Moore v. Highlands Hospital Corporation et al
Filing
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MEMORANDUM OPINION & ORDER: Moores motion to remand, R. 8 , is GRANTED. Moores request for sanctions, R. 8 at 12, is DENIED. This case is REMANDED to the Floyd Circuit Court and STRICKEN from the Courts active docket. All other pending motions are DENIED as moot. Signed by Judge Amul R. Thapar on 11/17/11.(MJY)cc: COR, Floyd County Circuit Court
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
MELISSA ASHLEY MOORE,
Plaintiff,
v.
HIGHLANDS HOSPITAL
COPRORATION, et al.,
Defendants.
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Civil No. 11-131-ART
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MEMORANDUM OPINION &
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ORDER
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Defendants removed plaintiff Melissa Ashley Moore‘s action from state court,
alleging that the Labor Management Relations Act and the National Labor Relations Act
preempt Moore‘s state-law claims. But the Labor Management Relations Act does not apply
because Moore does not allege that the defendants violated any labor agreement. Further, the
National Labor Relations Act does not support removal jurisdiction, which means this Court
has no authority to determine whether the Act preempts Moore‘s claims. Ultimately, it is up
to the state court to determine whether Moore should have filed her claims with the National
Labor Relations Board. Moore‘s motion to remand is granted.
BACKGROUND
Beginning in October 2006, Defendant Highlands Hospital Corporation employed
plaintiff Melissa Ashley Moore as a nurse at Highlands Regional Medical Center in
Prestonsburg, Kentucky. R. 1-1 at 6; R. 8 at 1–2. While employed, Moore complained about
the patient-to-nurse ratio, asserting that it affected patient safety. R. 1-1 at 6.
At some point, Moore decided old-fashioned complaints were not good enough.
Moore went global. She started a Facebook page titled ―Nurses for lower patient-to-nurse
ratios,‖ which grew to 35,000 members by August 2010. Id. What Moore was doing with
the site is not entirely clear. She allegedly posted an article about lower patient-to-nurse
ratios that ―had to do with National Nurses United,‖ the largest union of registered nurses,
R. 8 at 3, and encouraged other nurses to join National Nurses United, R. 1-1 at 7. Whatever
she did, Moore asserts that it ruffled Highland‘s feathers. In July 2010, Moore claims that
the Vice President of Patient Care Services, Terresa Booher, met with Moore to let her know
that ―she should think about her behavior‖ because her actions—whether at work or at
home—―reflected on the Hospital.‖
R. 1-1 at 7.
After this meeting, Moore feared
termination and deleted the Facebook page. Id. On December 28, 2010, Defendant Cathie
King, Moore‘s supervisor, terminated Moore, citing her substandard customer service. R. 8
at 2.
In July 2011, Moore filed suit in Floyd County Circuit Court against Highlands,
Consolidated Health Systems, Inc., Booher, and King. R. 1-1 at 1. She claimed retaliation
for exercising her freedom of speech under the Kentucky Constitution, slander, invasion of
privacy, and retaliation for making patient safety complaints in violation of Kentucky
Revised Statute § 216B.165. Id. at 6-11. In August, Highlands removed the case to federal
court on the grounds that Moore‘s claims are preempted by the National Labor Relations Act
(―NLRA‖), R. 1 at 2 (citing 29 U.S.C. §§ 157–158), and the Labor Management Relations
Act (―LMRA‖), R. 11 at 3–4 (citing 29 U.S.C. § 185). Highlands alleges that Moore‘s
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actions constitute ―participation in union activity,‖ R. 1 at 2, in spite of the fact that Moore is
not a member of a union and did not work under a union contract.
DISCUSSION
Highlands can remove Moore‘s state-court action only if Moore could have originally
filed the action in federal court. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987).
Because diversity jurisdiction is lacking, removal can only be
premised on federal-question jurisdiction. See Beneficial Nat’l Bank v. Anderson, 539 U.S.
1, 6 (2003). As the removing party, Highlands must establish federal jurisdiction. See 28
U.S.C. § 1331; Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1063 (6th Cir. 2008).
Highlands must demonstrate that either (1) Moore alleged a federal claim on the face of the
complaint or (2) Moore alleged a state law claim that is preempted by federal law in such a
way that the claim must be converted into a federal claim. Caterpillar, 482 U.S. at 392–93.
But Highlands cannot satisfy either of these.
I. Well-Pleaded Complaint Rule
To determine whether Moore‘s complaint contains a question of federal law, the
Court first applies the ―well-pleaded complaint rule.‖ Id. at 392. Under this rule, the Court
examines the allegations of the complaint and ignores potential defenses. Anderson, 539
U.S. at 6. Simply put, federal jurisdiction exists if a federal question is ―presented on the
face‖ of Moore‘s complaint. Caterpillar, 482 U.S. at 392. This rule recognizes that the
plaintiff is ―the master of the claim,‖ and if the plaintiff chooses to bring a state law claim,
that claim generally cannot be ―recharacterized‖ as a federal claim for the purpose of
removal. Loftis v. United Parcel Serv. Inc., 342 F.3d 509, 515 (6th Cir. 2003). Even if the
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plaintiff makes a ―passing mention of federal law,‖ this on its own is not enough to establish
federal jurisdiction. Warthman, 549 F.3d at 1063.
In this case, Moore‘s complaint does not even hint at a federal cause of action.
Instead, the complaint is based entirely on alleged violations of the Kentucky constitution,
common law, and statutes. In fact, Moore asserts that ―she and her counsel took great effort
to make sure all her claims were brought under Kentucky Constitutional and Statutory Law.‖
R. 13 at 1. Moore could have alleged claims under the United States Constitution, but as the
master of her complaint, Moore is perfectly able to ―forego federal claims‖ in order to
―secure a state forum.‖ Warthman, 549 F.3d at 1063. Moore does not explicitly invoke or
even reference the NLRA or the LMRA.
Thus, Highlands cannot establish federal
jurisdiction on the face of Moore‘s complaint.
II. Preemption
There is another route to federal court:
preemption.
There are two types of
preemption: express preemption and implied preemption. Beneficial Nat. Bank, 539 U.S. at
8. A state claim may be removed to federal court using express preemption if Congress
expressly provides so in federal statute. Id. But the Court can quickly dismiss express
preemption because neither the NLRA nor the LMRA explicitly preempt state law.
Regarding implied preemption, there are two types: complete preemption (or field
preemption) and ordinary preemption (or conflict preemption). See Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 540-41 (2001). Both work similarly: even if a plaintiff‘s complaint
does not invoke federal law on its face, the state law claims necessarily invoke federal law
either because Congress intended to ―occupy the entire field‖ (complete/field preemption),
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cf. Exxon Shipping Co. v. Baker, 554 U.S. 471, 489 (2008) (finding ―no clear indication of
congressional intent to occupy the entire field of pollution remedies‖ in the Clean Water
Act), or because state law ―conflicts‖ with federal law, making it impossible to comply with
both state and federal law (ordinary/conflict preemption), see Geier v. Am. Honda Motors
Co., 529 U.S. 861 (2000) (finding preemption of common-law tort action by the National
Traffic Motor Vehicle Safety Act of 1966).
But there is an important distinction between complete preemption and ordinary
preemption with regard to federal jurisdiction. Only complete preemption supports removal;
ordinary preemption does not. Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318, 323 (6th
Cir. 2005). This boils down to a very simple concept: not all preempted state-law claims
can be removed to federal court. Caterpillar, 482 U.S. at 398. Highlands asserts that the
NLRA and LMRA preempt Moore‘s claims, but does not explain what type of preemption
applies. Because complete preemption is the only type that can confer removal jurisdiction,
the Court must assume that Highlands believes both the NLRA and LMRA provide complete
preemption. Unfortunately for Highlands, complete preemption is very rare; it only applies
when the preemptive ―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.‖ Caterpillar, 482 U.S. at 393 (quoting Metro. Life Ins. Co. v. Taylor, 481
U.S. 58, 65 (1987)). In fact, the Supreme Court has applied this extremely powerful doctrine
to only three statutes: Section 301 of the LMRA; Section 502(a) of ERISA; and the National
Bank Act, 12 U.S.C. §§ 85–86. Beneficial Nat’l Bank, 539 U.S. at 6-7; see also Ohio ex rel.
Skaggs v. Brunner, 629 F.3d 527, 531 (6th Cir. 2010) (limiting application to the same three
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statutes). Both the Supreme Court and the Sixth Circuit have limited expansion of complete
preemption, recognizing that its force ―is so powerful as to displace entirely any state cause
of action‖ and that ―[a]ny such suit is purely a creature of federal law, notwithstanding the
fact that state law would provide a cause of action‖ in the absence of the doctrine. See
Caterpillar, 482 U.S. at 394 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust
for S. Cal., 463 U.S. 1, 23 (1983)); Tisdale v. United Ass’n of Journeymen, Local 704, 25
F.3d 1308, 1310 (6th Cir. 1994).
A. The LMRA Does Not Apply
Highlands‘s removal notice only invoked the NLRA, R. 1 at 2, but Highlands referred
to the LMRA in its response to Moore‘s motion to remand. R. 11 at 3–4. Regardless, the
LMRA clearly does not apply in this case because the LMRA is limited to violations of labor
agreements. The text of § 301 itself authorizes ―[s]uits for violation of contracts between an
employer and a labor organization.‖ 29 U.S.C. § 185(a) (emphasis added). And the purpose
of § 301 is to promote consistent resolution of labor disputes by authorizing ―federal courts
to fashion a body of federal law for the enforcement of these collective bargaining
agreements.‖ Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403–04 (1988)
(emphasis added) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451 (1957). As
an example of its application, in Caterpillar, the plaintiffs were union members suing their
employer over a labor dispute. 482 U.S. at 388. The plaintiffs filed their action based solely
on state law, but the employer removed the action, claiming that the LMRA preempted the
state-law claims. Id. at 390. The Supreme Court remanded the case because the plaintiffs
did not sue for breach of their collective bargaining agreement even though an agreement
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was in place. 482 U.S. at 394–95. Here, there are even fewer facts favoring preemption.
Moore is not a union member and did not work under the terms of a collective bargaining
agreement. R. 8 at 3; R. 11 at 3. Even if a labor agreement of some kind existed, Moore did
not base any of her claims on an alleged violation of any labor agreement. Moore may have
openly supported National Nurses United on her Facebook page and may have encouraged
other nurses to join the union, but this does not invoke the LMRA. Thus, the LMRA cannot
preempt Moore‘s state law claims.
B. The NLRA Does Not Provide Removal Jurisdiction
In its removal notice, Highlands asserted that the Court has original jurisdiction
because Moore‘s claim ―alleges discrimination because of her participation in union activity,
and, as such, is a claim involving alleged violations of the National Labor Relations Act.‖
R. 1 at 2. Highlands does little to explain what it means other than to say that ―this case
directly raises the issue of [Moore‘s] rights under Section 7 and 8 of the National Labor
Relations Act. In particular, [Moore] mentions the labor union National Nurses United, she
details her concerted activities, and mentions the 35,000 members of her work-related‖
Facebook page. R. 11 at 3.
But the Court cannot proceed to decipher Highlands‘s allegations because it lacks
jurisdiction to do so. As noted above, neither the Supreme Court nor the Sixth Circuit has
recognized the NLRA as completely preemptive of state law. The Sixth Circuit faced a
similar situation in Roddy when the parties asked whether the Railway Labor Act completely
preempted Michigan-law claims. Id. at 322. The Sixth Circuit had not recognized the Act as
completely preemptive prior to Roddy, but the court still went through a painstaking analysis
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to determine that it should not recognize the Act as completely preemptive. Id. at 324–26. If
Highlands hoped that this Court would do a similar analysis, they are a little late. The
Supreme Court already explicitly held that the NLRA does not completely preempt state law.
See Caterpillar, 482 U.S. at 398 (―The fact that a defendant might ultimately prove that a
plaintiff‘s claims are pre-empted under the NLRA does not establish that they are removable
to federal court.‖).
Thus, Highlands can only allege ordinary preemption, which for the NLRA is known
as Garmon preemption. In San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–
45 (1959), the Supreme Court held that both state and federal courts generally lack original
jurisdiction to determine disputes involving conduct actually or arguably prohibited by the
NLRA.
The Court considered it essential to the administration of the NLRA that
determinations regarding the scope and effect of §§ 7 and 8 ―be left in the first instance to the
National Labor Relations Board.‖ Id.
By invoking Garmon preemption as a basis for federal jurisdiction, R. 6 at 2; R. 11 at
4–5, Highlands is essentially asking the Court to retain the case so that it can dismiss it. But
Highlands‘s argument is ill-conceived. Garmon preemption only strips a federal or state
court of original jurisdiction; it does not confer removal jurisdiction.
See Int’l
Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 393 (1986) (―A claim of Garmon preemption
is a claim that the state court has no power to adjudicate the subject matter of the case, and
when a claim of Garmon preemption is raised, it must be considered and resolved by the
state court.‖); Alongi v. Ford Motor Co., 386 F.3d 716, 728 (6th Cir. 2004) (―[W]e have no
jurisdiction to consider whether any of [of the plaintiff‘s claims] may be preempted by § 7
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and § 8 of the [NLRA]; the matter is for the state courts to consider.‖); see also Lattin v.
Kurdziel, 149 F.3d 1183, at *5 (6th Cir. 1998) (unpublished table decision) (―This seemingly
broad-based preemption does not apply to removal jurisdiction if the case begins in state
court.‖). If Moore had originally filed her action in federal court, then it would be up to this
Court to determine whether Garmon preemption applies. But since the action originated in
state court, whether Moore‘s claims should be dismissed so that she can pursue an action
with the NLRB is a question for the state court to decide. Roddy, 395 F.3d at 326 (―Because
there is no removal jurisdiction, we do not have jurisdiction to reach the question of whether
Roddy‘s state claim is in fact preempted by federal law. . . . State 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.‖).
III. Attorney Fees
As part of a remand order, a court ―may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.‖ 28 U.S.C. § 1447(c).
The Court has discretion to grant fees to the opposing party if ―the removing party lacked an
objectively reasonable basis for seeking removal.‖ Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005). Highlands based removal of Moore‘s claims on preemption by the
NLRA and LMRA. Admittedly, ―unclear‖ would be a charitable description of preemption
case law. But even a quick read of Caterpillar would have keyed Highlands into the fact that
neither complete preemption nor ordinary preemption provides federal jurisdiction over
Moore‘s claims. Finding cases holding that Garmon preemption does not provide removal
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jurisdiction would have taken slightly more initiative, but nothing extraordinary.
Still,
Highlands filed its removal notice soon after Moore filed her state claims as opposed to say,
a few weeks before trial.
See Gonzales v. Haydon Bros. Contracting, Inc., 2011 WL
2534455, at * 3 (E.D. Ky. June 27, 2011). Additionally, Moore‘s statement about taking
―great effort‖ to avoid stating a federal claim indicates that there is at least some opportunity
to interpret the core of her complaints as federal claims. All together, it does not appear that
Highlands removed Moore‘s state action to ―delay litigation‖ or to ―impose additional
litigation costs‖ on Moore. See Brunner, 629 F.3d at 532. The Court therefore does not
award attorney fees and costs to Moore.
CONCLUSION
Accordingly, it is ORDERED that Moore‘s motion to remand, R. 8, is GRANTED.
Moore‘s request for sanctions, R. 8 at 12, is DENIED. This case is REMANDED to the
Floyd Circuit Court and STRICKEN from the Court‘s active docket. All other pending
motions are DENIED as moot.
This the 17th day of November, 2011.
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