Palkow v. Csx Transp., Inc.

• Decision Date: 18 November 2005
• Docket Number: No. 04-4060.,04-4060.
• Citation: 431 F.3d 543
• Parties: Sharon PALKOW, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Harry Crawford and Diane Tavares, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

431 F.3d 543

Sharon PALKOW, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Harry Crawford and Diane Tavares, Defendants-Appellees.

No. 04-4060.

United States Court of Appeals, Sixth Circuit.

Submitted: July 29, 2005.

Decided and Filed: November 18, 2005.

ON BRIEF: Merrie M. Frost, Mentor, Ohio, for Appellant. John Lewis, Todd H. Lebowitz, Kelly M. King, Baker & Hostetler, Cleveland, Ohio, for Appellees.

Before: ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.^*

OPINION

ROSEN, District Judge.

Plaintiff Sharon Palkow appeals an Opinion and Order of the District Court of the Northern District of Ohio denying her motion to remand and granting the Defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss her complaint for failure to state a claim upon which relief can be granted. For the reasons that follow, we conclude that this action was improperly removed from the state court as federal subject matter jurisdiction is lacking. Accordingly, we REVERSE the District Court's denial of Plaintiff's motion to remand and direct that the Order and Judgment of dismissal be vacated and the case remanded to state court.

I. INTRODUCTION

The instant action arises out of an earlier federal lawsuit filed by Plaintiff Sharon Palkow¹ against her former employer, CSX Transportation, Inc. ("CSXT") in which Ms. Palkow claimed that she was terminated from her probationary employment as a railroad conductor trainee at CSXT because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. That case ("Palkow I") was tried before a federal jury in December 2003. The jury found in favor of Defendant CSXT and the District Court entered a judgment accordingly. Palkow did not appeal or otherwise seek to set aside the jury verdict.

Instead, on March 30, 2004, Palkow filed a second complaint, this time in the Court of Common Pleas for Cuyahoga County, Ohio, claiming that her former co-worker, Diane Tavares, committed perjury when she testified on behalf of CSXT in Palkow I, and that Harry Crawford, CSXT's District Superintendent, directed Tavares to lie on behalf of CSXT. See Complaint, Court of Common Pleas No. CV0452653 ("Palkow II"). Palkow claimed that Tavares's perjured testimony affected the outcome of the jury verdict in Palkow I and directly injured her. Id. ¶¶ 4, 19. As relief, Palkow requested compensatory damages in excess of $25,000. Id.

CSXT removed the case to the federal district court that had held the jury trial in Palkow I alleging federal question jurisdiction as the basis for removal. Specifically, the Defendants claimed in their Notice of Removal that

"Plaintiff Palkow's state court action in reality constitutes an attack on the federal jury verdict and resulting judgment as well as the taxation of costs, pursuant to Rule 60 of the Federal Rules of Civil Procedure, and thus Palkow's claims involve a general federal question subject to removal to this Court."

Notice of Removal ¶ 5.

Palkow moved to remand the action to state court and, in response to the motion to remand, the Defendants moved to dismiss Palkow's complaint. The District Court denied Palkow's motion to remand and granted the Defendants' motion to dismiss on the merits. This appeal arises out of the district court's rulings on these two motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Palkow I

On April 19, 1999, Sharon Palkow began a three-week training program at the Academy of Industrial Training designing to provide hands-on training for individuals seeking employment as train conductors. After successfully completing the training program, Palkow was hired by Consolidated Rail Corporation ("Conrail") to work at its Collingwood rail yard in Cleveland, Ohio, as a probationary employee during a 60-day period. On June 1, 1999, while Palkow was still working as a probationary employee, Conrail was acquired by CSXT. On June 25, 1999, Harry Crawford, District Superintendent of CSXT, terminated Palkow as a CSXT employee.² Palkow disputed her termination asserting that she was capable of performing the tasks required by her job because of her successful performance during the training program.

After her discharge, Palkow filed charges of age and sex discrimination with the Equal Employment Opportunity Commission. She was subsequently granted a right to sue on December 14, 2001, and on January 11, 2002, Palkow filed a complaint in the District Court for the Northern District of Ohio against CSXT alleging age and sex discrimination in violation of the ADEA and Title VII, respectively, as well as claims of retaliation and intentional infliction of emotional distress.

On October 1, 2003, the District Court granted, in part, and denied, in part, CSXT's motion for summary judgment, and dismissed Palkow's claims of age discrimination, retaliation and intentional infliction of emotional distress.

Palkow's remaining claim of sex discrimination was tried to a jury in December 2003. On December 8, 2003, the jury returned a verdict in favor of Defendant CSXT and against Plaintiff Palkow and the District Court entered Judgment accordingly.

Following trial, on January 5, 2004, CSXT filed a motion to tax costs against Palkow. Palkow filed an opposition brief asking the District Court to deny CSXT's motion, or in the alternative, to stay the motion while she decided whether to file a "motion to vacate the judgment or a separate action for violation of due process." (See Appellees' Brief, Addendum 5.) On February 9, 2004, the District Court granted CSXT's motion to tax costs and denied Palkow's motion to stay.

Palkow did not move for a new trial or for judgment as a matter of law. Nor did she appeal or otherwise move to vacate the Judgment or file a separate action for violation of due process as she had indicated she was contemplating.

B. Palkow II

Instead, on March 30, 2004, Palkow filed an action in the Court of Common Pleas for Cuyahoga County, Ohio against Defendants CSXT, CSXT District Superintendent Harry Crawford, and Dianne Tavares, a CSXT employee who had been called by CSXT as a witness on the company's behalf to testify in Palkow's sex discrimination trial. In her state court complaint, Palkow alleged that, contrary to her testimony in federal court in Palkow I, Tavares, who had been a fellow probationary employee of the Plaintiff, did have to dismount moving equipment during the Philadelphia training course and that Tavares's testimony in Palkow I that no such training occurred was, therefore, perjurious.³

On May 6, 2004, CSXT and Tavares removed the case to federal court⁴ alleging that Palkow's state court perjury action involved a federal question because the alleged perjury upon which Palkow's civil complaint for damages was based occurred in a prior federal court proceeding.

On May 7, 2004, Palkow filed a motion to remand the action to state court arguing that no federal question was presented in her complaint and, therefore, the district court lacked subject matter jurisdiction. Defendants did not directly respond to the motion to remand. Instead, they filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss Palkow's complaint arguing that there was no substantive legal merit to Palkow's civil perjury action. Specifically, Defendants argued that (1) Ohio law does not recognize a civil claim for perjury or conspiracy to commit perjury and (2) to the extent that Plaintiff's complaint could be read as a collateral attack on the prior federal judgment, it should be construed as a motion for relief from judgment under Fed.R.Civ.P. 60 and Plaintiff had not satisfied the requirements of such a motion.

On July 28, 2004, the District Court entered an Order denying Palkow's Motion to Remand and granting the Defendants' Motion to Dismiss. With respect to Plaintiff's Motion to Remand, although the District Court noted that Ms. Palkow's complaint on its face, did not allege a federal cause of action, it held that a substantial federal question — i.e., the validity of the judgment in Palkow I — had been raised, and construing the complaint as an independent action for relief from the judgment pursuant to Fed.R.Civ.P. 60(b), concluded that the case was properly removed to federal court. In reaching that conclusion, the District Court relied upon the decisions in Black v. Niagara Mohawk Power Corp., 641 F.Supp. 799 (N.D.N.Y.1986), and Villarreal v. Brown Express, Inc., 529 F.2d 1219 (5th Cir.1976), in which the courts found removal proper under Fed.R.Civ.P. 60(b). The District Court reasoned:

. . . The courts, in both Black and Villarreal identified Rule 60(b) of the Federal Rules of Civil Procedure as providing the basis for the plaintiff's collateral attack on the federal judgment. While Rule 60(b) provides that parties may file a motion for relief from judgment because of, among other reasons, fraud, misrepresentation, or other misconduct by an adverse party, this rule "does not limit the power of a court to entertain an independent action to relieve a party from a judgment."

Like the plaintiffs in Black and Villarreal, Ms. Polkow has nominally pled a state cause of action which, in substance and effect, attacks the validity of this Court's judgment in Polkow I. Notwithstanding her protestations to the contrary and her unsuccessful attempts to craft her complaint as solely a state law claim, Ms. Polkow's complaint is really an independent action seeking relief from this Court's judgment in Polkow I. Given the nature of her claim, this Court needs no independent basis for the exercise of jurisdiction over her complaint because its jurisdiction is firmly grounded in the underlying lawsuit. U.S. v. Beggerly, 524 U.S. 38, 45-6, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). Therefore, Ms. Polkow's complaint was properly removed to this Court and her motion to remand is denied.

7/28/04 Memorandum of Opinion and Order, p. 6.

Having determined that it had jurisdiction over the matter, the District Court then dismissed...