Sullivan v. Conway

• Decision Date: 16 November 1998
• Docket Number: 97-3504,Nos. 97-1978,s. 97-1978
• Citation: 157 F.3d 1092
• Parties: 160 L.R.R.M. (BNA) 2080, 136 Lab.Cas. P 10,253 James R. SULLIVAN, Plaintiff-Appellant, v. James P. CONWAY and International Brotherhood of Electrical Workers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1092

157 F.3d 1092

160 L.R.R.M. (BNA) 2080, 136 Lab.Cas. P 10,253

James R. SULLIVAN, Plaintiff-Appellant, v. James P. CONWAY and International Brotherhood of Electrical Workers, Defendants-Appellees.

Nos. 97-1978, 97-3504.

United States Court of Appeals Seventh Circuit.

Argued May 26, 1998.

Decided Sept. 30, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 16, 1998.

James Bryan Sullivan (argued), Downers Grove, IL, James R. Sullivan, Oak Brook, IL, for Plaintiff-Appellant in No. 97-1978.

James R. Sullivan (argued), Oak Brook, IL, for Plaintiff-Appellant in No. 97-3504.

Solomon I. Hirsh (argued), Chicago, IL, Robert D. Kurnick, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC, for Defendants-Appellees.

Before POSNER, Chief Judge, and BAUER and COFFEY, Circuit Judges.

POSNER, Chief Judge.

This case began in an Illinois state court as a suit for defamation and other torts brought by attorney James Sullivan against James Conway, an official of the electrical workers' union, and against the union itself. The alleged defamation was that Conway had said that Sullivan was "a very poor lawyer." The suit was removed to federal district court after the complaint was amended to add claims under federal labor law; and a preliminary question is whether the removal was untimely.

In a case in which the original complaint does not disclose a ground for removal, the defendant must remove the case to federal court within thirty days of receiving "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b). The defendants removed the case within thirty days after the state court judge granted the plaintiff's motion to amend the complaint to add federal claims but more than thirty days after the plaintiff made the motion. That is too late, according to the plaintiff. We are confident that he is wrong, although we cannot find any appellate case law directly on point. Until the state judge granted the motion to amend, there was no basis for removal. Until then, the complaint did not state a federal claim. It might never state a claim, since the state judge might deny the motion. The statutory language that we quoted speaks of a motion or other paper that discloses that the case is or has become removable, not that it may sometime in the future become removable if something happens, in this case the granting of a motion by the state judge. When the motion was granted, the case first became removable, and it was promptly removed. It would be fantastic to suppose that the time for removing a case could run before the case became removable; but that is Sullivan's contention, and it brings him (for he is representing himself in this litigation) perilously close to establishing the truth of the alleged defamation.

After the case was removed to the federal court, the district judge granted summary judgment for the defendants on all counts, the state-law counts as well as the federal-law counts, and dismissed the suit. In a separate order he awarded the defendants $4,500 in attorneys' fees as a sanction for Sullivan's persistence in litigating a frivolous case, along with the usual court costs.

We must consider whether the suit, though properly removed to federal court, was properly retained there to decide issues purely of state law. The amended complaint alleges violations of federal labor law arising from the union's having violated its constitution by firing Sullivan and having retaliated against him (also by the firing) for efforts to ferret out corruption in the union. The violation of the union's constitution was actionable under the Taft-Hartley Act and the retaliation actionable under the Landrum-Griffin Act. But as soon as he landed in federal court, Sullivan thought better of proceeding under federal law and insisted that his federal-law claims were actually state-law claims. They were not, regardless of how he chose to characterize them; the federal labor laws completely occupy the field which they traverse. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 403-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988); Wooddell v. International Brotherhood of Electrical Workers, 502 U.S. 93, 100-02, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991); LaBuhn v. Bulkmatic Transport Co., 865 F.2d 119, 120-21 (7th Cir.1988). And anyway federal jurisdiction is not defeated by dropping federal claims after the case has been properly removed to federal court, United Farm Bureau Mutual Ins. Co. v. Metropolitan Human Relations Comm'n, 24 F.3d 1008, 1014 (7th Cir.1994); 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3721, p. 213 (1981), although if all the federal claims drop out before trial, even as a consequence of the plaintiff's own voluntary dismissal, the district judge normally will relinquish jurisdiction over the state-law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 346, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Marzuki v. AT & T Technologies, Inc., 878 F.2d 203, 206 n. 3 (7th Cir.1989). Stubbornly insisting on the purely state-law character of his employment claims, Sullivan failed to make any effort to show a violation of federal law, and thus he forfeited his employment claims, which the district judge therefore properly dismissed.

Although the federal claims had thus fallen out before trial, the district judge went on to decide Sullivan's state-law claims on the merits rather than relinquishing jurisdiction over them to the Illinois state courts. No one complains of his doing so, however, and discretionary components of the supplemental jurisdiction conferred by 28 U.S.C. § 1367 may be forfeited, just like any other nonjurisdictional grounds in civil litigation. International College of Surgeons v. City of Chicago, 153 F.3d 356, 366-67 (7th Cir.1998); Myers v. County of Lake, 30 F.3d 847, 849-50 (7th Cir.1994). It is true that in matters touching on the relations between federal and state government, waivers can be declined in the interest of comity. E.g., Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); Schlesinger v. Councilman, 420 U.S. 738, 743, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975); Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir.1995) (en banc); Pittman v. Chicago Board of Education, 64 F.3d 1098, 1101 (7th Cir.1995); National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628-29 (1st Cir.1995); Stone v. City & County of San Francisco, 968 F.2d 850, 855-56 (9th Cir.1992). But there is no occasion to do that here. The district judge's resolution of the state-law issues is clearly correct and so does not step on the toes of the state courts. No purpose would be served by vacating his decision and thus prolonging this doomed litigation by sending it back to the state court to be dismissed there. Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir.1993).

Sullivan challenges Judge Holderman's refusal to disqualify himself from the case. After the case was removed and Judge Holderman assigned to it, the lawyer representing defendant Conway wrote his client that "as a result of the removal, we have a much better judge." By mistake, a copy of the letter was sent to a potential witness who happened to be a friend of Sullivan's and who showed him the letter. Sullivan submitted the letter to the district court in support of his motion to remand the case to the state court--and then filed an affidavit of bias under 28 U.S.C. § 144 asking Judge Holderman to recuse himself lest the lawyer's praise of him as a "much better judge" cause the judge in gratitude to favor Conway in his rulings.

The affidavit was insufficient to demonstrate bias, and therefore the judge was not required either to relinquish the case or to refer the matter of recusal to another judge. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir.1993). We can imagine, though only with great difficulty, a case in which public praise of a judge by a lawyer was so fulsome as to call into question the judge's psychological fortitude to rule against his encomiast. But here there was no public praise; depending on the reputation of the state court judge, there was, perhaps, no praise at all; and the praise would not have come to Judge Holderman's attention, and so would never have threatened to turn his head, had not the lawyer wishing to disqualify him brought it to his attention. If, as we have absolutely no reason to believe (cf. McLaughlin v. Venore Transportation Co., 244 F.Supp. 802 (D.Mass.1965)), the letter from Conway's lawyer influenced the judge, Sullivan has only himself to blame, and so the principle of waiver bars him from complaining. Indeed, it is improper for a lawyer or litigant (Sullivan being both in this case) to create the ground on which he seeks the recusal of the judge assigned to his case. That is arrant judge-shopping.

We come at last to the merits, and must sketch in a few facts. On April 5, 1990, the Chicago local of the electrical workers' union hired Sullivan as a business agent to assist in determining the eligibility for membership in the local of some 1,000 electricians who for years had been working under temporary permits issued by the local. Apparently the local had been permitting these "permit men" to work for below-union wages. The local had other problems: a number of its officers were suspected of financial improprieties, and some were under investigation by a federal grand jury. On April 16, the president of the international union called a meeting at which Conway and the president of the local, Ed Pierce, were present. Pierce mentioned the hiring of Sullivan, whereupon Conway made the statement that is the core of the complaint.

Three days later, the international placed the Chicago local in trusteeship. Conway was appointed trustee, and promptly...