerk of this Court. Billy Jack now moves, by order to show cause, for an order remanding this action to state court on the ground that original federal subject matter jurisdiction is lacking in this case. The Union moves, also by order to show cause, for an order modifying the state court temporary restraining order to permit peaceful picketing to occur. For the reasons hereinafter stated, Billy Jack's motion is denied. The Union's motion is denied as moot.¹

BACKGROUND

Billy Jack sells women's dresses. It employs approximately thirty people, who are engaged in various sales functions at its place of business at 1375 Broadway in New York City. Plaintiff does not manufacture the garments that it sells, but instead acts as a "jobber," designing garments and patterns that it then furnishes to independent, outside contractors together with dress material and manufacturing specifications. These contractors make the Billy Jack garments and deliver them to plaintiff, which in turn sells them to retailers.

Billy Jack's employees at 1375 Broadway are represented by General Trades Employees Union, Local 5A ("Local 5A"). In October 1977, Local 5A and plaintiff entered into a three-year collective bargaining agreement setting forth the terms and conditions of employment for Billy Jack's employees. At the same time, Local 5A and Billy Jack entered into a three-year "Hazantown agreement,"² setting forth the terms and conditions under which the latter may arrange for outside contractors to manufacture its garments. Each agreement was replaced by a similar successor agreement in October 1980.

Earlier this month, the Union, apparently contending that Billy Jack's current Hazantown agreement is invalid, began efforts to organize the workers at the shops of plaintiff's contractors. The Union demanded that Billy Jack enter into a new Hazantown agreement with the Union. At the same time, the Union recognized the validity of the collective bargaining agreement covering Billy Jack's own employees, and expressly disclaimed any intention of organizing plaintiff's employees. As part of the Union's efforts to organize the employees of Billy Jack's contractors, the Union commenced picketing at the premises of a number of plaintiff's contractors, and also at Billy Jack's place of business at 1375 Broadway. The object of the picketing was to induce Billy Jack to enter into a Hazantown agreement with the Union.

Shortly after the picketing commenced, Billy Jack began this action in state court, claiming that the Union's picketing, since it had the objective of causing Billy Jack to break its current Hazantown agreement and enter into a new one, constituted a tortious interference with the contractual relations between Billy Jack and Local 5A and hence violated New York law. As noted above, Justice Tyler signed a temporary restraining order that prohibited all picketing by the Union at Billy Jack's premises or at the premises of any of Billy Jack's contractors.³ The Union then filed the petition for removal that brought the case before this Court and set the stage for the motions that are the subject of today's decision.

DISCUSSION

The right of the defendant in a state court civil action to remove the action to federal court is governed by 28 U.S.C. § 1441(a), which provides as follows:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Billy Jack contends that the instant action is not one over which the federal district courts have original subject matter jurisdiction, and consequently moves for an order remanding this case to the New York state courts. The Union argues, on the other hand, that this action is one "arising under an Act of Congress regulating commerce" within the meaning of 28 U.S.C. § 1337, and thus is removable as an action "founded on a claim or right arising under the ... law of the United States" within the meaning of 28 U.S.C. § 1441(b).⁴ The Union presents two theories in support of this argument. First, it contends that Billy Jack's action should be deemed to "arise under" federal law because, although the complaint is pleaded solely in terms of state law, it alleges facts that are sufficient to state a number of federal causes of action. Second, the Union argues that the state law upon which Billy Jack relies has been preempted by federal labor law, and that as a result Billy Jack's action must be treated as "arising under" federal law because that is the only law providing a potential basis for Billy Jack's action. The Court hereinafter treats each of these contentions in turn.

Factual Allegations of the Complaint as a Basis for Federal Question Jurisdiction

The Union urges that the allegations of Billy Jack's complaint, if proven, would establish violations of sections 8(b)(4)(B) and 8(b)(7)(A) of the National Labor Relations Act ("the NLRA"), 29 U.S.C. § 158(b)(4)(B), (b)(7)(A), and sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. Arguing that the federal district courts have original subject matter jurisdiction over actions charging violations of each of these statutes, meaning that such actions may properly be removed to federal court from state court pursuant to 28 U.S.C. § 1441, the Union contends that Billy Jack should not be able to avoid such removal by artfully drafting its complaint so as to plead a violation only of state law and not also of federal law.

The Court cannot accept this argument. The general rule, of course, is that removal on the ground of federal question jurisdiction is only proper when the existence of a federal question appears on the face of the complaint. Phillips Petroleum Co. v. Texaco Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003, 39 L.Ed.2d 209 (1974); Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936). In the words of Justice Holmes, "the party who brings a suit is master to decide what law he will rely upon." The Fair v. Kohler Die & Speciality Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). As a result, the plaintiff, by the allegations of its complaint, really determines whether the case is removable as one arising under the laws of the United States. Great Northern Railway Co. v. Alexander, 246 U.S. 276, 282, 38 S.Ct. 237, 240, 62 L.Ed. 713 (1918). There are accordingly numerous cases holding that a plaintiff alleging facts that would support both a federal and a state law claim is free to confine his claim to one based on state law, and proceed in state court without fear of removal to federal court. 1A Moore's Federal Practice ¶ 0.160, at 185 (2d ed. 1979); see, e. g., Connecticut v. Levi Strauss & Co., 471 F.Supp. 363, 366 (D.Conn.1979) (also citing cases). See also Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 964 (2d Cir. 1981).

While Billy Jack's complaint may indeed allege facts sufficient to state some of the federal claims noted above,⁵ legally it relies only on New York law forbidding tortious interference with contractual relations. Under the principles stated above, then, the complaint does not disclose a federal question that could provide the basis for "arising under" jurisdiction. The Union's first argument in favor of removal must accordingly be rejected.

Federal Preemption as a Basis for Federal Question Jurisdiction

The Union's second argument in support of removal takes its first argument a step further. In a case such as the present one, the Union contends, the state law upon which Billy Jack relies has been entirely preempted by federal law, meaning that Billy Jack's only hope of success in this case is to proceed under federal law. The Union, willing to assume arguendo that courts should generally permit a plaintiff to avoid possible removal to federal court by pleading only a state law claim, argues that this general rule should be subject to exception where the state law relied upon by the plaintiff has been preempted by federal law. In order to determine the merits of this argument in the instant case, the Court must first decide the circumstances, if any, under which federal preemption provides a proper...