Sirois v. Business Express, Inc.

• Decision Date: 26 July 1995
• Docket Number: Civ. No. 95-136-SD.
• Parties: Marion SIROIS v. BUSINESS EXPRESS, INC.
• Court: U.S. District Court — District of New Hampshire

906 F. Supp. 722

Marion SIROIS v. BUSINESS EXPRESS, INC.

Civ. No. 95-136-SD.

United States District Court, D. New Hampshire.

July 26, 1995.

COPYRIGHT MATERIAL OMITTED

James H. Gambrill, Engel, Gearreald & Gardner, PA, Exeter, NH, for Marion Sirois.

Susannah Colt, Shaines & McEachern, P.A., Portsmouth, NH, Peter Bennett, Herbert H. Bennett and Associates, PA, Portland, ME, for Business Express, Inc.

ORDER

DEVINE, Senior District Judge.

In this civil action, plaintiff Marion Sirois claims defendant Business Express, Inc., acted in breach of both written and oral employment contracts when it terminated her from the positions of flight attendant and ground employee. Plaintiff seeks recovery for (1) loss of employment; (2) loss of compensation; (3) loss of seniority; (4) loss of standing in the airline industry; and (5) loss of salary scale.

Presently before the court is plaintiff's motion for remand, to which defendant objects.

Factual History

Sirois was employed as a flight attendant and ground employee for Business Express until September 2, 1994, when her position was terminated. Writ of Summons, Count I. Sirois v. alleges that defendant breached a written employment contract by denying her "the opportunity to return to her position as a flight attendant or apply to other jobs in the defendant's service." Id. Plaintiff further asserts that defendant's conduct was

in breach of the express written terms set forth in Business Express's employee manual which promised that employees will retain seniority for each position they hold during their tenure with defendants, and in breach of Business Express personnel procedure which mandates write-ups and warnings prior to dismissal and provides for a grievance procedure and investigations under the rules of the Association of Flight Attendants; and in further breach of the employee manual's express written promise that all employment openings are open to any Business Express employee that wishes to apply....

Id. (emphasis added).

Irrespective of whatever rights she may have held under a written employment contract, Sirois additionally maintains that certain oral promises of employment were made to her by, among others,¹ Townsend Sausville, Director of Operations at Business Express. According to Sirois, all promises essentially provided "that if she were willing to assume temporarily a ground position and perform tasks and services necessary to defendant's business, she would be allowed to return to work as a flight attendant should Business Express eliminate her ground job, without loss of seniority or any other benefits...." Writ of Summons, Count II.

Procedural History

Plaintiff initiated the instant action by writ of summons filed in Rockingham County (New Hampshire) Superior Court on March 8, 1995. Thereafter defendant removed the action to this court on March 20, 1995, pursuant to 28 U.S.C. § 1441(b), basing the court's jurisdiction upon the federal questions raised in both Counts I and II. By motion filed March 23, 1995, plaintiff requests this court to remand the proceedings to Rockingham County Superior Court.

Discussion

1. Motion to Remand Standard

"It is, of course, familiar law that the right of removal being statutory, a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress." Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 239, 62 L.Ed. 713 (1918) (citation omitted). Although Congress has created a removal mechanism, such congressional acts are subject to strict construction by the courts. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) ("the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation").

However, if a state court action is subsequently removed to federal court,

the plaintiff may, by a motion to remand ..., take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court, and ... the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding.

Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921) (citations omitted). Thus, in order to withstand the instant motion to remand, defendant must demonstrate that the asserted basis for removal satisfies the statutory prerequisites.

2. Propriety of Removal

Defendant asserts that removal is appropriate under 28 U.S.C. § 1441(b)² since plaintiff's claims either arise under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-164 (1986),³ or are preempted thereby. As such, the court is vested with jurisdiction pursuant to 28 U.S.C. §§ 1331⁴ and 1337.⁵

Sirois, however, contends that "the Complaint sounds only in the common law of contracts, ... and any references in the Complaint to grievance procedures and other labor matters were submitted not as claims, but only as parenthetical material to lend additional credence to plaintiff's claim that defendant's stated reasons for discharging her were pretextual." Plaintiff's Motion for Remand ¶¶ 2-3. Thus, although "plaintiff has no objection to litigating this matter in federal court," remand to the state court is appropriate as "no federal questions, as required by 28 U.S.C. §§ 1331 and 1337, are here presented...." Id. ¶ 5.⁶

a. "Well-Pleaded" Complaints and the Effect of Preemption

A case arises under the Constitution or laws of the United States if "`its correct decision depends upon the construction of either.'" Gold-Washing & Water Co. v. Keyes, 96 U.S. (6 Otto) 199, 201, 24 L.Ed. 656 (1878) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 379, 5 L.Ed. 257 (1821)). According to the "well-pleaded complaint" rule, "`whether 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 her own claim ... unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.'" Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983) (quoting, Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724-725, 58 L.Ed. 1218 (1914)); accord Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987).

Ordinarily a defense of preemption is insufficient to confer removal jurisdiction. However, "as an exception to the well-pleaded complaint rule, there are circumstances where `Congress may so completely preempt a particular area' that any complaint arising in that area is `necessarily federal in character.'" Fitzgerald v. Codex Corp., 882 F.2d 586, 587 (1st Cir.1989) (quoting Metropolitan Life Ins. Corp. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-1547, 95 L.Ed.2d 55 (1987)); see also Caterpillar, Inc., supra, 482 U.S. at 393, 107 S.Ct. at 2430 ("Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law."). "The purpose of this exception, allowing a defense of federal pre-emption to serve as a basis for removal, is to prohibit a plaintiff from defeating removal by failing to plead necessary federal questions in a complaint." Cawthard v. Flagship Airlines, Inc., 863 F.Supp. 1567, 1572 (S.D.Fla.1994) (citing Deford v. Soo L.R. Co., 867 F.2d 1080, 1084 (8th Cir.), cert. denied, 492 U.S. 927, 109 S.Ct. 3265, 106 L.Ed.2d 610 (1989)).

b. Complete Preemption by the RLA

"The RLA, which was extended in 1936 to cover the airline industry, see Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189; 45 U.S.C. §§ 181-188, sets up a mandatory arbitral mechanism to handle disputes `growing out of grievances or out of the interpretation and application of agreements concerning rates of pay, rules, or working conditions,'" Hawaiian Airlines, Inc. v. Norris, 512 U.S. ___, ___, 114 S.Ct. 2239, 2241, 129 L.Ed.2d 203 (1994) (quoting 45 U.S.C. § 153 First (i)); see also Westbrook v. Sky Chefs, Inc., 35 F.3d 316, 317 (7th Cir.1994) ("The RLA governs relations between employers that are rail or air carriers ... and their union employees."); Anderson v. American Airlines, Inc., 2 F.3d 590, 594 (5th Cir.1993). In order to foster stability in labor-management relations, "the Act establishes a mandatory arbitral mechanism for `the prompt and orderly settlement' of two classes of disputes—major and minor." Norris, supra, 512 U.S. at ___, 114 S.Ct. at 2243 (quoting 45 U.S.C. § 151a).

Whereas "major disputes relate to `"the formation of collective bargaining agreements or efforts to secure them,"'" id. at ___, 114 S.Ct. at 2244 (quoting Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 302, 109 S.Ct. 2477, 2480, 105 L.Ed.2d 250 (1989) (Conrail) (quoting Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945))), "disputes between employees and Carriers arising `out of the interpretation or application of the collective bargaining agreement ... are commonly referred to as "minor disputes,"'" Stephens v. Norfolk & W. Ry. Co., 792 F.2d 576, 579-580 (6th Cir.1986) (quoting Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 904 (6th Cir.1983)) (alteration in Stephens).⁷ All "minor disputes" must be settled pursuant to the arbitration procedures established by the RLA. Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322, 92 S.Ct. 1562, 1564, 32 L.Ed.2d 95 (1972); see also Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978).

Although "not all individual agreements between an airline and an employee raise a federal question...