HA Lott, Inc. v. Hoisting & Portable Engineers Local No. 450

• Decision Date: 28 October 1963
• Docket Number: Civ. A. No. 63-H-539.
• Citation: 222 F. Supp. 993
• Parties: H. A. LOTT, INC. and Johnson, Drake & Piper, Inc., Plaintiffs, v. HOISTING & PORTABLE ENGINEERS LOCAL NO. 450, OF the INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

222 F. Supp. 993

H. A. LOTT, INC. and Johnson, Drake & Piper, Inc., Plaintiffs, v. HOISTING & PORTABLE ENGINEERS LOCAL NO. 450, OF the INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, et al., Defendants.

Civ. A. No. 63-H-539.

United States District Court S. D. Texas, Houston Division.

October 28, 1963.

Fulbright, Crooker, Freeman, Bates & Jaworski and H. L. Deakins, Jr., Houston, Tex., for plaintiffs.

Ryan & Eckhardt and Robert C. Eckhardt, Houston, Tex., for defendants.

INGRAHAM, District Judge.

This case is presently before the court on plaintiffs' motion to remand the suit to the District Court of Harris County, 164th Judicial District of Texas. Plaintiffs, H. A. Lott, Inc. and Johnson, Drake & Piper, Inc., general contractors, originally filed suit in that court alleging that the defendants had breached and were continuing to breach a collective bargaining agreement entered into by plaintiffs and Local 450 of the International Union of Operating Engineers, causing great and irreparable harm to plaintiffs. Reciting that they had no adequate remedy at law, plaintiffs prayed for a temporary injunction (to be made permanent) against such breaches, together with a judgment for the damages allegedly sustained by the conduct of the defendants. The defendants then petitioned this court for removal, predicating jurisdiction on Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a)¹ (hereinafter referred to as Section 301(a). Plaintiffs then moved to remand the case insofar as it requests injunctive relief, due to the provisions of Section 4 of the Norris-LaGuardia Act, 29 U.S.C.A. § 104.² It is not contested that this is a labor dispute between an employer and a labor organization representing employees in an industry affecting commerce.

This court is therefore called upon to resolve a question which has not yet been passed upon by either the Court of Appeals or the Supreme Court. In Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962), the Supreme Court held that Section 4 of the Norris-LaGuardia Act prohibited the federal courts from granting an injunction in cases arising under Section 301 (a). But what is the effect of that holding on removal cases involving requests for injunctions? Or, as posed in the instant case, the question is whether to retain the entire dispute, being fully aware that no injunctive relief may be granted by this court, or whether to remand to the state court only that remedial question of injunctive relief while being required to retain the rest of the suit. These are the only two alternatives, for it is neither requested nor possible to remand the suit insofar as damages are claimed by the plaintiffs.

The removal statute provides in Section 1441(a):

"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."

There is no doubt that the instant suit is an action between a labor union and an employer arising from a dispute concerning a collective bargaining agreement, part of which agreement is even set out in plaintiffs' original complaint. The federal district courts would have original jurisdiction due to Section 301 (a), and therefore this case falls within the terms of the removal statute quoted above. However, the plaintiffs, relying on the Atkinson case and the Norris-LaGuardia Act, assert that this court has no "jurisdiction" over that part of the complaint which requests injunctive relief.

It would perhaps be best noted at this point that there is some question about the meaning of the word "jurisdiction" as used in Section 4 of the Norris-LaGuardia Act. Does it mean lack of authority to take cognizance of the suit or lack of authority to act after taking cognizance of the suit? If the latter interpretation is correct, then there is no conflict between the Norris-LaGuardia Act and Section 301(a) of the Taft-Hartley Act so far as removal is concerned. Under the view taken of the instant case, however, it is not necessary to decide that question. It will be assumed that the proper interpretation is the former — precluding the federal courts from taking cognizance of an action solely for injunctive relief. This is the reading adopted by the court in National Dairy Products Corp. v. Heffernan, 195 F.Supp. 153 (E.D.N.Y.1961).

With this working hypothesis, then, that a claim under Section 301(a) seeking only an injunction could not be originally instituted in this court, the instant case may be more clearly analyzed. Plaintiff's original complaint may be interpreted in two ways. It may either be seen as constituting a single claim or cause of action, or it may be seen as actually containing two separate claims. The same result is reached in either instance — but each approach will be discussed.

On the assumption that a single claim is presented to the court, the motion to remand must be denied. Even though a claim seeking only an injunction could not be originally instituted in a federal court, a single claim seeking both an injunction and damages could be so brought. See National Dairy Products Corp. v. Heffernan, 195 F.Supp. 153 (E.D.N.Y. 1961). See also Patriot-News Co. v. Harrisburg Printing Pressmen, 191 F. Supp. 568 (D.C.Pa.1961). This is the clear import of the major case relied upon by the plaintiffs, Swift & Co. v. United Packinghouse Workers, 177 F.Supp. 511 (D. Colorado 1959). In that case the court directed the plaintiff to recast its complaint so that it stated two separate claims or causes of action and said that if the plaintiff failed to do so, the motion to remand the request for injunctive relief would be denied. While this court does not agree with the final disposition of the motion in Swift & Co., it can be seen from that opinion that removal in toto is proper where only one claim or cause of action is alleged.

Alternatively, this court feels that even if plaintiffs' original complaint is read as alleging two separate and independent causes of action, the motion to remand should still be denied. 28 U.S.C.A. § 1441(c) provides in part:

"Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed * * *."

The claim for damages to redress prior wrongs and based on past conduct and injury is removable standing alone. And with the application of the removal provision quoted immediately above, the separate and independent claim for an injunction to provide protection from prospective and anticipated wrongs based on future conduct and injury is removable when joined with the claim for damages. This was the approach taken by the court in the Heffernan case, and is that which comports...