Ross v. Hawaii Nurses' Association Office and Professional Employees International Union Local 50

Filing 29

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND REMANDING ACTION TO STATE COURT FOR LACK OF SUBJECT MATTER JURISDICTION re: 10 . Excerpt of conclusion:"[T]he action is REM ANDED to the First Circuit Court of the State of Hawaii. The Motion for TRO, which sought only to preserve the status quo while the court adjudicated the Motion to Remand, is DENIED as MOOT. The court does not reach Defendant's Motion to Dismiss ."IT IS SO ORDERED. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 2/12/2018. (afc) WRITTEN ORDER follows hearing held February 9, 2018 on: (1) Ex Parte Motion for Temporary Restraining Order, ECF 10 , (2) Motion t o Dismiss for Lack of Jurisdiction, ECF 20 , and (3) Motion to Remand, ECF 21 . CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

DANIEL ROSS, MARINA
ROBINSON, and JOAN CRAFT,

Civ. No. 18-00023 JMS-RLP
ORDER DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER AND
REMANDING ACTION TO STATE
COURT FOR LACK OF SUBJECT
MATTER JURISDICTION

Plaintiffs,
vs.
HAWAII NURSES’ ASSOCIATION
OFFICE AND PROFESSIONAL
EMPLOYEES INTERNATIONAL
UNION LOCAL 50,
Defendant.

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AND REMANDING ACTION TO STATE COURT
FOR LACK OF SUBJECT MATTER JURISDICTION
I. INTRODUCTION
On January 16, 2018, Defendant Hawaii Nurses’ Association Office
and Professional Employees International Union Local 50 (“Defendant” or
“HNA”) removed this action to this court from the First Circuit Court of the State
of Hawaii (the “state court”) after the state court issued a 30-day preliminary
injunction on January 3, 2018 that enjoined HNA from certain union-related
activities. Def.’s Notice of Removal, ECF No. 1. HNA removed based upon the

1

complete preemption doctrine, contending that the suit “directly relates to the
validity” of “an election already conducted” by a labor union, and is thus
completely preempted by Title IV of the Labor-Management Reporting and
Disclosure Act (“LMRDA”), 29 U.S.C. §§ 481-83. Id. at 3, 10 & 11.
The court faces three Motions: (1) Plaintiffs Daniel Ross, Marina
Robinson, and Joan Craft’s (collectively, “Plaintiffs”) Motion for Temporary
Restraining Order (“TRO”), ECF No. 10; (2) Defendant’s Motion to Dismiss for
Lack of Jurisdiction and to Vacate Order Granting Plaintiffs’ Motion for
Preliminary Injunction, ECF No. 20; and (3) Plaintiffs’ Motion to Remand, ECF
No. 21. Based on the following, the action is REMANDED to state court for lack
of subject matter jurisdiction. Plaintiff’s Motion for TRO is DENIED as moot, and
the court does not reach Defendant’s Motion to Dismiss.
II. BACKGROUND
A.

Factual Background
Because the Motions at issue primarily concern federal jurisdiction

and procedure, and do not require the court to address the merits of the Complaint,
the court sets forth only the essential factual allegations of the underlying dispute
to provide necessary context for the Motions.

2

HNA is a Hawaii labor union with approximately 4,500 members
whose purpose is “promoting the professional and educational advancement of
nurses and other health care professionals and advancing their economic and
general welfare by securing terms and conditions of employment consistent with
the ideals of fair wages and benefits.” Compl. ¶ 7, ECF No. 1-1. In 2010, HNA
“affiliated with the Office and Professional Employees International Union
(‘OPEIU’), becoming Hawaii Nurses’ Association, OPEIU Local 50, AFL-CIO.”
Id. ¶ 9.
Plaintiff Daniel Ross is a nurse at Queen’s Medical Center. Id. ¶ 4.
He was “recently removed from the Office of Vice President of the HNA
Executive Board,” after he was found “to be a member not in good standing” of the
HNA. Id. Specifically, an HNA Trial Board November 16, 2017 written decision
“found that Daniel Ross violated his duties by participating in the sending of
anonymous emails to HNA members.” Id. ¶ 22. The Trial Board recommended
that he “be immediately removed from the office of Vice President” and “be
prohibited from running for any officer position for a period of six (6) years.” Id.
¶ 23. It found his “actions constitute conduct unbecoming an official of HNA,”
such that he “should be considered a member not in good standing for a period of
six (6) years.” Id.

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Plaintiff Marina Robinson is a nurse at Kaiser Hospital. Id. ¶ 5. She
is an HNA member who was “recently removed [as] Treasurer of the HNA
Executive Board.” Id. A different November 16, 2017 HNA Trial Board decision
found that she violated her duties as Treasurer “by making unreasonable reporting
requests, signing checks to pay HNA’s financial obligations in an untimely
fashion, [and] refusing to sign paychecks for an independent contractor performing
services for HNA.” Id. ¶ 24. The Trial Board recommended removing her from
office and prohibiting her from running for any officer position for four years. She
was, however, allowed to continue as a member in good standing and as a union
steward. Id. ¶ 25.
Plaintiff Joan Craft is a nurse at Queen’s Medical Center. Id. ¶ 6.
“[S]he was recently removed from her position as Chief Steward” of HNA” and
found “to be a member not in good standing.” Id. The HNA Trial Board found
that she “violated her duties as Chief Steward by owning [sic?] anonymous emails,
participating in the content of anonymous emails, and misrepresenting union
member freedom of speech rights.” Id. ¶ 26. It recommended that she
immediately be removed her from her position as Chief Steward, prohibited from
running for any officer position for four years, and “be considered a member not in
good standing” for four years. Id. ¶ 27.

4

Without reiterating the specific allegations of the Complaint, Plaintiffs
allege that HNA violated various provisions of OPEIU and HNA governing
documents and procedures in these Trial Board decisions (and related review
processes) that removed them from office, and (with Ross and Craft) found them to
be “members not in good standing.” Id. ¶¶ 29, 36, 47-76. For example, among
other relief, Ross and Robinson seek a declaration that they were removed from
office in violation of governing documents and Hawaii Revised Statutes (“HRS”)
§ 414D-138. Id. ¶ 76. They also apparently sought to have their appeals heard “at
the next regularly scheduled membership meeting[.]” Id. ¶¶ 36, B.
When the Trial Board made its recommendations on November 16,
2017, all three Plaintiffs were candidates for an ongoing election for officers of the
2018 HNA Executive Board. Id. ¶ 37. Ross was a candidate for President,
Robinson for Trustee, and Craft for Treasurer. Id. The Complaint alleges that the
OPEIU Constitution requires new nominations if any candidate is suspended from
union membership during the election process, but the HNA Executive Board
refused to hold new nominations. Id. ¶ 40. Ballots were counted on December 12,
2017. Id. ¶ 41.
The Complaint further alleges that “Plaintiff Joan Craft prevailed in
her candidacy for the office of Treasurer, but the [HNA] refuses to recognize her

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candidacy for office.” Id. ¶ 42. “Plaintiff Daniel Ross lost in his candidacy for the
office of President[] because the HNA Executive Board informed the membership,
while he was a candidate on the election ballot, that he was no longer eligible for
the position.” Id. ¶ 43. Likewise, “Plaintiff Marina Robinson lost her candidacy
for the position of Trustee[] because the HNA Executive Board informed the
membership, while she was a candidate on the election ballot, that she was no
longer eligible for the position.” Id. ¶ 44.
On its face, Plaintiffs’ Complaint raises no federal claims (and there is
no diversity of citizenship). Specifically, the Complaint asserts three Counts under
Hawaii law: (1) Count One (“Breach of Governing Documents”) alleges that
Defendant violated provisions of the HNA Constitution and bylaws and/or HNA’s
parent union’s (OPEIU) Constitution, policies, or procedures, all in “breach of the
governing documents and HRS Section 414D-138”; (2) Count Two (“Declaratory
Judgment”) seeks a declaration that Ross and Robinson were removed from the
offices of Vice President and Treasurer, respectively, in violation of governing
documents and HRS § 414D-138; and (3) Count Three (“Injunctive Relief”) seeks
to enjoin Defendants from acting in violation of the governing documents and HRS
§ 414D-138. Compl. at 8-12. The Complaint’s prayer seeks the following relief:
A. That the Court issue judgment declaring that: (i) the
Hawaii Nurses’ Association violated their governing
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documents; (ii) The Hawaii Nurses’ Association
improperly removed Plaintiffs Daniel Ross and Marina
Robinson from their respective offices of Vice President
and Treasurer; and
B. That the Court issue judgment enjoining the
Defendants to: (i) cease and desist holding a membership
meeting that does not include Plaintiffs’ appeals of their
Trial Board decisions; and (ii) cease and desist
appointing and installing the prevailing candidates on the
current election ballot into Offices of the HNA Executive
Board.
Id. at 12.
B.

Procedural History
Plaintiffs filed their Complaint in state court on December 15, 2017,

and it was served on December 18, 2017. ECF No. 1-1 at 2; ECF No. 1-2 at 3. A
week later, on December 22, 2017, Plaintiffs filed a Motion for Preliminary
Injunction, along with a Motion to Shorten Time for hearing that Motion. ECF
Nos. 1-3, 1-5. The Motion for Preliminary Injunction was heard by Judge Dean
Ochiai on January 3, 2018. ECF No. 1-10.
Judge Ochiai issued an oral ruling granting the Motion on January 3,
2018, followed by a written order filed on January 11, 2018 (the “State Court
Preliminary Injunction”). ECF No. 1-10. He ordered as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

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1. Defendant, as well as its officers, agents, servants,
employees, and attorneys, are enjoined from installation
and/or ratification of Defendant’s Executive Board,
elected by the ballots counted on December 12, 2017;
2. Defendant, as well as its officers, agents, servants,
employees, and attorneys, are enjoined from conducting
further disciplinary proceedings, including appeals,
concerning the charges against Plaintiffs, determined by
the Trial Board’s written decisions issued on November
16, 2017;
3. Defendant, as well as its officers, agents, servants,
employees, and attorneys, are enjoined from imposing
and/or enforcing the penalties in the Trial Board’s written
decisions issued on November 16, 2017;
This preliminary injunction shall remain in effect
for thirty (30) days from January 3, 2018, at 9:30 a.m.
During the thirty-day period, the parties are placed back
into the positions they were in prior to the following
internal charges being filed against Plaintiffs: The
charges filed by Terilyn Carvalho Luke against Daniel
Ross, dated August 21, 2017; the charges filed by Terilyn
Carvalho Luke against Marina Robinson, dated June 29,
2017; and the charges filed by Terilyn Carvalho Luke
against Joan Craft, dated October 4, 2017.
Id. at 3-4.
Defendant removed the action to this court on January 16, 2018, ECF
No. 1, and Plaintiffs filed their Motion for TRO on January 26, 2018. ECF No. 10.
The Motion for TRO sought to extend the State Court Preliminary Injunction
(which was to expire according to its terms on February 2, 2018) until Plaintiffs

8

could file, and the court could consider, their then-planned Motion to Remand.
ECF No. 10-1 at 2. That is, it sought to preserve the status quo while this court
could determine whether the action was properly removed. Defendant filed an
Opposition to the Motion for TRO on January 28, 2018, ECF No. 11, and Plaintiffs
filed their Reply on February 1, 2018. ECF No. 19.
After the court held status conferences on January 29th and 30th, ECF
Nos. 14 & 15, the parties stipulated to certain terms regarding the State Court
Preliminary Injunction. ECF No. 18. The parties agreed (and the court
subsequently ordered) that they would waive enforcement of the first paragraph of
the State Court Preliminary Injunction, but Defendant would continue to be bound
by the other portions until this court could hear the Motion for TRO, as well as a
Motion to Remand by Plaintiffs and a Motion to Dismiss by Defendant. Id.
On February 2, 2018, Defendant filed its Motion to Dismiss for Lack
of Jurisdiction and to Vacate the State Court Preliminary Injunction. ECF No. 20.
That Motion argues that all or much of Plaintiffs’ Complaint is barred (or
“preempted”) by the LMRDA and that this court should also vacate the State Court
Preliminary Injunction for that reason. Id. Plaintiffs filed their Motion to Remand
on February 2, 2018 as well, primarily arguing that Defendant waived its right to
remand by litigating matters in state court. ECF No. 21. Corresponding

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Oppositions were filed on February 5, 2018, ECF Nos. 24 & 25, and Replies were
filed on February 6, 2018. ECF Nos. 26 & 27. The court heard the Motions on
February 9, 2018.
III. STANDARD OF REVIEW
Although the court faces a Motion to Remand, Motion for TRO, and
Motion to Dismiss, ultimately it bases this Order on remand principles only. Thus,
the court only recites the standard for the Motion to Remand.
“If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c). “The removal statute is strictly construed, and any doubt about the right
of removal requires resolution in favor of remand.” Moore-Thomas v. Alaska
Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992)). “The presumption against removal means that ‘the
defendant always has the burden of establishing that removal is proper.’” Id.
(quoting Gaus, 980 F.2d at 566). “[T]he court resolves all ambiguity in favor of
remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th
Cir. 2009) (citing Gaus, 980 F.2d at 566).
///
///

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IV. DISCUSSION
Although the court faces three separate Motions, they overlap and
raise common jurisdictional issues regarding preemption and removal jurisdiction.
In particular, in justifying removal and in seeking dismissal, Defendant relies on a
“preemption” argument it never made in state court — that Plaintiffs’ action in
substance challenges the results of a union election that already has been
conducted, and thus the claims must be decided under Title IV of the LMRDA. In
this context, however, this argument improperly conflates a preemption defense
with “complete preemption” for purposes of removal jurisdiction. These related,
although distinct, concepts are often confused. Here, even if Defendant’s
argument for a preemption defense has merit, its argument for complete
preemption does not. To explain why this is so, the court first addresses defensive
preemption under Title IV of the LMRDA, and then analyzes whether the LMRDA
completely preempts Plaintiffs’ Complaint.
A.

The Preemption Defense Under Title IV of the LMRDA
Plaintiff argues that this court (or any court) lacks jurisdiction to

adjudicate Plaintiffs’ claims because the LMRDA provides the exclusive remedy
for a direct post-election challenge. That remedy is a complaint with the Secretary
of Labor, and possibly a subsequent federal court action brought by the Secretary.

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See, e.g., Casumpang, 269 F.3d at 1056 (“A complaint filed with the Secretary of
Labor is the exclusive means of resolving disputes governed by Title IV. LMRDA
§ 403, 29 U.S.C. § 483.”); Chao v. Local 1357, Int’l Bhd. of Elec. Workers, AFLCIO, 184 F. Supp. 2d 1029, 1034 (D. Haw. 2001) (“Title IV provides the Secretary
with the exclusive power to challenge in federal district court an election already
conducted. 29 U.S.C. § 482(b); 29 U.S.C. § 483. [A] [s]uit by the Secretary under
Title IV is the exclusive post-election remedy for challenging an election.”). 1
And this argument — at least as a preemption defense to at least some
state law claims — has significant merit. Although the Complaint raises violations
(sounding in breach of contract) of union rules or procedures under HNA and
OPEIU governing documents, the ultimate relief sought concerns Plaintiffs’
eligibility as candidates for an HNA election and the corresponding validity of the
results of that election. See Compl. ¶ 79 (“Plaintiffs will suffer irreparable harm if
[HNA] is permitted to continue with the installation of the current candidates.”);
1

In this regard, 29 U.S.C. § 483 provides, in pertinent part:
. . . . Existing rights and remedies to enforce the constitution and
bylaws of a labor organization with respect to elections prior to the
conduct thereof shall not be affected by the provisions of this
subchapter. The remedy provided by this subchapter for
challenging an election already conducted shall be exclusive.
(Emphasis added).

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id. ¶ B (asking the court, among other relief, to enjoin HNA from “appointing and
installing the prevailing candidates on the current election ballot into Offices of the
HNA Executive Board.”). Indeed, the state court enjoined HNA “from installation
and/or ratification of Defendant’s Executive Board, elected by the ballots counted
on December 12, 2017.” State Court Preliminary Injunction at 2, ECF No. 1-10 at
2. It thus appears that at least a portion of the State Court Preliminary Injunction
violates Title IV’s exclusivity provision.2
Camsupang emphasized that § 483’s exclusivity provision is limited
to “when an individual union member challenges the validity of an election that
has already been completed.” 269 F.3d at 1056 (quoting Local No. 82, Furniture
& Piano Moving v. Crowley, 467 U.S. 526, 541 (1984)). The inquiry “turns on
two factors: (1) whether the type of relief sought will interfere with the operation
of a union pursuant to an already-conducted election, and (2) whether a plaintiff
may obtain relief under Title IV for the type of injury he or she claims to have
suffered.” Id. at 1057 (citation omitted). But Camsupang also recognized that,
under Crowley, not all post-election actions are necessarily covered by § 483. Id.
Instead, Crowley indicated that “indirect” post-election challenges are an exception

2

To be clear, it appears that the state court did not consider a preemption defense because
HNA never raised it until it removed to this court.

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to Title IV exclusivity. See 467 U.S. at 541 n.16 (“The exclusivity provision of
Title IV may not bar postelection relief for Title I claims or other actions that do
not directly challenge the validity of an election already conducted.”) (citations
omitted).
Here, Plaintiffs’ action appears to seek relief that, in significant part,
“will interfere with the operation of a union pursuant to an already-conducted
election.” Camsupang, 269 F.3d at 1057. Further, in considering Crowley’s
exception (for an action that does not “directly challenge the validity of an election
already conducted,” 467 U.S. at 541 n.16), it is significant that Plaintiffs’ action
raises the eligibility of candidates for a union election. See Murray v.
Amalgamated Transit Union, 206 F. Supp. 3d 202, 211 (D.D.C. 2016) (analyzing
the meaning of footnote 16 in Crowley, and concluding that a challenge to a
candidate’s eligibility is an “inexorable” challenge to rights that fall under Title
IV). In dismissing as preempted an action that challenged a determination that
union members were not in good standing (rendering them ineligible for
candidacy), Murray reasoned,
Title IV protects, in relevant part, the right of “every
member of a union in good standing to be eligible to be a
candidate and to hold office (subject to reasonable
qualifications uniformly imposed) without being subject
to penalty, discipline, or improper interference or reprisal

14

of any kind by such organization or any member
thereof.”
Id. (quoting 29 U.S.C. § 481(e)) (internal editorial marks omitted). Such disputes
“‘basically relating to eligibility of candidates for office fall squarely within Title
IV of the Act and are to be resolved by the administrative and judicial procedures
set out in that Title.’” Id. (quoting Calhoun v. Harvey, 379 U.S. 134, 141 (1964))
(internal editorial marks omitted). Although the complaint pled improperdiscipline and breach-of-contract claims, in substance it sought to challenge the
validity of a rerun election. Id. at 211-12. In contrast, a complaint seeking
reinstatement as a union member in good standing, untethered to the validity of an
election, would not be subject to Title IV preemption. Camsupang, 269 F.3d at
1057.
Nonetheless, unless this court has subject matter jurisdiction, it would
be improper for this court to decide whether some or all of Plaintiffs’ Complaint is
barred by § 483. Whether or not HNA has a good defense based on § 483’s
exclusivity provision, the court must first determine whether the action was
properly removed — that is, whether this court even has jurisdiction to address that
preemption defense. This raises the often misunderstood “complete preemption”
doctrine, which is distinct from (although similar to) defensive preemption. See,
e.g., Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938,
15

946 (9th Cir. 2014) (addressing “the difference between ‘complete’ preemption
and defensive preemption, often referred to as conflict or field preemption”). The
court thus turns to removal jurisdiction and complete preemption.
B.

The LMRDA Does Not Completely Preempt Plaintiffs’ Action — It Was
Improperly Removed
Although no federal claims are apparent on the face of Plaintiffs’

Complaint, HNA removed based on complete preemption under the LMRDA. As
follows, this was an improper basis for removal.
1.

The complete preemption doctrine
First, some basics. A defendant may remove a complaint from state

court if “the district courts of the United States have original jurisdiction” over the
action. 28 U.S.C. § 1441(a). “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). “As a general rule, absent diversity jurisdiction, a case will not
be removable if the complaint does not affirmatively allege a federal claim.”
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). “Thus, 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 pre-emption, even if the defense is anticipated in
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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.
“The Supreme Court has recognized, however, an ‘independent
corollary to the well-pleaded complaint rule known as the complete pre-emption
doctrine.’” Retail Property, 768 F.3d at 947 (quoting Caterpillar, 482 U.S. at
393). “That doctrine posits that there are some federal statutes that have such
‘extraordinary pre-emptive power’ that they ‘convert[ ] an ordinary state common
law complaint into one stating a federal claim for purposes of the well-pleaded
complaint rule.’” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65
(1997)).
But it is critical to keep in mind that:
[c]omplete preemption is really a jurisdictional rather
than a preemption doctrine, as it confers exclusive federal
jurisdiction in certain instances where Congress intended
the scope of federal law to be so broad as to entirely
replace any state-law claim. Complete preemption is a
limited doctrine that applies only where a federal
statutory scheme is so comprehensive that it entirely
supplants state law causes of action.
Id. (quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)). “‘[C]omplete
preemption’ is a misnomer, having nothing to do with preemption and everything
to do with federal occupation of a field.” Lehmann v. Brown, 230 F.3d 916, 919
(7th Cir. 2000). It “must be distinguished from ordinary preemption.” Retail
17

Property, 768 F.3d at 948 (quoting Sullivan v. Am. Airlines, Inc., 424 F.3d 267,
272 (2d Cir. 2005)). “[T]he doctrines serve distinct purposes and should be kept
clear and separate in our minds.” Id. at 949 (citation omitted). “‘Complete
preemption’ is a doctrine applicable to removal jurisdiction only; it is not a
doctrine of defensive preemption[.]” Id. at 948. That is, “[e]ven if [defensive]
preemption forms the very core of the litigation, it is insufficient for removal.”
Lontz v. Tharp, 413 F.3d 435, 441 (4th Cir. 2005) (citing Caterpillar, 482 U.S. at
393).
2.

The LMRDA
“The Supreme Court has construed only three federal statutes to so

preempt their respective fields as to authorize removal of actions seeking relief
exclusively under state law[.]” In re Miles, 430 F.3d 1083, 1088 (9th Cir. 2005).3
The LMRDA is not one of them. See, e.g., Hahn v. Rauch, 602 F. Supp. 2d 895,
910 (N.D. Ohio 2008) (“The Supreme Court has never held that the LMRDA
completely preempts state law.”). And although lower courts may also conclude
that federal statutes completely preempt an area of state law, “the Supreme Court

3

The three are “section 301 of the Labor and Management Relations Act (‘LMRA’), 29
U.S.C. § 185; section 502 of the Employee Retirement Income Security Act of 1974 (‘ERISA’),
29 U.S.C. § 1132; and sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86.” In re
Miles, 430 F.3d at 1088 (citations omitted).

18

has made clear that it is ‘reluctant’ to find complete preemption.” Lontz, 413 F.3d
at 441 (citing Metro. Life, 481 U.S. at 65). “[T]he Court has articulated exacting
standards that must be met before it will find complete preemption.” Id.
Indeed, “a federal statute must provide the ‘exclusive cause of action’ for complete
pre-emption to apply[.]” Moore-Thomas, 553 F.3d at 1245 (citing Beneficial Nat’l
Bank, 539 U.S. at 9) (emphasis added). As a result, “its occurrence is ‘rare.’”
Retail Property, 768 F.3d at 947 (citation omitted). It is a “limited doctrine”
because Congressional intent must be “so broad as to entirely replace any state-law
claim.” Dennis, 724 F.3d at 1254 (emphases added). “[T]he congressional intent
that state law be entirely displaced must be clear in the text of the statute.” Lontz,
413 F.3d at 441 (citing Metro. Life, 481 U.S. at 65-66).
Applied here, § 483 itself indicates that the LMRDA does not provide
the exclusive remedy for all union-election challenges — only “already
completed” elections fall within its exclusive regime. It leaves untouched
“[e]xisting rights and remedies to enforce the constitution and bylaws of a labor
organization with respect to elections prior to the conduct thereof[.]” 29 U.S.C.
§ 483 (emphases added). And, as discussed previously, Crowley noted that only
“direct” post-election challenges are implicated. 467 U.S. at 541 n.16 (“The
exclusivity provision . . . may not bar postelection relief for Title I claims or other

19

actions that do not directly challenge the validity of an election already
conducted.”) (emphases added). 4
Moreover, Title IV of the LMRDA has its own administrative scheme
that involves other remedies, even as to “already conducted” elections — it
requires a complaint with the Secretary of Labor who investigates to determine
whether there is probable cause and, if the complaint “has not been remedied,” 29
U.S.C. § 482(b), then brings a civil action to set aside an invalid election. And
even before a complaint is filed with the Secretary, aggrieved members must
exhaust “the remedies available under the constitution and bylaws” of the union
and its parent. 29 U.S.C. § 482(a)(1). The statute’s “stated commitment is to
postpone governmental intervention until the union is afforded the opportunity to
redress the violation.” Wirtz v. Local 153, Glass Blowers, Ass’n, 389 U.S. 463,
472 (1968).
The existence of this type of statutory scheme was paramount in the
Ninth Circuit’s holding that a state action was not completely preempted by the
Railway Labor Act (“RLA”). See Moore-Thomas, 553 F.3d at 1245. MooreThomas recognized that the RLA “requires submission of [covered] disputes to
4

See, e.g., Ross v. Int’l Bhd. of Elec. Workers, 513 F.2d 840, 843 (9th Cir. 1975)
(allowing a common-law tort claim for damages alleging the union acted improperly in
executing an election, where the election was no longer at issue).

20

internal dispute-resolution processes and then to a division of the National
Adjustment Board or an arbitration board selected by the parties” before a suit is
brought. Id. (citing 45 U.S.C. §§ 153 & 184). “Only after ‘the grievance has been
heard by the adjustment board does exclusive jurisdiction rest with the federal
court.’” Id. (quoting Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 192
(9th Cir. 1983)) (brackets omitted). Like the RLA analyzed in Moore-Thomas, the
LMRDA contemplates other types of remedies, and thus “does not provide an
exclusive federal cause of action.” Id.
HNA relies on Porch-Clark v. Engelhart, 930 F. Supp. 2d 928 (N.D.
Ill. 2013), which indeed concluded that “the LMRDA completely preempts other
avenues for challenges to the results of a union election.” Id. at 935. This court,
however, is not convinced by Porch-Clark’s reasoning, as it focused solely on the
last sentence of § 483. 5 As analyzed above, that sentence indicates that a Title IV
remedy is exclusive only for a certain type of challenge (a “direct” challenge) to
some union elections. This is perhaps a good indication of a defense of
preemption, but not necessarily an indication that Congress intended the scope of
5

Porch-Clark also relied on Davis v. International Union (UAW), 392 F.3d 834, 839
(6th Cir. 2004), overruled on other grounds by Blackburn v. Oaktree Cap. Mgmt., LLC, 511 F.3d
633 (6th Cir. 2008), which found complete preemption based on the LMRDA. Nevertheless,
‘[b]y all appearances, the court in Davis was discussing ordinary, or conflict preemption, rather
than complete preemption[.]” Hahn, 602 F. Supp. 2d at 910 n.8.

21

federal law in the LMRDA to be “so broad as to entirely replace any state law
claim” regarding union elections. Dennis, 724 F.3d at 1254. Complete preemption
requires “extraordinary” preemptive force. Metropolitan Life, 481 U.S. at 65. And
“even an ‘obvious’ pre-emption defense does not, in most cases, create removal
jurisdiction.” Id. at 66. See, e.g., Hahn, 602 F. Supp. 2d at 910 (“[T]he mere fact
that [defendants] could assert a preemptive LMRDA defense before the state court
is not sufficient to support re moval”) (quoting Gerow v. Kleinerman, 2002 WL
1625417, at *4 (D.N.J. July 2, 2002)).
In short, HNA has not met its burden to establish that removal was
proper. Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there is
any doubt as to the right of removal in the first instance.”). The court will remand
the action to state court. After remand, HNA presumably should be free to assert a
federal preemption defense — an argument not previously made in state court —
and any ruling on a federal preemption defense would then be reviewable in
Hawaii’s appellate courts, and potentially by the U.S. Supreme Court. Retail
Property, 768 F.3d at 947. 6
6

Because the court is remanding for lack of subject matter jurisdiction, the court need
not reach Plaintiffs’ argument that HNA waived its right to remove by arguing on the merits in
state court and only removing after it lost. See, e.g., Kenny v. Wal-Mart Stores, Inc., ___ F.3d
___, 2018 WL 650998, at *3 (9th Cir. Feb. 1, 2018) (“[A] defendant ‘may waive the right to
remove to federal court where, after it is apparent that the case is removable, the defendant takes
(continued . . .)
22

3.

HNA Did Not Remove Based Upon the Labor and Management
Relations Act (“LMRA”)
In its Opposition to Plaintiffs’ Motion to Remand, HNA argues in part

that this court has original jurisdiction under Section 301 of the LMRA, 29 U.S.C.
§ 185 (one of the three areas where some types of Section 301 claims are
completely preempted as found by the Supreme Court).7 ECF No. 24 at 7-8. It
argues that Plaintiffs’ Complaint seeks to enforce provisions of union constitutions,
claims which could fall under § 185. But — regardless of whether Plaintiffs’
action might implicate the LMRA, and, if so, have been a basis for removal — the
LMRA unquestionably was not the basis for Defendant’s removal. Rather,
Defendant removed the action based solely on the LMRDA. ECF No. 1.
In removing this action, HNA was required to provide a “statement of
the ground for removal” in its notice of removal. 28 U.S.C. § 1446(a). That is,
(. . . continued)
actions in state court that manifest his or her intent to have the matter adjudicated there, and to
abandon his or her right to a federal forum.’”) (quoting Resolution Tr. Corp. v. Bayside
Developers, 43 F.3d 1230, 1240 (9th Cir. 1994)).
7

Section 185(a) 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.

23

“the defendant must state the basis for removal jurisdiction in the [notice of]
removal.” O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988).
And HNA unambiguously stated its basis — the LMRDA. ECF No. 1. It is too
late to assert a different basis for removal now; the notice of removal cannot be
amended substantively at this stage.
Ordinarily, “the notice of removal required by [28 U.S.C.
§] 1446(b) may be amended freely by the defendant prior
to the expiration of the thirty-day period for seeking
removal.” 14C Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, Pocket Part by The Late Charles
Alan Wright, Arthur R. Miller, Edward H. Cooper, Joan
E. Steinman, Federal Practice and Procedure § 3733
[“Federal Practice & Procedure”]. After the 30-day
period for seeking removal has passed, however, “the
notice may be amended only to set out more
specifically the grounds for removal that already have
been stated, albeit imperfectly, in the original notice.”
Id.; ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health
& Envtl. Quality of Montana, 213 F.3d 1108, 1117 (9th
Cir. 2000) (“[A] defendant may amend the Notice of
Removal after the thirty day window has closed to
correct a defective allegation of jurisdiction.”); Barrow
[Dev. Co. v. Fulton Ins. Co.], 418 F.2d [316,] 317 [(9th
Cir. 1969)] (after thirty-day period lapses, the defendant
may not amend a notice of removal “to add allegations of
substance but solely to clarify ‘defective’ allegations of
jurisdiction previously made”).
Hester v. Horowitz, 2017 WL 1536401, at *3 (D. Haw. Apr. 28, 2017) (quoting
Pioneer Asset Inv. Ltd. v. Arlie & Co., 2015 WL 9665667, at *4 (D. Haw. Dec. 14,

24

2015)) (some brackets added) (bold emphasis in Pioneer Asset).8 That is, an
amendment to a removal notice “may not add completely new grounds for removal
or furnish missing allegations, even if the court rejects the first proffered basis of
removal.” 14C Federal Practice & Procedure § 3733 at 655-56 (citing cases).
Accordingly, the court will not consider HNA’s LMRA preemption arguments to
the extent it asserts them as a basis for complete preemption. They may, however,
still be relevant towards a defense of preemption.
C.

The “Futility Doctrine”
HNA asks this court — even if the court finds (as it does) that the

action was improperly removed — nevertheless to dismiss the Complaint because
“it makes little sense to remand a case to a State court that is without jurisdiction to
hear the case for the very same reason the federal court lack[s] jurisdiction.”
Def.’s Mot. at 12-13, ECF No. 20-2 at 12-13 (citing a “futility doctrine” applied in
Porch-Clark, 930 F. Supp. 2d at 936-37). Assuming the court has discretion to
apply a “futility doctrine,” the court declines to apply it here. After the action is
remanded, the state court may address the defense of LMRDA preemption.

8

The Complaint was served on December 18, 2017, and was removed on January 16,
2018. ECF No. 1 at 2. The 30-day period within which to remove has passed.

25

If, after removal, “it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “Several district
courts have interpreted § 1447(c) as removing the discretion to deny remand once a
federal court determines that it lacks subject matter jurisdiction in a removal case.”
Bell v. City of Kellogg, 922 F.2d 1418, 1424 (9th Cir. 1991) (citations omitted).
But Bell recognized and applied “an exception to § 1447(c) where there is
‘absolute certainty that remand would prove futile.’” Id. at 1425 (quoting M.A.I.N.
v. Comm’r, Maine Dept. of Human Servs., 876 F.2d 1051, 1054 (1st Cir.1989)).
“Because we are certain that a remand to state court would be futile, no comity
concerns are involved. District court resolution of the entire case prevents any
further waste of valuable judicial time and resources.” Id.
“However, the Bell rule has been questioned, and may no longer be
good law.” Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1197 (9th Cir. 2016).
In International Primate Protection League v.
Administrators of Tulane Educational Fund, decided a
few months after we decided Bell, the Supreme Court
declined to apply a futility exception to the remand rule.
500 U.S. 72, 88-89, 111 S. Ct. 1700, 114 L. Ed. 2d 134
(1991). Although the Court did not reject the futility
doctrine outright, it did take note of “the literal words of
§ 1447(c), which, on their face, give no discretion to
dismiss rather than remand an action.” Id. at 89, 111 S.
Ct. 1700 (quotation marks and alteration omitted). In the
wake of International Primate, a number of other circuits
have expressly rejected the futility doctrine. See Hill v.
26

Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 122526 (10th Cir. 2012) (collecting cases).
Id. at 1197-98. Despite questioning Bell’s validity, however, Polo had no need to
decide whether it has been overruled. Instead, it recognized that Bell requires
“absolute certainty” that a state court will dismiss an action.
Even applying the Bell rule, however, a district court
must have “absolute certainty” that a state court would
“simply dismiss[ ] the action on remand.” 922 F.2d at
1425 (quotation marks omitted). In other words, only
when the eventual outcome of a case after remand is so
clear as to be foreordained have we held that a district
court may dismiss it — to “prevent [ ] any further waste
of valuable judicial time and resources.” Id.
Id. at 1198. And because it was “far from clear that a state court would dismiss”
the relevant claim, Polo held that the district court should have simply remanded
under § 1447(c), rather than dismissing. Id.
Polo is directly on point. Although HNA appears to have a valid
preemption defense, this court cannot say with “absolute certainty” that the state
court will dismiss all of the action. Such a review would require a close analysis of
the factual allegations of the Complaint, and an understanding and application of
Hawaii law (both contract law and HRS § 414D-138). Plaintiffs have argued, for
example, that they have stated claims that would survive LMRDA preemption.
See, e.g., Pls.’ Opp’n at 3, ECF No. 25 (“[E]ven assuming that some of Plaintiffs’

27

claims regarding the election are precluded by Title IV . . . Plaintiffs have asserted
a challenge to the status of Plaintiffs’ membership rights.”); id. at 10 (“[E]ven if
there is Title IV preemption, it would solely affect relief regarding the election and
would not affect Plaintiffs’ claims regarding their membership rights and
disciplinary actions taken against them.”). That is, even if this court were inclined
to apply a preemption defense, it is far from clear how extensively it applies.
Remand is not futile.
D.

The Court Declines to Award Costs, Expenses, or Fees Under 28 U.S.C.
§ 1447(c)
If a case is remanded, § 1447(c) authorizes a court to award “just costs

and any actual expenses, including attorney fees, incurred as a result of the
removal.” But, “[a]bsent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively reasonable
basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). “[R]emoval is not objectively unreasonable solely because the removing
party’s arguments lack merit, or else attorney’s fees would always be awarded
whenever remand is granted.” Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062,
1065 (9th Cir. 2008).
Applying that objective standard, the court declines to award costs or
expenses to Plaintiffs. “The preemptive effect of federal labor statutes is a
28

complex and challenging area of law.” Toensmeier v. Amalgamated Transit
Union, 2016 WL 884644, at *4 (D. Or. Mar. 8, 2016) (denying request for fees
under § 1447(c) in remanding an action improperly removed on the ostensible
basis of LMRDA complete preemption). Moreover, there is some non-binding
authority finding such preemption under the LMRDA. See Porch-Clark, 930 F.
Supp. 2d at 935. HNA’s removal was not objectively unreasonable.
V. CONCLUSION
For the foregoing reasons, the action is REMANDED to the First
Circuit Court of the State of Hawaii. The Motion for TRO, which sought only to
preserve the status quo while the court adjudicated the Motion to Remand, is
DENIED as MOOT. The court does not reach Defendant’s Motion to Dismiss.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 12, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Ross et al. v. Haw. Nurses’ Assoc. Office & Prof’l Emp. Int’l Union Local 50, Civ. No. 18-00023
JMS-RLP, Order Denying Plaintiffs’ Motion for Temporary Restraining Order and Remanding
Action to State Court for Lack of Subject Matter Jurisdiction

29