Iodice v. Calabrese

• Citation: 291 F. Supp. 592
• Decision Date: 26 August 1968
• Docket Number: No. 67 Civ. 887.,67 Civ. 887.
• Parties: Anthony IODICE et al., Plaintiffs, v. Peter CALABRESE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

291 F. Supp. 592

Anthony IODICE et al., Plaintiffs, v. Peter CALABRESE et al., Defendants.

No. 67 Civ. 887.

United States District Court S. D. New York.

August 26, 1968.

Greenspan & Aurnou, White Plains, N. Y., for plaintiffs.

John J. Sheehan, New York City, for defendants.

MEMORANDUM OPINION

Motion To Remand

MOTLEY, District Judge.

Plaintiffs are trucking companies, individual truckers and others who allege in the complaint that defendant union officer and defendant union have engaged in a course of action injuring plaintiffs in their business and occupations. The action was commenced in the Supreme Court of the State of New York, Westchester County, on February 10, 1967. All parties are residents of Westchester County. On March 3, 1967, the action was removed by defendants to this court pursuant to 28 U.S.C. § 1441 as an action arising under the laws of the United States. The action is now before the court on plaintiffs' motion to remand to the state court pursuant to 28 U.S.C. § 1447. The motion is denied.

The complaint alleges facts indicating that defendants have threatened plaintiff trucking companies and other trucking companies with "labor trouble" if plaintiffs and the others use the driving services of individual plaintiffs. It alleges that plaintiff trucking companies have been picketed for a number of years for employing individual plaintiffs, and that the loss of business suffered therefrom has forced one plaintiff to give up his Certificate of Convenience and Necessity, granted by the Interstate Commerce Commission. It is also alleged that another individual plaintiff, who operated a restaurant business in a building leased from the stockholder of one of the plaintiff trucking companies, was picketed because her lessor refused to cancel his lease with a plaintiff trucking company who employed the individual trucker plaintiffs, and that said restaurant plaintiff was forced to go out of business as a result of such picketing. The foregoing facts are alleged to state causes of action under New York General Business Law, New York Labor Law, and New York common law. Damages are pleaded for all plaintiffs, and, in addition, injunctions are asked against defendant's alleged reprisals, boycotts and picketing.

A separate third cause of action alleges that the same facts violate § 303 of the Labor Management Reporting and Disclosure Act of 1959, as enacted by the United States Congress. Such section refers to the activities of a labor organization under trusteeship, and it bears no relevance to any facts alleged in the complaint. Such facts appear to state a claim for relief under § 303 of the Labor Management Relations Act of 1947.¹ See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). It appears that plaintiff intended to state his claim under the latter statute and mistakenly pleaded the wrong § 303. The mere recitation of a statute neither confers nor deprives a court of jurisdiction. Only the facts pleaded may do this. Beeler v. United States, 338 F.2d 687, 689 (3rd Cir. 1964). Plaintiffs plead facts sufficient to show a controversy arising under § 303 of the Labor Management Relations Act, and their third cause of action will be considered to arise under this section. Pollio & Son, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 242 F. Supp. 684 (E.D.N.Y.1965). Plaintiffs ask only damages under this cause of action.

For an action to be removable to a federal court, it is necessary that it could have been originally brought in a federal court. Lorraine Motors Inc. v. Aetna Casualty & Surety Co., 166 F. Supp. 319 (E.D.N.Y.1958); Mexican Nat. R. Co. v. Davidson, 157 U.S. 201, 15 S.Ct. 563, 39 L.Ed. 672 (1895). Because removal jurisdiction derives from state jurisdiction it is also necessary that the state court have had valid jurisdiction prior to removal. Meyer v. Indian Hill Farm, Inc., 258 F.2d 287 (2d Cir. 1958). The Labor Management Relations Act, § 303 (29 U.S.C. § 187) explicitly provides for suit to be brought "in any district court of the United States." Therefore, this court would have had original jurisdiction to entertain this claim for relief. Franchi Construction Co. v. Local No. 560 of Int. Hod Carriers, 248 F.Supp. 131 (D.Mass.1965). The same section also provides for suit "in any other court having jurisdiction of the parties." Such language encompasses state courts, and the Supreme Court of Westchester County had valid jurisdiction over the third cause of action. Dairy Distributors, Inc. v. Western Conference of Teamsters, 294 F.2d 348 (10th Cir. 1961), cert. denied, 368 U.S. 988, 82 S.Ct. 604, 7 L.Ed.2d 525 (1962); Prospect Dairy, Inc. v. Dellwood Dairy, Inc., 237 F.Supp. 176 (N.D.N.Y. 1964). The action was, therefore, validly removed to this court with respect to the third cause of action. Pollio & Son, Inc. v. Teamsters, supra.

The effect upon removal of the existence of additional causes of action remains to be determined. As noted above, certain causes of action arise under New York law. The alleged facts giving rise to these causes of action appear to be the same as those...