Panayi v. Northern Indiana Public Service Co.

• Decision Date: 02 June 2000
• Docket Number: No. 3:00-CV-0138RM.,3:00-CV-0138RM.
• Parties: Peter L. PANAYI, Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

109 F.Supp.2d 1012

Peter L. PANAYI, Plaintiff, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant.

No. 3:00-CV-0138RM.

United States District Court, N.D. Indiana, South Bend Division.

June 2, 2000.

COPYRIGHT MATERIAL OMITTED

David C. Appel, Valparaiso, IN, for Peter L. Panayi.

Gail Oosterhof, Joseph S. Van Bokkelen, Goodman Ball VanBokkelen, Leonard and Kline, Highland,IN, for Northern Indiana Public Service Co.

Beverly J. Mack, Huelat and Gardner, Michigan City, IN, for Northern Indiana Internet Access Inc.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause is before the court on plaintiff Peter Panayi's motion to remand this action as improvidently removed,¹ defendant Northern Indiana Public Service Company's (NIPSCO) motion to dismiss for lack of subject matter jurisdiction and/or failure to state a claim on which relief can be granted, and the motion of Northern Indiana Internet Access, Inc. (NIIA) to intervene.

Mr. Panayi filed this case in LaPorte Superior Court No. 2, requesting that the court issue a temporary restraining order and permanently enjoin NIPSCO from using records of his private internet access account with NIIA. NIPSCO removed the case, contending that the Mr. Panayi's complaint relates to and requires interpretation of the "just cause" for discharge provisions of the collective bargaining agreement, which, pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, must be resolved in a federal forum. NIPSCO said removal is proper because this court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441 and the LMRA. NIPSCO also asks this court to dismiss the complaint because § 301 of the LMRA completely preempts Mr. Panayi's state law claim and because Mr. Panayi did not exhaust grievance and arbitration procedures.

Mr. Panayi seeks remand to the state court for further proceedings. He says the claims presented and the remedies sought in the complaint arise exclusively out of Indiana state law privacy rights in private account records. Mr. Panayi asserts that his claim to enforce state law privacy rights neither "relates to" nor "requires interpretation of" the collective bargaining agreement, so there is neither federal jurisdiction nor federal preemption under the LMRA.

As a preliminary matter, Mr. Panayi moved to strike the supplemental affidavit of Douglas Bobillo attached to NIPSCO's combined reply/response memorandum on these motions. The court did not rely on the supplemental affidavit and the analysis that follows would not be affected by any of the issues presented in the motion to strike, so the court simply denies the motion to strike.

Peter Panayi is a former NIPSCO employee who was terminated on June 1, 1999. NIPSCO believed that Mr. Panayi improperly used NIPSCO time and property to access his personal internet account while on the job. During the investigation of Mr. Panayi's use of company equipment and company time for internet access — the investigation that led to his termination — NIPSCO allegedly went to the offices of NIIA, requested and received records of his account, and then improperly used those records to terminate his employment.

That termination is now the subject of arbitration between NIPSCO and Mr. Panayi. The matter was set for a hearing before the arbitrator on February 24 and 25. At NIPSCO's request, the arbitrator issued a subpoena to Mr. Scott Pathel, an employee of NIIA, requesting him to appear at the hearing and bring with him the records reflecting all internet activity on Mr. Panayi's account originating from a NIPSCO telephone number that serves Mr. Panayi's work area in the chemistry lab. NIPSCO acknowledges that it has the relevant records in its possession and has agreed to limit the subpoena to require Mr. Pathel's presence to authenticate the records. Seeking to prevent the disclosure and use of the records at the arbitration hearing, Mr. Panayi filed this suit, claiming that further use of the records compounds the wrongful invasion of his state law privacy rights.

Removal may be challenged; in the absence of subject matter jurisdiction, "the case shall be remanded." 28 U.S.C. § 1447(c). The "well-pleaded complaint rule" governs the existence of federal question jurisdiction, and a defendant doesn't create a jurisdictionally sufficient federal question by raising an issue of federal law in a defense or in a petition for removal. See Caterpillar Inc. v. Williams, 482 U.S. 386, 391, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Bastien v. AT&T Wireless Services, Inc., 205 F.3d 983, 986 (7th Cir.2000). The well-pleaded complaint rule is limited by the "complete preemption" doctrine in which "Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character," Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and § 301 of the LMRA constitutes such complete preemptive force, see Caterpillar, Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425; Loewen Group Intern., Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir.1995).

Section 301 of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, 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). Because this jurisdictional provision authorizes federal courts to develop federal common law for the interpretation of collective bargaining agreements, federal question jurisdiction exists when "the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement." Matter of Amoco Petroleum Additives Co., 964 F.2d 706, 709 (7th Cir.1992) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-406, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)). Federal law so dominates relations between employers and unions that any claim attempting "to interpret, enforce, or question a collective bargaining agreement is necessarily based on national law," Matter of Amoco Petroleum Additives Co., 964 F.2d at 709, and "may be preempted under the LMRA either because it depends on interpretation of a CBA or because the claim is founded on the CBA," In re Bluffton Casting Corp., 186 F.3d 857, 862 (7th Cir.1999). To see if Mr. Panayi's state law claim turns on a portion of the collective bargaining agreement, the court must first examine the elements of that claim. See Loewen Group Intern., Inc. v. Haberichter, 65 F.3d at 1422 (citing Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 661 (7th Cir.1992)).

In his response to the motion to dismiss, Mr. Panayi advances the privacy tort of intrusion as his claim, one of the privacy torts acknowledged in Indiana law.² See Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991). Invasion of privacy by intrusion consists of (1) an intrusion upon the plaintiff's physical solitude or seclusion, either as to his person or to his private affairs or concerns (2) that is something which would be offensive or objectionable to a reasonable person. See Watters v. Dinn, 633 N.E.2d 280, 289 (Ind.Ct. App.1994) (citing Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 854-855 (5th ed.1984)).

Mr. Panayi argues that his case differs from the LMRA preemption cases relied on by NIPSCO because those cases, Matter of Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir.1992), Stikes v. Chevron U.S.A., Inc., 914 F.2d 1265 (9th Cir.1990), Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th Cir.1987), and Kelly v. Mercoid Corp., 776 F.Supp. 1246 (N.D.Ill. 1991), regarded employees' privacy rights in the workplace while the employees performed their duties of employment in the workplace. Mr. Panayi doesn't...