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noting that defamation claims are typically preempted when the claim is about the employee's conduct in a disciplinary action under a collective bargaining agreement or when the alleged conduct occurred in the context of an arbitration proceeding
Summary of this case from Vilma v. GoodellOpinion
Civil Action No. 00-2876 Section "K"(5)
March 20, 2001
ORDER AND REASONS
Before the Court are two motions, (1) defendant Lockheed Martin's motion to sever the claims of plaintiff Trena Weber from the claims of plaintiff Felicia McDougle (doc. 4), and (2) plaintiffs' motion to remand (doc. 8). The motion to sever was set for hearing on October 11, 2000 and the motion to remand was set for hearing on November 22 and each was taken on the papers without oral argument. The Court has considered the pleadings, memoranda and relevant law is finds that both motions have merit and shall be granted.
I. Background
Plaintiffs filed suit in Civil District Court for Orleans Parish on July 17, 2000. Plaintiffs allege that they were "discriminatorily terminated from their employment by [Lockheed] based on their race (African-American), their gender (female), and . . . a combination of their gender plus race, in violation of Louisiana's Discrimination in Employment Statutes . . . and . . . anti-retaliation in employment statutes which prohibit reprisal in employment for protesting protected activities." Plaintiff Weber brought a claim against defendant Dr. Lawrence McManus for defamation under Louisiana law.
Defendants were served in September. Lockheed Martin removed the suit to this court September 26, 2000. Plaintiffs now seek remand of their suit on the ground that they have alleged only state law causes of action over which this court has no jurisdiction.
McDougle alleges that she was subjected to sexual harassment and mistreatment by her male supervisors and male peers for almost one year prior to her discharge. She claims that she was disciplined and ultimately terminated for making complaints about the harassment.
Weber's complaint against Lockheed alleges that for six months prior to her termination she was subjected to harassment and stricter scrutiny of her job performance than whites and males. She alleges that as a result of this harassment, she suffered debilitating stress requiring her to leave her job. She claims that she was medically approved for leave both by her own physician and defendant Dr. McManus, the on-site company doctor. She claims that she was suspended from her job and a week later discharged for the pretextual reason that she had violated policies affecting her approved medical status by taking a cruise while on medical leave.
Weber's claim against Dr. McManus is that he maliciously told her personal physician and Lockheed that she was "scamming." She claims that as a result of his defamatory statements she was injured in her personal reputation and was discharged from her job.
II. Motion to Sever
Rule 21 of the Federal Rules of Civil Procedure provides that "[m]isjoinder of parties is not ground for dismissal of an action." Fed.R.Civ.P. 21. However, the rule does provide a remedy for misjoinder in that "[a]ny claim against a party may be severed and proceeded with separately." Id. The district court has broad discretion to sever improperly joined parties. Anderson v. Red River Waterway Co., 231 F.3d 211, 214 (5th Cir. 2000) (citing Brunet v. United Gas Pipeline, 15 F.3d 500, 505 (5th Cir. 1994)). In deciding whether parties are properly joined, the Court turns to Rule 20, which provides that, "persons may join in one action as plaintiffs if they assert any right to relief jointly, severally or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law or fact common to all these persons will arise in the action." Fed.R.Civ.P. 20(a). Thus, permissive joinder is proper when "(1) [the] right to relief arose `out of the same transaction, occurrence, or series of transactions or occurrences, and (2) . . . there is a question of law or fact common to all of the plaintiffs that will arise in the action." Porter v. Milliken Michaels, Inc., 2000 WL 1059849 at *1 (E.D. La. 2000) (citations omitted). "Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a)." Wright, Miller Kane, Federal Practice Procedure, § 1653 (1986). Thus, to determine whether the two prong test of Rule 20 is satisfied, "the Courts should consider such things as whether there is a logical relationship between the claims, and whether there is any overlapping proof or legal question." Little v. Bellsouth Telecommunications, 1995 WL 468256 at * 1 (E.D. La 1995); See also Alexander v. Fulton County, 207 F.3d 1303 (11th Cir. 2000).
That being said, "[t]he transaction and common question requirements prescribed by Rule 20(a) are not rigid tests." Wright, Miller Kane,Federal Practice Procedure, § 1653 (1986). "They are flexible concepts used by the courts to implement the purpose of Rule 20 and therefore are to be read as broadly as possible whenever doing so is likely to promote judicial economy." Id. In this case, judicial economy would be best served through a severance of parties. As to the transaction requirement, neither plaintiff alleges any overlapping facts or activities. Although the factual allegations in the petition are sparse, there is no allegation that the alleged discriminatory actions were carried out by common actors, at a common time or with any common tactics. The firings took place several months apart as a result of completely different activities. To try plaintiffs' cases together would require development of proof of two discrete universes of facts, which would be highly inefficient. The law common to each plaintiff against defendant Lockheed, according to the petition, is Louisiana employment discrimination law. Additionally, Ms. Weber asserts a defamation claim against Dr. McManus. Although plaintiffs' share a common legal theory against defendant Lockheed, the absence of any common issues of fact outweighs each plaintiffs reliance on similar law. Moreover, Weber asserts a defamation theory unique to her case that also impacts the discrimination case, which is not present in McDougle's case. In this particular case, any overlap of law is outweighed by the potential uniqueness of each plaintiffs factual allegations. As the Court finds that the joinder in this instance fails to satisfy either prong under Rule 20, the parties must be severed. Accordingly, the Court will consider the motion to remand separately with respect to each plaintiff.
III. Motion to Remand
A. Plaintiff McDougle
There is no dispute as to state law nature of McDougle's claim, therefore the Court shall interpret her motion to remand in the context of diversity of citizenship. Accordingly, to grant plaintiffs motion, this Court must find that an absence of true diversity of citizenship or find that the jurisdictional amount is not satisfied. In this matter, there is diversity of citizenship between McDougle and Lockheed, but McDougle disputes that the $75,000 jurisdictional amount is satisfied. McDougle claims damages as follows: loss of income based on her former and current income; three weeks of lost income for no employment; emotional distress for one year; and attorney fees and costs. She alleged in the complaint that her claims are less than the requisite amount to warrant a jury trial under Louisiana law ($50,000).
A defendant may generally remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
Louisiana law prohibits the plaintiff from pleading a specific amount of monetary damages. See La. Code Civ. Proc. art. 893. When the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pled; the defendant must submit "summary judgment type evidence" to establish that the actual amount in controversy exceeds $75,000. See De Aguilar 47 F.3d at 1412. Once a defendant shows that the amount in controversy exceeds $75,000, the burden shifts to the plaintiff to show with legal certainty that she will not be able to recover more than the amount claimed in the state court complaint. See id. at 1411-12.
In Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559, 566 (5th Cir. 1993), the Fifth Circuit identified the following circumstances in which the removing party fails to satisfy its burden of showing that removal is appropriate:
(1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above [$75,000];
(2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiffs claims; and (3) the plaintiff timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.Id. at 566.
In this case, circumstances 1 and 2 exist. There is no specific or apparent amount in controversy from the face of the complaint. In the Notice of Removal, Lockheed conclusorily states that "it is reasonable to assume that the matter in controversy exceeds, exclusive of interest and costs, the sum of $75,000.00." The third circumstance is not satisfied because the present record contains no affidavit of McDougle.
In any event, Lockheed has failed to satisfy its burden of proving by a preponderance of the evidence that the amount in controversy on McDougle's claim exceeds $75,000. Lockheed submitted evidence that McDougle's annual wages for 1999 were $18,465. Three weeks of pay at an annual wage rate of $18,465 is approximately $1,000. The amount of the lost income based on the difference between McDougle's former wages and her present wages is not addressed by Lockheed in argument or evidence. Lockheed argues that McDougle is entitled under the CBA to an "estimate" of between $15,000 and $20,000 for "overtime pay, holiday pay, vacation, wage increases, Automatic Progression increases, Cost of Living increases, insurance and retirement benefits calculated based upon hours worked." Lockheed submitted no evidence to show how it calculated these amounts, what period of time the estimate covers, or that McDougle had received such benefits in the past. Moreover, McDougle has not asserted a claim for lost benefits, and it is not clear that they would be included in her claim for lost income.
In reference to McDougle's emotional distress claim, Lockheed offered two Louisiana opinions where the plaintiffs received a general damage award of $85,000 and $100,000. However, in this case, the nature of the sexual harassment is unknown; the degree of emotional distress suffered in unknown; there is no evidence of any medical treatment; and no physical injuries have been alleged. Lockheed also argues that attorneys fees must be considered in the equation. Attorneys' fees are considered when determining the amount in controversy. See Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1990). Lockheed cited Alphonse where attorney fees of $16,500 were awarded in an employment discrimination case. In that case, the matter was litigated all the way through trial. In this case, where plaintiff has sued for less than $50,000, the Court does not find that plaintiffs attorney fees will raise her claim above the jurisdictional amount.
Alphonse v. Omni Hotels Mgmt, 643 So.2d 836 (La.App. 4th Cir. 1994).
La Bove v. Raftery, 759 So.2d 240 (La.App. 3d Cir. 2000).
Lockheed's evidence falls short of proving by a preponderance of the evidence that McDougle's claim will satisfy the $75,000 amount. Therefore, this court lacks diversity jurisdiction over McDougle's claims, and her claims must be remanded.
B. Plaintiff Weber
Weber asserted only state law causes of action in her petition. Lockheed seeks to establish federal jurisdiction under either diversity jurisdiction based on fraudulent joinder or federal question jurisdiction based on federal preemption. The Court will first analyze Lockheed's diversity claim and then will move on to the federal question issue.
Weber claims damages as follows: loss of income from Aug. 25, 1999 through May, 2000; the difference between her former and current income; loss of benefits; emotional distress for one year, and attorney fees and costs. She alleges that the amount in controversy is insufficient to warrant a jury trial under Louisiana law ($50,000). She submitted an affidavit with her motion to remand stating that her damages "are not $75,000 excluding costs and interest."
It is the presence of diversity-destroying in-state defendant Dr. McManus, who, if properly included in the action, prevents removal under diversity jurisdiction. Thus, Lockheed seeks to have the claim against Dr. McManus' dismissed under a fraudulent joinder theory. Although the argument is not clearly made, it appears that Lockheed's argument for diversity jurisdiction over Weber's claims is that since Dr. McManus is fraudulently joined, then he should be dismissed, and his presence in the lawsuit is ignored for purposes of determining diversity of citizenship between Weber and Lockheed at the time of removal. However, Lockheed does not argue the law of fraudulent joinder, i.e., that plaintiff has no possible cause of action against Dr. McManus under state law. Instead, Lockheed contends that Weber's state law defamation claim against Dr. McManus is fraudulent because it is preempted under the LMRA, 29 U.S.C. § 185 (a). That is an incorrect legal analysis. Fraudulent joinder and federal preemption are distinct concepts with distinct legal analyses.
Although Lockheed did not argue the applicable law of fraudulent joinder, the Court nevertheless considers whether Dr. McManus was fraudulently joined.
In Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992), the standard for evaluating a fraudulent joinder claim was summarized as follows:
Where charges of fraudulent joinder are used to establish [federal] jurisdiction, the removing party has the burden of proving the claimed fraud. . . . To prove their allegation of fraudulent joinder [removing parties] must demonstrate that there is no possibility that [plaintiff] would be able to establish a cause of action against them in state court.Id. at 42. Thus, the Court will determine whether plaintiff can establish a cause of action against Dr. McManus under Louisiana law.
To bring a Louisiana cause of action for defamation "plaintiff must prove that the defendant (1) maliciously (2) published (3) a defamatory message that (4) was false and (5) caused injury." Estiverne v. Louisiana State Bar Assoc., 863 F.2d 371, 374 (5th Cir. 1989). Failure to prove any element invalidates a defamation claim under Louisiana law. Id. The publication element "does not require that the defamatory comment be published to the general public, but is satisfied by communication to a person other than the one defamed." Commercial Union Is. Co. v. Melikyan, 424 So.2d 1114 (La.App. 1st Cir. 1982). Under Louisiana law, communication between officers and agents of the same corporation, and in relation to their duties for the corporation cannot be construed as communication to a third party for purposes of establishing the "publication" element of a defamation action. Id.
Thus, on the present record, the court does not find that Weber has no possible cause of action against Dr. McManus in state court. As a result, Dr. McManus is not a fraudulently joined party to this lawsuit. Consequently, the court cannot find that diversity jurisdiction exists at the time of removal.
Moreover, the record does not establish the requisite jurisdictional amount. Weber did not request a jury, she specifically stated in her complaint that her damages were less than the requisite $50,000 for a jury under Louisiana law, she submitted an affidavit with her motion to remand stating that her claims were for less than the $75,000 jurisdictional amount. Weber claims lost income for less than one year (her annual wages were $25,807), unspecified differences in income losses thereafter, loss of benefits, emotional distress and attorney fees. Lockheed has not shown by a preponderance of the evidence that her claims satisfy the jurisdictional amount. See foregoing analysis of jurisdictional amount on McDougle's claim.
Absent diversity of citizenship, federal question jurisdiction is required. Lockheed's argument for federal question jurisdiction is that federal law preempts the state tort claim of defamation. Weber was at all relevant times a member of UAW Local 1921. The CBA governed her relationship with her employer Lockheed. Weber's right to a leave of absence was governed by the CBA. Article VI, Section 7, subsections (a) and (c) of the CBA provide that:
a. Requests and extensions for leaves of absence must be made in writing to the Employee/Labor relations Office supported by medical diagnostic statements from a doctor, where applicable . . .
b. Leaves of absence shall be subject to verification by the Company. Any leave of absence obtained through false pretenses shall be invalid and the employee's absence shall be recorded as unauthorized. Such fraudulent absence shall be considered as cause for disciplinary action up to and including discharge, as warranted.
After Dr. McManus communicated with Weber's doctor and Lockheed about her leave of absence, Lockheed terminated her for violation of the UAW contract Article VI, Section 7C-obtaining leave of absence under false pretenses.
Federal question jurisdiction arises when a plaintiff sets forth allegations "founded on a claim or right arising under the Constitution, treaties or laws of the United States." See 28 U.S.C. S 1441(b), § 1331. "The presence or absence of federal question jurisdiction is governed by the "well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The plaintiff is the "master of the claim" and may avoid federal jurisdiction by "exclusive reliance on state law." Id. Such is the case here. Weber alleges only state law causes of action in her complaint.
A defendant may not remove a civil action on the basis of a defense of federal preemption, even if the defense is anticipated in the complaint, and even if preemption is the only issue in the case. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2425. There exists however, a class of cases where the preemptive force of a statute is so "extraordinary" that any claim based on preempted state law is considered a claim arising under federal law. The application of complete preemption "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). "Once an area of state law has been completely preempted, any claim purportedly based on that pre-empted state law is considered from its inception, a federal claim, and therefore, arises under federal law." Caterpillar, 482 U.S. at 393, 107 S.Ct at 2425. Accordingly, if the plaintiffs state law claim is preempted by § 301 of the LMRA, the action may be removed to federal court even though the plaintiffs complaint does not include a federal cause of action. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 258-64, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).
Complete preemption applies to cases raising claims preempted by the Labor Relations Management Act. Section 301 is meant to provide "uniformity and predictability" in labor contract disputes through uniform federal interpretation. Id. at 211, 105 S.Ct. at 1911. According to the Supreme Court, preemption occurs only when resolution of a state law claim depends upon the meaning of the collective bargaining agreement, Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), or when resolution of the state law claim is "inextricably intertwined with consideration of the terms of the labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). "[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement," the claim is preempted by federal labor contract law. Id. at 220, 105 S.Ct. at 1916. However, "the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished."Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). The Court in Lingle also recognized that "purely factual questions" about an employee's conduct or an employer's conduct and motives do not "require a court to interpret any term of a collective bargaining agreement." Lingle, at 407, 108 S.Ct. 1877.
Section 301 of the LMRA states that "Suits for violation of contracts between an employer and a labor organization representing employees . . . may be brought in any district court of the United States having jurisdiction of the parties." 29 U.S.C. § 185 (a).
In determining whether resolution of Weber's defamation claim requires interpretation of the CBA, the court must look to the elements of the defamation claim under Louisiana state law and the allegations of the complaint. See e.g., Lightning v. Roadway Express. Inc., 60 F.3d 1551, 1557 (11th Cir. 1995). First the district court must examine whether proof of the state law claim will require interpretation of the CBA terms. Second, the court must determine whether the right claimed by the plaintiff is created by the collective bargaining agreement or state law. If neither, or only one criterion is satisfied, then section 301 preemption is warranted.
Typically, there is preemption of a defamation claim where the claim challenges the propriety of the employer's conduct in connection with disciplinary actions under the collective bargaining agreement, where an employer's conduct was allegedly in accordance with its rights and obligations under the CBA, or where the defamatory conduct was alleged to have occurred in the context of a grievance or arbitration proceeding.See Monsour v. Delco Remy, 851 F. Supp. 245, 246 (S.D. Miss. 1994) (and cases cited therein); Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir. 1992) (plaintiff claimed that employer defamed him by suspending him and having him, escorted from the employer's property); Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir. 1985) (where alleged defamation occurred in connection with disciplinary action under the CBA and CBA provided grievance and arbitration procedures); Chube v. Exxon Chem. Americas, 760 F. Supp. 557 (M.D. La. 1991) (where defamation claim arose from conduct covered by the CBA and would turn on whether termination was justified according to terms of CBA); Merchant v. Communications Workers of America 1993 WL 475480 (E.D. La. Nov. 4, 1993) (defamation claim preempted where CBA must be interpreted to determine whether defendant's actions were in relation to his duties under the CBA); Collins v. Bradley, 962 F. Supp. 854 (M.D. La. 1996) (defamation claim preempted where resolution of claim required interpretation of CBA); Jackson v. United Parcel Serv., 1990 WL 182330 (E.D. La. Nov. 19, 1990) (Heebe, J.) (preemption where alleged defamation occurred during a grievance hearing authorized by CBA, defendants actions were covered by the CBA, and resolution of state law claims would require interpretation of collective bargaining agreement). However, where interpretation of a CBA is not required, courts do not find preemption. See Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313 (5th Cir. 1995) (finding no preemption of state law defamation claim where plaintiff was placed on restrictive work leave for positive drug testing, because the claim did not require interpretation of the CBA, even though the CBA governed plaintiffs employment and included a substance abuse policy); Monsour v. Delco Remy, Plant 25, 851 F. Supp. 245 (S.D. Miss. 1994) (defamation claim not preempted where plaintiff was not threatened with any disciplinary action, did not allege any violation of the CBA, and did not implicate any rights of plaintiff or employer under the CBA); Messina v. Tri-Gas Inc., 816 F. Supp. 1163 (S.D. Tex. 1993) (defamation claim not preempted where the allegedly defamatory statement was in a written notice of termination which was disseminated throughout the trucking industry, but was not required or covered by the terms of the CBA).
In Messina, the court recognized a distinction between determining whether an allegedly defamatory statement was true, versus determining whether a termination is just. In the latter situation, the court recognized that an analysis of the CBA would be required; whereas, determining whether a statement was true or not would not require any consideration of the CBA. The court also recognized that dissemination of the letter throughout the trucking industry was an action that was not required by the CBA or its disciplinary procedures. "Because the CBA at issue neither required written notice of termination nor specified to whom notice of termination was to be disseminated, the resolution of Messina's defamation claim, that false statements in the termination letter were disseminated throughout the trucking industry, is not preempted by § 301 of the LMRA because it is not substantially dependent on an analysis or interpretation of the CBA." Messina, 816 F. Supp. at 1169.
Lockheed contends that the alleged defamation occurred while Dr. McManus was acting in accordance with the provisions of the CBA, and that the court must "interpret" the CBA to resolve the claim, and therefore, it is preempted. Lockheed further argues that Weber's right to a leave of absence, Dr. McManus' right to conduct an investigation and to report to Lockheed, whether Dr. McManus' actions are privileged, and Lockheed's right to terminate Weber were all covered by the CBA, and therefore, it must be reviewed to resolve her defamation claim.
The defamation claim arises from the manner in which Dr. McManus conducted his investigation of suspected employee fraud. An analysis of whether Dr. McManus defamed Weber will inevitably require the court to refer to the CBA's provisions for obtaining verification of a leave of absence and supporting medical diagnostic statements from a doctor. The CBA will not necessarily govern the comments Dr. McManus allegedly made to Weber's personal physician because they arguably were not authorized by the CBA.
The Court finds that resolution of this matter merely requires a consultation of the CBA such that the claim is not "substantially dependent" upon analysis of the CBA. The defamation claim in the matter before this Court is factually distinguishable from those cases where defamation claims arising from disciplinary actions are preempted. Indeed, Plaintiffs defamation cause of action is directed solely to Dr. McManus for statements he made to a party not bound by the CBA before the disciplinary process had commenced. See Petition at ¶ VI. Weber's factual support for that allegation is that Dr. McManus allegedly told her physician that she was "scamming" and misrepresenting her medical status in order to get an extended medical leave of absence. See Petition at ¶ XVII. What plaintiffs defamation case requires is a finding of a maliciously published defamatory message that was false and caused injury. See Estiverne at 374. In other words, the defamation case simply requires a factual finding, and does not require an interpretation of the collective bargaining agreement, which merely provides that leave of absences shall be subject to verification and that a fraudulent absence may lead to termination. That the facts surrounding the termination and the alleged defamation may overlap does not automatically lead to preemption of the defamation claims. The Court in Lingle reasoned that "even if a dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is "independent" of the agreement for § 301 preemption purposes."Linder, 486 U.S. at 409-10, 108 S.Ct. at 1883. In this case, Weber does not allege defamation based upon the mere fact that Dr. McManus called her treating physician in accordance with the provisions of the CBA. Nor does she allege that McManus defamed her simply by voicing his opinion to Lockheed. What she does allege is that Dr. McManus acted with malice when knowingly made a false statement about plaintiffs medical condition. See Petition at ¶ XVII. Thus, the state law claim involves more than Dr. McManus' actions under the agreement. As stated above, the resolution of the defamation claim depends on factual disputes regarding, among other things, the truth of Dr. McManus' statement, and the malice involved in making the statement. Whether Ms. Weber was "scamming" or misleading her personal physician are factual findings that must be made independent of the CBA. In other words, "the issue is not whether the defendants' termination of [plaintiff] was just in terms of the CBA, but whether [Dr. McManus'] allegedly defamatory statements were true." Messina at 1168. As such, the defamation claims "are not preempted by the LMRA because they do not require an interpretation of the collective bargaining agreement for resolution." See Willis v. Roche Biomedical Laboratories, 61 F.3d 313, 314 (5th Cir. 1995). Unlike the case where an act "unquestionably taken in accordance with the provisions of the CBA [are alleged to be] tortious . . . and . . . obviously require[s] an interpretation of the CBA", Bagby at 921, in this case the veracity and scienter with respect to Dr. McManus' statements do not require an interpretation of the CBA. Since the state law defamation claims levied against Dr. McManus do not involve an interpretation of the Collective Bargaining Agreement, this Court has no federal question jurisdiction with respect to Ms. Weber's claims and must remand her action as well. Accordingly,
IT IS ORDERED that defendant's motion is GRANTED and the parties claims are SEVERED.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. 1447(c). that plaintiffs motion to remand is GRANTED and this matter is ordered REMANDED to the Civil District Court for the Parish of Orleans.