City of Winston-Salem v. CHAUFFEURS, ETC.

• Decision Date: 16 April 1979
• Docket Number: No. C-79-220-G.,C-79-220-G.
• Citation: 470 F. Supp. 442
• Court: U.S. District Court — Middle District of North Carolina
• Parties: CITY OF WINSTON-SALEM, Plaintiff, v. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 391, R. V. Durham, Individually and as President of Local 391, and Christopher Scott, Individually and as Director of Research, Legislation and Communications of Local 391, Defendants.

470 F. Supp. 442

CITY OF WINSTON-SALEM, Plaintiff, v. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 391, R. V. Durham, Individually and as President of Local 391, and Christopher Scott, Individually and as Director of Research, Legislation and Communications of Local 391, Defendants.

No. C-79-220-G.

United States District Court, M. D. North Carolina, Greensboro Division.

April 16, 1979.

COPYRIGHT MATERIAL OMITTED

Roddey M. Ligon, Jr., Guy F. Driver, Jr., and Robert L. Quick, Winston-Salem, N. C., for plaintiff.

William G. Pfefferkorn, Jim D. Cooley, and J. Wilson Parker, Winston-Salem, N. C., for defendants.

ORDER OF REMAND

GORDON, Chief Judge.

On April 13, 1979, the United States Magistrate's Findings and Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636 by the Magistrate's ordering an expedited review of this case in open court and in the body of his recommendation.

The Court has considered the defendants' objections and exceptions and finds that they do not change the substance of the Magistrate's rulings which the Court therefore adopts as its own.

NOW, THEREFORE, pursuant to the Magistrate's Findings and Recommendation, it is ORDERED that the plaintiff's motion to remand be, and the same is hereby, granted, and that pursuant to the provisions of 28 U.S.C. § 1447(c), the Clerk of this Court will mail a certified copy of this Order of Remand to the Clerk of the Superior Court of Forsyth County, North Carolina.

IT IS FURTHER ORDERED that plaintiff City of Winston-Salem have and recover its costs and disbursements in this Court against the defendants Chauffeurs, Teamsters & Helpers Local Union No. 391, R. V. Durham, and Christopher Scott, with the same to be taxed by the Clerk.

MAGISTRATE'S FINDINGS AND RECOMMENDATION AND ORDER

April 13, 1979.

RUSSELL A. ELIASON, United States Magistrate.

This matter came on for hearing on April 13, 1979, concerning plaintiff City's motions for remand of the action to state court and for extension of a state court temporary restraining order.¹ The defendants consist of a local union and its president and director. The individual defendants are not employed by the city.

Plaintiff filed this action in North Carolina Superior Court on April 3, 1979. In its complaint, it essentially alleges the illegality of certain activities conducted by defendants in a campaign to solicit various city employees as prospective members of the defendant Union Local 391. It implicates defendants in activities including the issuance of threats, harassment and coercion to intimidate plaintiff's employees into joining Local 391 and supporting the solicitation effort, repeated attempts to involve plaintiff's supervisory employees in union activities violative of plaintiff's policies applicable to such employees, and the issuance of false information, "half truths," misrepresentations and falsehoods regarding various aspects of the campaign. These actions, plaintiff contends, resulted in interference with the employees' right to work and to refrain from union activities or membership and interference with the faithful and efficient performance of their jobs. Plaintiff also alleges that agents of defendant Union have entered into restricted areas of plaintiff's property and there disrupted the work of plaintiff's employees, such acts constituting a trespass. Plaintiff further alleges that defendants' actions comprise a civil conspiracy to interfere with, obstruct and disrupt the rights, business and work of plaintiff. As such, plaintiff contends their conspiracy is to induce plaintiff to enter into a collective bargaining agreement in violation of N.C.Gen.Stat. § 95-98. Since plaintiff believed these acts of defendants were continuing and would cause plaintiff immediate irreparable harm, plaintiff in state court requested an injunction, including a temporary restraining order, as well as monetary damages.

Along with its complaint, plaintiff filed a motion for a temporary restraining order and several motions concerning discovery matters. On the same day upon an ex parte hearing, the state court entered orders restraining certain activities of defendants and granting plaintiff's discovery motions.² The restraining order by its terms remained in force, unless dissolved or modified, for ten (10) days until hearing could be held on April 13, 1979, at which hearing defendants were to show cause why the court should not issue a preliminary injunction. However, defendants petitioned for removal of this action to federal court on April 9, 1979, alleging that the action involved a question of federal law. Plaintiff moved to remand to state court on April 10, 1979.

I. Plaintiff's Motion to Remand

Plaintiff contends that defendants improvidently removed this case and seek a remand back to the state court. Defendants cited two statutory bases for removal of the state cause of action to this Court, 28 U.S.C. §§ 1443(1) and 1441.³ First, they claim that the action is removable pursuant to 28 U.S.C. § 1443(1). In Noel v. McCain, 538 F.2d 633, 635 (4th Cir. 1976), the Fourth Circuit laid out the test for evaluating cases removed pursuant to 28 U.S.C. § 1443(1), by stating:

To remove a case from a state court under 28 U.S.C. § 1443(1), a defendant must show (1) that he is being deprived of rights guaranteed by federal laws protecting against racial discrimination and (2) that "it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court." Greenwood v. Peacock, 384 U.S. 808, 828, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944 (1966); Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966).

In the instant case, petitioner meets neither test.

First, the state court action does not deprive defendants of rights which are guaranteed by any federal law protecting racial equality. Plaintiff brought the state court action to protect against defendants' interference with its business interests. The complaint states that defendants have unlawfully trespassed and otherwise interfered with the normal conduct of the plaintiff's operations. While defendants claim that their rights under 42 U.S.C. § 1981 are being violated, they offer no support of this conclusion other than its mere statement. Defendants' beef lies in the restraint placed on their union activity. To the extent this occurs, the result applies equally to blacks and whites. Thus, defendants' claim concerning 42 U.S.C. § 1981 is clearly frivolous.⁴ Defendants' additional claim that the state court suit infringes upon their First Amendment rights standing alone or as protected by Section 1985(3) is without merit because "Section 1443(1) ... does not provide a remedy for vindicating the first amendment's right of free speech. Greenwood, 384 U.S. at 825, 86 S.Ct. 1800." Noel v. McCain, supra at 636.

Since defendants fail the first test of Noel v. McCain, further exploration into the second test used to determine this Court's removal jurisdiction under Section 1443(1) would be unnecessary. Nevertheless, it should be pointed out that defendants' contention that the state trial judge deprived them of due process by issuing the ex parte restraining and discovery orders is of no consequence. Such actions may be rectified, if necessary, in the state courts. The mere prior issuance of ex parte orders does not show that defendants cannot obtain a fair trial from the state judiciary. Noel v. McCain, supra at 636. Defendants have not alleged or shown that the enforcement of their rights will inevitably be denied. Delavigne v. Delavigne, 530 F.2d 598 (4th Cir. 1976). It is therefore concluded that 28 U.S.C. § 1443(1) provides no jurisdiction for the removal of this action.

Defendants cite 28 U.S.C. § 1441 as their second statutory basis for contending this Court has removal jurisdiction. Defendants' petition does not identify any particular subdivision of that statute, but the Court assumes that they make their claim under Section 1441(b) which provides that a civil action may be removed if the action was one in which this Court has original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States. Plaintiff's complaint, however, makes no mention whatsoever of seeking to vindicate a federal right. Rather, the complaint is based on the plaintiff's property rights and the right to run its operations without the interference from the defendants. Notwithstanding, the defendants have attempted in their removal petition to claim that plaintiff does not proceed under the state common law, but in reality seeks to bring an action pursuant to 42 U.S.C. §§ 1983 & 1985(3), by alleging deprivation of First Amendment rights.

In deciding whether the plaintiff has in actuality brought a suit which necessarily involves federal law, this Court is guided by well-established principles. As stated in Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748, 749 (1st Cir. 1971):

For a suit to be one that arises under the laws of the United States, so as to confer original or removal jurisdiction on the federal courts, it must appear on the face of the complaint that resolution of the case depends upon a federal question. E. g., Pan American Petroleum Corp. v. Superior Court, 1961, 366 U.S. 656, 663, 81 S.Ct. 1303, 6 L.Ed.2d 584; Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194, and cases cited. The fact that a defense to the action may raise a federal question, see n. 1, ante, is immaterial. Louisville & N. R. R. v. Mottley, 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; Tennessee v. Union & Planters' Bank, 1894, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511. It is also irrelevant that plaintiff may, in fact, have no valid state cause of action, but at best only a federal one;

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