GREATER NEW ORLEANS STAGE v. WH Bower Spangenberg

• Decision Date: 21 May 1984
• Docket Number: Civ. A. No. 83-6033.
• Citation: 587 F. Supp. 1307
• Parties: GREATER NEW ORLEANS STAGE, MOTION PICTURE, etc. v. W.H. BOWER SPANGENBERG, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

587 F. Supp. 1307

GREATER NEW ORLEANS STAGE, MOTION PICTURE, etc. v. W.H. BOWER SPANGENBERG, INC., et al.

Civ. A. No. 83-6033.

United States District Court, E.D. Louisiana.

May 21, 1984.

M.H. Gertler, Gertler & Gertler, New Orleans, La., for plaintiffs.

McGlinchey, Stafford, Mintz & Cellini, Robert B. Mitchell, New Orleans, La., for defendants.

McCalla, Thompson, Pyburn & Ridley, Horace A. Thompson, III and Stefanie J. Allweiss, New Orleans, La., and Jenkens & Gilchrist, Steven R. McCown, Dallas, Tex., for United Exposition Service, Co.

OPINION

ARCENEAUX, District Judge.

This matter came before the Court on motion to remand filed on behalf of plaintiff, Greater New Orleans Stage, Motion Pictures, Television and Exhibition Employees Local No. 39 ("Local"). After hearing oral argument on March 14, 1984, the Court ordered that supplemental memoranda be submitted and took the matter under submission. Having thoroughly considered the memoranda of counsel, the record and the law, the motion to remand is GRANTED for reasons set forth hereinafter.

BACKGROUND

Plaintiff originally filed this suit in state court alleging that after labor contracts with the defendants expired on June 30, 1983, the defendants jointly conspired to refuse to bargain in good faith, thereby causing plaintiff to strike on September 5, 1983. Plaintiff further alleges that during the course of the strike action, the defendants agreed amongst themselves to "borrow" each others' personnel for certain exhibitions and conventions in New Orleans. As a result of these conspired actions, plaintiff claims that defendants violated Louisiana law prohibiting conspiracies in restraint of trade, La.Rev.Stat. 51:121 et seq, and unfair trade practices, La.Rev. Stat. 51:1401 et seq. The strike ended when new contracts were signed in November, 1983. Plaintiff is seeking damages arising during the strike period allegedly caused by the unlawful activity of the defendants.

On the petition for removal, jurisdiction in this Court is claimed under 28 U.S.C. § 1331 since the cause of action arises out of a labor-management dispute and federal law preempts state law in such matters. The motion to remand alleges that since the suit could not have been brought originally in federal court, it has been improperly and improvidently removed.

Defendants argue that the plaintiff raises questions of federal law in its petition; specifically, defendants allege that each wrongful action set forth in the petition are proscribed by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 157 and § 158. They argue that state courts totally lack jurisdiction over such state unfair practices and antitrust actions due to preemption of federal laws. They seek a declaration that these claims arise under the federal labor and antitrust laws so that their anticipated motions to dismiss for lack of subject matter jurisdiction and failure to state a claim can be entertained by the Court.

LAW

Removal to federal court is appropriate in any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the laws of the United States. 28 U.S.C. § 1441(b). Remand is appropriate at any time prior to final judgment if it appears that the case was removed improvidently and without jurisdiction. 28 U.S.C. § 1447(c).

On a motion to remand, the non-moving party has the burden of proving that removal was proper and that the federal court has jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Jurisdiction at the time the petition for removal was filed as reflected in the pleadings must be shown. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951).

The removal court should inspect the complaint carefully to determine whether a federal claim is presented, even if the plaintiff has couched his pleadings exclusively in terms of state law. In Re Carter, 618 F.2d 1093 (5th Cir.1980) cert. denied sub nom. Sheet Metal Workers International Association v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). A plaintiff may not defeat removal by fraudulent means or by artfully failing to plead essential federal issues in a complaint. Avco Corp. v. Aero Lodge No. 735, International Association of Machinists, 376 F.2d 337 (6th Cir.1967), aff'd 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

In the opinion of this Court, defendants' argument fails on several grounds. Accepting as true the defendants' federal characterization of the plaintiff's claims, removal is improper due to a lack of jurisdiction in the state court and due to a lack of original jurisdiction in this Court. In addition, this Court rejects the contention that a careful review of the pleadings necessarily reflects federal, rather than state claims. Finally, this Court believes that removal for the sole purpose of dismissal under the circumstances presented herein is itself improper.

In arguing that the plaintiff is asserting violations of § 157 and § 158, which cannot be heard in state court, defendants prove too much. In addition to the requirement of original jurisdiction in federal court, removal is permitted only if the case is within the jurisdiction of the state court. Since the jurisdiction of the federal court is deriviative, where the state court has no jurisdiction, the federal courts acquire none on removal. 14 Wright, Miller & Cooper, Federal Practice and Procedure, § 3721 (1975). "If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction." Lambert Run Coal Co. v. Baltimore & Ohio Railroad, 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922).

Perhaps corallary to this rule of law is the firmly established maxim that an anticipated defense predicated on federal preemption does not serve to invoke original federal question jurisdiction. Powers v. South Central United Food & Commercial Workers Union, 719 F.2d 760 (5th Cir.1983). Where federal law governs, defenses remain just as available in state court, and review may be had by the United States Supreme Court. Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983); Powers, supra at 766-767, fn 6, 7.

It is equally clear that original jurisdiction in this Court is lacking in cases arising from 29 U.S.C. § 157 and § 158.¹ While defendants concede that such actions are within the exclusive jurisdiction of the National Labor Relations Board ("NLRB") under the statutory scheme, the significance of that circumstance is underestimated.

It is obvious that no NLRA jurisdictional statute confers jurisdiction over such matters in this Court. Connell Construction Co., v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). Therefore, reliance on 29 U.S.C. § 185, which gives unions the right to file civil suits in the district court based on violations of labor contracts is misguided; no contract existed at the times set forth in plaintiff's complaint. In addition, federal jurisdiction over such suits is not exclusive, state courts may also hear such matters. As such, removal is proper. Local 174, Teamsters, Chauffeurs, Warehousemen, Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)².

Moreover, this Court attaches significance to the fact that the NLRA, in creating rights and remedies, simultaneously enacted jurisdictional statutes attendant to those rights. The lack of a jurisdictional statute conferring jurisdiction in the federal courts over § 157 and § 158 actions divests this Court of original federal question jurisdiction pursuant to the broad "arising under" sections of the Judicial Code, 28 U.S.C. § 1331 and § 1337.³ The grants are not mutually exclusive or alternative in such a situation.

Federal courts are courts of limited jurisdiction; they can hear only those cases within the judicial power as defined in the Constitution where empowered by a jurisdictional grant of Congress. 13 Wright & Miller, Federal Practice and Procedure § 3522 (1975). Where that power is granted by statute, the Court must scrupulously confine their jurisdiction to the precise limits defined in the statute. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). While general jurisdictional provisions are important when the Act of Congress does not have its own special jurisdictional statute, it adds nothing to one that does. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975). Were that not the case, the procedural objectives of Congress would have been accomplished without the need of any special jurisdictional statute since federal rights would necessarily be in issue. Rather, Justice Frankfurter's logic and analysis of the Court's jurisdiction over § 157 and § 158 claims is applicable:

But Courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-245, 79 S.Ct. 773, 779 (1959).⁴ This deficiency deprives the Court of power to exercise jurisdiction in such matters. United Steelworkers of America v. Rome Industries, Inc., 321 F.Supp. 1170 (N.D.Ga.1970), aff'd 437 F.2d 881 (5th Cir.1970).

Defendants' argument that all labor disputes necessarily fall within the Court's jurisdiction is frivolous. No "unique interests" exist which exempt the alleged unfair labor practices sub judice from the Garmon rule. Vaca, supra at 181, 87 S.Ct. at 912. In any event, it is clear that Congress has chosen not to confer jurisdiction over all § 157 and § 158 controversies in the federal judiciary. Garmon, supra at 244-245, 79 S.Ct. at 779. Indeed, the federal courts are...