Long v. Bando Manufacturing of America

Decision Date28 October 1999
Docket NumberNo. 99-5032,99-5032
Citation201 F.3d 754
Parties(6th Cir. 2000) Benjamin Craig Long, Plaintiff-Appellee, v. Bando Manufacturing of America, Inc., Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Nancy Oliver Roberts, Bowling Green, Kentucky, for Appellee.

Charles E. English, Jr., D. Gaines Penn, ENGLISH, LUCAS, PRIEST & OWSLEY, Bowling Green, Kentucky, for Appellant.

Before: WELLFORD, MOORE, and GILMAN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. WELLFORD, J. (p. 762), delivered a separate concurring opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this appeal, the defendant-appellant, Bando Manufacturing of America, Inc. ("Bando"), challenges the district court's finding that it did not have original federal question jurisdiction over one of plaintiff-appellee Benjamin Craig Long's claims and asks this court to reverse the district court's order remanding the case to state court. Long had originally sued Bando in state court, raising both state and federal claims, including one state-law claim for wrongful discharge in violation of public policy. Long asserted in his amended complaint that the public policy that was violated by his discharge was embodied in several federal statutes. After Bando removed the case to federal district court, the district court granted summary judgment against Long on one of his federal claims and dismissed the other at Long's request. The district court then remanded the case, including Long's wrongful discharge claim, to the state court. Bando now appeals that remand order, arguing that Long's wrongful discharge claim involved a federal issue sufficient to invoke the federal court's original "arising under" jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. For the reasons discussed below, we AFFIRM the district court's decision to remand based on its determination that it did not have original federal question jurisdiction over Long's wrongful discharge claim.

I. BACKGROUND

Long was employed by Bando from February of 1989 until he was terminated in May of 1996. In 1992, Gates Rubber Company ("Gates"), a competitor, sued Bando, alleging various forms of anticompetitive activity, including appropriation of Gates's trade secrets. Gates also charged that Bando had concealed or destroyed information relevant to its competitive strategies and trade secrets. In the summer of 1995, less than a year before he was terminated but several years after the Gates litigation had ended, Long reported to Matt Adams, the vice president of Bando, that he saw Adams and James Blankenship, the president of Bando, taking "stuff" to the trash dumpsters just before the 1992 inspection of the Bando facilities by Gates. In that same year and the following year, Long received two poor performance reviews and several warnings that he would be subject to disciplinary action if his performance did not improve, culminating in his suspension for three days in March of 1996. Long was finally discharged in May of 1996 based on a finding that he had falsified a production schedule. After his discharge, Long attempted to aid Gates in reopening its motion for sanctions against Bando on the ground that Bando had concealed and destroyed documents relevant to the trade secrets litigation.

Long filed suit in Kentucky state court on April 30, 1997, alleging that he was terminated as a result of his refusal to acquiesce in the "cover up" of the company's theft of trade secrets. He alleged due process violations under the U.S. and Kentucky Constitutions, "reverse discrimination" in violation of Title VII, and discharge "in violation of the public policy of retaliatory discharge." J.A. at 16 (Complaint). Bando removed the case, relying on Long's federal due process and Title VII claims as the basis for federal jurisdiction. Long then amended his complaint, adding that "[o]ther public policies of this Commonwealth and of the United States which have been violated by the Defendant's wrongful termination of the Plaintiff include, but are not limited to" the policies embodied in four federal criminal statutes: 18 U.S.C. § 1509 (Obstruction of court orders), 18 U.S.C. § 2314 (Transportation of stolen goods), 18 U.S.C. § 2315 (Sale or receipt of stolen goods), and 18 U.S.C. § 1621 (Perjury).1 J.A. at 19 (Amended Complaint). Long also added claims of defamation and breach of contract. Subsequently, Long filed a motion to dismiss voluntarily his Title VII claim, which was granted on June 17, 1998. Bando filed a motion for summary judgment, and Long thereafter moved to remand the case to the state court for lack of subject matter jurisdiction.

The district court granted Bando's motion for summary judgment as to Long's federal due process claim. The district court also denied Long's motion to remand for lack of subject matter jurisdiction, finding that it had subject matter jurisdiction. Finally, the district court found that none of the remaining claims (wrongful discharge in violation of public policy, breach of contract, and defamation) raised a substantial federal question and therefore, declining to exercise its supplemental jurisdiction, remanded the case to the state court. In particular, the district court found that naming four federal statutes as evidence of public policy in the complaint did not convert Long's state wrongful discharge claim into a federal claim. Relying on the Supreme Court's opinion in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986), the district court analyzed whether the statutes cited by Long implied a private remedy for their violation and, finding that they did not, concluded that the wrongful discharge claim did not present a federal question invoking the district court's "arising under" jurisdiction.

Bando filed a motion to alter or amend the district court's judgment, alleging that the district court erred in concluding that Long's wrongful discharge claim did not raise a substantial federal question giving rise to original federal question jurisdiction in the district court. In its December 8, 1998 order, the district court acknowledged that it had erred in its analysis of whether Long's wrongful discharge claim provided a basis for original federal question jurisdiction. The court recognized that, even if it determined, first, that there was no implied private cause of action for the violation of the federal statutes listed in Long's complaint, it must still consider, second, "whether the state law wrongful discharge [claim] 'necessarily turned' upon a question of federal law." J.A. at 32 (D. Ct. Op.). If the claim necessarily turned on a question of federal law, the district court acknowledged, it could find that it had federal question jurisdiction, without applying the "implied remedy" test. Nonetheless, the district court still found that, on the facts of this case, there was no substantial, disputed question of federal law in the plaintiff's claim sufficient to invoke the district court's "arising under" jurisdiction and therefore denied Bando's request to alter or amend its prior judgment remanding the case to the state court. Bando timely appealed that ruling to this court. We now hold that, although a complaint that does not state a federal cause of action may in some cases invoke federal jurisdiction, the federal statutes cited in Long's wrongful discharge claim were insufficient to provide federal question jurisdiction.

II. ANALYSIS

In order to invoke the district court's removal jurisdiction, a defendant must show that the district court has original jurisdiction over the action. See 28 U.S.C. § 1441(a). The burden of showing that the district court has original jurisdiction is on the party seeking removal. See Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989). Furthermore, because they implicate federalism concerns, removal statutes are to be narrowly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).

In this case, the parties do not allege diversity of citizenship. Removal jurisdiction was thus based on 28 U.S.C. § 1441(b), allowing removal of actions "of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States," without regard to the citizenship of the parties. Because removal jurisdiction is possible only where the federal district court would have had original jurisdiction over the case, and because the "arising under" language of § 1441(b) is almost identical to the language of 28 U.S.C. § 1331, the scope of removal jurisdiction based on the existence of a federal question under § 1441(b) is considered to be identical to the scope of federal question jurisdiction under § 1331. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 391-92 (1987). In determining removal jurisdiction under § 1441, as in determining original "arising under" jurisdiction, federal courts apply the "well-pleaded complaint" rule, pursuant to which "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Id. at 392.

A. Reviewability of the Remand Order

This court has jurisdiction to review the district court's decision to remand Long's state law claims. The parties did not raise this issue, but, because it is a jurisdictional matter, we consider it sua sponte. See, e.g., In re General Motors Corp., 3 F.3d 980, 982 (6th Cir. 1993).

Although the plain language of 28 U.S.C. § 1447(d) suggests that remand orders concerning cases removed pursuant to 28 U.S.C. § 1441 are never reviewable, the Supreme Court held in Thermtron Products,...

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