Howell v. Lab One, Inc.

• Decision Date: 03 July 2002
• Docket Number: No. 8:02-CV-73.,8:02-CV-73.
• Citation: 225 F.Supp.2d 1168
• Parties: Daniel HOWELL, Plaintiff, v. LAB ONE, INC., a Missouri Corporation, Lab One, Inc., a Delaware Corporation, Union Pacific Railroad Co., a Utah Corporation, Defendants.
• Court: U.S. District Court — District of Nebraska

Page 1168

225 F.Supp.2d 1168

Daniel HOWELL, Plaintiff, v. LAB ONE, INC., a Missouri Corporation, Lab One, Inc., a Delaware Corporation, Union Pacific Railroad Co., a Utah Corporation, Defendants.

No. 8:02-CV-73.

United States District Court, D. Nebraska.

July 3, 2002.

Henry N. Carnaby, Union Pacific Law Department, Omaha, NE, for Union Pacific Railroad Company.

Joseph S. Daly, Sodoro, Daly Law Firm, Omaha, NE, for Lab One, Inc.

Richard J. Dinsmore, Omaha, NE, for Daniel Howell.

Jayson D. Nelson, Omaha, NE, for Daniel Howell.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

This matter is before the court on plaintiff's motion to remand, Filing No. 9, and on plaintiff's objections, Filing No. 22, to the report and recommendation of the magistrate, Filing No. 19. I have carefully reviewed the record, objections to the report and recommendation, the report and recommendation, the briefs in support and opposition and the relevant law. I conclude that the magistrate's recommendation should be adopted.

Plaintiff was hired as a freight conductor by defendant Union Pacific Railroad Co. (UP) in 1994. Random drug tests are performed on employees of the railroad. Defendant Lab One (Lab) was in the business of performing the drug testing on employees of the railroad. Lab tested the urine of the plaintiff and concluded that the sample was "not consistent with human urine." UP terminated plaintiff's employment.

On January 11, 2002, the plaintiff filed an action in the District Court of Douglas County against UP and Lab, alleging numerous state law causes of action. The petition claimed that the drug screening urinalysis was performed incorrectly on the plaintiff. On February 13, 2002, UP filed a notice of removal to federal court, and consent to such removal was given by defendant Lab. Thereafter, plaintiff filed a motion to remand this case back to state court. Plaintiff contended that there was no federal cause of action alleged in the state court petition.

UP argues that the plaintiff's case really arises under the Railway Labor Act, 49 U.S.C. § 151 et seq., the Federal Railroad Safety Act, 45 U.S.C. § 20101 et seq., and regulations promulgated by the Secretary of Transportation, at 49 C.F.R. Parts 40 and 219. UP further argues that the plaintiff's cause of action is preempted by the Federal Omnibus Transportation Employee Testing Act of 1991 (FOTETA), 49 U.S.C. § 31306. Plaintiff argues, however, that he does not bring his cause of action under any federal cause of action. Instead, plaintiff argues that his urine was improperly tested which resulted in violations of state law.

However, it is clear from a review of plaintiff's petition that the standards the defendants allegedly failed to use are the federal government standards. The core issue in this case is the federal drug testing regulations and their application in this case. As stated by the magistrate, "Though the plaintiff has couched his claim in terms of state law, it is clear he is challenging the termination of his employment as a result of a federally mandated random drug test and the CBA [collective bargaining agreement] between the plaintiff and defendant UPRR." Filing No. 19 at 8. I have carefully reviewed the report and recommendation of the magistrate, and I agree.

THEREFORE, IT IS ORDERED THAT:

1. The magistrate's report and recommendation, Filing No. 19, is hereby adopted in its entirety;

2. The motion to remand, Filing No. 9, is hereby denied; and

3. Plaintiff's objections to the report and recommendation, Filing No. 22, are denied.

REPORT AND RECOMMENDATION

THALKEN, United States Magistrate Judge.

This matter is before the court on the plaintiff's motion to remand (Filing No. 9). The plaintiff submitted no brief in conjunction with the motion to remand, but was given leave to submit a brief (Plaintiff's Brief). Defendants LabOne, Inc., a Missouri Corporation, and LabOne, Inc., a Delaware Corporation,¹ submitted a brief in opposition to the motion to remand (LabOne Brief). Defendant Union Pacific Railroad Company (UPRR) submitted a brief in opposition to the motion to remand (UPRR Brief). Defendants LabOne were granted leave to submit a supplemental brief (Supplemental Brief) in opposition to the motion to remand. See Filing No. 18. For the reasons set forth below, the court will recommend the plaintiff's motion to remand be denied.²

BACKGROUND

The plaintiff filed the instant lawsuit against defendants LabOne, in the District Court of Douglas County, Nebraska on January 11, 2002. See Filing No. 1, Amended Petition. On January 14, 2002, the plaintiff amended the state court petition to include claims against defendant UPRR. Id. The plaintiff, a resident of Nebraska, was hired by defendant UPRR³ on August 24, 1994, as a freight conductor. Id. Under federal law, random drug tests are performed upon railroad employees such as the plaintiff. Id. The LabOne defendants were businesses that, according to the plaintiff, "held themselves out to the public as entities that possessed the necessary professional skills to perform, test and interpret the drug screening process according to accepted industry standards." Id. The plaintiff claims he was required to submit to a random drug screening on January 14, 1998. Id. The plaintiff alleges the defendants tested his urine for both drugs and for a determination of whether the sample had been substituted, adulterated, or diluted. Id. The defendants concluded the sample the plaintiff provided was "not consistent with human urine" and defendant UPRR terminated the plaintiff's employment. Id. The plaintiff's state court petition contained claims for negligence, breach of contract, defamation, negligent misrepresentation, fraudulent misrepresentation, interference with existing business relationship, interference with prospective business relations, intentional infliction of emotional distress, and invasion of privacy. Id. The plaintiff claims he has lost over $200,000 in earnings and benefits since the termination. Id.

UPRR removed the present action to this court on February 13, 2002, pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. See Filing No. 1. LabOne consented to the removal on February 15, 2002. See Filing No. 3. The defendants claim, in UPRR's notice of removal, that UPRR is a railroad engaged in interstate commerce and subject to the Interstate Commerce Act, 49 U.S.C. §§ 10101, the Railway Labor Act, 49 U.S.C. § 151(RLA), and the Federal Railroad Safety Act, 45 U.S.C. § 20101 (FRSA), as well as the regulations promulgated by the Secretary of Transportation in 49 C.F.R. §§ 40, 219. Id. The defendants allege the plaintiff was a member of the United Transportation Union (UTU). Id. The defendants claim the plaintiff's prior employment was subject to the terms of a collective bargaining agreement (CBA) between UPRR and UTU, which agreement provides that disputes such as the present suit are to be governed by procedures contained in the RLA. Id. Furthermore, the defendants claim the plaintiff has previously litigated these issues before the National Railroad Adjustment Board (NRAB), which has exclusive jurisdiction over disputes between an employee and a carrier regarding pay, work rules, or working conditions. Id. The defendants argue the foregoing facts support original subject matter jurisdiction in this court. Id.

The plaintiff filed the instant motion to remand on March 15, 2002. See Filing No. 9. The plaintiff claims the court lacks original jurisdiction over this case because no federal question exists. Id. The plaintiff disputes the defendants' claims that this suit arises under the RLA, FRSA, the Interstate Commerce Act, the Federal Omnibus Transportation Employee Testing Act of 1991 (FOTETA), and Secretary of Transportation regulations. Id. The plaintiff further disputes that all claims related to drug testing are preempted by the FRSA. Id. The plaintiff argues his claims are all made pursuant to Nebraska state law and common law and, thus, are within the jurisdiction and authority of Nebraska state courts. Id.

ANALYSIS

A. Subject Matter Jurisdiction

The parties have not presented arguments regarding diversity jurisdiction, nor does the court find diversity jurisdiction to exist; thus, a federal question must be present in order to confer federal jurisdiction over this case. Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1108 (8th Cir.1999). 28 U.S.C. § 1441(c) provides:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

See 28 U.S.C. § 1441(c). According to the Eighth Circuit, "[t]he party seeking removal and opposing remand ... ha[s] the burden of establishing federal subject matter jurisdiction." In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993) (citations omitted). Also, "[l]imitations on a court's removal may or may not be jurisdictional; but ... the limits must be strictly construed and enforced." Int'l Ass'n of Entrepreneurs of Am. v. Angoff, 58 F.3d 1266, 1270 (8th Cir.1995) (citations omitted). Removal in federal question jurisdiction cases is "governed by the `well-pleaded complaint' rule, which provides that federal jurisdiction exists only where a federal question is presented on the face of the plaintiff's properly pleaded complaint." Krispin v. May Dep't Stores Co., 218 F.3d 919, 922 (8th Cir.2000) (citations omitted). "[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a [non-removable] claim transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated." Caterpillar Inc. v. Williams, 482 U.S....