Harper v. San Diego Transit Corp.

• Decision Date: 25 June 1985
• Docket Number: No. 84-6205,AFL-CIO,84-6205
• Citation: 764 F.2d 663,119 LRRM 3161
• Parties: 119 L.R.R.M. (BNA) 3161, 103 Lab.Cas. P 11,619 Alvy R. HARPER, Plaintiff/Appellant, v. SAN DIEGO TRANSIT CORPORATION; San DiegoBus Drivers Local Division 1309 of the Amalgamated Transit Union, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 663

764 F.2d 663

119 L.R.R.M. (BNA) 3161, 103 Lab.Cas. P 11,619

Alvy R. HARPER, Plaintiff/Appellant, v. SAN DIEGO TRANSIT CORPORATION; San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union, Defendants/Appellees.

No. 84-6205.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1985.

Decided June 25, 1985.

Diane R. King, San Diego, Cal., for plaintiff/appellant.

Jon R. Betts, Richard D. Prochazka, San Diego, Cal., for defendants/appellees.

Appeal from the United States District Court for the Southern District of California.

Before KENNEDY, HUG and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Alvy R. Harper ("Harper") sued his former union, San Diego AFL-CIO Bus Drivers Local Division 1309 of the Amalgamated Transit Union ("Union"), and his former employer, San Diego Transit Corporation ("Corporation"), in state court over his discharge from employment. Defendants removed the complaint to federal court on the ground that federal labor law formed the basis for and preempted Harper's claims of breach. The district court then granted defendants' motions to dismiss or for summary judgment without leave to amend on the ground that federal labor law preempted Harper's claims, and the applicable six-month federal statute of limitations barred the action.

The Union and the Corporation argue that removal was proper, that all the claims are preempted by federal labor law, and that they were properly dismissed as time-barred. Harper contends that his claims are not preempted, not replaced by any federal remedy, and not removable. We agree with the Union and the Corporation and thus affirm the district court.

I. FACTS

Harper had worked for the Corporation for sixteen years at the time of his discharge. He was a member of the Union in good standing. His complaint alleges that a collective bargaining agreement governed the terms and conditions of his employment and discharge. In fact, Harper alleges that his discharge violated Section 18, "Miss-Outs" (attached as Exhibit A to his complaint), of his collective bargaining agreement.

The bus company fired Harper for having five unexcused "miss-outs" (absences) within a six-month period. Harper alleges that Company policy "had always been to excuse a 'miss-out' that was due to car problems. At least 1 of Plaintiff's unexcused 'miss-outs' was due to car trouble, yet, despite the fact that he informed Defendant of the car trouble, Plaintiff was discharged." Complaint p. 3. Harper also alleges, and includes in his complaint, the grievance and arbitration procedures of his collective bargaining agreement. He asserts that he demanded that the Union initiate grievance procedures in his behalf, but that the Union "without any just or reasonable cause or reason whatsoever and in violation of its obligations of fair representation failed and refused, and continues to fail and refuse to arbitrate Plaintiff's grievance." Complaint p. 10.

Harper asserts the following claims: breach of contract against the Corporation; breach of duty of fair representation against the Union; breach of oral contract of employment (apparently abandoned on appeal); wrongful termination in breach of the implied covenant of good faith and fair dealing; and wrongful termination in violation of "company policy regarding termination of employment." Defendants removed the case to federal court on the ground that the complaint, on its face, stated claims arising exclusively under federal labor law, and that these claims preempted any state law claims that Harper had alleged. The district court granted defendants' motions to dismiss or for summary judgment without leave to amend on the ground that federal labor law preempted Harper's claims, and the applicable six-month federal statute of limitations barred the action.

II. STANDARD OF REVIEW

The district court failed to specify whether it was granting defendants' motions to dismiss or their motions for summary judgment. If "matters outside the pleading are presented to and not excluded by the court," a motion of this type "shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b); see Fed.R.Civ.P. 56. The Union submitted the Affidavit of Edward O. Reed in Support of Union's Motion for Dismissal And/Or Summary Judgment, and it does not appear to have been excluded by the court. Thus, the district court's action is most accurately described as a grant of a motion for summary judgment. The standard of review for both decisions, however, is de novo. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983) (de novo review of motion to dismiss for failure to state a claim upon which relief could be granted); Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983) (de novo review of grant of summary judgment).

III. REMOVAL

The Union asserts that Harper never moved to remand and, therefore, he waived his right to seek remand on appeal. Harper did, however, devote two pages of his opposition to the motions to dismiss or for summary judgment to seeking remand to the state court. Thus, the question this panel faces is whether the cases were properly removed. ¹

A. Removal Jurisdiction Rests on a Federal Claim Stated in the Complaint

A suit can be removed to federal court under 28 U.S.C. Sec. 1441(a) only if it could have been brought there originally, that is, if " 'a right or immunity created by the Constitution or laws of the United States ... [is] an element, and an essential one, of the plaintiff's cause of action.' " Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1471 (9th Cir.1984) (quoting Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) ). See Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir.1977). ² In this case, the question is whether Harper's own complaint stated a federal cause of action under section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. Sec. 185(a).

A claim cannot be removed to federal court if the federal claim is only a defense, because a federal defense would not be an element of plaintiff's cause of action. Hunter v. United Van Lines, 746 F.2d 635, 639 (9th Cir.1985). Because preemption is ordinarily raised as a defense, preemption alone is an insufficient basis for removal. Guinasso v. Pacific First Federal Savings & Loan Association, 656 F.2d 1364, 1366 (9th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982). Accord Hunter v. United Van Lines, 746 F.2d at 639-40; Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370 (9th Cir.1984) cert. denied, --- U.S. ----, 105 S.Ct. 2319, 85 L.Ed.2d --- (1985). However, "[r]emoval may be appropriate when federal law not only displaces state law but also confers a federal remedy on the plaintiffs or compels them to rely, explicitly or implicitly, on federal propositions." Guinasso, 656 F.2d at 1367 (footnote omitted).

Whether federal law confers a remedy in turn implicates the well-pleaded complaint rule.

A plaintiff may not, however, avoid federal jurisdiction simply by omitting from the complaint federal law essential to his claim, or by casting in state law terms a claim that can be made only under federal law. Jurisdiction is determined on the basis of the well-pleaded complaint. A complaint that is "artfully pleaded" to avoid federal jurisdiction may be recharacterized as one arising under federal law.

Olguin, 740 F.2d at 1472 (citations omitted; emphasis in original). See Hunter, 746 F.2d at 640-43. Claims fitting the artful pleading category, however, are the exception, and not the rule; plaintiff is generally free to be the master of his own complaint. Hunter, 746 F.2d at 640-41; Salveson v. Western States Bankcard Association, 731 F.2d 1423, 1427 (9th Cir.1984). The question we address, therefore, is whether Harper's claims not only arise under federal laws that displace state laws, but whether they also arise under federal laws that confer upon him a federal remedy.

B. The Causes of Action Against the Employer for Breach of Contract, Breach of Company Policy in Interpreting the Miss-out Provision of the Contract, and Against the Union for Breach of the Duty of Fair Representation Appear on the Face of the Complaint and State a Federal Claim; They Were Therefore Properly Removed.

Harper alleges outright that the Union breached its duty of fair representation by failing to follow the grievance and arbitration procedures of his collective bargaining agreement. The duty of fair representation is explicitly based on federal labor law, section 301 of the LMRA. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967).

Harper also alleges outright that the Corporation breached the collective bargaining agreement and breached company policy in interpreting a provision of the collective bargaining agreement concerning miss-outs. Breach of a collective bargaining agreement--and breach of a provision of a collective bargaining agreement--also arise under section 301. Allis-Chalmers Corp. v. Lueck, --- U.S. ----, ----, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985); Olguin, 740 F.2d at 1474; Sheeran v. General Electric Co., 593 F.2d 93, 96 (9th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979).

The breach of contract and breach of duty of fair representation claims which the complaint explicitly alleges (contra, e.g., Olguin, 740 F.2d at 1470 ("complaint was carefully worded to avoid any direct reference to the collective bargaining agreement"); Sheeran, 593 F.2d at 96 ("appellants did not refer to the collective bargaining agreements in their complaint") ), are therefore preempted by federal law. There is no question of "artful pleading" or implying claims not apparent from the face of the complaint. Harper alleges these claims and it is apparent from the face of his complaint that they are federal claims. Therefore, they are removable. Hunter, 746 F.2d at...