Charles D. Bonanno Linen Service, Inc. v. McCarthy

• Decision Date: 01 June 1983
• Docket Number: No. 82-1755,82-1755
• Citation: 708 F.2d 1
• Parties: 113 L.R.R.M. (BNA) 2449, 97 Lab.Cas. P 10,155 CHARLES D. BONANNO LINEN SERVICE, INC., et al., Plaintiffs, Appellees, v. William J. McCARTHY, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

708 F.2d 1

113 L.R.R.M. (BNA) 2449, 97 Lab.Cas. P 10,155

CHARLES D. BONANNO LINEN SERVICE, INC., et al., Plaintiffs, Appellees, v. William J. McCARTHY, et al., Defendants, Appellants.

No. 82-1755.

United States Court of Appeals,

First Circuit.

Argued Feb. 3, 1983.

Decided May 9, 1983.

As Modified on Denial of Rehearing and Rehearing En Banc June 1, 1983.

James T. Grady, Boston, Mass., with whom Gabriel O. Dumont, Jr. and Grady, Dumont & Dwyer, Boston, Mass., were on brief, for defendants, appellants.

Howard I. Wilgoren, Boston, Mass., with whom Lepie, Coven & Wilgoren, Boston, Mass., was on brief, for Charles D. Bonanno Linen Service, Inc.

Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, ^* Senior District Judge.

BREYER, Circuit Judge.

The district court awarded Bonanno Linen Service compensatory damages on a state law tort claim against Teamsters Union Local 25 and several individual Local members. The Local and the individual defendants appeal, raising several jurisdictional questions and also attacking the award on the merits. We agree with the jurisdictional argument of the individual defendants and vacate the judgment against them. As to all other matters, we affirm the judgment of the district court.

I

This case began in 1975 in the midst of a labor dispute between Bonanno, several other linen companies and the defendants. The companies brought suit in state court, alleging that the Local and some of its members had engaged in "numerous illegal acts of violence" and "threats of violence toward both Plaintiffs' property and employees, and toward third parties trying to do business with Plaintiffs." They sought an injunction and damages.

A few days after the suit was filed, all of the defendants petitioned for its removal to the Massachusetts federal district court. In their petition, the defendants stated that the plaintiffs' complaint in part alleged a violation of a federal law, the Labor-Management Relations Act (LMRA, or Taft-Hartley Act) Sec. 303, 29 U.S.C. Sec. 187, which grants relief to those harmed by an illegal secondary boycott. See 29 U.S.C. Sec. 158(b)(4).

The companies did not oppose the removal. Rather, they asked for a federal injunction. They obtained a temporary restraining order prohibiting further violence. See Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 532 F.2d 189 (1st Cir.1976). In April 1976, all of the companies but Bonanno voluntarily dismissed their claims. The case then lay dormant until 1979, when Bonanno announced its intention to proceed with its damage claim, once the National Labor Relations Board resolved a related unfair labor practice charge. See NLRB v. Charles D. Bonanno Linen Serv., Inc., 630 F.2d 25 (1st Cir.1980), aff'd, 454 U.S. 404, 102 S.Ct. 720, 70 L.Ed.2d 656 (1982).

In April 1980, the Local moved to remand the case to the state court, claiming lack of federal jurisdiction. The district court denied the motion in September. One year later, the individual defendants made a similar motion, which was quickly denied. Trial began on September 24, 1981. It focused almost exclusively on the state claims. In fact, the district court found for defendants on the federal secondary boycott claim, but it found for the plaintiffs on the state tort claims against both the Local and three individual members. The court ordered the defendants, who were held jointly and severally liable, to reimburse Bonanno for its expenses in protecting its employees, to pay the medical expenses of an injured employee, and to pay the cost of certain other repairs. The court also awarded prejudgment interest from the date the original action was filed.

II

a. We turn first to a jurisdictional problem which this court itself raised at oral argument. We noted that this case was removed on the ground that Bonanno asserted a claim arising under federal law. See 28 U.S.C. Sec. 1441. We also pointed to the case law requiring that the elements of the federal claim appear on the face of the state court complaint, without reference to other documents, such as the removal petition or the answer. E.g., Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003-1004, 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); Brough v. United Steelworkers of America, 437 F.2d 748, 749 (1st Cir.1971). And we asked where, on the face of the state complaint, we could find the necessary "interstate commerce" allegations, namely that both the secondary boycott's ultimate target (Bonanno) and its innocent targets were in an "industry affecting [interstate] commerce." 29 U.S.C. Secs. 158(b)(4), 187.

Given the factual likelihood that in most cases what affects the innocent target will affect the ultimate target, and given Congress' intent in the Taft-Hartley Act to exercise its constitutionally-granted commerce power broadly, Groneman v. International Bhd. of Elec. Workers, 177 F.2d 995, 997 (10th Cir.1949); cf. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct 615, 81 L.Ed. 893 (1937), an allegation that Bonanno is "in an industry affecting [interstate] commerce" is sufficient. We are willing, for removal purposes, to presume this to be an adequate allegation of the rest. See Herbert Burman, Inc. v. Local 3, Int'l Bhd. of Elec. Workers, 214 F.Supp. 353 (S.D.N.Y.1963). Cf. Tucci v. International Union of Operating Engineers, 316 F.Supp. 1127 (W.D.Pa.1970). See also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

We reach this result without holding, as some courts have done, that one may look outside the state complaint to the removal petition for matters related to parties' "status" (such as this type of jurisdictional "commerce" nexus). E.g., Hayes v. National Con-Serv, Inc., 523 F.Supp. 1034, 1037 (D.Md.1981); Ulichny v. General Electric Co., 309 F.Supp. 437, 440 (N.D.N.Y.1970); Geo. D. Roper Corp. v. Local Union No. 16, 279 F.Supp. 717 (S.D.Ohio 1968); Fay v. American Cystoscope Makers, Inc., 98 F.Supp. 278, 280 (S.D.N.Y.1951); see Wright, Miller & Cooper, Federal Practice & Procedure Sec. 3722 at 561-64, Sec. 3734 at 736 (1976). But see La Chemise LaCoste v. Alligator Co., 506 F.2d 339, 344-45 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975). Nor need we take "judicial notice" of the uncontested fact (as mentioned in the removal petition) that interstate commerce is here involved. Cf. Lang v. American Motors Corp., 254 F.Supp. 892 (E.D.Wis.1966) ("judicial notice" that American Motors is in an industry affecting commerce). We need only engage in a little statutory logic.

The state complaint alleges that the parties held "four meetings with the Federal Mediation and Conciliation Service." This federal service is available by statute only "in any industry affecting [interstate] commerce" where the dispute "threatens to cause a substantial interruption of commerce." 29 U.S.C. Sec. 173(b). Thus, the necessary jurisdictional impact is ascertainable from the face of the complaint (without looking to the removal petition), even though the words "interstate commerce" do not themselves appear in the complaint. See Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (complaint alleging impact on out-of-state purchases, revenues, and payments sufficient to establish jurisdiction). We see no reason to require more than this technical response to this technical jurisdictional matter. Cf. Sheeran v. General Electric Co., 593 F.2d 93, 96 (9th Cir.) (employee's complaint did not refer to the collective bargaining agreement, but did refer to a pension contract which was an integral part of that agreement), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979).

b. The Local argues that the plaintiff's assertion of a federal claim was inadequate for another reason, namely that the state complaint failed to set out the substantive elements of a Taft-Hartley Sec. 303 violation. The district court disagreed with the Local, and so do we.

The issue is whether the state complaint set out a "substantial" Taft-Hartley claim. If so, the federal court had discretionary power to hear a pendent state claim linked to the federal claim by a "common nucleus of operative fact," United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The Supreme Court has made clear that "substantial" in this context means no more than not "so insubstantial, implausible, foreclosed by prior decisions ... or otherwise completely devoid of merit as not to involve a federal controversy ...." Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73 (1974); accord, Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-06, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933). The language of the state complaint--to which we look to determine the court's power, Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139--meets this test.

The Taft-Hartley Act provides for a federal cause of action against labor organizations which engage in activity prohibited by Sec. 8(b)(4), which makes it illegal to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where ... an object thereof is ...

(B) forcing or requiring any person to cease ... doing business with any other person ... Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

* * *

Provided, that nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer ... if the employees of such employer are engaged in a strike ....

29 U.S.C. Sec. 158(b)(4)(ii). In enacting this language, Congress sought to prevent all "labor efforts to draw in...