Carlson v. Arrowhead Concrete Works, Inc.

• Decision Date: 19 April 2006
• Docket Number: No. 05-3100.,05-3100.
• Citation: 445 F.3d 1046
• Parties: Duane CARLSON, Plaintiff-Appellee, v. ARROWHEAD CONCRETE WORKS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

445 F.3d 1046

Duane CARLSON, Plaintiff-Appellee, v. ARROWHEAD CONCRETE WORKS, INC., Defendant-Appellant.

No. 05-3100.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2006.

Filed: April 19, 2006.

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Counsel who presented argument on behalf of the appellant was Thomas R. Trachsel of Minneapolis, MN. Also appearing on the appellant's brief were Lee A. Lastovich and Kristine M. Rock of Minneapolis.

Counsel who presented argument on behalf of the appellee was Jessica J. Clay of Minneapolis, MN. James H. Kaster of Minneapolis also appeared on appellee's brief.

Before MURPHY, BOWMAN, and BENTON Circuit Judges.

MURPHY, Circuit Judge.

Duane Carlson (Carlson) brought this action in state court against his former employer Arrowhead Concrete Works, Inc. (Arrowhead) for retaliatory discharge and failure to recall, in violation of the Minnesota Occupational Safety and Health Act and the state whistleblower statute. Arrowhead removed the case to the federal district court, alleging complete preemption under § 301 of the Labor Management Relations Act (LMRA), and then moved to dismiss. The district court¹ denied the motion to dismiss and remanded the case after concluding that it lacked subject matter jurisdiction over Carlson's claims because they were not completely preempted. Arrowhead appeals, but we dismiss the appeal for lack of jurisdiction.

I.

Arrowhead hired Carlson as a pump truck operator in December 2002. The terms of his employment were governed by a collective bargaining agreement (CBA) between the local Teamsters Union and Arrowhead. The CBA and the accompanying memorandum of understanding provide that no driver shall be required to drive a truck that does not comply with all state and local safety regulations. There are also detailed provisions governing seniority, layoffs, and recall rights and a grievance arbitration provision for disputes about the CBA.

In early 2003 Arrowhead sent Carlson to a safety training course conducted by the pump truck manufacturer, Swing America (Swing). After his training Carlson became concerned about the safety of two of the trucks, and he reported his concerns to Arrowhead owners, Jim and Gerry Carlson (no relation to Duane). Carlson told Jim and Gerry that driving these trucks would violate various laws, including the Occupational Safety and Health Act (OSHA). Although he asked them to have the trucks inspected, they did not. Carlson also contacted Swing and Concrete Pump Repair (CPR) to report safety issues with the trucks, and they suggested he bring the trucks in for repairs.

During the summer of 2003 Carlson continued to raise safety concerns with Jim and Gerry, who suggested that the trucks could be serviced in the winter when they were not in use. Carlson also took one truck into CPR to fix a crack on the bottom, and CPR told him that many more repairs were needed. Gerry instructed Carlson to return the truck without making the repairs. In August Carlson noticed more serious structural problems with the truck and told Jim and Gerry that if the truck were not repaired, it could seriously injure or kill someone. Jim responded "you should keep your mouth shut and do what you are told."

After talking with the union and gaining its support, Carlson informed Arrowhead on August 28, 2003 that he was resigning from his pump truck driving position in two weeks and would exercise his seniority rights under the CBA to work in another position. He added, however, that he would continue to drive the trucks if they were repaired. On September 10, 2003, Carlson left his pump truck position and began working on a mixer truck. That same day Jim told Carlson to start the pump truck for a job, and Carlson refused. Jim responded "[l]isten you little cocksucker, get in that truck right fucking now and get it ready. I am sick of your whining." He also told Carlson that "some fuckers are going down the road and getting laid off. You're going to be the first one you son of a bitch." Carlson reported this incident to the union, but it declined to file a grievance. Later that fall Carlson was given permission to get one of the trucks inspected. The mechanic at CPR found the truck extremely unsafe, but when Gerry was told the cost of the repairs he ordered Carlson to return the truck without having it fixed. Carlson refused. In November 2003 he was laid off, along with six other workers. In June 2004 some of the workers were called back to work, but despite Carlson's length of service he was not among those recalled.

Carlson brought this action in state court in November 2004, alleging violations of the Minnesota Whistleblower's Act, Minn.Stat. § 181.932, and the state Occupational Safety and Health Act (MOSHA), Minn.Stat. § 182.654, based on the circumstances surrounding his discharge and Arrowhead's failure to rehire him in accordance with the seniority provisions of the CBA. Arrowhead removed the case to the federal district court on December 16, 2004, contending that Carlson's claims were completely preempted² by § 301 of the LMRA, 29 U.S.C. § 185. After the case had been removed Arrowhead moved to dismiss, alleging that Carlson's claims were completely preempted because they required interpretation of the CBA. It also alleged in the alternative that his claims grew out of conduct arguably protected by the National Labor Relations Act (NLRA) and were thus preempted under the Garmon doctrine.³ Carlson responded that his case had been improperly removed to federal court which lacked jurisdiction over it.

The district court determined that Carlson's state law claims were not completely preempted by LMRA § 301 because neither required interpretation of the CBA and that subject matter jurisdiction was therefore lacking.⁴ It denied Arrowhead's motion to dismiss and remanded the case to state court pursuant to 28 U.S.C. § 1447(c). Arrowhead appeals.

II.

In every federal case the court must be satisfied that it has jurisdiction before it turns to the merits of other legal arguments. Krein v. Norris, 309 F.3d 487, 490 (8th Cir.2002); Carney v. BIC Corp., 88 F.3d 629, 631 (8th Cir.1996). Arrowhead asserts that this court has jurisdiction over its appeal under 28 U.S.C. § 1291 which grants appellate jurisdiction over appeals from a final order. Alternatively, it argues that the district court's order is appealable under the collateral order exception to the finality rule. Carlson responds that under 28 U.S.C. § 1447(d) this court lacks jurisdiction over an appeal from a remand order and that Arrowhead's appeal is not from a final order or reviewable under the collateral order exception. Appellant Arrowhead bears the burden to prove that appellate jurisdiction exists. Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th Cir.2003).

Congress addressed appellate jurisdiction over remand orders in 28 U.S.C. § 1447(d), which provides that except in civil rights cases, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." (emphasis added). The Supreme Court has instructed that § 1447(d) "must be read in pari materia with § 1447(c)." Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(c) provides that motions to remand based on a procedural defect must be made within thirty days of removal and requires that a case be remanded to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." The district court explicitly based its remand order in this case on § 1447(c).

Under the statutory scheme remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable. Things Remembered, 516 U.S. at 127, 116 S.Ct. 494; Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). So long as the district court's remand order is based on one of these two grounds, "a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d)." Things Remembered, 516 U.S. at 127-28, 116 S.Ct. 494; see also Horton v. Conklin, 431 F.3d 602, 604 (8th Cir.2005).⁵ This jurisdictional bar applies even if the district court's remand decision was in error. Thermtron, 423 U.S. at 343, 96 S.Ct. 584 ("this section prohibits review of all remand orders... whether erroneous or not"); see also Vincent v. Dakota, Minnesota & Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir.2000); Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 623 (8th Cir.1997). Where the district court has remanded under § 1447(c), the scope of our review is limited to verifying that the actual basis for remand was lack of subject matter jurisdiction. Lindsey v. Dillard's, Inc., 306 F.3d 596, 598 (8th Cir. 2002); Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.2001); Transit Cas. Co., 119 F.3d at 624; Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir.1996).

The doctrine of complete preemption "converts an ordinary state ... law complaint into one stating a federal claim" providing a basis for removal of the state court action to federal court. Caterpillar v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Section 301 of the LMRA preempts state law claims "where the resolution of the state claim substantially depends on the interpretation of terms or provisions of a collective bargaining agreement," Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir. 1990) (internal quotations omitted), or where it is "inextricably intertwined" with consideration of the CBA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). On the other hand, "[m]ere reference to a collective bargaining agreement is not sufficient to result in preemption," Thomas v. Union Pac. R.R. Co., 308 F.3d 891, 893 (8th Cir.2002), and "when the meaning of contract terms is not the...