KN Elec. Contractor v. Int'l Bhd. of Elec. Workers

• Decision Date: 28 July 2022
• Docket Number: CIVIL 21-20650 (RMB/MJS)
• Parties: KN ELECTRICAL CONTRACTOR, INC., d/b/a KN ELECTRICAL, and DENNIS KLEINER, Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 351, DANIEL COSNER, JOHN GRAY, ROY FOSTER, CHARLES DELLA VECCHIA, RYCK SIGNOR, HUGHES ELECTRIC COMPANY, LLC, ABC CORPS., I-X said name being fictitious, true name presently unknown, and JOHN DOES I-X said name being fictitious, true name presently unknown, Defendants.
• Court: U.S. District Court — District of New Jersey

KN ELECTRICAL CONTRACTOR, INC., d/b/a KN ELECTRICAL, and DENNIS KLEINER, Plaintiffs,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 351, DANIEL COSNER, JOHN GRAY, ROY FOSTER, CHARLES DELLA VECCHIA, RYCK SIGNOR, HUGHES ELECTRIC COMPANY, LLC, ABC CORPS., I-X said name being fictitious, true name presently unknown, and JOHN DOES I-X said name being fictitious, true name presently unknown, Defendants.

CIVIL No. 21-20650 (RMB/MJS)

United States District Court, D. New Jersey, Camden Vicinage

July 28, 2022

[Docket Nos. 23, 27]

STEVENS & LEE, P.C. Ryan P. Mulvaney, Esq. Stephanie Lopez, Esq.

O'BRIEN, BELLAND & BUSHINSKY, LLC Mark E. Belland, Esq. David F. Watkins Jr., Esq. Matthew B. Madsen, Esq.

On behalf of Union Defendants

GRIMLEY LAW James P. Grimley, Esq.

On behalf of Hughes Electric Company, LLC

OPINION

RENEE MARIE BUMB U.S. DISTRICT JUDGE

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This case comes before the Court upon the Motion to Remand by Plaintiffs. [Docket No. 23.] Defendants removed this case from New Jersey Superior Court, Atlantic County, asserting that Section 301 of the Labor Management Relations Act of 1947 (“LMRA”) and Sections 502 and 514 of the Employee Retirement Income Act of 1974 (“ERISA”) preempt Plaintiffs' claims. Plaintiffs moved to remand the case, arguing that federal law is not implicated by any of their narrowly-pled claims, each of which arises under the authority of state law. Having reviewed the filings submitted by the parties, the Court finds that Plaintiffs' Motion to Remand [Docket No. 23] shall be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs' State Court Complaint

On November 15, 2021, Plaintiffs KN Electrical Contractor, Inc. (“KN Electrical”) and Dennis Kleiner (“Kleiner,” together with KN Electrical, “Plaintiffs”) filed a five-count complaint against Defendants International Brotherhood of Electrical Workers, Local Union 351, and union officials Daniel Cosner, John Gray, Roy Foster, Charles Della Vecchia, and Ryck Signor (collectively, “Union

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Defendants”) in the Superior Court of New Jersey, Atlantic County. [Docket No. 1-2 (hereafter, “Complaint”).] Plaintiffs assert the following causes of action in the Complaint: tortious interference with contractual relations (Count I by KN Electrical against all Defendants); tortious interference with prospective economic advantages (Count II by KN Electrical against all Defendants; Count III by Kleiner against Union Defendants); defamation (Count IV by all Plaintiffs against Union Defendants); and trade libel (Count V by KN Electrical against Union Defendants). [Id.]

Plaintiff KN Electrical is a commercial and residential electrical contractor. [Id. ¶ 1.] Kleiner is its Vice-President and a licensed electrician. [Id. ¶ 21.] Defendant Hughes Electric is also an electrical contractor that directly competes with Plaintiffs' business. [Id. ¶ 2.] In the Complaint, Plaintiffs allege that Union Defendants repeatedly discouraged third parties from hiring or working with Plaintiffs. [Id. ¶¶ 19, 23-24, 42-44, 51-53, 61-68.] Plaintiffs allege that Union Defendants maliciously, and without privilege, campaigned against Plaintiffs with a defamatory and libelous misrepresentations and falsities, published to other contractors, Local 351 members, prospective employers, and Plaintiffs' employees, regarding their professional capabilities, and quality of their work. [Id. ¶¶ 19, 43, 61, 62.] Plaintiffs further claim that Union Defendants maligned KN Electrical as having failed to pay wage and benefit contributions to its employees with the purpose and object to tarnish KN Electrical's reputation, to induce current and prospective KN Electrical workers to

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cease employment with KN Electrical, and to inhibit KN Electrical's ability to obtain and perform work. [Id. ¶ 63.]

Moreover, Plaintiffs claim that Union Defendants made derogatory and false statements to Kleiner's prospective employer resulting in the withdrawal of an employment offer. [Id. ¶¶ 66-71.] Plaintiffs also allege that Union Defendants actively interfered with and manipulated the bidding procurement process to undermine KN Electrical's bid and chances of being awarded certain contracts. [Id. ¶ 20.] Union Defendants allegedly disclosed KN Electrical's bid on municipal projects to a direct competitor, Hughes Electric, persuaded a general contractor to replace KN Electrical with Hughes Electric, and berated and intimidated KN Electrical's project manager into resigning from a project. [Id. ¶¶ 33-60.]

In sum, Plaintiffs' claims stem from allegations that that Union Defendants disrupted their actual and prospective contractual relationships “in providing color to Hughes Electric during the bidding procurement process, actively lobbying and presenting Hughes Electric as a better and cheaper alternative to other contractors, berating KN Electrical's project manager into withdrawing from KN Electrical's project and contacting and making defamatory statements to Kleiner's prospective employer.” [Docket No. 23-1 (hereafter, “Plaintiffs' Brief”), at 15-16.]

B. Removal to Federal Court

On December 21, 2021, Union Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441, seeking to invoke this Court's federal question jurisdiction under 28 U.S.C. § 1331. [Docket No. 1.] On January 7, 2022, Union

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Defendants filed a letter requesting leave to file a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. [Docket No. 4.] On January 21, 2022, counsel for Hughes Electric entered an appearance and filed two written correspondences advising the Court that it joins in Union Defendants' request for leave to file a motion to dismiss [Docket No. 9] and that it consents to removal [Docket No. 10]. Also, on January 28, 2022, Hughes Electric filed two more notices further advising the Court that Hughes Electric consents to removal and that it “provided consent to co-defendant International Brotherhood of Electrical Workers, Local Union No. 35 prior to their application for removal being filed.” [Docket Nos. 11, 12 (emphasis in original).]

On March 1, 2022, the Court held a premotion conference with the parties pursuant to its Individual Rules and Procedures. [Docket Nos. 20, 21.] Thereafter, on March 14, 2022, the Court granted leave for Plaintiffs to file the present motion. [Docket No. 23.] Then, on April 18, 2022, Union Defendants submitted a letter to the Court motioning for leave to file a sur-reply in support of opposition to Plaintiffs' motion to remand. [Docket No. 27-3.] Union Defendants assert that Plaintiffs' request to strike certain exhibits and materials in its reply warrants a sur-reply.^[1] [See Docket No. 29.]

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III. STANDARD OF REVIEW

A claim arises under federal law where the “well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise TaxBd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 27-28 (1983). A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Nevertheless, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

Union Defendants assert federal question jurisdiction as the basis of removal. As the removing parties, Union Defendants bear the burden of demonstrating that the case is properly before the federal court. See Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1995). The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded

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complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “Removal statutes are to be strictly construed, with all doubts to be resolved in favor of remand.” Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009) (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992)). “It is well settled that district courts should remand close or doubtful cases for two reasons. First, remand will avoid the possibility of a later determination that the district court lacked jurisdiction and, secondly, remand is normally to a state court which clearly has jurisdiction to decide the case.” Glenmede Tr. Colv. Dow Chem. Co., 384 F.Supp. 423, 433-34 (E.D. Pa. 1974).

IV. LEGAL ANALYSIS

A. Removal Was Procedurally Proper

As an initial matter, the Court must determine whether removal was procedurally proper. When a case is removed, “all defendants who have been properly joined and served must join in or consent to the removal of the action” within thirty days after service. 28 U.S.C. § 1446(b)(2)(A), (B). Here, Plaintiffs argue that Hughes Electric's failure to confirm consent to removal within the thirty-day period after Defendants filed the Notice of Removal is an incurable procedural defect that bars removal. [See Docket No. 26.] However, courts in this district have allowed parties to consent to removal even after the removal period has ended so long as the delay in obtaining consent is not egregiously late and there is sufficient indication that consent has been provided. Michalak v. ServPro Indus., Inc., No. CV 18-1727 (RBK/KMW), 2018 WL 3122327, at *5 (D.N.J. June 26, 2018)

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(explaining that the court “refrain[ed] from applying the standard in a hyper-technical and unrealistic manner”); Canon Fin. Servs., Inc. v. Kalmus, No. 119CV20919NLHKMW, 2020 WL 4333744, at *3 (D.N.J. July 28, 2020) (holding that remand on the basis for failure to obtain consent was...