Moralez v. Meat Cutters Local 539, No. 91-CV-75717-DT.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Citation: 778 F. Supp. 368
• Docket Number: No. 91-CV-75717-DT.
• Parties: Abelardo MORALEZ, Plaintiff, v. MEAT CUTTERS LOCAL 539, et al., Defendants.
• Decision Date: 13 December 1991

778 F. Supp. 368

Abelardo MORALEZ, Plaintiff,
v.
MEAT CUTTERS LOCAL 539, et al., Defendants.

No. 91-CV-75717-DT.

United States District Court, E.D. Michigan, S.D.

December 13, 1991.

778 F. Supp. 369

Abelardo Moralez, in pro. per.

Roger J. McClow, Klimist, McKnight, Sale, McClow & Canzano, Southfield, Mich., for defendant Meat Cutters Local 539.

Brian A. Kreucher, Keller, Thoma, Schwarze, Schwarze, DuBay & Katz, Detroit, Mich., for defendant Kroger Co.

MEMORANDUM OPINION AND ORDER

ZATKOFF, District Judge.

This matter is before the Court on defendant Kroger's notice of removal. For the reasons hereafter stated, the entire cause is remanded.

FACTS

Plaintiff Abelardo Moralez filed suit in Jackson County Circuit Court on September 13, 1991. Named defendants were Meat Cutters Local 539 (Union), the Kroger Company, Linda Martin and Douglas and Dennis Patterson. Pro se plaintiff appears to assert the following: breach of a collective bargaining agreement (CBA) against the union; breach of the CBA and intentional infliction of emotional distress against Kroger; and, with respect to Martin and the Pattersons, plaintiff alleges various state law tort claims, including intentional infliction of emotional distress and battery.¹ Kroger filed notice of removal to this Court on October 30, 1991.

OPINION

Under 28 U.S.C. § 1441, Congress authorized several mechanisms which allow the removal into a federal forum of actions filed in state court. Subdivisions 1441(a) and (b) are invoked where removal is based on diversity of citizenship or the presence of a federal question. State law claims pendent to a federal question claim can also be removed. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); 28 U.S.C. § 1367. Subdivision

778 F. Supp. 370

1441(c), on the other hand, permits the removal of cases in which a separate and independent federal claim is joined with one or more otherwise non-removable state claims. It thus appears that the degree of relation between the state and the federal claim need not be as great under 1441(c) as that required for pendent jurisdiction.² See 28 U.S.C.A. § 1441 Commentary at 5; Moore v. DeBiase, 766 F.Supp. 1311, 1318-19 n. 13 (D.N.J.1991). In the instant matter, Kroger urges that removal is appropriate under any of the three subdivisions

As noted above, removal pursuant to 28 U.S.C. § 1441(a) or (b) allows federal courts to exercise jurisdiction over pendent state law claims. See United Mine Workers v. Gibbs, supra; 28 U.S.C. § 1367. Thus, removal of an entire case is proper, under this approach, if the state and federal causes of action "derive from a common nucleus of operative fact." Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. In the instant matter, plaintiff's state claims fall far short of the required origin. For example, plaintiff's preempted federal claim,³ that his employment was terminated by Kroger contrary to a CBA, arises out of a factual scenario separate and distinct from that which brought about his battery claim. Different parties, dates and elements of proof compel this conclusion. Kroger must thus rely on subdivision 1441(c) as the sole grounds for removal.

Subdivision 1441(c) provides:

Where a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law predominates.

28 U.S.C. § 1441(c). Consequently, if a case presents a separate and independent federal claim joined with an otherwise nonremovable state claim, this provision would permit removal and jurisdiction over both. This Court finds that for virtually the same reasons plaintiff's state...