Civil No. 1:01CV01119
June 5, 2002 MEMORANDUM OPINION
This matter is before the court on Plaintiff's motion to remand pursuant to 28 U.S.C. § 1447. For the following reasons, the court will grant Plaintiff's motion to remand.
Also pending before the court is Defendant Miller Brewing Company's motion to dismiss Plaintiff's action. Because the court will grant Plaintiff's motion to remand, Defendant Miller Brewing Company's motion to dismiss will be denied as moot.
FACTSThe facts as alleged in Plaintiff's Amended Complaint are as follows. Plaintiff Herbert M. Green ("Plaintiff") is a resident of the State of North Carolina. Defendant Dwight Edward Walker ("Defendant Walker") is a resident of the State of North Carolina. Defendant Miller Brewing Company ("Defendant Miller") is a corporation organized and existing under the laws of the State of Wisconsin with its principal place of business outside of North Carolina. At the time of the events alleged in Plaintiff's Amended Complaint, Plaintiff and Defendant Walker were roommates, and Defendant Walker was employed by Defendant Miller. Pursuant to a collective bargaining agreement ("CBA") between Defendant Miller and Defendant Walker (as well as other employees of Defendant Miller), Defendant Walker was entitled to receive free of charge three (3) cases of beer per month while employed by Defendant Miller.
On or about June 3, 2000, Plaintiff and Defendant Walker had an argument. The argument escalated and became violent, ultimately resulting in Defendant Walker shooting Plaintiff with a shotgun. Earlier that day, Defendant Walker had been drinking some of the free beer he received pursuant to the CBA. Defendant Walker allegedly consumed approximately four bottles of beer during a span of seven-to-eight hours immediately preceding the argument between Plaintiff and Defendant Walker.
As a result of these events, Plaintiff filed the present action against Defendant Walker on July 26, 2000, in the North Carolina General Court of Justice, Superior Court Division, Alamance County. On November 14, 2001, Plaintiff amended his Complaint by adding Defendant Miller as a defendant, seeking compensatory and punitive damages from Defendant Miller under state law negligence and gross negligence theories. Plaintiff alleges in his Amended Complaint that Defendant Miller "has a duty to its employees, their families, and innocent third parties not to continue supplying `free beer' to its employees that become alcohol addicts." (Am. Compl. at ¶ 43.) On November 19, 2001, Plaintiff served a Summons and the Amended Complaint on Defendant Miller. On December 19, 2001, Defendant Miller removed to this court pursuant to 28 U.S.C. § 1441, alleging that the court has proper subject matter jurisdiction over Plaintiff's claims by virtue of federal question jurisdiction. Defendant Miller alleges as a basis for federal jurisdiction that Plaintiff's claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Plaintiff now seeks a remand of this action to state court, alleging that removal was improper because Plaintiff's state claims are not preempted and there is no independent basis for federal question jurisdiction over Plaintiff's claims.
Defendant Walker did not join in Defendant Miller's notice of removal. In general, all defendants must join in a removal petition within thirty days after the case becomes removable; failure of all defendants to do so renders the removal petition defective. Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990) (citations omitted). However, the failure of a defendant to join is a waivable non-jurisdictional defect. Id.; see also Marshall v. Skydive Am. S., 903 F. Supp. 1067, 1069 (E.D. Tex. 1995) (citations omitted). Plaintiff has not challenged this defect. Therefore, for the purposes of this motion, the court will treat Plaintiff as having waived the right to complain of this non-jurisdictional defect.
Section 1441 of Title 28 of the United States Code provides for removal of an action originally filed in state court if the action could have been filed in federal court. The text of Section 1441(a) reads:
Except as otherwise expressly provided by Act of Congress, 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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.28 U.S.C. § 1441 (a).
Defendant removed Plaintiff's state action to this court on the premise that the court has federal question jurisdiction over the action by virtue of the doctrine of "complete preemption" under Section 301 of the LMRA. In general, 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 plaintiff's properly pleaded complaint." Caterpillar. Inc. v. Williams, 482 U.S. 386, 392 (1987) (citation omitted). Ordinarily, "a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption." Id. at 393. However, the doctrine of complete preemption is an "independent corollary" to the general rule. Id. It arises in circumstances where "the pre-emptive force of a statute is so `extraordinary' that it `converts an ordinary state common law complaint into one stating a federal claim.'" Id. (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)).
Because "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301," Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985), determining whether a plaintiff's state claim is completely preempted by Section 301 requires an inquiry into whether the state law remedy sought is "independent" of the CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 (1988). Caterpillar instructs the court to focus this inquiry on the face of the complaint to determine the source of the duty allegedly breached by the employer. Caterpillar, 482 U.S. at 399 ("[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.") (citing Cook v. Georgetown Steel Corp., 770 F.2d 1272 (4th Cir. 1985)). This approach does not elevate form over substance, but rather requires preemption if the CBA is found to be the source of the duty allegedly breached. McCormick v. ATT Techs., Inc., 934 F.2d 531, 536 (4th Cir. 1991) ("State tort claims are preempted where reference to a [CBA] is necessary to determine whether a `duty of care' exists or to define `the nature and scope of that duty.'") (quoting IBEW, AFL-CIO v. Hechler, 481 U.S. 851, 862 (1987)). Thus, the court need look no further than Plaintiff's claims against Defendant Miller to ascertain the true source of the duty allegedly breached.
Plaintiff filed his Amended Complaint against Defendant Miller seeking compensatory and punitive damages under state law negligence and gross negligence theories. Plaintiff alleges in his Amended Complaint that Defendant Miller "has a duty to its employees, their families, and innocent third parties not to continue supplying `free beer' to its employees that become alcohol addicts." (Am. Compl. at ¶ 43.) Plaintiff argues that this duty falls within Defendant Miller's general duty to act with ordinary care, a state law duty which exists independent of the CBA. Toone v. Adams, 262 N.C. 403, 409 (1964) ("The law imposes upon every person who enters upon an active course of conduct the positive duty to use ordinary care to protect others from harm. . . . It is immaterial whether the person acts in his own behalf or under contract with another.") (citation omitted)
The court assumes, without deciding, that the general North Carolina state law duty to act with ordinary care encompasses Defendant Miller's alleged duty to discontinue supplying free beer to its employees that become alcohol addicts. Ultimately, a state court must determine whether Defendant Miller's alleged duty exists.
Plaintiff also argues that, as a non-signatory to the CBA, he is not covered by the CBA and cannot make a claim dependent on the CBA. The court assumes for the purposes of deciding this motion that a non-signatory plaintiff is capable of asserting a claim dependent upon the CBA.
Defendant Miller argues that the CBA must be interpreted to determine whether Defendant Miller has any duty to discontinue supplying free beer to its employees who become alcohol addicts. However, the provisions of the CBA cannot give to Miller the right to contract for something that would violate rules of conduct required by state law. Allis-Chalmers, 471 U.S. at 212 ("Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law.") Plaintiff alleges only that Defendant Miller's conduct violates state tort law; consequently, a state court need not interpret the CBA in order to establish whether Defendant Miller's conduct denied Plaintiff the substantive protections provided by North Carolina law.
Plaintiff has not artfully pleaded around what is properly an LMRA claim. Thus, Plaintiff's claims are not preempted by the LMRA. Defendant Miller alleges no other basis for the exercise of jurisdiction over Plaintiff's claims. Accordingly, remand is proper.
For the foregoing reasons, the court will grant Plaintiff's motion to remand and deny Defendant Miller's motion to dismiss.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.