Hayduk v. United Parcel Service, Inc.

• Decision Date: 25 April 1996
• Docket Number: No. 95-2884-CIV.,95-2884-CIV.
• Citation: 930 F. Supp. 584
• Parties: John HAYDUK, Plaintiff/Counterdefendant, v. UNITED PARCEL SERVICE, INC., an Ohio and New York Corporation, Bill Cox and Edwin Gill, Defendants/Counterplaintiffs/Third-Party Plaintiffs, v. The INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, Third-Party Defendant.
• Court: U.S. District Court — Southern District of Florida

930 F. Supp. 584

John HAYDUK, Plaintiff/Counterdefendant, v. UNITED PARCEL SERVICE, INC., an Ohio and New York Corporation, Bill Cox and Edwin Gill, Defendants/Counterplaintiffs/Third-Party Plaintiffs, v. The INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, Third-Party Defendant.

No. 95-2884-CIV.

United States District Court, S.D. Florida.

April 25, 1996.

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Herman J. Russomanno, Floyd Pearson Richman Greer Weil Brumbaugh & Russomanno PA, Miami, FL, for Plaintiff/Counter-defendant.

Murray Hudson, Hogg Allen Norton & Blue PA, Coral Gables, FL, for Defendants United Parcel Service, Bill Cox and Edwin Gill.

Christy Hoffman, Legal Department, Washington, DC, March Richard, Coral Gables, FL, for Third Party Defendant International Brotherhood of Teamsters, Etc.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR REMAND; AND DENYING DEFENDANTS' MOTION TO ASSERT JURISDICTION OVER THE ENTIRETY OR IN THE ALTERNATIVE REMAND ACTION IN ITS ENTIRETY

ATKINS, Senior District Judge.

THIS MATTER is before the Court on two (2) motions. (1) Plaintiff's Motion to Remand; and (2) Defendants/Counter-Plaintiffs' Motion to Assert Jurisdiction over Entire Case, or in the Alternative to Remand Action in its Entirety. After careful review of the motions, responses, replies and applicable law, the Court has made the following determinations.

FACTS

This case revolves around the arrest of John Hayduk, Plaintiff, on February 7, 1994. At that time, Hayduk was an employee of United Parcel Service, Inc. ("UPS"), engaged as a feeder-driver. On the day in question, Hayduk was to drop off a trailer containing customer packages at UPS' facility in Port Charlotte. After driving from his home facility in Hialeah, Hayduk arrived at Port Charlotte only to find the entrance blocked by two picketing members of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers, ("Teamsters"), the same union to which Hayduk belonged. Hayduk refused to cross the picket-line and instead drove to a nearby parking lot and disconnected the trailer from his tractor.

After communication with his supervisors at Hialeah, Hayduk was ordered to cross the picket-line, and drop off the trailer — he refused. Soon thereafter, Hayduk was met in the parking lot by Robert Parker, a supervisor at the Port Charlotte facility. Parker ordered Hayduk to turn over the keys to his tractor — Hayduk agreed provided he was guaranteed transportation back to Hialeah. Parker refused to make any such guarantee.

Hayduk then contacted representatives of Teamsters who informed him, allegedly in conformity with the collective bargaining agreement ("CBA") between Teamsters and UPS, that he should not turn over the keys to his tractor, and should just "get in the truck and drive back to Hialeah." Acting on this advice, Hayduk entered the tractor and left for Hialeah, leaving the trailer in the parking lot. At some point, somebody from UPS called the police and reported the truck stolen. On his way back to Hialeah, Hayduk was pulled over, arrested and eventually charged. A report of the arrest appeared in the paper, but the charges were eventually dropped.

The Pleadings

As a result of this situation, Hayduk filed suit on or about July 7, 1995 in State court against UPS, alleging malicious prosecution, false imprisonment, defamation, intentional infliction of emotional distress and negligence. In its answer to the complaint, on November 20, 1995, UPS included counterclaims and a third-party complaint against Teamsters. In its counterclaims, UPS alleged causes of action against Hayduk for breach of duty of loyalty and civil conspiracy (with Teamsters). In the third-party complaint, UPS alleged claims for intentional interference with business relationships (based on alleged violations of a temporary restraining order ("TRO")), contribution, legal subrogation and civil conspiracy (with Hayduk). On December 27, 1995, Teamsters filed a Notice of Removal with this Court, alleging that this Court has jurisdiction under 28 U.S.C. § 1331, and that the case is removable pursuant to 28 U.S.C. §§ 1441(a) & (b).

Hayduk opposed Teamster's removal and, on January 25, 1996, filed a Motion to Remand. The motion put forth two main arguments. First, that a third-party defendant may not remove a case from State court under §§ 1441(a) or (b). Second, that failure to note § 1441(c) as a basis for removal precludes Teamsters from now relying on that section, and that even if that section were pled, it is not applicable in this instance.

THIRD-PARTY REMOVAL UNDER 28 U.S.C. § 1441 IN GENERAL

The right of a third-party defendant to remove a case from State court has been a source of tremendous conflict among the different courts that have considered the question. The vast majority of courts that have considered whether third-party defendants have the right to remove a case have determined that no such right exists. "Typically, removal is reserved for the original defendant. Under § 1441 removal by third party defendants is generally not permitted." Reese v. South Florida Water Management Dist., 853 F.Supp. 413, 414 (S.D.Fla.1994) (King, J.) (also holding that "the Court is inclined to follow the majority by holding that third party removal is not permitted under 28 U.S.C. § 1441"). See e.g., Lewis v. Windsor Door Co., 926 F.2d 729 (8th Cir. 1991); Thomas v. Shelton, 740 F.2d 478 (7th Cir.1984); Andrews v. Electric Motor Systems, Inc., 767 F.Supp. 853 (S.D.Ohio 1991); Harris v. G.C. Services Corp., 651 F.Supp. 1417, 1418-19 (S.D.N.Y.1987) ("The absence of federal jurisdiction over the main claim is not remedied by the commencement of an ancillary third-party claim as to which federal jurisdiction would exist if asserted in an independent action"); Friddle v. Hardee's Food Systems, Inc., 534 F.Supp. 148 (W.D.Ark.1981); Luebbe v. Presbyterian Hospital, 526 F.Supp. 1162 (S.D.N.Y.1981). See also C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure, §§ 3724, 3731 (2d ed. 1985 & Supp.1995). See also Mignogna v. Sair Aviation, Inc., 679 F.Supp. 184, 187-88 (N.D.N.Y.1988) (holding that third-party removal is proper, but citing numerous cases in opposition).

However, binding cases in this circuit have held that a third-party defendant is not barred from pursuing a claim under certain prescribed circumstances. See Carl Heck Engineers v. Lafourche Parish Police, 622 F.2d 133 (5th Cir.1980); Central of Georgia Ry. Co. v. Riegel Textile Corp., 426 F.2d 935 (5th Cir.1970).¹ This Court, considering itself bound by these decisions of the Fifth Circuit, must rule that third party defendants may remove cases in some circumstances. What remains, is to determine whether those circumstances exist here.

THIRD PARTY REMOVAL UNDER 28 U.S.C. §§ 1441(a), (b)

Teamsters, in its notice of removal, has relied explicitly on 28 U.S.C. §§ 1441(a), (b) as the proper grounds for removal. However, applicable caselaw demonstrates, without a shadow of a doubt, that neither of these bases is properly relied upon in this case.

Section 1441(a) states, in relevant part:

(a) any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district embracing the place where such action is pending....

Nearly every court that has considered the question whether third-parties may remove under § 1441(a) has determined that they may not. The court in Persoff, M.D. v. Aran, 792 F.Supp. 803, 804 (S.D.Fla.1992) found that most:

Federal courts and commentators ... have found that third-party defendants may not remove, primarily because this Court believes that a third party defendant is not a "defendant" within the meaning of § 1441(a), and thus is never capable of removing under that provision.

See also Reese, 853 F.Supp. at 413. This Court has been able to find only one case granting a third-party defendant the right to remove under § 1441(a).

The District Court for the Eastern District of Louisiana, in National Fishing Tools, Inc. v. Galaxy Wireline, Inc., 1989 WL 132802 (E.D.La.1989), specifically declared that third-party defendants have the right to remove under § 1441(a). The court, relying on the Fifth Circuit's opinion in Carl Heck, 622 F.2d at 133, held "if a third-party defendant can remove the entire action, including a nonremovable claim, under 1441(c) citations omitted it seems that third-party defendant may remove an entire action involving two removable claims under 1441(a)." Id. at *2. Such reliance on Carl Heck is curious at best, given that Carl Heck dealt exclusively with the right of third-party defendants to remove pursuant to § 1441(c), and at no point questioned the otherwise universal acceptance that § 1441(a) is restricted merely to the original defendant or defendants as joined by the plaintiff. This Court finds no reason to disagree with the multitude of courts that have previously determined that § 1441(a) is not a proper removal provision for a third party defendant.

The Court's determination on § 1441(a) is given further support by Teamsters' response to Hayduk's motion to remand, where reliance on § 1441(a) seems to have been dropped. This is not the case, however, with § 1441(b), where Teamsters attempts to argue that third-party defendants may remove under that section. In support, counsel for Teamsters cites, somewhat inexplicably, Motor Vehicle Casualty Company v. Russian River County Sanitation Dist., 538 F.Supp. 488 (D.C.Cal.1981). That case dealt exclusively with § 1441(c) and whether or not that section's scope is limited only to defendants joined by the original plaintiff. Indeed, the court's holding in Russian River explains under what context it considered the right of third-party defendants to remove:

The

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