Drake v. Cheyenne Newspapers, Inc.

• Decision Date: 04 February 1994
• Docket Number: No. 93-CV-0339-B.,93-CV-0339-B.
• Citation: 842 F. Supp. 1403
• Parties: Kerry DRAKE and Kelly Flores, Plaintiffs, v. CHEYENNE NEWSPAPERS, INC., Defendant.
• Court: U.S. District Court — District of Wyoming

842 F. Supp. 1403

Kerry DRAKE and Kelly Flores, Plaintiffs, v. CHEYENNE NEWSPAPERS, INC., Defendant.

No. 93-CV-0339-B.

United States District Court, D. Wyoming.

February 4, 1994.

Rodger McDaniel, Cheyenne, WY, for plaintiffs.

Loyd E. Smith, Cheyenne, WY, L. Michael Zinser, Nashville, TN, for defendants.

ORDER GRANTING PLAINTIFFS' MOTION TO REMAND AND DISMISSING DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

BRIMMER, District Judge.

The above-entitled matter having come before the Court upon the Plaintiffs' Motion to Remand and the Defendant's Motion to Dismiss, and the Court having reviewed the materials on file herein both in support of and in opposition to, having heard oral argument, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

The plaintiffs in this suit were both managerial employees of the defendant newspaper. In conjunction with the defendant's efforts in opposing the unionization of the newspaper's editorial department at an upcoming election, the newspaper enlisted the support of all of its managerial employees in advocating against unionization. The defendant demanded that the managerial staff, including the plaintiffs, wear campaign buttons opposing unionization.

Plaintiffs initially agreed to wear the buttons, but then advised the defendant that they would no longer wear them because they did not agree with the defendant's anti-unionization stance. The defendant admonished the plaintiffs that they were required to carry out and support management policy, which included wearing the buttons. The plaintiffs refused to comply, and on October 16, 1993, the defendant suspended them indefinitely without pay. One month later, on November 16, 1993, the plaintiffs were fired.

The next day, they initiated the present lawsuit in Wyoming state district court, alleging that they were wrongfully terminated in violation of public policy, a recognized tort under Wyoming law. See Allen v. Safeway Stores, Inc., 699 P.2d 277, 282-84 (Wyo.1985). They claimed that they were fired for exercising their rights to free speech under both the United States and Wyoming Constitutions.

The defendant subsequently filed a notice of removal in this Court, alleging that the complaint implicated the First Amendment to the United States Constitution and that the case was therefore within this Court's original jurisdiction pursuant to 28 U.S.C. § 1331 (1988), the general federal question statute.¹ In addition, the defendant filed a motion to dismiss the complaint under Rule 12(b)(6). The plaintiffs opposed the motion to dismiss, and also filed a timely motion to remand the case to state court² on the grounds that this case was not within this Court's original federal question jurisdiction and therefore was improperly removed.

The case is presently before the Court on the motion to dismiss as well as the motion to remand. For reasons set forth below, the Court concludes that the motion to remand is proper. This conclusion necessarily deprives this Court of subject matter jurisdiction to hear the motion to dismiss, and therefore, that motion must be dismissed.

Discussion

At the outset, it is important to recognize what the complaint in this case does not allege. The plaintiffs have not brought suit, nor could they, as either a § 1983 civil rights suit or as a so-called "Bivens" action.³ This is because of the most fundamental principle of constitutional law, which is that the Constitution only protects against the abridgement of constitutional rights by a governmental entity and has no application when the defendant is a private party. See, e.g., Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976) (citing Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 114, 93 S.Ct. 2080, 2092, 36 L.Ed.2d 772 (1973)). The defendant in this case is neither a federal nor a state actor and therefore, cannot be sued for violating the plaintiffs' First Amendment rights of free expression.

As Justice Holmes once noted, "the party who brings suit is master to decide what law he will rely upon." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). Exercising this prerogative, the plaintiffs in this case have brought suit under the common law of the state of Wyoming in regards to a tortious discharge in violation of public policy. The complaint does make reference to the First Amendment of the federal constitution as well as Article I, § 20 of the Wyoming Constitution.⁴ Those provisions are referenced in the plaintiffs' complaint as evidence of the public policy in favor of free speech, an element of the plaintiffs' tortious discharge claim under Allen. Therefore, the narrow issue presented by the motion to remand is whether the plaintiffs' reference to the First Amendment, as a source of public policy in support of their tort claim, is sufficient to confer federal question jurisdiction in this Court. In order to properly analyze this threshold jurisdictional issue, it will be necessary to review the controlling legal principles regarding both removal and federal question jurisdiction.

A. Removal Jurisdiction

The original jurisdiction of the federal district courts encompasses both diversity and federal question jurisdiction. See 28 U.S.C. §§ 1331, 1332 (1988). Of course, state courts have power, in the constitutional sense, e.g., Howlett v. Rose, 496 U.S. 356, 367-70, 110 S.Ct. 2430, 2438-40, 110 L.Ed.2d 332 (1990); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784 (1981); Claflin v. Houseman, 93 U.S. 130, 136-37 (1876), as well as a corresponding duty, e.g., Testa v. Katt, 330 U.S. 386, 388-94, 67 S.Ct. 810, 811-815, 91 L.Ed. 967 (1947); Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58, 32 S.Ct. 169, 178, 56 L.Ed. 327 (1912) ("The existence of the jurisdiction creates an implication of a duty to exercise it.") to hear and adjudicate issues of federal law, by virtue of the Supremacy Clause of Article VI of the Constitution. See U.S. CONST. art. VI.

By statute, however, Congress has provided litigants with the power to remove a civil action brought in state court to federal court, even though the state court is fully competent to decide issues of federal law, so long as the case comes within the original jurisdiction of the federal courts such that it could have been brought in federal court ab initio. See 28 U.S.C. § 1441(c) (1988); see also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 7-28, 103 S.Ct. 2841, 2845-56, 77 L.Ed.2d 420 (1983) (discussing the procedures for removal of a federal question case). It is apparent, therefore, that removal jurisdiction is entirely a creature of statute. See, e.g., Shannon v. Shannon, 965 F.2d 542, 545 (7th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 677, 121 L.Ed.2d 599 (1993); Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145 (8th Cir.1992); Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045 (2d Cir.1991) (citing Little York Gold-Washing & Water Co. v. Keyes, 96 U.S. 199, 201, 24 L.Ed. 656 (1877)); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988), aff'd on other grounds, 503 U.S. ___, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). Moreover, because the removal of cases from state court to federal court infringes on the sovereignty of the state courts, thereby implicating significant federalism concerns, see, e.g., Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 815-17, 106 S.Ct. 3229, 3236-37, 92 L.Ed.2d 650 (1986); Somlyo, 932 F.2d at 1045-46; Willy, 855 F.2d at 1164; Phillips v. Intercantieri, S.p.A., 672 F.Supp. 1109, 1110 (N.D.Ill.1987), the Supreme Court has held that the lower federal courts must strictly construe their removal jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (noting that by enacting the removal statutes, Congress intended to "restrict the jurisdiction of the federal courts on removal" and therefore, the removal statutes are subject to "strict construction"); see also Willy, 855 F.2d at 1164; Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.1988).

Consistent with this policy of strictly construing removal jurisdiction, federal courts have held that the party attempting to remove the case to federal court bears the burden of affirmatively establishing that subject matter jurisdiction exists. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 37-38, 66 L.Ed. 144 (1921); Willy, 855 F.2d at 1164; Emrich, 846 F.2d at 1195; cf. Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 339, 70 L.Ed. 682 (1926) (noting that in general, the party seeking to invoke the jurisdiction of a federal court bears the burden of establishing that there is subject matter jurisdiction). Stated another way, there is a rebuttable presumption against subject matter jurisdiction. In Turner v. Bank of North America, 4 U.S. (4 Dall.) 6, 1 L.Ed. 718 (1799), the Supreme Court expounded on this notion, stating:

the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction, until the contrary appears.

Id. at 10. One final reason why removal jurisdiction must be narrowly construed is because it permits the defendant to preempt the plaintiff's choice of forum. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993) (citation omitted).

Having set forth the basic principles that govern the removal of an action to federal court, this Court must now determine whether the case at bar falls within the original jurisdiction of this Court, a federal district court. If it does not, then the case has been improperly removed and must be remanded back to state court for a lack of jurisdiction.

B. Federal Question Jurisdiction

1. Limited...