SANTA ROSA MED. CENTER v. Converse of Puerto Rico

• Decision Date: 01 December 1988
• Docket Number: Civ. No. 88-840 HL.
• Citation: 706 F. Supp. 111
• Parties: SANTA ROSA MEDICAL CENTER, INC., et al., Plaintiffs, v. CONVERSE OF PUERTO RICO, INC., United Steelworkers of America, AFL-CIO-CLC; and USWA Local 6699, Defendants.
• Court: U.S. District Court — District of Puerto Rico

706 F. Supp. 111

SANTA ROSA MEDICAL CENTER, INC., et al., Plaintiffs, v. CONVERSE OF PUERTO RICO, INC., United Steelworkers of America, AFL-CIO-CLC; and USWA Local 6699, Defendants.

Civ. No. 88-840 HL.

United States District Court, D. Puerto Rico.

December 1, 1988.

John Ward Llambias, Loiza Station, Santurce, P.R., for plaintiffs.

Nicolás Delgado Figueroa, Santurce, P.R., James E. Smith, Cooper, Mitch, Crawford, Kuykendall and Whatley, Birmingham, Ala., pro hac vice, for defendants.

Carl Schuster, McConnell Valdes Kelley Sifre, etc., San Juan, P.R., for Converse de P.R.

OPINION AND ORDER

LAFFITTE, District Judge.

Whether this case must be remanded to the Superior Court of Puerto Rico, Carolina Part is the matter before the Court. On July 29, 1987, plaintiff Santa Rosa Medical Center ("Santa Rosa"), filed a complaint in the local court against Converse of Puerto Rico ("Converse"), alleging that its contract with Converse to provide medical services to Converse employees had been breached. It amended the complaint on January 21, 1988, adding two defendants, United Steelworkers of America, AFL-CIO-CLC, and its local chapter, U.S.W.A. Local 6699 (together "the Union").

The Union filed a petition for removal to this Court, arguing that we have subject matter jurisdiction under Section 301 of the Labor Management Relations Act of 1947 ("Section 301"), and that therefore the case is removable to a federal district court pursuant to 28 U.S.C. sec. 1441. Converse, the original defendant, responded with a motion to dismiss the Union's removal petition. The infighting among the defendants has continued with the Union's opposition to the motion to dismiss, Converse's reply, and finally, the Union's response to the reply. Essentially, the Union wants this Court to hear the case and so argues that Santa Rosa's claim arises under federal law; Converse wants the case to be heard in the local court, and so argues that Santa Rosa's claim does not present a federal question.¹ Converse also points out that it, a codefendant, has not joined in the Union's petition for removal.

The substantive issue before us is whether Section 301, which provides federal jurisdiction over claims of violations of collective bargaining agreements, governs Santa Rosa's claims. Jurisdiction under Section 301 has been interpreted to encompass state-law claims founded directly on rights created by the collective bargaining agreement, Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) and Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), as well as claims "substantially dependent on analysis of a collective bargaining agreement." Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 2166-67 n. 3, 95 L.Ed. 2d 791 (1987). See also Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987); Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985) (claims "inextricably intertwined with consideration of the terms of the labor contract" are preempted by Section 301).

No matter which direction we may have decided to travel on this substantive issue, however, Converse's adamant refusal to consent to the Union's petition for removal would emerge as a roadblock. Even if plaintiff's breach of contract claims are preempted by Section 301, and therefore can only be claims arising under federal law,² the only necessary conclusion is that federal labor law controls the resolution of those claims; it is not required that a federal court, rather than a local one, apply that law. Section 301 grants subject matter jurisdiction to the federal district courts, but that jurisdiction is not exclusive. "State courts have concurrent jurisdiction over Section 301 claims. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). State as well as federal courts must apply federal law in deciding these claims. See Teamsters v. Lucas Flour Co., 369 U.S. 95, 102, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962)." Lingle v. Norge Div. of Magic Chef, Inc., ___ U.S. ___, 108 S.Ct. 1877, 1880 n. 2, 100 L.Ed.2d 410 (1988).

So then, even if we were to decide that this Court has subject matter jurisdiction under Section 301, it does not follow that this Court must hear the case instead of the local court. Plaintiff here filed in the local court; to override plaintiff's choice of forum it is up to defendant, or, in this case, the three defendants, to establish that removal is proper. Diaz v. Swiss Chalet, 525 F.Supp. 247 (D.P.R.1981); Kerstetter v. Ohio Cas. Ins. Co., 496 F.Supp. 1305 (D.C. Pa.1980). One part of that burden is, as elaborated on above, to establish that the federal court has subject matter jurisdiction. Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3rd Cir.1985).

Another part of defendants' burden on removal, equally important, is to show that all defendants who have been properly joined and served have consented to the removal.³ "Before the plaintiff's choice of the state forum can be avoided, unanimity among all parties substantively entitled to remove is required." IA Moore's Federal Practice, Para. 0.1683.-2-2 at 548-49 (1987). In the instant case, we need reach only this threshold issue, and not the substantive issue discussed above, because we find that the Union's failure to get Converse's consent to the removal compels remand to the local court.

The Union cites both 28 U.S.C. sec. 1441(a) and 1441(c) as authority for removing the case to this Court. We will first discuss removal under section 1441(a). Courts have consistently construed 28 U.S. C. section 1446(a), which sets forth the removal procedure, as requiring all defendants to either join in or consent to a petition for removal under section 1441(a). "In a case with more than one defendant, the consent of all the defendants is necessary for removal under section 1441(a) but not for removal under 1441(c)." Thomas v. Shelton, 740 F.2d 478, 483 (7th Cir.1984). See also, Gableman v. Peoria, Decatur & Evansville Railway Co., 179 U.S. 335, 21 S.Ct. 171, 172, 45 L.Ed. 220 (1900); Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 (7th Cir.1982); Tri-Cities Newspapers, Inc. v. Tri-Cities P.P. & A. Local 394, 427 F.2d 325, 326-27 (5th Cir. 1970); Adams v. Aero Services Intern., Inc., 657 F.Supp. 519, 521 (E.D.Va.1987); Courtney v. Benedetto, 627 F.Supp. 523, 525 (M.D.La.1986).

The reasons for requiring all defendants to consent to removal are put forth in Hess v. Great Atlantic & Pac. Tea Co., Inc., 520 F.Supp. 373, 375 (N.D.Ill.1981). The court there suggested that, if one defendant could remove the claim against it, leaving the other claims against the other defendants in state court, there would be a risk of inconsistent adjudications in state and federal courts. If, however, only one defendant could, at its option, remove the entire case, then that one defendant would be imposing its choice of forum not only on an unwilling plaintiff, but on the other unwilling defendants. The way to avoid both of these problems is to require all defendants to consent before a case is removed from the local court. A third reason suggested is that because state courts are considered as competent as federal courts to hear federal questions not in areas of exclusive federal jurisdiction, a defendant's desire to remove to federal court which is not shared by other defendants should not be considered imperative.

The failure of a defendant to join in a petition for removal has been found fatal to such removal. Hess v. Great Atlantic & Pac. Tea Co., Inc., 520 F.Supp. 373; Courtney v. Benedetto, 627 F.Supp. 523; Adams v. Aero Services Intern., Inc., 657 F.Supp. 519; Means v. G & C Towing, Inc., 623 F.Supp. 1244 (D.C.W.Va.1986); Estevez-Gonzalez v. Kraft, Inc., 606 F.Supp. 127 (S.D.Fla.1985).

The Union has failed to either join or obtain the consent of codefendant Converse in its petition to remove. In lawyerly fashion, the Union glosses over this failure and contends that Converse waived this "procedural defect" by not arguing its own lack of consent until its reply, instead of including this argument in its initial pleading, the motion to dismiss. But Union has the burden to prove that removal is warranted, and it failed to meet that burden when it did not secure Converse's consent. "The petitioning defendant bears the burden of establishing compliance with the requirements of the removal statute, including the requirement of the joinder or timely consent of all defendants." Adams v. Aero Services Intern., Inc., 657 F.Supp. at 521. See also Diaz v. Swiss Chalet, 525 F.Supp. at 249-50 (case remanded because defendants failed to file petition within 30 days after service of complaint in local court); Kerstetter v. Ohio Cas. Ins. Co., 496 F.Supp. at 1307-08 (case remanded because defendant's allegations of diversity of citizenship insufficient). "Where any of the defendants fails either to join in the petition or to file one of his or her own, the petition which has been filed will be insufficient on its face to perfect removal, unless it states a valid reason for such failure." 29 Fed.Proc., L.Ed. sect. 69:69 at 559 (1984).⁴ The fatal flaw, then, is not Converse's failure to argue its nonconsent until its reply, but the Union's failure to secure the joining or consent of Converse within the statutory period of 30 days after service of the complaint in local court. 28 U.S.C. sec. 1446(b). See also Adams v. Aero Services Intern., Inc., 657 F.Supp. at 521 (statutory time limitation to join or obtain consent of all defendants is mandatory and must be strictly complied with by petitioning defendant).

We are unable to excuse the Union's failure to meet its burden on the ground that Converse has somehow waived its right to object to the...