Tyree v. Burlington Northern and Santa Fe Ry. Co.

• Court: U.S. District Court — Western District of Tennessee
• Writing for the Court: McCalla
• Citation: Tyree v. Burlington Northern and Santa Fe Ry. Co., 973 F.Supp. 786 (W.D. Tenn. 1997)
• Decision Date: 30 July 1997
• Docket Number: No. 97-2148-M1/V.,97-2148-M1/V.
• Parties: Jackie Glen TYREE, Plaintiff, v. THE BURLINGTON NORTHERN and SANTA FE RAILWAY COMPANY and Raymond R. Stimart, Defendants.

Page 786

973 F.Supp. 786

Jackie Glen TYREE, Plaintiff, v. THE BURLINGTON NORTHERN and SANTA FE RAILWAY COMPANY and Raymond R. Stimart, Defendants.

No. 97-2148-M1/V.

United States District Court, W.D. Tennessee, Western Division.

July 30, 1997.

Jefferson D. Gilder, Gilder Law Firm, Southaven, MS, for Plaintiff.

Everett B. Gibson, Everett B. Gibson Law Firm, Memphis, TN, Charles W. Shewmake, Burlington Northern Railroad Co., Fort Worth, TX, for Defendants.

ORDER REMANDING CASE TO STATE COURT

McCALLA, District Judge.

Plaintiff, Jackie Glen Tyree, brings this action against his employer, Burlington Northern and Santa Fe Railway Company ("BNSF"), and Raymond S. Stimart, a superintendent at BNSF, for libel, malicious prosecution, and intentional and/or negligent infliction of emotional distress. Before the Court is defendants' motion for summary judgment, filed April 30, 1997. Although the parties have not raised any questions regarding this Court's jurisdiction, the Court is obliged to raise the issue sua sponte whenever it appears that the Court may not have jurisdiction. Philbrook v. Glodgett, 421 U.S. 707, 721, 95 S.Ct. 1893, 1902, 44 L.Ed.2d 525 (1975) ("[W]e have repeatedly held that we must take note of want of jurisdiction in the district court even though neither party has raised the point."); Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir.1992) (holding that "subject-matter jurisdiction may be raised at any time, by any party or even sua sponte by the court itself"). For the reasons set forth below, the Court finds that it does not have jurisdiction over plaintiff's claims and REMANDS the case to the Circuit Court of Tennessee, Thirtieth Judicial District at Memphis, Shelby County, Tennessee.

BACKGROUND

BNSF operates a transportation system by rail with operations in over thirty (30) states and maintains a train terminal in Memphis, Shelby County, Tennessee. BNSF is a carrier as that term is defined in the Railway Labor Act ("RLA"), 45 U.S.C. § 151-188. As part of its operations, BNSF has various collective bargaining agreements with its union represented employees, including a 1980 agreement, commonly referred to as the "Blue Book", with the Brotherhood of Railway and Airline Clerks ("BRAC"), the predecessor to the Transportation Communications Union ("TCU"). Plaintiff is a clerical employee of BNSF and is represented by TCU. The terms and conditions of plaintiff's employment are governed by the Blue Book.

This action grows out of a train derailment that occurred in Memphis, Tennessee, on November 5, 1995. At the time of the derailment, plaintiff was working as the train director. On November 10, 1995, because BNSF was concerned that Tyree's acts or omissions could have played a part in the derailment, Terminal Superintendent Stimart served a Notice of Investigation on plaintiff. A Notice of Investigation is required by the collective bargaining agreement before any discipline can be assessed.

The investigation into plaintiff's conduct was held on December 19, 1995. Subsequently, on December 29, 1995, plaintiff received a ninety (90) day suspension as discipline for his involvement in the derailment. On February 16, 1996, plaintiff's union representative, D.G. Howell, appealed the ninety day suspension, alleging various violations of the collective bargaining agreement. On March 25, 1996, plaintiff's appeal was denied by BNSF. On April 30, 1996, TCU's General Chairman, R.A. Arndt, once again appealed the discipline against plaintiff. On June 14, 1996, BNSF Director of Labor Relations, L.L. Broxterman, denied plaintiff's claim and appeal.

Subsequently, however, plaintiff's claims were settled by removing the ninety day suspension from his personnel record and by compensating him for sixty-eight (68) days lost wages. Specifically, the settlement provided:

In conference it was agreed this claim would be settled on a compromise basis by removing the 90 day suspension from Mr. Tyree's personal [sic] record and by compensating him for 68 days lost wages (including 20 minute penalty lunch for each day) totaling $9,766.50; it being understood that such settlement is made without prejudice to either party's contentions concerning the application of schedule rules, and that the proposal or acceptance thereof will not be referred to as a precedent by either party in any other case under any circumstance.

In addition to its duties under the collective bargaining agreement, BNSF is required by federal law to make certain reports to the Federal Railroad Administration ("FRA"), including reports for accidents or incidents involving rail equipment or rail employees. 49 U.S.C. §§ 20901-20903. Pursuant to 49 C.F.R. § 225.12, BNSF is also required to file an Employee Human Factor Attachment if it attributes any human factor in the accident or incident. The November 5, 1995 derailment at Memphis caused sufficient damage to railroad property that the incident was required to be reported to the FRA. Consequently, in December 1995, as part of BNSF's monthly report of rail accidents/incidents, the Memphis derailment was reported to the FRA. In addition, because it believed that plaintiff was a contributing factor to the derailment, BNSF filed a report pursuant to 49 C.F.R. § 225.12, identifying plaintiff as a contributing factor in the derailment.

Pursuant to the federal regulations, 49 C.F.R. § 225.12, plaintiff was provided with notice of this filing with the FRA and given an opportunity to supplement the record. Apparently, plaintiff never submitted any documents to the FRA.

On February 10, 1997, plaintiff filed this action in state court, alleging causes of action for libel, malicious prosecution, and intentional/negligent infliction of emotional distress. On February 25, 1997, defendants removed this case to this Court on the basis of diversity and federal question jurisdiction.

On April 30, 1997, defendants filed a motion for summary judgment, arguing that plaintiff's claims arise out of either the grievance processes of the RLA or the mandatory system for reporting rail accidents and incidents administered by the FRA, 49 U.S.C. §§ 20901-20903, and are therefore preempted by federal law. On May 28, 1997, plaintiff filed a response, arguing that, pursuant to Hawaiian Airlines v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), plaintiff's causes of action are not preempted by the RLA and that federal law does not prohibit a suit based on statements contained in a FRA report. On May 30, 1997, this matter was heard by the Court at motion call.

REMOVAL JURISDICTION

Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending." In their notice of removal, defendants assert that removal is proper because this Court has original jurisdiction on two grounds. First, defendants argue that this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) (diversity jurisdiction) because the matter in controversy allegedly exceeds the sum of $75,000, exclusive of interest and cost, and is between citizens of different states. Alternatively, defendants argue that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) because this cause of action is governed by both the RLA, 45 U.S.C. §§ 151-188, and the mandatory reporting procedures of 49 U.S.C. §§ 20901-20903.

Defendants' reliance on diversity jurisdiction as a basis for removal is misplaced. Although the language of § 1441(a) appears to make removal jurisdiction coextensive with the original jurisdiction of the federal courts, it is well settled that removal jurisdiction is not as extensive as original jurisdiction. For example, a case cannot be removed on the basis of diversity jurisdiction if any one of the defendants in the action is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b); see also 28 U.S.C. § 1445 (setting forth nonremovable actions). In their notice of removal, defendants assert that defendant Stimart is a citizen of the State of Tennessee. Accordingly, by the plain language of § 1441(b), defendants are precluded from relying on 28 U.S.C. § 1332(a) as a basis for removal.

The ability of a defendant to remove an action is further limited by the well-pleaded complaint rule. Under this rule, in order to base removal jurisdiction on § 1331, the federal claim(s) must appear on the face of the complaint. Gully v. First Nat'l Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). As a general rule, therefore, the assertion of a federal defense, including preemption, does not provide a sufficient basis for removal. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 2846-47, 77 L.Ed.2d 420 (1983). The Supreme Court, however, has established an exception to the well-pleaded complaint rule, known as the "complete preemption" doctrine. Caterpillar Inc. v. Williams, 482 U.S. 386, 393-94, 107 S.Ct. 2425, 2430-31, 96 L.Ed.2d 318 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-47, 95 L.Ed.2d 55 (1987); Franchise Tax Bd., 463 U.S. at 22-26, 103 S.Ct. at 2852-55; Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968).¹ Under this doctrine, "if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. at 2854; accord Taylor, 481 U.S. at 63-64, 107 S.Ct. at 1546 (holding that "Congress may so completely pre-empt a particular area...