Loftis v. United Parcel Service, Inc.

• Decision Date: 26 August 2003
• Docket Number: No. 01-6194.,01-6194.
• Citation: 342 F.3d 509
• Parties: Thomas P. LOFTIS, Plaintiff-Appellee, v. UNITED PARCEL SERVICE, INC.; David Cole, Defendants-Appellants, Kenneth Adkins, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

342 F.3d 509

Thomas P. LOFTIS, Plaintiff-Appellee, v. UNITED PARCEL SERVICE, INC.; David Cole, Defendants-Appellants, Kenneth Adkins, Defendant-Appellee.

No. 01-6194.

United States Court of Appeals, Sixth Circuit.

Argued March 11, 2003.

Decided and Filed August 26, 2003 Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED: Larry W. Bridgesmith, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellants.

Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville, Tennessee, for Appellee.

ON BRIEF: Larry W. Bridgesmith, Mark W. Peters, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellants.

Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville, Tennessee, for Appellee.

Before MOORE and CLAY, Circuit Judges; LAWSON, District Judge.^*

OPINION

DAVID M. LAWSON, District Judge.

The question presented by the parties in this appeal is whether the lower court abused its discretion when, after some of the defendants had removed the case to federal court under 28 U.S.C. § 1441, the district court allowed the plaintiff to amend his complaint to delete the allegations that made the case removable, and then remanded the case to state court. We do not reach that issue, because we find that there is a more fundamental defect in the removal procedure. Because we find that the removal was defective due to the failure of all defendants to join in the removal petition, we affirm the district court's order of remand.

I.

The events giving rise to this case occurred on April 29, 1999 at the United Parcel Service facility on Callahan Road in Knoxville, Tennessee.¹ Two UPS employees, Thomas Loftis, the plaintiff-appellee, and Kenneth Adkins, the defendant-appellee, became involved in a "heated" argument involving job start times. Adkins reported the incident to the police, and later met with defendant-appellant Cole, a security supervisor for defendant-appellant UPS. Thereafter, Adkins contended that the plaintiff had physically assaulted him. Cole then terminated the plaintiff without further warning, as permitted by the terms of a collective bargaining agreement that listed fighting as a cardinal violation that warranted immediate discharge.

Criminal proceedings were initiated against the plaintiff on the basis of Adkins' complaint. UPS filed a civil complaint seeking a temporary restraining order and permanent injunction against the plaintiff based on the alleged physical assault. The criminal proceedings and the application for the injunction were eventually dismissed.

On April 27, 2000, the plaintiff filed a complaint in the Circuit Court for Knox County, Tennessee, alleging that UPS, Cole, and Adkins engaged in behavior that constituted the torts of outrageous conduct, malicious prosecution, and abuse of process under Tennessee law. Thereafter, Adkins signed an affidavit dated May 2, 2001 in which he recanted testimony he had given previously in the injunction proceedings and at an arbitration hearing that the plaintiff had physically assaulted him. In the affidavit, Adkins stated that the April 29, 1999 incident never involved any physical contact, and that UPS security supervisor Cole threatened and coerced Adkins to fabricate his story that the plaintiff had physically assaulted him so that Cole would have cause to fire the plaintiff from his union-protected job at UPS. The plaintiff then amended his complaint on May 3, 2001 in state court to include allegations that all of the actions taken by the defendants against the plaintiff were "to gain advantage in an employment dispute" and "to discharge plaintiff Tom Loftis since he fully and actively exercised his rights as a union member," and that "[s]uch conduct is outrageous in the extreme and could serve to undermine the current peace between labor and management throughout the United States." First Am. Compl. ¶ 26.

Within thirty days of receiving the amended complaint, defendants UPS and Cole filed their removal petition in federal court pursuant to 28 U.S.C. § 1441(b), contending that the new allegations asserted, in effect, an unfair labor practice claim under 29 U.S.C. § 158(a) over which federal courts have original federal question jurisdiction under the doctrine of complete preemption. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (citing Avco Corp. v. Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)); San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Adkins did not join in the removal petition, and in fact filed a timely motion to remand based on lack of jurisdiction. The plaintiff likewise filed a motion to remand. UPS and Cole opposed these motions. Soon thereafter, the plaintiff filed a motion to further amend his complaint along with a proposed second amended complaint, followed a day later by a second motion to remand. The proposed second amended complaint deleted the language added by the first amended complaint, upon which UPS based its removal. The defendants filed responses in opposition to these motions as well.

In a memorandum opinion and order dated August 23, 2001, the district court denied Adkins' motion to remand, denied the plaintiff's original motion to remand, granted the plaintiff's motion to amend, directed the clerk to file the amended complaint, granted the plaintiff's second motion to remand, and remanded the case to the Circuit Court for Knox County, Tennessee. The court reasoned that the plaintiff's amended complaint alleged an unfair labor practice within the meaning of Section 8(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 158(a), thereby stating a cause of action "arising under" the laws of the United States, and was properly removed under 28 U.S.C. § 1441(b). Because the district court concluded it had removal jurisdiction, it felt compelled to deny Adkins' motion and the plaintiff's first motion to remand. However, after permitting the plaintiff to file his second amended complaint, the lower court observed that no federal cause of action remained. Although the court believed that the amendment to the complaint did not divest it of subject matter jurisdiction over the remaining state law claims, the district court, in its discretion, declined to exercise supplemental jurisdiction over those claims and remanded them to the state court. See 28 U.S.C. § 1367(c).

Defendants UPS and Cole filed a motion to stay the order of remand and a motion for reconsideration, both of which were denied by the district court. The defendants then filed a notice of appeal and a motion for stay pending appeal. The motion for stay was denied by the district court. This appeal followed.

II.

The plaintiff previously filed a motion to dismiss this appeal, contending that this Court lacked jurisdiction to review an order of remand because of the prohibition stated in 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...."). Another panel denied the plaintiff's motion, finding that we have jurisdiction over an appeal from a district court's discretionary decisions to remand that are not based on lack of subject matter jurisdiction or defects in the removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 460 (6th Cir.2002). Although questions of subject matter jurisdiction are reviewed de novo, Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 759 (6th Cir.2000), it is the lower court's exercise of discretion to remand the plaintiff's pendent state law claims that is called into question by defendants UPS and Cole in this appeal. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 348, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (holding that "a district court has discretion to remand a removed case to state court when all federal-law claims have dropped out of the action and only pendent state-law claims remain."). Were we to reach that issue, we would review for abuse of discretion the district court's decision to refuse to exercise jurisdiction over pendent state claims, Landefeld v. Marion Gen. Hosp. Inc., 994 F.2d 1178, 1182 (6th Cir.1993), as we would employ a deferential standard of review of a district court's decision to grant a motion to amend a complaint pursuant to Federal Rule of Civil Procedure 15(a). See Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir.1989) ("The decision as to when `justice requires' an amendment is within the discretion of the trial judge, and we review the decision under an abuse of discretion standard."); Hodges v. Rose, 570 F.2d 643, 649 (6th Cir.1978) ("The grant or denial of a motion for leave to amend under Rule 15 is within the sound discretion of the District Court, and will be reversed only for an abuse of discretion.").

However, we do not reach the question of the district court's exercise of discretion because we find that there was a more basic defect in the removal procedure, as explained below, that normally would be insulated from appellate review by 28 U.S.C. § 1447(d), but which is presented to us for decision by the unique procedural posture of the case. Compare Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d 1341 (6th Cir.1993). Although the case is before this court on a challenge to the district court's exercise of discretion in refusing to retain jurisdiction over pendent state law claims under 28 U.S.C. § 1367(c), we believe that the record plainly demonstrates that the removal petition was defective because all defendants did not join in the petition or consent to removal. See Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 n. 3 (6th Cir.1999), cert. denied, 528 U.S. 1076, 120 S.Ct. 790, 145 L.Ed.2d 667 (2000). Defendant Adkins not only failed to consent to the removal, but affirmatively...