Pruell, et al v. Caritas Christi, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Michael Boudin, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-2262]

Case: 10-2262

Document: 00116232794

Page: 1

Date Filed: 07/14/2011

Entry ID: 5565085

United States Court of Appeals
For the First Circuit
No. 10-2262
ASHLEIGH PRUELL, on behalf of herself and all other employees
similarly situated; AMY GORDON, on behalf of herself and all
other employees similarly situated,
Plaintiffs, Appellants,
v.
CARITAS CHRISTI; CARITAS CHRISTI NETWORK SERVICES; CARITAS GOOD
SAMARITAN MEDICAL CENTER, INC.; CARITAS NORWOOD HOSPITAL, INC.;
CARITAS SOUTHWOOD HOSPITAL, INC.; CARITAS ST. JOHN OF GOD
HOSPITAL, INC.; SAINT ANNE'S HOSPITAL CORPORATION; RALPH DE LA
TORRE, M.D.; RICHARD KROPP; CARITAS CARNEY HOSPITAL, INC.;
CARITAS HOLY FAMILY HOSPITAL, INC.; CARITAS ST. ELIZABETH'S
MEDICAL CENTER OF BOSTON, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Patrick J. Solomon with whom Peter J. Glennon, Guy A. Talia,
Thomas & Solomon LLP and Dwyer & Collora, LLP were on brief for
appellants.
Richard L. Alfred with whom Barry J. Miller, Jessica M.
Schauer, Sarah N. Turner and Seyfarth Shaw LLP were on brief for
appellees.

July 14, 2011

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BOUDIN, Circuit Judge.
Pruell

and

Amy

Massachusetts

Gordon

Superior

filed
Court

Date Filed: 07/14/2011

Entry ID: 5565085

In September 2009, Ashleigh

this

putative

against

named

class

action

hospitals

in

in
the

Caritas Christi hospital network and two of its senior executives
(collectively,

"Caritas").

Pruell

and

Gordon,

employees

of

Caritas, purport to represent a class of over 12,000 Caritas
hospital employees and claim that they and other class members were
deprived of compensation for work performed during their meal
break, for work performed before and after shifts, and for time
spent attending training sessions.
All of the claims asserted in the complaint rest on state
law; they arise under Massachusetts statutes--Massachusetts Payment
of Wages Act, Mass. Gen. Laws ch. 149, § 148; the Massachusetts
Minimum Fair Wages Act, Mass. Gen. Laws ch. 151, §§ 1A and 15--or
its common law: breach of contract or implied contract; money had
and received; quantum meruit/unjust enrichment; fraud; negligent
misrepresentation;

equitable

and

promissory

estoppel;

and

conversion.
Caritas removed the case to federal district court on the
ground that section 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185, debarred plaintiffs' state law claims
and Caritas thereafter moved to dismiss the claims, while Pruell
and Gordon moved to remand the case to state court on the ground
that removal had been improper.

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Section 301 says nothing about

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state claims or removal, but under its aegis the Supreme Court has
built an edifice of doctrine that transmutes certain state law
claims into federal claims, permits their removal on the basis of
federal question doctrine, and in certain instances then allows
their dismissal in federal court.1
The

state

claims

are

so

treated

because

of

their

relationship to collective bargaining agreements ("CBAs") that are
subject to federal labor laws, and section 301 is only one of
several preemption doctrines that the Supreme Court has constructed
to maintain a uniform federal body of law governing labor matters.
In this instance, after a hearing on the cross motions,
the district court in September 2010 granted Caritas' motion to
dismiss, primarily because the court viewed the state claims as
preempted by federal law and denied the motion of Pruell and Gordon
seeking a remand.2

To supply the necessary link to CBAs subject to

federal law, the district court accepted Caritas' allegation that
at least some members of the putative class are represented by
unions under various CBAs and it then concluded that the claims

1

Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451
(1957); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220-21 (1985);
Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390
U.S. 557, 559-60 (1968). See generally 4 N.P. Lareau, National
Labor Relations Act: Law and Practice § 36.06 (2d ed. 2010).
2

Here, twelve of the thirteen counts were dismissed as
preempted; the last count was dismissed because the parties agreed
that section 15 of Mass. Gen. Laws ch. 151 created no private right
of action.
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asserted in the case would be preempted because one or more CBAs
would have to be interpreted in order to determine whether there
had been underpayment of wages and by how much.
Pruell and Gordon now appeal and, the dismissal having
been on legal grounds, our review is de novo.
611 F.3d 50, 53 (1st Cir. 2010).

O'Donnell v. Boggs,

Pruell and Gordon say that their

claims rest on state law independent of, and not preempted by, the
LMRA and that adjudication of the claims requires no interpretation
of any CBA, although calculating damages for union members of the
class

could

require

mechanical

resort

to

one

or

more

CBAs.

Accordingly, their request is for a remand to state court.
Caritas charges plaintiffs' counsel with having filed
copycat complaints, in numerous courts against various hospitals,
all with sketchily inadequate factual allegations.

It says that

the district court properly dismissed the complaint based on
complete

preemption

complaint--what

because

hours

are

CBAs

govern

compensable

and

the
on

target
what

of

the

terms--and

because interpretation of the CBAs would be needed to assess the
merits and (if liability did exist) to calculate damages.
Both sides have slid by the threshold issue.

In a case

of this kind, removal and dismissal based on complete preemption
under the LMRA must start with a plaintiff covered by a CBA for it
is that fact that establishes subject matter jurisdiction in the
federal district court.

Avco Corp. 390 U.S. at 560 (1968).

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If the

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plaintiffs are non-union workers unaffected by any CBA, section 301
and its case law glosses are irrelevant, state law would apply with
full force and, assuming removal were possible, it would have to be
on some other jurisdictional basis such as diversity not here
alleged.
Caritas certainly has contracts with union members-several are in the record--but the parties have left us, and the
district court, in the dark as to whether either of the named
plaintiffs is covered by a CBA.

Both sides think that class

members' status is sufficient: thus, Caritas says that various
class members are union members but does not even expressly allege
that the named plaintiffs are among them. Plaintiffs point to lack
of such an allegation as an objection to removal, adding that in
any event the claims of non-union class members should not have
been dismissed.
Curiously, we have had trouble finding a precedent for a
case like this in which removal under section 301 was sought or
accomplished without some clear indication that a named plaintiff
was an employee covered by a CBA.
other

Massachusetts

hospitals

Several companion cases against

have

been

filed

by

plaintiffs'

counsel, and in each it appears to be colorably alleged that the
named plaintiffs include union members.

Manning v. Boston Med.

Ctr. Corp., No. 09-11724-RWZ, 2011 WL 864798, at *2 (D. Mass. Mar.
10, 2011); Cavallaro v. UMass Mem'l Healthcare, Inc., No. 09-40181-

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FDS, slip op. at 8 (D. Mass. Dec. 20, 2010).

Entry ID: 5565085

This is typical in

cases that are removed under section 301.
But precedent in related fields resolves the question
whether the status of class members matters.

The usual rule in

class actions is that to establish subject matter jurisdiction one
looks only to the named plaintiffs and their claims.

See 5 W.

Moore et al., Moore's Federal Practice § 23.63[1][b] (3d ed. 2011).
This,

with

occasional

modest

qualifications,

is

the

rule

in

determining whether diversity of citizenship exists, whether amount
in controversy is established, whether a plaintiff has standing and
whether the controversy has become moot.3
Indeed, in most respects, the class members other than
the named plaintiffs are merely potential parties until subject
matter jurisdiction for the named plaintiffs is established and the
district court has decided to certify a class.

As one circuit

court explained, "a class action, when filed, includes only the
claims of the named plaintiff or plaintiffs. The claims of unnamed
class members are added to the action later, when the action is
certified as a class under Rule 23."

Gibson, 261 F.3d at 940.

It follows that, as Judge Posner stated, where the
"district court never had jurisdiction over the claim of the class

3

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546
(2005); Snyder v. Harris, 394 U.S. 332, 340 (1969); Gibson v.
Chrysler Corp., 261 F.3d 927, 940 (9th Cir. 2001), cert. denied,
534 U.S. 1104 (2002); O'Shea v. Littleton, 414 U.S. 488, 494
(1974); Bd. of Sch. Comm'rs v. Jacobs, 420 U.S. 128 (1975).
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representative . . . it had no jurisdiction over the class action
either even if the claims of some of the members of the class were
within its jurisdiction."

Denberg v. U.S. R.R. Ret. Bd., 696 F.2d

1193, 1197 (7th Cir. 1983) (en banc), cert. denied, 466 U.S. 926
(1984).

Neither party offers any citations or argument to suggest

that a different rule applies in LMRA preemption cases.
In

the

present

case,

the

district

judge

made

no

determination whether the two named plaintiffs were covered by
CBAs; the defendants presumably could find out but apparently have
not; and the plaintiffs' counsel, who almost certainly know or
could easily determine by asking their clients, remain coy--saying
only that the defendants have failed to allege specifically that
the

named

plaintiffs

are

union

members.

Nor

is

the

answer

otherwise obvious from record documents we have perused.
Accordingly,

the

district

court's

subject

matter

jurisdiction is currently in doubt, the case cannot proceed until
that is established, and resolving that issue should be the first
order of business on remand.

If there is no subject matter

jurisdiction because neither plaintiff is covered by a CBA, then
the case should never have been removed and must be remanded to the
state court.

So long as non-union plaintiffs pursue their own

claims or represent others who are also not covered by CBAs, that
is a state case under state law.

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Strictly speaking, the case could be remanded now to the
state court on the ground that the defendants have not adequately
alleged a basis for removal and that the burden of proof on
jurisdiction lies with the party who removed the case to federal
court.

BIW Deceived v. Local S6, Indus. Union of

Marine &

Shipbuilding Workers, 132 F.3d 824, 831 (1st Cir. 1997).

But, of

course, the named plaintiffs may be union members and the coyness
of plaintiffs' counsel does invite enough suspicion to warrant
limited discovery, Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363
(1st Cir. 2001), if this proves necessary.
Because a CBA might prove to cover one or both of the
named plaintiffs, we might expedite matters by considering now the
district court's rationale for finding state claims by such a
plaintiff to be transmuted into dismissible section 301 claims.
The district court pointed to the need for resort to the CBA to
determine whether underpayments had occurred and by how much.

And

the CBA might also contain arbitration or grievance remedies that,
as yet unexhausted, channel the complaints away from the federal
court.

These concerns are common grounds for refusing to allow a

removed section 301 action to proceed.

See 4 N.P. Lareau, supra

note 1, § 36.06[3].
However, current Supreme Court precedents create some
uncertainties

as

to

when

dismissal

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of

the

removed

action

is

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appropriate,4 although this circuit has developed case law on
certain of these issues, see O'Donnell, 611 F.3d 50; BIW Deceived,
132 F.3d 824; Fleabite v. Pa. Truck Lines, Inc., 131 F.3d 21 (1st
Cir. 1997).

Review of the district court's rationale is thus

unwise, even perhaps inappropriate, unless and until the district
court learns whether any CBA is implicated in claims asserted by
the named plaintiffs and, if so, the precise terms.
The judgment of the district court is vacated and the
matter is remanded for further proceedings consistent with this
decision.

Each side is to bear its own costs.
It is so ordered.

4

Such uncertainties involve, among other things:
what it
means to "interpret," rather than merely "consult," a CBA, compare
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214 (1985) with
Livadas v. Bradshaw, 512 U.S. 107, 124 (1994); whether state law
rights that a court would regard as non-waivable can nevertheless
be preempted, see Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 407 n.7(1988); what posture of the federal claim permits
removal, see Caterpillar Inc. v. Williams, 482 U.S. 386 (1987); and
when a state law claim implicating section 301 should proceed as a
federal claim, or simply be dismissed, see Int'l Bhd. of Elec.
Workers v. Heckler, 481 U.S. 851 (1987).
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