Montador v. National Hockey League et al
MEMORANDUM Opinion and Order Signed by the Honorable Thomas M. Durkin on 9/16/2022. Mailed notice(mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PAUL MONTADOR, Executor
and Estate Trustee of the Estate
of STEVEN R. MONTADOR, Deceased,
No. 21 C 06820
Judge Thomas M. Durkin
NATIONAL HOCKEY LEAGUE and
NATIONAL HOCKEY LEAGUE BOARD OF
MEMORANDUM OPINION AND ORDER
Plaintiff Paul Montador, representing the estate of his deceased son, Steven
Montador, brought this suit in the Circuit Court of Cook County against Defendants,
the National Hockey League and the National Hockey League’s Board of Governors
(collectively “NHL”). The NHL removed the case to this Court, and Plaintiff has filed
a motion to remand the case to state court. For the reasons stated herein, Plaintiff’s
motion is granted.
Steven Montador played hockey in the NHL from 2001 until his retirement in
2012. Two years after he retired, at the age of thirty-five, he passed away. A postmortem neuropathological examination of Montador’s brain showed that he had
suffered from chronic traumatic encephalopathy. Montador’s estate, represented by
his father, Paul Montador (“Plaintiff”), sued the NHL in 2015, claiming that various
symptoms, and ultimately his death, were at least partially caused by numerous
concussions he suffered while playing hockey. Among other claims, Plaintiff alleged
that the NHL negligently promoted violence by its players and failed to warn his son
of the risks of brain injury that the sport entails, in violation of the Illinois Survival
Act, 755 Ill. Comp. Stat. 5/26-6 and the Illinois Wrongful Death Act, 740d Ill. Comp.
Judge Lee dismissed most of Plaintiff’s claims in the first suit as completely
preempted by Section 301 (“§ 301”) of the Labor Management Relations Act, 29 U.S.C.
§ 185 (“LMRA”) because those claims were “inextricably intertwined” with provisions
of collective bargaining agreements (“CBAs”) that governed Montador’s employment
relationship with the NHL. See Montador v. Nat’l Hockey League, No. 15 C 10989,
2020 WL 11647730, at *4 (N.D. Ill. Nov. 24, 2020) (“Montador I”).
concluded, however, that two of Plaintiff’s claims—that the NHL unreasonably
promoted a “culture of violence,” and that the NHL implicitly misrepresented to
Montador that his head trauma was not serious—were not preempted, because the
alleged tort claims were based on common law obligations that existed independently
of the CBAs. Id. at *6. Judge Lee declined to exercise supplemental jurisdiction over
those claims and dismissed them without prejudice. Id. at *7.
Plaintiff reasserted the two surviving claims in a new lawsuit, which he filed
in the Circuit Court of Cook County. The NHL removed the case to this Court on
grounds that, this time, these claims too are completely preempted under § 301.
Plaintiff filed a motion to remand the case back to state court, which the Court now
considers. The case was initially assigned to Judge Lee, and has now been reassigned
to this Judge.
Removal is governed by 28 U.S.C. § 1441, which provides, “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.” A plaintiff who contests the asserted jurisdictional basis may
file a motion to remand the case to state court. 28 U.S.C. § 1447(c). “The party
seeking removal has the burden of establishing federal jurisdiction, and federal
courts should interpret the removal statute narrowly, resolving any doubt in favor of
the plaintiff’s choice of forum in state court.” Schur v. L.A. Weight Loss Centers, Inc.,
577 F.3d 752, 758 (7th Cir. 2009). If at any time the federal court finds that it has no
subject-matter jurisdiction, the case must be remanded. § 1447(c).
The NHL asserts that the Court has federal question jurisdiction over this case
because the LMRA completely preempts Plaintiff’s state law claims. Under the wellpleaded complaint rule, federal question 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). Complete preemption is a
narrow exception to this rule. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004).
When a defendant successfully asserts that a federal statute completely preempts a
plaintiff’s state law claims, “any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim, and therefore arises under
federal law.” Caterpillar, 482 U.S. 386, 393 (1987); see also Crosby v. Cooper B-Line,
Inc., 725 F.3d 795, 800 (7th Cir. 2013).
Section 301 of the LMRA “provides a federal rule for contract disputes between
employers and labor organizations or between different labor organizations.” Crosby,
725 F.3d at 800. As an exclusive remedy for such disputes, § 301 completely preempts
state law claims “founded directly on rights created by collective-bargaining
agreements, and also claims substantially dependent on analysis of a collectivebargaining agreement.” Caterpillar, 482 U.S. at 394.
Complete preemption under § 301 applies only when the determination of the
state law claims is “inextricably intertwined” with the operative CBA.
Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). “Factual overlap between a statelaw claim and a claim one could assert under a CBA is not necessarily sufficient.”
Crosby, 725 F.3d at 800. Therefore, the Court must “look beyond the face of plaintiff's
allegations and the labels used to describe her claims and . . . evaluate the substance
of plaintiff’s claims.” Id.
In Montador I, Judge Lee concluded that the exact claims at issue here—the
NHL’s purported “culture of violence” and misrepresentations concerning the longterm effects of players’ head traumas—were not completely preempted because they
were grounded in common-law duties, not duties created by the CBAs. 2020 WL
11647730, at *5–6 (citing Boogaard v. Nat’l Hockey League, 211 F. Supp. 3d 1107,
1112 (N.D. Ill. 2016) (holding the same with respect to analogous claims against the
NHL)); see also Carcillo v. Nat’l Hockey League, 529 F. Supp. 3d 768, 779–80, 783
(N.D. Ill. 2021) (holding that claims that the NHL promoted fighting were not
preempted because they were grounded in common law duties). Other courts have
held similarly. See, e.g., Dent v. Nat’l Football League, 902 F.3d 1109, 1123 (9th Cir.
2018) (negligent misrepresentation claim concerning side effects of prescription drugs
used to treat football players’ injuries involved fact questions outside the scope of
Undeterred by Judge Lee’s two prior rejections of its preemption argument
with respect to these claims, the NHL contends that preemption applies this time
because Plaintiff’s new culture-of-violence and misrepresentation claims are really
just disguised versions of the claims the Court held to be preempted in Montador I.
That is, the NHL asserts that Plaintiff’s culture-of-violence claims are actually claims
that the NHL breached its duty of care by not changing the playing rules in the CBAs
to prohibit fighting, and Plaintiff’s misrepresentation claims are predicated on a duty
of care arising from the CBAs to fully inform players of the risks of head trauma.
These arguments fail. Turning first to the culture-of-violence claims, Plaintiff’s
complaint alleges that the NHL not only permitted, but actively promoted and
glorified, fighting between players because fighting is popular with hockey fans and
therefore profitable for the league. These allegations are at most tangential to the
terms of the CBA and are certainly not “inextricably intertwined” with them. Lueck,
471 U.S. at 213. As Judge Lee explained in Montador I, the NHL’s duty not to
unreasonably expose players to gratuitous violence arises out of the common law, not
the CBAs. 2020 WL 11647730, at *6. Stated differently, under Illinois law “every
person owes a duty of ordinary care to guard against injuries to others.” Karas v.
Strevell, 884 N.E.2d 122, 129 (Ill. 2008). The NHL has not provided any good reason
this Court should question Judge Lee’s findings in Montador I that a court need not
interpret the CBAs to decide the “existence or scope” of the NHL’s duty not to
affirmatively create an unreasonable risk of injury.
2020 WL 11647730, at *6
(quoting Boogaard, 211 F. Supp. 3d at 1111).
Indeed, in Boogaard, 211 F. Supp. 3d 1107, the court rejected an argument
nearly identical to the one the NHL makes here. In that case, the court found that
many of the claims by the estate of a deceased NHL player were completely
preempted by § 301 of the LMRA. Id. at 1109–1110. The plaintiff filed a motion for
leave to file a second amended complaint, which included claims that the NHL
“actively promoted violence,” and which the NHL opposed. Id. at 1111. The NHL
argued, like here, that these culture-of-violence claims were “merely repackaged
versions of the other, preempted claims” because they contained allegations that the
NHL “failed to eliminate violence” and had a duty to protect the plaintiff from the
risks of play. Id. (cleaned up). The court disagreed. It held that, even if the claims
that the NHL promoted violence contained some similar allegations to the preempted
claims, they were not predicated on the NHL’s voluntarily assumed duties in the
CBA, and instead alleged that the NHL took “active and unreasonable steps” to
promote fighting. Id. at 1112.
Similarly here, the substance of the allegations underlying Plaintiff’s cultureof-violence claims is that the NHL affirmatively encouraged fighting. Plaintiff cites
many of the same facts as did the plaintiff in Boogaard—highlighting, for example,
how the NHL promoted films and highlight reels featuring the league’s “greatest hits”
and licensed video games that included fighting in gameplay—in support of his claim
that the NHL actively encouraged a climate of violence. Compare, e.g., Compl. at Law
¶¶ 39–42, Montador v. Nat’l Hockey League, No. 2021 L010483 (Cir. Ct. Cook Cnty.
Oct. 26, 2021), ECF No. 18-1, with Boogaard, 211 F. Supp. 3d at 1112.
To be sure, the NHL is correct that the culture-of-violence claims reference the
NHL’s failure to prohibit fighting, which is governed by the CBA. But read in context,
the allegations that the NHL did not ban fighting merely support Plaintiff’s claims
that the NHL violated its common-law duties by unreasonably promoting a culture
of violence. They are not grounded in any separate obligation that the NHL has
voluntarily assumed by virtue of any CBA provision. Nor does the NHL point to any
language in the CBAs suggesting as much. 1 Therefore, the culture-of-violence claim
is not “inextricably intertwined” with the CBAs, and it is not preempted.
The Court finds the NHL’s preemption argument as to the misrepresentation
misrepresentation claim as a claim that the NHL breached its obligation to disclose
The NHL also suggests that the current claims are preempted because Plaintiff
has recycled many of the paragraphs from his previous complaint into the instant
version. But this is irrelevant, because the preemption analysis focuses not on “the
face of plaintiff’s allegations and the labels used to describe [his] claims,” but instead
on the “substance” of the claims. Crosby, 725 F.3d at 800.
the information it knew about the long-term risks of head trauma. While it is true
that Plaintiff’s misrepresentation claims contain allegations of non-disclosure, the
lion’s share of the facts Plaintiff offers in support suggests that the NHL affirmatively
misled players by communicating through its conduct that head injuries were not
As Plaintiff sees it, the NHL’s glorification and promotion of violence itself
implicitly represented that head trauma could not cause severe long-term
So too did the NHL’s decades-long representation that it was
comprehensively studying the long-term health effects of head injuries. The NHL’s
commitment to study the issue, Plaintiff claims, created in players a false sense of
security. And Plaintiff alleges that, when the NHL released its study, the results
downplayed the health consequences of head trauma and continued to mislead
In holding that a similar misrepresentation claim was not preempted, the
Boogaard court explained that although the complaint referenced the fact that the
NHL did not warn the plaintiff about the risks associated with head trauma (which
by itself would be preempted), the misrepresentation claim centered on other facts
outside the assumed duties in CBA. Namely, the Boogaard plaintiff alleged many of
the same facts as Plaintiff here—that the NHL “made a show” of studying head
trauma, and that it misrepresented the results of its study upon its release, which
“actively and unreasonably harmed” players by causing them to rely on
misinformation and to continue fighting during gameplay. 211 F. Supp. 3d at 1112.
As in Boogaard, here the misrepresentation claims against the NHL center on its
affirmative conduct, not its failure to warn.
Accordingly, the misrepresentation
claims also survive preemption.
Because the Court concludes that the LMRA does not preempt any of Plaintiff’s
claims, federal subject-matter jurisdiction is not available on the basis of complete
preemption. And because neither side raises any other basis for federal question
jurisdiction, the Court finds that it does not have subject-matter jurisdiction over this
dispute. 2 Remand is, therefore, mandatory, and the Court need not consider the
propriety of the proposed amended complaint.
For the reasons set forth above, Plaintiff’s motion to remand is granted. The
Clerk is directed to remand this case forthwith to the Circuit Court of Cook County.
Civil case terminated.
Dated: September 16, 2022
Honorable Thomas M. Durkin
United States District Judge
As Judge Lee noted in Montador I, diversity jurisdiction does not exist because
Steven Montador was a Canadian resident at the time of his death, and the NHL is
a limited liability company (“LLC”) with seven members having their principal places
of business in Canada. See 2020 WL 11647730, at *6; see Page v. Democratic Nat’l
Comm., 2 F.4th 630, 635 (7th Cir. 2021) (for diversity-of-citizenship purposes, LLCs
are citizens of every state in which a member is domiciled); 28 U.S.C. § 1332(c)(2)
(“[T]he legal representative of the estate of a decedent shall be deemed to be a citizen
only of the same State as the decedent[.]”).
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