Messina v. Tri-Gas Inc.

• Citation: 816 F. Supp. 1163
• Decision Date: 12 February 1993
• Docket Number: Civ. A. No. H-92-2069.
• Parties: Michael MESSINA v. TRI-GAS INCORPORATED and David R. Guernsey.
• Court: U.S. District Court — Southern District of Texas

816 F. Supp. 1163

Michael MESSINA v. TRI-GAS INCORPORATED and David R. Guernsey.

Civ. A. No. H-92-2069.

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

February 12, 1993.

Peter Costea, Bigham & Luttrell, Houston, TX, for plaintiff.

Donald J. Horton, Liddell Sapp Zivley Hill & LaBoon, Houston, TX, for defendants.

MEMORANDUM AND ORDER

LAKE, District Judge.

Plaintiff, Michael Messina, filed this action in the 189th Judicial District Court of Harris County, Texas, seeking damages for defamation, false light publicity, and intentional infliction of emotional distress arising from statements contained in a letter signed by defendant David R. Guernsey (Guernsey) notifying Messina that he had been terminated from his job with defendant Tri-Gas Incorporated (Tri-Gas). Asserting that Messina's state law causes of action are preempted by § 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185, defendants removed this action to federal court under 28 U.S.C. § 1441(b). Pending before the court is Messina's Motion to Remand (Docket Entry No. 9). For the reasons set forth below, Messina's motion will be granted and this action will be remanded to state court.

Factual Background

Messina was employed by Tri-Gas as a truck driver. While employed by Tri-Gas, Messina was a member of General Drivers, Warehousemen and Helpers, Local Union No. 968. The employment relationship between Messina and Tri-Gas was governed by a February 9, 1990, collective bargaining agreement (CBA) between Tri-Gas and Local Union No. 968, which was to remain in effect until February 8, 1993.¹

Messina alleges that on or about January 25, 1991, Tri-Gas assigned him a trailer loaded with liquid oxygen to transport to one of its customers. Prior to his departure Messina inspected the trailer and observed that the "glad handle" was broken and that the power cord connection box was broken. Nevertheless, Messina concluded that the trailer was safe to transport. After successfully completing his assigned trip, Messina returned the trailer to the terminal for repair. Subsequently, Messina received a February 14, 1991, letter signed by Guernsey detailing damage to the trailer and informing him that his employment with Tri-Gas had been terminated because the trailer had been intentionally damaged while in his possession.

On February 13, 1992, Messina filed his Original Petition in the 189th Judicial District Court of Harris County, Texas, alleging claims for defamation, false light publication, and intentional infliction of emotional distress against Guernsey and Tri-Gas. Guernsey was served with process on March 24, 1992, and Tri-Gas was served with process on June 17, 1992. On July 13, 1992, both defendants filed a Notice of Removal with this court (Docket Entry No. 1) under 28 U.S.C. § 1441(b) on grounds that this action is preempted by § 301 of the LMRA, 29 U.S.C. § 185, because its resolution requires the interpretation of the CBA to which Tri-Gas and Messina were parties. On July 17, 1992, each defendant filed a separate answer (Docket Entry Nos. 5 and 6), and on August 11, 1992, Messina moved to remand. At a hearing held on December 10, 1992, the court ordered Messina to file an amended complaint stating with particularity the facts on which he bases his right to recover (Docket Entry No. 15). On December 18, 1992, Messina filed an Amended Complaint asserting only a claim for defamation.²

Plaintiff's Motion to Remand

Citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 394-395, 107 S.Ct. 2425, 2429, 2431, 96 L.Ed.2d 318 (1987), Messina argues that this action should be remanded to state court because no federal question appears on the face of his complaint, and removal was improper under the well-pleaded complaint rule. Messina also argues that his state law defamation claim is not preempted by the LMRA because it is neither founded directly on rights created by a CBA nor substantially dependent on analysis of a CBA. Defendants argue that removal is proper either because Messina has "artfully pleaded" his complaint to omit references to § 301 or because Messina's defamation claim is wholly preempted by § 301 and should be recharacterized as a federal cause of action.

Right to Remove An action may not be removed from state court to federal court unless it could originally have been filed in federal court. 28 U.S.C. §§ 1331, 1441; Caterpillar, Inc., 482 U.S. at 392, 107 S.Ct. at 2429. Absent complete diversity of the parties, a federal question must be present in order for removal to be proper. Id. A defendant's ability to remove an action from state court is further restricted by the well-pleaded complaint rule; federal question jurisdiction exists only if the federal question is presented on the face of the complaint. Actions may not be removed on the basis of a federal defense such as preemption even if the defense is anticipated in the complaint and both parties concede that it is the only question at issue. 482 U.S. at 393, 107 S.Ct. at 2430; Aaron v. National Union Fire Insurance Co., 876 F.2d 1157, 1161 (5th Cir.), reh'g denied, 886 F.2d 1314 (1989), cert. denied sub nom., American Home Ins. Group v. Aaron, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990). Thus, although an interpretation of a CBA may be required to evaluate elements of one of the defenses in a case, in Caterpillar the Supreme Court reaffirmed the rule that federal question jurisdiction under the LMRA may not be based upon a defendant's answer:

It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.

482 U.S. at 398-399, 107 S.Ct. at 2433. There are, however, exceptions to the well-pleaded complaint rule.

One exception is known as the artful pleading doctrine. Under it the court must evaluate a plaintiff's motive for not pleading a federal cause of action. Aaron, 876 F.2d at 1161, citing Beers v. North American Van Lines, Inc., 836 F.2d 910, 913 (5th Cir.1988), and Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359, 365 (5th Cir.), reh'g denied, 738 F.2d 437, cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). If the court concludes that the plaintiff's failure to plead a federal claim was not in good faith, but rather was an attempt to conceal the fact that the claim was truly federal, the court will allow removal. Aaron, 876 F.2d at 1161. Another exception, first articulated in Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 reh'g denied, 391 U.S. 929, 88 S.Ct. 1801, 20 L.Ed.2d 670 (1968), provides that federal law can so completely preempt a field of state law that the plaintiff's complaint must be recharacterized as a federal cause of action. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Aaron, 876 F.2d at 1161. In such cases removal is said to be proper because Congress has manifested an intent to make them removable. Taylor, 481 U.S. at 66-67, 107 S.Ct. at 1548. Because Messina's complaint contains no reference to federal law, the issue before the court is whether defendants' removal of Messina's claim for defamation is proper under these exceptions to the well-pleaded complaint rule.

Section 301 of the LMRA grants district courts original jurisdiction over "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce." 29 U.S.C.A. § 185(a) (West 1978). Section 301 preempts the application of state law "only if such application requires the interpretation of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). To determine whether Messina has "artfully pleaded" his state law claim so as to avoid reference to § 301, or whether Messina's claim is wholly preempted by § 301, the court must focus on the substance, rather than the form of Messina's complaint. Eitmann, 730 F.2d at 366.³ If the court finds that Messina's claim is neither "artfully pleaded" in an attempt to disguise its federal nature nor wholly preempted by federal law, then the court must remand this action to state court. Where, as here, removal is based on allegations of "artful pleading," the removing party bears the burden of proving that the allegations in plaintiff's complaint constitute an attempt to evade federal jurisdiction. Yawn v. Southern Railway Co., 591 F.2d 312, 316-317 (5th Cir.), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 304 (1979).

Artful Pleading Messina alleges that he was maliciously defamed by false statements made in a termination letter signed by Guernsey accusing him of intentionally damaging company property. Although Messina does not state how or to whom these statements were publicized, he alleges that their publication was so wide-spread that they have "injured his business reputation to the extent that he is unable to secure employment in the trucking industry."⁴ Messina seeks general damages based on defendants' violation of § 73.001 of the Texas Civil Practices and Remedies Code and special damages accruing from his resulting loss of income. Messina does not seek reinstatement to the position from which he was terminated. Defendants argue that removal of this action was proper because

plaintiff's defamation claim ... is an obvious attempt to disguise a wrongful discharge claim. Wrongful discharge is

...