Sheet Metal Workers Intern. Ass'n AFL-CIO v. Seay

• Decision Date: 05 January 1983
• Docket Number: P,AFL-CI,No. 82-2318,No. 275,R,275,82-2318
• Citation: 696 F.2d 780
• Parties: 112 L.R.R.M. (BNA) 2615, 96 Lab.Cas. P 13,956 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,etitioner, v. Honorable Frank H. SEAY, District Judge of United States District Court for the Eastern District of Oklahoma; Acme Engineering & Manufacturing Corp.; Sheet Metal Workers Local, its Officers, Agents, Representatives, Employees, and Members; John H. Barton, individually and as Business Manager of Sheet Metal Workers Local, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 780

696 F.2d 780

112 L.R.R.M. (BNA) 2615, 96 Lab.Cas. P 13,956

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. Honorable Frank H. SEAY, District Judge of United States District Court for the Eastern District of Oklahoma; Acme Engineering & Manufacturing Corp.; Sheet Metal Workers Local No. 275, its Officers, Agents, Representatives Employees, and Members; John H. Barton, individually and as Business Manager of Sheet Metal Workers Local No. 275, Respondents.

No. 82-2318.

United States Court of Appeals Tenth Circuit.

Jan. 5, 1983.

Donald W. Fisher, Toledo, Ohio, and Thomas F. Birmingham, Tulsa, Okl., for petitioner.

Lynn Paul Mattson and Richard L. Barnes, Tulsa, Okl. (Nichols & Wolfe, Inc., Tulsa, Okl., were also on brief), for respondent and plaintiff below, Acme Engineering & Mfg. Corp.

Thomas F. Birmingham, Tulsa, Okl. (Ungerman, Conner & Little, Tulsa, Okl., also joined in the response), for respondents and defendants below, Sheet Metal Workers Local No. 275, its officers, agents, representatives, employees and members, and John H. Barton, individually and as Business Manager of Sheet Metal Workers Local No. 275.

ON PETITION FOR REHEARING IN BANC

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

The mandate which issued is ordered recalled for consideration by the full court of the petition for rehearing and suggestion of rehearing in banc filed by respondent Acme Engineering and Manufacturing Corp. The panel has concluded that the petition presents no reasons justifying a rehearing. This discussion will briefly treat Acme's contentions.

First, Acme argues that where there is a joinder of a state cause of action (here alleged tortious interference with Acme's business relationships) with a federal cause of action (here a claim of breach of obligations under a collective bargaining agreement), then the federal court must consider any potential limitations on federal jurisdiction over the state cause of action as a matter of discretion in contemplating removability of the case under 28 U.S.C. Sec. 1441(c). Of course, Acme is referring to the limitations on injunctive remedies imposed by the Norris-LaGuardia Act. Acme cites the concluding proviso in Sec. 1441(c), emphasized below:

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable 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 not otherwise within its original jurisdiction. (Emphasis added).

The argument is untenable. As our opinion noted (see note 2 of original opinion), the district court did not make a discretionary partial remand "of all matters not otherwise within its original jurisdiction." Instead the order remanded the entire case and did so on unauthorized grounds, i.e., because the district court felt the state court was the "most equitable forum" in view of possible foreclosure of federal injunctive remedies. This was thus a remand of the entire case on grounds not authorized by Sec. 1447(c) which provides not for discretion to remand, but that the district court "shall remand the case" if it appears that it "was removed improvidently and without jurisdiction"--grounds not present here as our original opinion explained. Section 1441(c) plainly confers discretion to determine all issues, or to make a partial remand where there is joinder of "otherwise non-removable claims or causes of action" with a separate and independent removable one. We are not concerned with an order which made only a partial remand and therefore Acme's reliance on Sec. 1441(c) is misplaced.

We note at this point also that Acme refers to removal of the case by the defendants under 28 U.S.C. Sec. 1441(c). Acme says that the only manner in which its first cause of action (alleging tortious interference with its contractual relations) was ever removed was pursuant to 28 U.S.C. Sec. 1441(c), dealing with removal where separate and independent removable claims are joined with otherwise non-removable claims. (Petition for Rehearing in Banc at 2, 7). The petition for removal did first cite Sec. 1441(c), but it also averred that the allegations stated a claim or right arising out of the Constitution or laws of the United States and that removal might be made pursuant to 28 U.S.C. Sec. 1441(b). (Petition for Removal, p 10). The second cause of action alleged breaches of obligations under the collective bargaining agreements. It is clear that such an action is controlled by federal substantive law even though it is brought in a state court and that such a "claim under this collective bargaining agreement is one arising under the 'laws of the United States' within the meaning of the removal statute. 28 U.S.C. Sec. 1441(b)." Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126. Where such a removal under Sec. 1441(b) may be had, federal jurisdiction can be exercised over pendent state law claims arising from the same nucleus of operative facts. In re Carter, 618 F.2d 1093, 1104 (...