Mencer v. Kraft Foods Global, Inc.

• Decision Date: 04 February 2010
• Docket Number: Case No. 2:09-cv-783.
• Citation: 695 F. Supp.2d 667
• Parties: John T. MENCER, Plaintiff, v. KRAFT FOODS GLOBAL, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

695 F. Supp.2d 667

John T. MENCER, Plaintiff, v. KRAFT FOODS GLOBAL, INC., Defendant.

Case No. 2:09-cv-783.

United States District Court, S.D. Ohio, Eastern Division.

February 4, 2010.

A. James Tsangeos, Lonas, McGonegal, Tsangeos & Struhar, Canton, OH, for Plaintiff.

Bruce G. Hearey, Ogletree Deakins Nash Smoak & Stewart P.C, Cleveland, OH, Sara E. Hutchins, Ogletree, Deakins, Nash, Smoak & Stewart, P.C, Indianapolis, IN, for Defendant.

OPINION AND ORDER

JAMES L. GRAHAM, District Judge.

This is an action filed by plaintiff John T. Mencer against his former employer, defendant Kraft Foods Global, Inc. On August 5, 2009, plaintiff filed a complaint in the Common Pleas Court of Coshocton County, Ohio. Plaintiff asserted a claim for retaliatory discharge in violation of Ohio Rev.Code § 4123.90, alleging that his employment was terminated in retaliation for filing a claim for worker's compensation. Plaintiff also asserted a claim for breach of contract, alleging that his employment was terminated in violation of the collectivebargaining agreement governing his employment.

On September 4, 2009, defendant filed a notice of removal to this court pursuant to 28 U.S.C. § 1441(a). That section provides in relevant part:

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.

28 U.S.C. § 1441(a). Under 28 U.S.C. § 1441(b), any civil action of which a district court has original jurisdiction "founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b). Section 1441(b) also authorizes the removal of actions where no defendant is a citizen of the state in which the action is brought.

The first basis for removal relied on by defendant was federal question jurisdiction under 28 U.S.C. §§ 1331, which states that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Defendant asserted that federal question jurisdiction was present because plaintiffs breach of contract allegations constituted a claim arising under and preempted by § 301 of the Labor Management Relations Act ("LMRA"). That section provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). The second basis for removal advanced by defendant was diversity jurisdiction under 28 U.S.C. § 1332(a), which states that the "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States." 28 U.S.C. § 1332(a).

On September 28, 2009, plaintiff filed a second amended complaint (Doc. No. 11). The second amended complaint contained only a claim for retaliatory discharge in violation of § 4123.90. All references to a breach of contract claim and the collectivebargaining agreement were omitted from the second amended complaint.

I. Motion to Remand

A. Issues Presented

This matter is before the court on plaintiffs September 25, 2009, motion to remand this case to state court. Plaintiff argues that since the claim for breach of the collective-bargaining agreement has been omitted from the second amended complaint, there is no subject matter jurisdiction based on the presence of a federal question. Plaintiff further asserts that the retaliation claim under § 4123.90 is a claim arising under the Ohio workers' compensation laws, and that remand of the case is therefore required under 28 U.S.C. § 1445(c). That section provides: "A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States." § 1445(c).

Defendant opposes the motion to remand. Defendant contends that this court's jurisdiction should be determined as of the time of removal, and argues that since this court had federal question jurisdiction at the time of removal, the amendment of plaintiffs complaint to delete the breach of contract claim should not deprive the court of jurisdiction. Defendant further contends that plaintiffs § 4123.90 claim is preempted by § 301 of the LMRA, and thus is a claim arising under federal law. Defendant also argues that diversity furnishes an independent basis for jurisdiction.

The original complaint alleged a breach of the collective-bargaining agreement, a claim within the scope of § 301 of the LMRA. Thus, at the time of removal, the complaint included at least one claim which arose under federal law for purposes of providing federal question jurisdiction in this case. However, after removal, plaintiff amended his complaint to delete the breach of contract claim.

Defendant argues that the amendment of the complaint should not defeat this court's jurisdiction because federal question jurisdiction was present in the case at the time of removal due to the breach of contract claim. When a defendant removes a case to federal court based on the existence of a federal question, an amendment eliminating the claim giving rise to federal jurisdiction does not automatically defeat jurisdiction over any remaining state-law claims. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). The focus of the time-of-filing rule is the prevention of unfair manipulation of jurisdiction by the plaintiff when a case is removed. Thus, a district court can generally consider whether the plaintiff has engaged in manipulative tactics by deleting all federal-law claims from the complaint in deciding, at its discretion, whether to exercise supplemental jurisdiction over state-law claims pursuant to 28 U.S.C. §§ 1367 and 1441(c), or to remand the case to state court pursuant to 28 U.S.C. §§ 1367(c) and 1441(c). Id.

Unfair manipulation is not a factor in this case. Plaintiff has advanced a reasonable explanation for the amendment of the complaint to delete the breach of contract claim, namely, that he hag decided to exhaust that claim under the mechanisms provided by the collective-bargaining agreement. Defendant acknowledges that arbitration under the agreement is in fact pending. See Response to Motion to Remand, p. 6. In fact, plaintiffs failure to fully exhaust his administrative remedies under the collective bargaining agreement would have rendered the breach of contract claim subject to dismissal upon motion of the defendant. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) (employees must exhaust their remedies under the collective-bargaining agreement before attempting to bring suit under § 301).

The time-of-filing rule also did not preclude the deletion of the breach of contract claim following removal. Plaintiff was entitled to amend his complaint as a matter of course without leave of court or defendant's consent because the second amended complaint was filed prior to the service of an answer or other responsive pleading. See Fed.R.Civ.P. 15(a)(1); Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 420 (6th Cir.2000) (Rule 15(a) gives plaintiffs an absolute right to amend their complaint one time before a responsive pleading is served).

Whether this court can exercise jurisdiction over the remaining § 4123.90 claim depends on the nature of that claim and whether it falls within the scope of § 1445(c). The presence of a federal claim at the time of removal and any inquiry concerning manipulation of the forum in this case are irrelevant if the removal of the § 4123.90 claim was barred by § 1445(c). If the removal of the § 4123.90 claim was improper under § 1445(c), then that claim must be remanded to the state court. Section 1445(c)'s prohibition against the removal of workers' compensation claims may not be avoided by the presence of a federal claim in the action at the time of removal. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.1998) (§ 1445(c) bars removal based on federal question jurisdiction; district court should have remanded workers' compensation claim); Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1245 (8th Cir.1995) (§ 1445(c) prevents removal of workers' compensation claims regardless of whether the court otherwise has federal question jurisdiction); Spearman v. Exxon Coal USA Inc., 16 F.3d 722, 724 (7th Cir.1994) (even a case containing a federal claim may not be removed if it also arises under state workers' compensation law); Goble v. City of Brunswick, 491 F.Supp.2d 722, 724 (N.D.Ohio 2007) (if § 1445(c) applies, a case is nonremovable even though it also contains a claim which presents a federal question).

In deciding the motion to remand, this court must determine whether the § 4123.90 claim is preempted by federal labor law, as argued by defendant. If the claim is preempted, then this court has federal question subject matter jurisdiction over that claim. See Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (preempted state-law claim is considered, from its inception, to be a federal claim arising under federal law). If the § 4123.90 claim is not preempted by federal law, then this court must determine whether it is a claim "arising under the workmen's compensation laws" of Ohio within the meaning of § 1445(c). If it is such a claim, then this court must decide...