CEFARRATI v. JBG PROPERTIES, INC. et al

Filing 15

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on November 6, 2014. (lcegs2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
RAYMOND CEFARRATI,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 14-408 (EGS)
)
JBG PROPERTIES, INC., and
)
POTOMAC CREEK ASSOCIATES, LLC, )
)
Defendants.
)
________________________________)
MEMORANDUM OPINION
Raymond Cefarrati brings this lawsuit alleging that defendants
JBG Properties, Inc. (“JBG”) and Potomac Creek Associates, LLC
(“Potomac Creek”) were unjustly enriched when he performed work
beyond the scope of his job duties as Chief Engineer on a
property-development project. Pending before the Court is
plaintiff’s motion to remand the case to the Superior Court of
the District of Columbia and the defendants’ motion to dismiss.
Upon consideration of the motions, the responses and replies
thereto, the applicable law, and the entire record, the Court
DENIES plaintiff’s motion to remand and GRANTS defendants’
motion to dismiss.
I.

Background
A.

Factual Background

Mr. Cefarrati was employed by JBG as the Chief Engineer on a
project to redevelop property in the Southwest quadrant of the

District of Columbia until his resignation on July 5, 2013.
Compl. ¶¶ 2, 3, 5. The property—to be redeveloped as the
L’Enfant Plaza Complex—was owned by Potomac Creek, a wholly
owned subsidiary of JBG. Id. ¶ 3. A collective-bargaining
agreement (“the CBA”) between JBG and the International Union of
Operating Engineers Local 99-99A, AFL-CIO was in force during
the duration of Mr. Cefarrati’s employment. Id. ¶ 6; see CBA,
ECF No. 4-1.
1.

The Collective Bargaining Agreement.1

Section 1.5 of the CBA sets the scope of employment for the
Union’s members:
The jurisdiction of the Union shall extend over and
include the operation, maintenance and repair of the
following whenever such operation, maintenance or
repair comes under the Employer’s property management
responsibility: (a) All boilers, their accessories
and appurtenances. (b) All fired or unfired pressure
vessels and vacuum systems. (c) All refrigeration and
air-conditioning
machinery
and
their
associated
equipment including maintenance and repair of cold
storage spaces. (d) All plumbing and piping including
water, gas, heating, steam and sanitation systems.
(e) All electrical appliances and fixtures including
1

Although Mr. Cefarrati did not attach a copy of the CBA to his
Complaint, he refers to it throughout his Complaint, Compl. ¶¶
6–8, and the defendants attached a copy to their motion to
dismiss. See CBA, ECF No. 4-1. The Court considers the CBA in
adjudicating the pending motions because: (1) the Court “may . .
. consider material outside of the pleadings in its effort to
determine whether it has jurisdiction,” Buaiz v. United States,
471 F. Supp. 2d 129, 134 (D.D.C. 2007) (quotation marks and
alteration omitted), and (2) the Complaint “necessarily relies”
on the CBA by “quot[ing] from and discuss[ing] it extensively.”
W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C.
2013).
2

lamping. (f) All emergency power equipment. (g) All
electric motors, generators, circuits and switchgear.
(h) All machinery and equipment used in the
production and for the health and comfort of the
Employer’s business and personnel. (i) Any and all
equipment
under
the
supervision
of
the
Chief
Engineer.
CBA, ECF No. 4-1 § 1.5.
The Chief Engineer has “complete charge of all employees at a
given location covered under this collective bargaining unit.”
Id. § 1.6(a); see also id. § 4.2 (the “Chief Engineer shall have
charge of and be responsible directly to his/her Employer or
designated assistant only for the proper installation,
operation, care, maintenance, and repairs to the plant and all
additions thereto”). The Chief Engineer is also responsible for
issuing “orders and instructions for engine room, boiler room,
mechanical repairs and maintenance work” and for “hir[ing] and
discharg[ing] all other help covered by [the CBA].” Id. § 4.1.
The CBA also contains provisions regarding its own scope. It
provides that “[t]he Employer shall not enter into any agreement
with any employee covered by this Agreement, the terms of which
conflict with the terms of this Agreement.” Id. § 4.5. The CBA
also “embodies the entire Agreement between the Employer and the
Union . . . . No provision shall be construed in any manner so
as to restrict the Employer from the complete operation and
management of his/her business and plants or in the direction of
the working forces.” Id. § 4.15.

3

Finally, the Agreement specifies the procedures for addressing
any grievances that may arise. See id. §§ 6.2, 6.3. First,
“[a]ll grievances shall be presented in writing to Human
Resources as soon as practical after the occurrence.” Id. § 6.2.
Step 1 of the grievance process entails a “meeting . . . between
the Employer’s Representative(s) and the Shop Steward.” Id. A
“written reply to the grievance” is then produced by the
Employer. Id. “If this reply is unsatisfactory, the Shop Steward
may appeal the decision to Step 2.” Id. Step 2 consists of “[a]
meeting . . . between the Employer’s Representative(s) and the
Business Representative or a designated representative of the
Union.” Id. Afterwards, “[t]he Employer shall make a reply to
the Union in writing.” Id. If these steps are unsuccessful,
“either party may . . . refer the matter to binding
arbitration.” Id. § 6.3.
2.

Mr. Cefarrati’s Allegations.

Mr. Cefarrati alleges that he engaged in “activities [that]
were beyond the scope of [his] job as Chief Operating Engineer
and constituted a de facto new job.” Compl. ¶ 10; see also id. ¶
15 (“Plaintiff’s activities were in excess of, and different in
kind from, his job as Chief Operating Engineer and required
hundreds of hours of work in addition to his service as Chief
Operating Engineer.”). Such activities included “attend[ing]
numerous meetings with parties involved in the demolition,

4

redevelopment and renovation work”; “escort[ing] interested
parties through the existing Complex to help them understand the
‘as built’ condition of the premises”; “inspect[ing] finished
work”; and “undert[aking] numerous other activities to ensure
that the redevelopment and renovation of the Complex went
smoothly.” Id. Mr. Cefarrati further alleges that these
activities substantially benefited the defendants. See id. ¶¶
11–14. In sum, Mr. Cefarrati claims, “[d]efendants saved many
thousands of dollars they would have spent in attempting suboptimal, and upon occasion, infeasible approaches to the
redevelopment and renovation.” Id. ¶ 16.
In light of this work allegedly performed beyond the scope of
his employment, Mr. Cefarrati “informed Defendants that he
believed he was being required to perform work that was in
excess of, and different in kind from, his duties as Chief
Operating Engineer and that fairness required that he receive
appropriate compensation” for this additional work. Id. ¶ 17.
The defendants “failed to provide such compensation,” id., and
Mr. Cefarrati did not press the complaint any further.
B.

Procedural Background

Mr. Cefarrati filed suit for unjust enrichment in the Superior
Court of the District of Columbia on February 25, 2014.
Defendants removed the case to this Court on March 14, 2014. See
Notice of Removal, ECF No. 1. That same day, they moved to

5

dismiss the case, arguing that plaintiff’s claims for unjust
enrichment are preempted by Section 301 of the Labor-Management
Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a). See Mot. to
Dismiss, ECF No. 4 at 8. Defendants further argue that
plaintiff’s claims should be dismissed because Mr. Cefarrati
failed to exhaust the CBA-mandated grievance and arbitration
procedures and, alternatively, because the claims are barred by
the statute of limitations. See id. at 14, 16.
Mr. Cefarrati moved to remand the case to the Superior Court
on March 21, 2014, arguing that there is no federal-question
jurisdiction over his claims. See Mot. to Remand, ECF No. 5 at
3. Plaintiff filed his opposition to the Motion to Dismiss on
April 16, 2014. See Opp. to Mot. to Dismiss, ECF No. 10. The
defendants filed their combined opposition to the motion to
remand and reply in support of their motion to dismiss on April
30, 2014. See Opp. to Mot. to Remand, ECF No. 11. Mr. Cefarrati
filed his reply in support of his motion to remand on May 11,
2014. See Reply in Supp. of Mot. to Remand, ECF No. 13. The
motions are now ripe for adjudication.
II.
A.

Standard of Review
Motion to Remand

The right to remove cases from state to federal court is
derived from 28 U.S.C. § 1441. Int’l Union of Bricklayers &
Allied Craftworkers v. Ins. Co. of the W., 366 F. Supp. 2d 33,

6

36 (D.D.C. 2005). “The party opposing a motion to remand bears
the burden of establishing that subject matter jurisdiction
exists in federal court.” Id. Further, “‘the removal statute is
to be strictly construed.’” Id. (quoting Kopff v. World Research
Grp., LLC, 298 F. Supp. 2d 50, 54 (D.D.C. 2003)). Consequently,
“the court must resolve any ambiguities concerning the propriety
of removal in favor of remand.” Johnson-Brown v. 2200 M St. LLC,
257 F. Supp. 2d 175, 177 (D.D.C. 2003).
Defendants may only remove state-court actions that originally
could have been filed in federal court. 28 U.S.C. § 1441(a);
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Absent
diversity of citizenship, federal-question jurisdiction is
required to establish that the case could have originally been
filed in federal court. Caterpillar, 482 U.S. at 392.
B.

Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation marks and alteration omitted). While detailed
factual allegations are not necessary, a plaintiff must plead

7

enough facts “to raise a right to relief above the speculative
level.” Id.
When ruling on a Rule 12(b)(6) motion, the court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court must not
accept inferences that are “unsupported by the facts set out in
the complaint.” Id. “Nor must the court accept legal conclusions
cast in the form of factual allegations.” Id. “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. Analysis
A.

Motion to Remand
1.

Complete Preemption and the Well-Pleaded Complaint
Rule.

Federal-question jurisdiction exists over “all civil actions
arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. In deciding whether an action arises
under federal law, the “well-pleaded complaint rule” dictates

8

that a case is removable only if the plaintiff’s cause of action
raises a federal question on its face. Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983). “It is
now settled law that a case may not be removed to federal court
on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s
complaint, and even if both parties concede that the federal
defense is the only question truly at issue.” Caterpillar, 482
U.S. at 393.
There is a limited exception to this rule, however. When the
preemptive force of a federal statute is strong enough, “a claim
which comes within the scope of that cause of action, even if
pleaded in terms of state law, is in reality based on federal
law.” Bricklayers, 366 F. Supp. 2d at 37 (quoting Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)); see also
Caterpillar, 482 U.S. at 393 (quoting Metro. Life, 481 U.S. at
65) (Sometimes, “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 for purposes of the
well-pleaded complaint rule.’”). “Complete preemption,” as this
doctrine is known, “is a misleadingly named doctrine that
applies to subjects over which federal law is so pervasive that
it is impossible to make out a state-law claim, no matter how
careful the pleading.” Hughes v. United Air Lines, Inc., 634

9

F.3d 391, 393 (7th Cir. 2011)). “The doctrine of complete
preemption that gives rise to federal subject-matter
jurisdiction is separate and distinct from ordinary preemption .
. . which can be raised as a defense to state law claims,” the
idea being that “[s]tate courts are competent to determine
whether state law has been preempted by federal law and they
must be permitted to perform that function in cases brought
before them, absent a Congressional intent to the contrary.”
U.S. Airways Master Exec. Council v. Am. W. Master Exec.
Council, 525 F. Supp. 2d 127, 133 (D.D.C. 2007) (quotation marks
omitted).
Congress has expressed such an intent in Section 301 of the
LMRA. See Bricklayers, 366 F. Supp. 2d at 37 (citing Metro.
Life, 481 U.S. at 63-64).2 Section 301 embodies a “congressional
mandate to the federal courts to fashion a body of federal
common law to be used to address disputes arising out of labor
contracts.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209

2

Section 301 provides:
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this
chapter, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties.

29 U.S.C. § 185(a).
10

(1985); see also Local 174, Teamsters v. Lucas Flour Co., 369
U.S. 95, 103-04 (1962). Providing a uniform federal forum for
such claims helps “ensure uniform interpretation of collectivebargaining agreements, and thus to promote the peaceable,
consistent resolution of labor-management disputes.” Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 404 (1988).
Section 301, therefore, “not only preempts state law but also
authorizes removal of claims that purported to seek relief only
under state law.” Bush v. Clark Const. & Concrete Corp., 267 F.
Supp. 2d 43, 46 (D.D.C. 2003); see also Cephas v. MVM, Inc., 520
F.3d 480, 484 (D.C. Cir. 2008).
Complete preemption under Section 301 arises when resolution
of a state-law claim hinges on the interpretation of a CBA. See
Caterpillar, 482 U.S. at 394. This is not to say that any claim
that touches on a CBA is preempted, only that preemption will
arise “when resolution of a state-law claim is substantially
dependent upon analysis of the terms of an agreement made
between the parties in a labor contract.” Lueck, 471 U.S. at 220
(emphasis added). When this is the case, a state-law claim is
completely preempted, regardless of how it is pleaded. “[A]
plaintiff may not defeat removal by omitting to plead necessary
federal questions in a complaint.” Int’l B’hood of Teamsters v.
Ass’n of Flight Attendants, 663 F. Supp. 847, 851 (D.D.C. 1987).

11

2.

Plaintiff’s Claim Against JBG is Completely Preempted.

Mr. Cefarrati brings a claim for unjust enrichment against
JBG, alleging that JBG failed to compensate him for performing
work “beyond the scope of [his] job as Chief Operating
Engineer.” Compl. ¶ 10. An unjust-enrichment claim is “a species
of quasi contract that imposes, ‘in the absence of an actual
contract,’ ‘a duty upon one party to requite another in order to
avoid the former’s unjust enrichment, to permit recovery by
contractual remedy in cases where, in fact, there is no
contract.’” Vila v. Inter-American Inv., Corp., 570 F.3d 274,
279–80 (D.C. Cir. 2009) (quoting 4934, Inc. v. D.C. Dep’t of
Emp. Servs., 605 A.2d 50, 55 (D.C. 1992)) (alterations omitted).
To prove his unjust-enrichment claim under D.C. law, Mr.
Cefarrati will have to establish three elements: (1) his
conferral of a benefit on JBG; (2) JBG’s retention of that
benefit; and (3) the injustice of JBG’s retention of that
benefit. See, e.g., JSC Transmashholding v. Miller, No. 13-1836,
2014 WL 4960993, at *4 (D.D.C. Oct. 6, 2014); Haines v. Gen.
Pension Plan of Int’l Union of Operating Eng’rs, 965 F. Supp. 2d
119, 126 (D.D.C. 2013). Mr. Cefarrati seeks to establish these
elements by asserting that he performed work for JBG that was
outside the scope of his existing employment responsibilities.
To show this, Mr. Cefarrati would have to establish the scope
of his preexisting employment responsibilities. On this point,

12

Mr. Cefarrati makes much of the fact that a claim for unjust
enrichment presupposes the absence of an enforceable contract.
See Mot. to Remand at 4. He is not wrong: “Unjust enrichment
presuppose[s] that an express, enforceable contract is absent,
therefore courts generally prohibit litigants from asserting
these claims when there is an express contract that governs the
parties’ conduct.” Cannon v. Wells Fargo Bank, N.A., 926 F.
Supp. 2d 152, 170 (D.D.C. 2013) (quotation marks omitted).
According to Mr. Cefarrati, the fact that unjust-enrichment
claims cannot stand when a relevant contract exists means that
the Court must ignore the CBA in this case. This is incorrect.
The CBA is vital: It provides the baseline scope of employment
for which Mr. Cefarrati admittedly was compensated. Establishing
that baseline is a necessary precondition to deciding whether,
and to what extent, Mr. Cefarrati performed work beyond the
scope of his employment and thereby conferred a benefit on JBG
that was unjustly retained.
Mr. Cefarrati appears to recognize the importance of the CBA
because his Complaint relies solely on the CBA’s terms to
establish the baseline scope of his employment. See Compl. ¶¶ 68.3 Mr. Cefarrati refers to Section 1.5, which describes the

3

Mr. Cefarrati argues that his exclusive reliance on the CBA to
describe the scope of his employment responsibilities was only
the result of the CBA being a convenient point of reference. See
Mot. to Remand at 6. He asserts that “job descriptions,” “proof
13

general scope of jurisdiction for the Union. Id. ¶ 6. He also
notes that the Chief Operating Engineer position is described in
Section 4.2. Id. ¶ 7. As defendants note, additional portions of
the CBA may also be relevant. For example, Sections 1.6(a) and
4.1 provide further detail about the duties of the Chief
Engineer. See CBA, ECF No. 4-1 §§ 1.6(a), 4.1. Accordingly,
defining the scope of Mr. Cefarrati’s employment requires the
interpretation of various provisions of the CBA.4 This need to
interpret provisions of the CBA provides federal jurisdiction
because “the resolution of [the] state-law claim depends upon

of custom and practice between the parties or in the industry,”
and “many other sources” could also establish his employment
responsibilities. Opp. to Mot. to Dismiss at 4. Even if these
extrinsic sources existed and had been mentioned in the
Complaint, that would not render the terms of the CBA
irrelevant. Interpreting the CBA’s terms would still be required
to assess Mr. Cefarrati’s preexisting employment
responsibilities, especially because the CBA purports to
“embod[y] the entire Agreement between the Employer and the
Union,” CBA § 4.15, and to prevent the employer from entering
into agreements contrary to its terms. Id. § 4.5.
4

The Court, for example, would need to decide whether the
provisions of the CBA placing the Chief Engineer “in complete
charge of all employees at a given location covered under this
collective bargaining unit,” CBA, ECF No. 4-1 § 1.6(a), and
mandating that the “Chief Engineer shall have charge of and be
responsible directly to his/her Employer . . . only for the
proper installation, operation, care, maintenance, and repairs
to the plant and all additions thereto,” id. § 4.2, contemplate
responsibilities for “attend[ing] numerous meetings with parties
involved in the demolition, redevelopment and renovation work”;
“inspect[ing] finished work”; and “undert[aking] numerous other
activities to ensure that the redevelopment and renovation of
the Complex went smoothly.” Compl. ¶ 10.
14

the meaning of a collective-bargaining agreement.” Lingle, 486
U.S. at 405-06.
Unjust-enrichment claims are often completely preempted.
Indeed, they “rest at bottom on the notion that plaintiffs have
not been paid the wages they are owed.” Cavallaro v. UMass Mem’l
Healthcare, Inc., 678 F.3d 1, 5 (1st Cir. 2012). This may
“depend[] importantly upon what the CBA provides.” Id.
(interpretation of a CBA was necessary to resolve a claim that
an employer unlawfully failed to pay wages for work performed
during certain times of day because the court would need to
interpret the CBA to decide whether it provided for such
payments); see also Shearon v. Comfort Tech Mech. Co., 936 F.
Supp. 2d 143, 154 (E.D.N.Y. 2013) (claim that the plaintiff
should have been paid union wages required the interpretation of
a CBA where the CBA defined what duties warranted the payment of
such wages). For example, in a lawsuit by a union that
represented airline employees against the employees’ prior
union, an unjust-enrichment claim based upon the prior union’s
failure to process certain employee grievances was completely
preempted because resolving the claim required the Court to
“define the scope of [the predecessor union’s] obligations by
reviewing the applicable collective bargaining agreements.”
Ass’n of Flight Attendants, 663 F. Supp. at 849, 852. Mr.
Cefarrati’s claim that JBG retained the benefit of his work

15

beyond the scope of his employment without compensating him is
similarly dependent upon an analysis of the CBA: namely, what
the scope of his existing employment was.
Nor is this a case where the Court need only reference the
CBA. See, e.g., Livadas v. Bradshaw, 512 U.S. 107, 125 (1994)
(“The mere need to ‘look to’ the collective-bargaining agreement
. . . is no reason to hold the state-law claim defeated by §
301.”); Lingle, 486 U.S. at 410 (“As long as the state-law claim
can be resolved without interpreting the [CBA] itself, the claim
is ‘independent’ of the agreement for § 301 pre-emption
purposes.”). A court need not interpret a CBA when it is merely
adjudicating an independent claim that is not based in the CBA
at all. The Supreme Court in Caterpillar, for instance, found
that there was no Section 301 jurisdiction over breach-ofcontract claims that were based on separate, individual
employment contracts. See 482 U.S. at 394–95; see also Lingle,
486 U.S. at 401, 407 (claim for retaliatory discharge under
state law was not preempted, even though the relevant CBA
provided its own remedy for retaliatory discharge, because
neither the elements of the state-law claim nor any potential
defenses “require[d] a court to interpret any term of a
collective-bargaining agreement”).
Plaintiff relies largely on the decision of another Judge of
this Court in Bricklayers, 366 F. Supp. 2d 33. See Mot. to

16

Remand at 4–5. In that case, the court was unwilling to find
Section 301 jurisdiction in a suit to enforce the payment of a
bond that was executed pursuant to an employer’s CBA-based
obligation. Bricklayers, 366 F. Supp. 2d at 34. The bond was
subsequently guaranteed by an insurance company and the union
ultimately sued the insurance company to enforce the terms of
the bond. Id. at 34–35. Because the dispute concerned a duty
imposed by the terms of the bond, not the CBA, no interpretation
of the CBA was required. See id. at 40-41. Mr. Cefarrati’s
claim, by contrast, requires the analysis of the scope of
employment established by the CBA, so his claim is dependent
upon the interpretation of the CBA and is completely preempted.5

5

The other cases cited by Mr. Cefarrati are also readily
distinguished. In Cruse v. St. Vincent Hosp., 729 F. Supp. 2d
1269, 1276 (D.N.M. 2010), the court did not find Section 301
preemption of state-law claims—that failure to pay the plaintiff
during a lunch break was illegal—which did not require the
interpretation of a CBA because “[p]laintiffs need not refer to
or rely on any provision in the Agreements to prevail.” LaRosa
v. United Parcel Serv., 23 F. Supp. 2d 136, 146–47 (D. Mass.
1998) similarly involved a state-law claim that provided a right
entirely independent of a CBA: a state antidiscrimination law
which provided an independent cause of action for employmentdiscrimination and required only reference to job qualifications
listed in a CBA. Finally, Hernandez v. Harvard University, No.
12-cv-11978, 2013 WL 1330842, at *3 (D. Mass. Mar. 28, 2013),
involved a claim that an employer’s failure to remit to
employees the proceeds from a service charge imposed on patrons
violated a state law. Although the defendant asserted that
adjudicating the dispute would require the interpretation of the
CBA applicable to the workers who sought compensation, the court
disagreed because “[t]he dispute . . . concerns amounts
allegedly owed in the form of gratuities . . . a form of
compensation wholly extraneous to the CBA.” Id. at *2. Unlike
17

3.

The Court Has Jurisdiction Over Plaintiff’s Claim
Against Potomac Creek.

The parties dispute whether plaintiff’s unjust-enrichment
claim against Potomac Creek is similarly subject to complete
preemption. Plaintiff argues that the Court lacks jurisdiction
over that claim “because Potomac Creek is not a party to the
CBA.” Mot. to Remand at 4. This argument implicates a split
among the Circuits over the applicability of Section 301’s
complete preemption to claims against non-signatories. See Int’l
Union, United Mine Workers of Am. v. Covenant Coal Corp., 977
F.2d 895, 897 (4th Cir. 1992) (cataloguing the Circuit split).
One Judge of this Court has indicated that complete preemption
should not apply to such claims. See Bricklayers, 366 F. Supp.
2d at 42 (relying on the fact that the defendant was “not a
party to” a CBA to find that the claim against it was not
completely preempted by Section 301).
The Court need not address this split, however, because
plaintiff’s claim against JBG was properly removed. As the First
Circuit held, when at least one claim is independently removable
as a Section 301 claim, “even the claims not independently
removable come within the supplemental jurisdiction of the

the claims in these cases, Mr. Cefarrati’s unjust-enrichment
claim may succeed only upon first establishing the baseline
scope of employment for which he has already been compensated,
which must be established by interpreting various provisions of
the CBA.
18

district court.” Cavallaro, 678 F.3d at 5. A decision between
the “minimum reading” and the “broader reading” of complete
preemption is therefore unnecessary: “either way the district
court [has] jurisdiction of the entire case.” Id. at 5-6.
Plaintiff’s claim against Potomac Creek is based on the exact
same case or controversy as his claim against JBG—Plaintiff,
after all, has not alleged any material difference between
Potomac Creek and JBG. Accordingly, the claim against Potomac
Creek is properly before this Court pursuant to the Court’s
supplemental jurisdiction. 28 U.S.C. § 1367(a).
B.

Motion to Dismiss

Having found that the case was properly removed, the Court
must also resolve defendants’ motion to dismiss. Defendants
argue that plaintiff’s claims are subject to dismissal in two
distinct ways. First, they rely on the doctrine of defensive
preemption. Second, they assert that even if the Court recasts
the claims as Section 301 claims, those claims were not properly
exhausted and are barred by the statute of limitations.
1.

Plaintiff’s Claims Must Be Dismissed Under the
Doctrine of Defensive Preemption.

Complete preemption under Section 301 functions to permit
removal to federal court, while defensive preemption may also
arise to bar the litigation of state-law claims when the claim
“requires interpreting the terms of a labor contract.” Gray v.

19

Grove Mfg. Co., 971 F. Supp. 78, 84 (E.D.N.Y. 1997); see also
Covenant Coal, 977 F.2d at 899 (Section 301 provides for
defensive preemption when the “state cause of action would
require a court to interpret the collective bargaining
agreements.”). These concepts, while related, are distinct:
“[C]omplete preemption does not represent merely a difference in
the scope of the preemption of a state cause of action by
federal law; rather, it is a difference in kind.” Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure §
3722.2 (4th ed. 2014); see also Gray, 971 F. Supp. at 81 (“While
LMRA pre-emption and jurisdiction are often subject to similar
analysis, lack of jurisdiction does not preclude pre-emption,
and pre-emption does not necessarily imply a federal claim.”).
The test for defensive preemption under Section 301 is largely
identical to that for complete preemption. See, e.g. Lueck, 471
U.S. at 220 (a state-law claim that is dependent upon the
interpretation of a CBA “must either be treated as a § 301 claim
. . . or dismissed as pre-empted by federal labor-contract
law”). The difference is that although many courts have held
that Section 301 jurisdiction does not exist over state-law
claims against non-signatories to a CBA, courts have
acknowledged that Section 301 defensive preemption may still be
raised to dismiss such claims. See Covenant Coal, 977 F.2d at
899; Stringer v. Nat’l Football League, 474 F. Supp. 2d 894,

20

901-02 (S.D. Ohio 2007); Gray, 971 F. Supp. at 83. Defendants
may therefore invoke defensive preemption to dismiss the statelaw unjust-enrichment claims because resolution of plaintiff’s
claims would necessarily require interpretation of the CBA for
the same reasons that the claim against JBG is completely
preempted. See supra Part III.A.2.
2.

If Plaintiff’s Claims are Recast as Section 301
Claims, they Must Be Dismissed for Failure to Exhaust.

Even if the Court were to rely on the complete-preemption
doctrine to recast plaintiff’s claims as Section 301 claims,
those claims would still be subject to dismissal because Mr.
Cefarrati failed to exhaust the grievance procedures provided by
the CBA before coming to court. “Section 301 has been broadly
interpreted to embody a ‘national labor policy’ that encourages
‘private rather than judicial resolution of disputes arising
over collective bargaining agreements.’” Bush, 267 F. Supp. 2d
at 46 (quoting Majewski v. B’Nai B’Rith Int’l, 721 F.2d 823, 826
(D.C. Cir. 1983)). In view of this policy, “where the contract
provides grievance and arbitration procedures, those procedures
must first be exhausted.” United Paperworkers Int’l Union v.
Misco, Inc., 484 U.S. 29, 37 (1987); see also Commc’ns Workers
of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 434 (D.C. Cir.
1994). Failure to do so will result in dismissal of the claim.

21

See, e.g., Chester v. Wash. Metro. Area Transit Auth., 335 F.
Supp. 2d 57, 63 (D.D.C. 2004).
The CBA provides a three-step grievance and arbitration
procedure. See supra at 4. Mr. Cefarrati’s Complaint fails to
allege any compliance with this process; rather, it alleges only
that he informally mentioned “that he believed he was being
required to perform work that was in excess of . . . his duties
as Chief Operating Engineer.” Compl. ¶ 17. The government
asserted that Mr. Cefarrati did not allege compliance with the
CBA’s grievance procedures, Mot. to Dismiss at 12, and Mr.
Cefarrati’s failure to oppose that assertion concedes the issue.
See Inst. for Pol’y Studies v. U.S. Cent. Intelligence Agency,
246 F.R.D. 380, 386 n.5 (D.D.C. 2007) (“[W]here a party files an
opposition to a motion and addresses only certain arguments
raised by the movant, this court routinely treats the
unaddressed arguments as conceded.”). Accordingly, Mr.
Cefarrati’s claim must be dismissed for failure to exhaust the
CBA’s grievance procedures.
Mr. Cefarrati’s sole arguments as to why his failure to
exhaust should not bar his claims are simply restatements of
arguments raised in his motion to remand. He claims that he “is
not asserting any right conferred by the CBA. Unjust enrichment
claims exist entirely separate and apart from—and are inimical
to—a written contract.” Opp. to Mot. to Dismiss at 6. As this

22

Court noted, supra at 13, the fact that unjust-enrichment claims
may exist only in the absence of a relevant contract does not
permit this Court to ignore a relevant CBA. Plaintiff’s related
argument, that he is not raising a claim based upon the
interpretation of a CBA and therefore is not subject to its
grievance provisions, Opp. to Mot. to Dismiss at 6–7, has
similarly been rejected in connection with his motion to remand.
See supra Part III.A.2. Ultimately, the CBA’s grievance
procedures were available to Mr. Cefarrati and his failure to
utilize them means that if his claims are recast as Section 301
claims, they must be dismissed.6
IV.

Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s motion
to remand and GRANTS defendants’ motion to dismiss. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.

Signed:

Emmet G. Sullivan
United States District Judge
November 6, 2014

6

Because the Court finds that plaintiff’s claims are subject to
dismissal for failure to exhaust, the Court need not address
whether Mr. Cefarrati complied with the applicable statute of
limitations.
23