Sandoval v. New Mexico Technology Group LLC.

Decision Date01 May 2001
Docket NumberNo. 00-578-LCS.,00-578-LCS.
Citation174 F.Supp.2d 1224
PartiesEloy C. SANDOVAL, Plaintiff, v. NEW MEXICO TECHNOLOGY GROUP LLC d.b.a. NewTec, Defendant.
CourtU.S. District Court — District of New Mexico

Steven K. Sanders, Albuquerque, NM for plaintiff.

C.B. Burns, Walker F. Crowson, Kemp, Smith, Duncan & Hammond, El Paso, TX, Leonard J. Piazza, Sandenaw, Carrillo & Piazza, PC, Las Cruces, NM, for defendant.

MEMORANDUM OPINION AND ORDER

SMITH, United States Magistrate Judge.

THIS MATTER comes before the Court sua sponte. It is a well-known principle that the Court may examine its subject matter jurisdiction at any time in the proceedings. See 28 U.S.C. § 1447; see also Tuck v. United Services Auto. Ass'n, 859 F.2d 842, 844 (10th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989).1 After careful consideration of the parties' responses, arguments and the relevant law, the Court finds that this case should be remanded to state court.

I. BACKGROUND

Plaintiff Eloy Sandoval is a resident of New Mexico. He filed a complaint against New Technology Group (NewTec), a Delaware corporation with its principal place of business in New Mexico. NewTec is a government contractor that provides a wide range of services to primarily the United States Army at White Sands Missile Range. The complaint was filed in the Twelfth Judicial District Court, Otero County, New Mexico. It alleged four different counts which include, a breach of contract claim, a breach of implied contract of good faith and fair dealing claim, an intentional or negligent misrepresentation claim, and a wrongful discharge claim. In Count IV, the Plaintiff alleged that he was wrongfully discharged. Count IV of the complaint reads as follows:

Plaintiffs discharge by Defendant was in violation of the public policy of the state of New Mexico, which encourages employees to report unsanitary and unhealthy, working conditions. See e.g. Occupational Health and Safety 50-9-1 et seq., and specifically including 50-9-5 as well as its federal counterpart, the Occupational Safety and Health Act of 1970 (84 Stat. 1590), 29 U.S.C. Sections 651-678 (1997) ... Further, plaintiff's discharge by Defendant was in violation of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of an employee's own choosing and to engage in other concerted activities for the purpose of collective bargaining such as the right to organize a union. See National Labor Relations Act, 29 U.S.C. Sections 151 et seq., the Labor-Management Relations Act, 29 U.S.C. Sections 141 et seq. and the Labor-Management Reporting and Disclosure Act, 29 U.S.C. Sections 401 et seq. Plaintiff was primarily seeking to further the public interests and purposes of the OSHA laws, the right to collective bargaining and the rights under the Service Contract Act of 1965. Plaintiff was attempting to promote the public safety of the citizens who would come into contact with or use any facility maintained or operated by Defendants as well as protect the rights of the employees working for Defendant. Additionally, plaintiff's discharge by Defendant was in violation of the Service Contract Act of 1965 (Public Law 89-286) 41 U.S.C. 353(c) which prohibits paying an employee under a successor contract less than the wages and fringe benefits provided for in a collective-bargaining agreement to which Plaintiff would have been entitled had he stayed employed by Dyn-Corp, in violation of the public policy of this state. All of these issues were a motivating factor in Plaintiff's wrongful discharge. (Pl.Comp. at 6-7).

The Defendant filed a timely petition for removal from state court to this court alleging that "because Plaintiff's wrongful termination claim arises under the laws of United States, this Court has original jurisdiction under 28 U.S.C. Sec. 1331." (Notice of Removal at 1-2). After removal, I entered an Order to Show Cause on April 11, 2001 instructing the parties to show cause why this case should not be remanded to state court for lack of subject matter jurisdiction. The parties submitted responses to the order to show cause and were given the opportunity to argue before the Court. The Plaintiff argued that all claims alleged in the complaint were state law claims and that he did not bring any action pursuant to any federal statutes. The Defendant argued that the Plaintiff specifically alleged federal statutes within his complaint thus conferring federal question jurisdiction and that they were not in terms of a violation of New Mexico's public policy.

II. ANALYSIS

Federal Removal Jurisdiction is statutory in nature and must be strictly construed. See Shamrock Oil & Gas v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). Where there is no diversity of citizenship between the parties, as in this case, the propriety of removal turns on whether the case falls within the original "federal question" jurisdiction of United States district courts under 28 U.S.C. § 1331 (1976 ed., Supp. V). The presence or absence of federal question jurisdiction in any specific case is governed by the "well-pleaded complaint" rule. That rule states that a complaint originally filed in state court cannot be removed to federal court unless federal jurisdiction appears from the face of a "well-pleaded complaint." Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); see also Louisville v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The rule has been stated by the Supreme Court as follows: "`[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, ... must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.'" Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)). Under this rule, the plaintiff may avoid federal jurisdiction by exclusive reliance on state law in his complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Furthermore, a defense that raises a federal question is inadequate to confer federal jurisdiction. See Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

In coming to its decision, the Court has searched the complaint for claims arising under the Constitution or a law or treaty of the United States. Counts I, II, and III clearly allege state claims which exclusively rely on state law. However, Count IV, titled "wrongful discharge," states that the Plaintiff's discharge by Defendant was in violation of New Mexico public policy. It subsequently quotes five federal statutes: the Occupational Safety and Health Act (OSHA), the National Labor Relations Act (NLRA), the Labor-Management Relations Act (LMRA), the Labor-Management Reporting and Disclosure Act, and the Service Contract Act.

First, the Plaintiff alleges that he was discharged by the Defendant in violation of the federal OSHA laws which encourage employees to report unsanitary and unhealthy working conditions. See 29 U.S.C. §§ 651-678 (1997). This federal based OSHA claim is not properly before this court because there is no federal cause of action for an employer's retaliatory discharge of an employee who has filed a complaint or instituted or caused to be instituted any proceeding under or related to the OSHA. See 29 U.S.C. § 660(c)(2).2 The Plaintiff also cites to state OSHA public policy. The provision of the New Mexico Occupational Health and Safety Act prohibiting discrimination against employees for filing safety complaints constitutes a statement of public policy, the violation of which may be used to establish claim for retaliatory discharge. NMSA 1978, § 509-25, subd. A. Although jurisdiction does not exist with respect to the Plaintiff's federal OSHA claim, the Plaintiff's state OSHA claim is appropriate for a classic Vigil v. Arzola analysis. See Vigil v. Arzola, 102 N.M. 682, 689, 699 P.2d 613 (Ct. App.1983), rev'd in part on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984), overruled in part on other grounds, Chavez v. Manville Products Corp., 108 N.M. 643, 777 P.2d 371 (1989).

Second, the Plaintiff alleges that he was discharged by Defendant in violation of the Service Contract Act of 1965, 41 U.S.C. 353(c), which prohibits paying an employee under a successor contract less than the wages and fringe benefits provided for in a collective-bargaining agreement. The Service Contract (SCA) provides that "[n]o contractor or subcontractor under a contract ... shall pay any service employee under such contract less than the wages and fringe benefits, including accrued wages and fringe benefits, and any prospective increases in wages and fringe benefits provided for in a collective-bargaining agreement ..." 41 U.S.C. § 353(c). The complaint states that the "plaintiff's discharge by Defendant was in violation of the Service Contract Act.." (Pl.Compl. at 7) (emphasis added). It does not allege that the Plaintiff was entitled to wages and fringe benefits received less than the wages and fringe benefits provided for in a collective-bargaining agreement. Nor does it seek reimbursement of these funds. Instead it alleges Plaintiff was discharged in violation of the act, which is against the public policy of the state of New Mexico. In addition, at least two federal district courts have concluded that the Secretary of Labor has exclusive jurisdiction to enforce the SCA through administrative proceedings. See Oji v. PSC Environmental Management Inc., 771 F.Supp. 232 (N.D.Ill.1991); see...

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