Lontz v. Tharp, 04-1967.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation413 F.3d 435
Docket NumberNo. 04-1967.,04-1967.
PartiesGrace LONTZ; Beverly Pettit, Plaintiffs-Appellants, v. Joyce THARP; Elizabeth Doak; James Baish; Sandeep Thakrar; Monica, LLC, d/b/a Holiday Inn Express, Defendants-Appellees.
Decision Date01 July 2005
413 F.3d 435
Grace LONTZ; Beverly Pettit, Plaintiffs-Appellants,
Joyce THARP; Elizabeth Doak; James Baish; Sandeep Thakrar; Monica, LLC, d/b/a Holiday Inn Express, Defendants-Appellees.
No. 04-1967.
United States Court of Appeals, Fourth Circuit.
Argued March 17, 2005.
Decided July 1, 2005.

Page 436


Page 437

ARGUED: Paul Joseph Harris, Wheeling, West Virginia, for Appellants. Mario Richard Bordogna, STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellees. ON BRIEF: John R. Merinar, Jr., STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellees.

Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge

Page 438

WILKINSON wrote the opinion, in which Judge LUTTIG and Judge TRAXLER joined.


WILKINSON, Circuit Judge.

The phrase "complete preemption" has become a term of art. It refers to that "small category of statutes that . . . `authoriz[e] removal of actions that sought relief only under state law.'" Alongi v. Ford Motor Co., 386 F.3d 716, 724 (6th Cir.2004) (quoting Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6-7, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)). In this case we consider whether state wrongful discharge claims are completely preempted by the National Labor Relations Act, 29 U.S.C. §§ 157, 158 (2000). We conclude that they are not. We express no view as to whether such claims on the merits are preempted by federal law, as this is a question for state courts to resolve. We accordingly vacate the judgment of the district court and remand with instructions to remand the case in turn to state court.


Grace Lontz and Beverly Pettit were employed as hotel supervisors at a Holiday Inn Express in Dallas Pike, West Virginia. Some of the employees at the hotel initiated union-organizing activities in 2003. Pettit alleges that management, convinced that she had assisted and encouraged the activities, fired her on July 2, 2003.

Lontz alleges that members of management "met with [her] and instructed her to seek the assistance of a deputy sheriff, (a friend of [hers]) and have a union organizer arrested." Lontz refused. Thereafter, she claims, management "created an intolerable work environment" for her. Lontz says that she resigned on October 8, 2003, for this reason.

Later in October, Lontz and Pettit jointly brought suit in West Virginia state court, naming as defendants their former employer, Monica, LLC (the entity operating the Holiday Inn Express), and four members of its management. Plaintiffs' claims sounded entirely in state law. Pettit and Lontz alleged respectively wrongful discharge and constructive discharge "in violation of the public policy of the State of West Virginia" and contrary to W. Va. Code § 21-1A-1 (Michie 2002). Lontz also alleged a violation of the West Virginia Wage Payment and Collection Act, W. Va.Code § 21-5-1 et seq.*

Defendants removed the case to the U.S. District Court for the Northern District of West Virginia. They subsequently filed a motion to dismiss, and the plaintiffs filed a motion to remand the case to state court. On July 1, 2004, the district court dismissed the wrongful and constructive discharge claims but remanded the statutory wage payment claim. The district court concluded that the discharge claims were not brought under state law, but rather alleged violations of sections 7 and 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 157, 158 (2000), which it felt sufficient for federal jurisdiction. In other words, the district court concluded that the putative state law

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claims were completely preempted by the NLRA. It was on this basis that the district court noted that the complaint "allege[d] violations of federal law," making removal jurisdiction proper. Having assumed jurisdiction on these grounds, the district court further observed that claims under sections 7 and 8 are channeled exclusively to the NLRB. The court therefore dismissed the discharge claims.

Lontz and Pettit timely filed a notice of appeal. They argue that the case was improperly removed, and therefore seek a remand to the state court in which the claims were filed. Like all questions implicating the subject matter jurisdiction of the federal courts, we review de novo the denial of a motion to remand to state court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir.2004) (en banc); Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 370 (4th Cir. 2003). In particular, "[w]e review de novo the question of whether Plaintiffs' state law claims are completely preempted." Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1153 (10th Cir.2004).


Because this case began in state court, our jurisdiction depends on the propriety of removal, which in turn depends on the scope of the district court's original jurisdiction. This is because the removal statute allows defendants to remove a case to federal court only if "the district courts of the United States have original jurisdiction" over it. 28 U.S.C. § 1441(a) (2000); Rivet v. Regions Bank of La., 522 U.S. 470, 474, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). The question, then, is "whether [this] claim could have been brought originally in federal district court." King v. Marriott Int'l, Inc., 337 F.3d 421, 424 (4th Cir.2003). To answer it, we observe that § 1441 generally makes removal appropriate in three circumstances, demonstration of which is the burden of the party seeking removal. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994).

First, a defendant may remove a case to federal court if the parties are diverse and meet the statutory requirements for diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441(b) (2000); Richardson v. Kruchko & Fries, 966 F.2d 153, 155 (4th Cir.1992) (federal jurisdiction over claim of retaliatory discharge for pro-union activities "based on diversity of citizenship"). Since diversity always vests original jurisdiction in the district courts, diversity also generates removal jurisdiction.

Second, removal is appropriate if the face of the complaint raises a federal question. See § 1441(b); King, 337 F.3d at 424. Under the firmly settled well-pleaded complaint rule, however, merely having a federal defense to a state law claim is insufficient to support removal, since it would also be insufficient for federal question jurisdiction in the first place. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); King, 337 F.3d at 424. Thus, the Supreme Court unwaveringly has maintained that "[t]o bring a case within [§ 1441], a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action." Gully v. First Nat'l Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936).

The third justification for removal is actually a narrow exception to the well-pleaded complaint rule. "[K]nown as the `complete preemption' doctrine," Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), it provides that if the subject matter of a putative state law claim has been totally subsumed

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by federal law—such that state law cannot even treat on the subject matter—then removal is appropriate. See Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 2494-95, 159 L.Ed.2d 312 (2004); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23-24, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); King, 337 F.3d at 424-25. Although completely preempted claims are rare, they are held to satisfy the well-pleaded complaint requirements of Mottley and Gully.

Neither party believes that diversity exists or that the complaint explicitly raises a federal question. We therefore turn to complete preemption.


We have noted our obligation "to construe removal jurisdiction strictly because of the `significant federalism concerns' implicated" by it. Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4th Cir.2005) (quoting Mulcahey, 29 F.3d at 151). "Federalism concerns strongly counsel against imputing to Congress an intent to displace a whole panoply of state law . . . absent some clearly expressed direction." Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir.1996) (internal quotes omitted). Consistent with these principles, we have recognized that state law complaints usually must stay in state court when they assert what appear to be state law claims. See, e.g., Harless v. CSX Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004); King, 337 F.3d at 424; Darcangelo v. Verizon Communications, Inc., 292 F.3d 181, 186 (4th Cir.2002); Cook v. Georgetown Steel Corp., 770 F.2d 1272, 1274 (4th Cir.1985). The presumption, in other words, is against finding complete preemption. Custer, 89 F.3d at 1167.

But that presumption is rebuttable, because federal law occasionally "displace[s] entirely any state cause of action." Franchise Tax Board, 463 U.S. at 23, 103 S.Ct. 2841. When it does, federal law then "provide[s] the exclusive cause of action for such claims," and therefore "there is . . . no such thing as a state-law claim" in the regulated area. Beneficial, 539 U.S. at 11, 123 S.Ct. 2058. The doctrine of complete preemption thus prevents plaintiffs from "defeat[ing] removal by omitting to plead necessary federal questions." Franchise Tax Board, 463 U.S. at 22, 103 S.Ct. 2841. It thereby ensures compliance with congressional intent that federal courts be available to resolve certain claims which are peculiarly national in scope. Defendants' burden, then, is to demonstrate that a federal statute indisputably displaces any state cause of action over a given subject matter.

In assessing whether defendants have carried their burden, we may not conflate "complete preemption" with "conflict" or "ordinary" preemption. While these two concepts are linguistically related, they are not as close kin...

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