Gosch v. International Chapter of Horseshoers and Equine Trades, Local 947

Filing 14

MEMORANDUM (Order to follow as separate docket entry) re 5 MOTION to Remand to State Court filed by Austin Gosch. Signed by the Honorable William W. Caldwell on August 3, 2016. (kjn)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

AUSTIN GOSCH,
Plaintiff,
v.
INTERNATIONAL CHAPTER OF
HORSESHOERS AND EQUINE
TRADES, LOCAL 947,
Defendant

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CASE NO. 1:16-CV-00544

MEMORANDUM
Plaintiff, who worked as a gate-crew employee on a horse racing track, sues
his labor union (Defendant) for breach of the duty of fair representation. The claim‟s focus is
on Defendant‟s alleged decision not to arbitrate a grievance on Plaintiff‟s behalf, against his
former employer, Hollywood Casino at Penn National Race Course (the “Casino”). The
action was originally filed in state court; however, Defendant filed a notice of removal,
asserting that the action could have originally been filed here because the Court has
federal-question jurisdiction. Plaintiff, through his pending motion to remand, disagrees with
Defendant. At the forefront is whether Plaintiff pleads a state-law claim and, if so, whether
the claim is completely preempted by federal law.

Because the Court concludes that

Plaintiff pleads a state-law claim that is not completely preempted by federal law, federalquestion jurisdiction is lacking. Plaintiff‟s motion to remand will be granted.
I.

Background and Procedural History

On February 18, 2016, Plaintiff, a Pennsylvania resident, filed a civil
complaint against Defendant in the Dauphin County Court of Common Pleas. (Doc. 1-2 at
2-9).
According to Plaintiff, he was employed by the Casino as a gate-crew
employee, on a horse racing track. (Id. at 3, 4; see Doc. 6 at 1). Plaintiff also performed

“ponying functions” on the same race track, as an “independent contractor.” (Doc. 1-2 at 3).
In other words, in addition to his job as a gate-crew employee, Plaintiff was paid to lead
horses into racing gates. (Id.).
In 2015, Defendant, a labor union, was certified by the Pennsylvania Labor
Relations Board (“PLRB”), under the Pennsylvania Labor Relations Act (“PLRA”), as the
sole and exclusive collective bargaining unit for gate-crew and valet-crew employees on the
race track, at the Casino. (Id. at 3, 11-12). After certification, Defendant and the Casino
approved a collective bargaining agreement (“CBA”). (Doc. 1-2 at 4, 11). Accordingly, as a
gate-crew employee, Plaintiff became represented by Defendant under the terms of the
CBA. (See id. at 4).
Indeed, the CBA provided that gate-crew and valet-crew employees
employed by the Casino were required to be members of the union. (See id. at 12, 13).
Relevant to this case, the CBA also provided for a grievance and arbitration procedure. (Id.
at 17-18). The CBA further prohibited “Unit Employees”1 from performing “services for pay
for other employers or individuals during times when such Unit Employees are working for
the [Casino].” (Id. at 26). But valet-crew employees were permitted to accept “gratuities
from the Jockeys with whom they work[ed].” (Id. at 26).
After the CBA went into effect, Plaintiff received a “documented verbal
warning” from the Casino. (Id. at 4, 29). Plaintiff “was warned that according to the CBA he
[was] not allowed to be employed by another employer while performing work for [the
Casino at the race track].” (Id. at 29). Plaintiff was also “told to finish up his outside
contracts,” relating to his “ponying” activities. (Id.). Then, a week later, Plaintiff received a
1

The CBA defined “unit employees” as “full-time and regular part-time starting gate crew and
valet crew employees.” (Doc. 1-2 at 12).
2

“written warning” because, in violation of the CBA, he “continued to escort horses to the
starting gate.” (Id. at 4, 31). The written warning also explained that Plaintiff‟s “[f]ailure to
comply with the CBA [would] result in further disciplinary actions, up to and including
separation.” (Id. at 31).
On the day after Plaintiff received a written warning, he asked his Shop
Steward2 to set up a meeting to discuss a problem arising out of the CBA. (Id. at 4).
Plaintiff took that course of action, in compliance with the CBA‟s grievance procedure. (See
id. at 17). Plaintiff wanted to grieve the warnings he received “because the Casino was
permitting the [v]alets to continue the past practice of working for another employer, [while]
denying him the [same] right.” (Id. at 5). In Plaintiff‟s view, he was being treated unfairly or
discriminated against. (Id.).
The Shop Steward, however, did not set up any meetings. (Id. at 4). After
Plaintiff informed Defendant that the Shop Steward did not set up any meetings, the union
proceeded to review Plaintiff‟s grievance itself. (See id. at 5). In that regard, Defendant
held an “informal” telephone conference.

(Id.).

During the conference, Plaintiff asked

Defendant to have its attorney review his grievance. (Id. at 6). Not long after, Defendant
informed Plaintiff that it reviewed his grievance and found that the grievance lacked merit.
(Id. at 6, 33).
Plaintiff then attempted to have another, similar grievance filed. (Id. at 6).
Defendant, though, rejected it, claiming that it lacked merit. (Id. at 6, 38). In the end, the
Casino terminated Plaintiff‟s employment “because he would not choose between his work
as a member of the gate crew and the independent contractor role of ponying.” (Id. at 6).
2

Under the CBA, “shop stewards” represented the interests of the Unit Employees.
Defendant was permitted to determine the shop stewards‟ qualifications and designate them
accordingly. (Doc. 1-2 at 13).
3

Based on these factual allegations, Plaintiff filed an action against Defendant
for breach of the duty of fair representation, seeking injunctive relief in the form of an order
compelling Defendant to file a grievance with the Casino nunc pro tunc. (Id. at 7-8; see
Doc. 11 at 2). Plaintiff alleges that Defendant‟s decision not to arbitrate a grievance on his
behalf was arbitrary, discriminatory, or made in bad faith.

Plaintiff did not allege any

sources of law.
Before filing his civil complaint, moreover, Plaintiff filed unfair-labor-practice
charges with the National Labor Relations Board (“NLRB”) and PLRB. (Doc. 6 at 2, 6-7;
Doc. 13-1 at 1-3).
The PLRB informed Plaintiff that no complaint would be issued. (Doc. 13-1
at 5-6). According to the PLRB, even if Plaintiff had filed a charge under the PLRA, rather
than the Pennsylvania Employe Relations Act (“PERA”), he failed to state a cause of action
within the Board‟s jurisdiction to remedy. The PLRB noted that the civil courts (not the
Board) possessed exclusive jurisdiction to entertain claims for breaches of the duty of fair
representation. (Id. at 5).
The NLRB informed Plaintiff that it would not get involved in labor disputes
concerning horse racing tracks. (See Doc. 6 at 2; Doc. 13-1 at 7, 13). Consequently,
Plaintiff withdrew the NLRB charge against Defendant. (Doc. 6 at 2, 8).
On February 22, 2016, Plaintiff served his civil complaint on Defendant, and,
on March 11, 2016, Defendant received it. (Doc. 1 at ¶ 2). Thereafter, on March 30, 2016,
Defendant filed a notice of removal in this Court. (Doc. 1). According to Defendant, this
Court has federal-question jurisdiction over Plaintiff‟s action, in that the claim raised therein
is a federal claim, governed by Section 301(a) of the Labor Management Relations Act

4

(“LMRA”), 29 U.S.C. § 185(a), and is otherwise completely preempted3 by the same federal
law. (See id. at ¶¶ 7-11).
Since Defendant removed this action, Plaintiff has filed a motion to remand.
(Doc. 5).

In his motion, Plaintiff‟s basic premise is that the Court lacks subject-matter

jurisdiction. According to him, the duty-of-fair-representation claim is a state-law claim that
is not preempted by federal law. (See id.). Plaintiff‟s motion to remand has been fully
briefed, (Docs. 7, 8, 9, 11, 12, 13; see Doc. 10), and is ripe for review. 4
II.

Removal and Motions to Remand

When a plaintiff moves to remand, federal district courts must turn to the
“comprehensive statutory scheme” enacted by Congress regarding the removal of statecourt actions to federal court. See Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d
742, 745 (3d Cir. 1995)(referring to the statutory-removal scheme as “comprehensive”).
This statutory scheme can be found in the United States Code at 28 U.S.C. §§ 1441 – 1455.
In this case, three sections of the statutory scheme are particularly relevant: 1441, 1446,
and 1447.
Section 1441 provides in pertinent part:

3

Defendant solely asserts in its notice of removal that Plaintiff‟s claim is “preempted” by
Section 301(a). (Doc. 1 at ¶ 10). What Defendant apparently meant is that Section 301 completely
preempts Plaintiff‟s action, cloaking the Court with federal-question jurisdiction. See Johnson v.
NBC Universal, Inc., 409 F. App‟x 529, 531 (3d Cir. 2010)(explaining that the federal defense of
preemption does not permit removal, while the doctrine of complete preemption does); Shanefelter
v. United States Steel Corporation, 784 F.Supp.2d 550, 557 (W.D. Pa. 2011)(“One such instance of
complete preemption occurs in the context of § 301(a) of the LMRA . . . .”).
4

Defendant points out that Plaintiff did not file a certificate of concurrence or non-concurrence
with his motion to remand. (See Doc. 8 at 2). While the Court expects litigants to obey its Local
Rules, no interest of justice would be served by denying the present motion on such a technical
basis. The motion is clearly opposed, has been fully briefed, and involves a critical, jurisdictional
issue.
5

Except as otherwise expressly provided by Act of Congress, 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 for the district and
division embracing the place where such action is pending.
28 U.S.C. § 1441(a). In plainer language, “a defendant may remove an action brought in
state court to federal district court if the claims fall within the scope of federal [subjectmatter] jurisdiction.” Tuckey v. Intermatic, Inc., No. 1:13-CV-2096, 2014 WL 281692, at *1
(M.D. Pa. Jan. 24, 2014)(Conner, C.J.)(citing 28 U.S.C. § 1441(a); Allbritton Commc'ns Co.
v. NLRB, 766 F.2d 812, 820 (3d Cir. 1985)).
“The two primary types of „[federal subject-matter] jurisdiction‟ that § 1441(a)
contemplates are diversity jurisdiction and federal question jurisdiction.” Federal National
Mortgage Association v. Preston, No. 4:15-CV-01739, 2015 WL 6751064, at *1 (M.D. Pa.
Nov. 5, 2015)(Brann, J.); see Schulman v. MyWebGrocer, Inc., No. 14-CV-7252, 2015 WL
3447224, at *1 (E.D.N.Y. May 28, 2015)(“A case may be removed from state court to federal
court only if it could have originally been commenced in federal court on either the basis of
federal question or diversity jurisdiction.”). Generally speaking, diversity jurisdiction exists
“where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between – [] citizens of different states.” See 28 U.S.C. § 1332(a)(1).
Moreover, “„[t]he presence or absence of federal-question jurisdiction is [normally] 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.
See Gully v. First National Bank, 299 U.S. 109, 112–113 (1936).

The rule makes the

plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.”

Kline v. Security Guards, Inc., 386 F.3d 246, 251-52 (3d Cir.

6

2004)(quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).

In other words,

federal-question jurisdiction “„cannot be predicated on an actual or anticipated defense,‟” nor
can it “„rest upon an actual or anticipated counterclaim.‟” Preston, supra, at *2 (quoting
Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)(internal citation omitted)); but see, Johnson
v. NBC Universal, Inc., 409 F. App‟x 529, 531 (3d Cir. 2010)(“[T]he doctrine of complete
preemption creates an exception to the well-pleaded complaint rule.”)(citing Aetna Health
Inc. v. Davila, 543 U.S. 200, 207 (2004); Pascack Valley Hosp. v. Local 464A UFCW
Welfare Reimbursement Plan, 388 F.3d 393, 399 (3d Cir. 2004)).
Next, “[§] 1446 sets forth the procedure for [a Defendant‟s removal of] a case
to federal court.” Ward, 48 F.3d at 745. To remove a state-court action, a defendant must
file a notice of removal “containing a short and plain statement of the grounds for removal.”
28 U.S.C. § 1446(a). This notice of removal “shall be filed within 30 days after the receipt
by the defendant, through service or otherwise, of a copy of the initial pleading setting forth
the claim for relief . . . .” 28 U.S.C. § 1446(b)(1).
A party may freely amend the notice of removal within the 30–day period
provided by § 1446(b) to remove an action. USX Corp. v. Adriatic Ins.
Co., 345 F.3d 190, 205 n. 13 (3d Cir. 2003) (citing Shaw v. Dow Brands
Inc., 994 F.2d 364, 368 (7th Cir. 1993)). After this 30–day window
expires, courts distinguish between amendments that seek to add
jurisdictional information and those that seek to add procedural
information. See Pinnacle Choice, Inc. v. Silverstein, No. 07–5857, 2008
WL 2003759, at *4 (D.N.J. May 6, 2008). . . . Jurisdictional
amendments are permitted only to the extent that they clarify or correct
allegations already contained in the original notice. USX Corp., 345 F.3d
at 205 n. 12 (citing 28 U.S.C. § 1653).
Dragani v. Genesse Valley Investors, No. 11-1193, 2011 WL 2491066, at *5 (D.N.J. June 6,
2011). A defendant “may not rely on an entirely new basis for jurisdiction not set forth in the

7

removal petition.”

MHA LLC v. HealthFirst, Inc., 629 F. App‟x 409, 412 (3d Cir.

2015)(citations omitted).
With respect to § 1447, it “covers procedure after removal has occurred.”
Ward, 48 F.3d at 745. In pertinent part, § 1447 states the following:
A motion to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days after the filing
of the notice of removal under section 1446(a). 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). As such, § 1447(c) “provides for the remand of a case that has been
removed under [§] 1446 and delineates two categories for removal: (1) a defect in the
removal procedure and (2) the absence of subject matter jurisdiction[.]” Ward, 48 F.3d at
745 (internal quotation marks omitted).
When a motion to remand, such as the one in this case, is filed on the
premise that a federal court lacks subject-matter jurisdiction, the removing party bears the
burden of “showing the proper exercise of jurisdiction by the removal court . . . .” Schulman,
supra, at *1 (citing Cal. Pub. Emps. Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.
2004); Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 151 (2d Cir. 1994)); see Tuckey,
supra, at *1 (“As the removing party asserting federal jurisdiction, the defendant bears the
burden of proving that the action is properly before the district court.”)(citing McNutt v. Gen.
Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Packard v. Provident Nat'l
Bank, 994 F.2d 1039, 1045 (3d Cir. 1993); Boyer v. Snap–On Tools Corp., 913 F.2d 108,
111 (3d Cir. 1990)). Where subject-matter jurisdiction appears to be lacking, the action
must be remanded.

Summit Sheet Metal, LLC v. Sheet Metal Workers’ International

Association, Local Union No. 44, No. 3:13-CV-1623, 2013 WL 4520501, at *1 (M.D. Pa.

8

Aug. 26, 2013)(Caputo, J.). Furthermore, “„any doubt about the right of removal requires
resolution in favor of remand,‟” Preston, supra, at *1 (quoting Moore–Thomas v. Alaska
Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009)), and the “„removal statutes are to be
strictly construed against removal . . . .” Summit Sheet, supra, at *1 (citing Boyer, 913 F.2d
at 111).
To decide whether the removal court has subject-matter jurisdiction over an
action, “the Court „must focus on the plaintiff's complaint at the time the petition for removal
was filed,‟ and assume all factual allegations therein are true.” Summit Sheet, supra, at *1
(quoting Steel Valley Auth. v. Union Switch & Signal Div. Am. Standard, Inc., 809 F.2d 1006,
1010 (3d Cir. 1987)). When a defendant removes a case based on diversity of citizenship,
however, “courts are permitted to look to materials outside the pleadings, „includ[ing]
documents appended to a notice of removal or a motion to remand that convey information
essential to the court's jurisdictional analysis.‟”

See Schulman, supra, at *1 (quoting

Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010)); see also, Land v. Dollar, 330 U.S.
731, 735 n. 4 (1947)(Douglas, J.)(noting that when a question of a district court‟s jurisdiction
is raised “the court may inquire by affidavits or otherwise into the facts as they
exist.”)(citations omitted).
III.

Discussion

Defendant filed a notice of removal asserting that the Court has federalquestion jurisdiction over Plaintiff‟s action, originally filed in state court.

According to

Defendant, Plaintiff‟s claim for breach of the duty of fair representation is a federal claim,
governed by Section 301(a) of the LMRA and is otherwise completely preempted by the
same federal law. Plaintiff moves to remand on the basis that this Court lacks subject-

9

matter jurisdiction. According to Plaintiff, he pleads a state-law claim that is not completely
preempted by federal law.
A. Plaintiff’s Claim
Plaintiff‟s claim is that Defendant breached its duty of fair representation
when the union did not arbitrate a grievance on his behalf.

And Plaintiff alleges that

Defendant‟s decision against arbitrating a grievance, which resulted in the loss of his job,
was discriminatory, arbitrary, or made in bad faith. According to Defendant, Plaintiff‟s claim
is a federal claim, governed by Section 301(a) of the LMRA. The Court disagrees with
Defendant and concludes that Plaintiff pleads a state-law claim.
Section 301(a) of the LMRA provides that:
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. § 129(a)(emphasis added). As emphasized, this provision concerns claims for
contractual violations.

See Summit Sheet, supra, at *2 (quoting Textron Lycoming

Reciprocating Engine Division, Avco Corp. v. United Auto. Workers, 523 U.S. 653, 656, 657
(1998)). More specifically, the provision “governs claims founded directly on rights created
by collective-bargaining agreements, and also claims „substantially dependent on analysis
of a collective-bargaining agreement.‟” Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987)
(quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3 (1987)); see Richardson v.
United Steelworkers of America, 864 F.2d 1162, 1168 (5th Cir. 1989)(“When a collective
bargaining agreement imposes a duty of fair representation, there is federal jurisdiction over

10

a claim for breach of that duty under [S]ection 301 . . . .”)(citing In re Carter, 618 F.2d 1093,
1104 (1980)).
Plaintiff‟s claim does not involve a contractual violation.
At the outset, the Court notes that a union‟s duty of fair representation is
generally founded upon the relationship between a union and its members, as well as the
duty imposed by labor statutes. Falsetti v. Local Union No. 2026, United Mine Workers of
America, 161 A.2d 882, 895 n. 21 (Pa. 1960)(citing Brotherhood of Railroad Trainmen v.
Howard, 343 U.S. 768 (1952); Graham v. Brotherhood of Locomotive Firemen, etc., 338
U.S. 232 (1949); Steele v. Louisville & N. R. Co., 323 U.S. 192, 198–199 (1944); Grand
Lodge of the Broth. of Ry. And S.S. Clerks, Freight Handlers, Express and Station
Employees v. Girard Lodge No. 100, 120 A.2d 523, 525 (Pa. 1956)); but see, Richardson,
supra, 864 F.2d at 1168. Furthermore, claims for breach of the duty of fair representation
“often require review of the substantive positions taken and policies pursued by a union in
its negotiation of a collective bargaining agreement and in its handling of the grievance
machinery.” Vaca v. Sipes, 386 U.S. 171, 181 (1967).
Here, Plaintiff‟s claim, as stated in the complaint, will apparently turn on the
substantive position taken by Defendant in deciding against arbitrating a grievance on his
behalf. Indeed, the focus of the claim will apparently be about whether Defendant, in good
faith and in a nonarbitrary manner, made a decision as to the merits of Plaintiff‟s grievance.
(See Doc. 1-2 at 7); see also, Vaca, 386 U.S. at 194 (citing Humphrey v. Moore, 375 U.S.
335, 349-50 (1964); Ford Motor Co. v. Huffman, 345 U.S. 330, 337-39 (1953)); Ziccardi v.
Commonwealth, 456 A.2d 979, 981 (Pa. 1982)(“Under Falsetti, a member of a bargaining
unit has a right to sue his union for failure to proceed to arbitration when the complaint

11

alleges bad faith.”). Also, the claim does not appear to turn on any rights actually granted
in, or duties imposed by, the CBA or other contractual agreements. Plaintiff‟s claim is not a
federal claim governed by Section 301(a) of the LMRA.
The Court further notes that claims filed against unions for breaching the
duty of fair representation do not require concomitant claims that contract provisions were
violated by an employer. See Breininger v, Sheet Metal Workers Intern. Ass’n Local Union
No. 6, 493 U.S. 67, 80, 83, 84 (1989); cf. Vaca, 386 U.S. at 183, 185-86 (discussing hybrid
301 claims).
Moreover, while most of Pennsylvania‟s state-court decisions involving
claims for breach of the duty of fair representation concern cases brought by public-sector
employees against unions certified under the PERA, 43 P.S. §§ 1101.101 – 1101.2301,
see, e.g., Case v. Hazelton Area Educational Support Personnel Association, 928 A.2d
1154 (Pa. Cmwlth. 2007), no authority appears to suggest that the duty of fair
representation does not extend to private-sector unions that represent private-sector
employees and are certified under the PLRA. Similarly, no authority appears to suggest
that claims for breaches of the duty of fair representation can only be brought by publicsector employees against their respective unions certified under the PERA.5
The Court also notes that the PLRA contains the following language:
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employes in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employes in
such unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of employment:
Provided, That any individual employe or a group of employes shall have
the right at any time to present grievances to their employer.
5

Even the PLRB, in its letter to Plaintiff, indicated that a claim may be brought by privatesector employees against their unions, certified under the PLRA, for breaching the duty of fair
representation. (See Doc. 9-1 at 1).
12

43 P.S. § 211.7(a).

The PLRA was patterned after the NLRA.

Pennsylvania Labor

Relations Board v. Loose, 168 A.2d 323, 325 (Pa. 1961). And, under the NLRA, a union‟s
duty of fair representation is implied in § 9(a), 29 U.S.C. § 159(a). Faber, supra, 440 F.3d at
143. Section 9(a) provides:
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in
such unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of employment:
Provided, That any individual employee or a group of employees shall
have the right at any time to present grievances to their employer and to
have such grievances adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not inconsistent with the
terms of a collective-bargaining contract or agreement then in effect:
Provided further, That the bargaining representative has been given
opportunity to be present at such adjustment.
29 U.S.C. § 159(a).
Given the similarity between the language in the PLRA and NLRA, with a
particular focus on the grant of exclusive-representation status to unions, a Pennsylvania
state court could easily, and expressly, hold that private unions certified under the PLRA
have a statutorily-implied duty of fair representation similar, or equivalent, to unions covered
under the NLRA. See Breininger, 493 U.S. at 83 (“[T]he duty is implied from the grant of
exclusive relationship status . . . .”).

Of course, this Court‟s job is not to make that

determination: it is ultimately a decision for the state courts of Pennsylvania. What this
means, though, is that the Court does not agree with Defendant that Plaintiff‟s claim
presently has no basis in state law.

13

In light of Plaintiff‟s assertion that he pleads a state-law claim, coupled with
what was pleaded in the complaint at the time it was filed in state court, the Court finds that
Plaintiff pleads a state-law claim for relief.6
B. Preemption
Although Plaintiff pleads a state-law claim against Defendant for breach of
the duty of fair representation, the Court must still consider whether the claim is completely
preempted by Section 301(a) of the LMRA. (See Doc. 1 at ¶ 10).
Again, the federal court must have subject-matter jurisdiction for removal to
be proper. The Court is not concerned with whether it has diversity jurisdiction. Therefore,
the only other basis of jurisdiction with which the Court is concerned involves federalquestion jurisdiction.
“The question of whether federal question jurisdiction exists is determined by
the „well-pleaded complaint rule,‟ which requires that a federal question be „presented on
the face of the plaintiff's properly pleaded complaint.‟” Shanefelter v. United States Steel
Corporation, 784 F.Supp.2d 550, 557 (W.D. Pa. 2011)(quoting Caterpillar, 482 U.S. at 392).
“The well-pleaded complaint rule is not absolute . . . because under appropriate
circumstances „a defendant may be able to remove a case notwithstanding a complaint‟s
apparent grounding in state law.‟” Shanefelter, 784 F.Supp.2d at 557 (quoting Trans Penn
Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir. 1995)). “The doctrine of complete
preemption presents one such circumstance.” Id.

6

The Court expresses no opinion about whether Plaintiff sufficiently pleads a state-law claim.
14

Under the doctrine of complete preemption, the preemptive force of
federal law is “so powerful as to displace entirely any state cause of
action.” Franchise Tax Bd. v. Construction Laborers Vacation Trust for
Southern Cal., 463 U.S. 1, 23 (1983). The Supreme Court has explained
that complete preemption operates to “convert[ ] an ordinary state
common-law complaint into one stating a federal claim for purposes of
the well-pleaded complaint rule.” Metropolitan Life Insurance Co. v.
Taylor, 481, U.S. 58, 65 (1987). Thus, when a federal statute is found to
preempt an area of state law completely, “any claim purportedly based
on that preempted state law is considered, from its inception, a federal
claim, and therefore arises under federal law.” Caterpillar, 482 U.S. at
393; see also Franchise Tax Bd., 463 U.S. at 24 (“[I]f a federal cause of
action completely pre-empts a state cause of action any complaint that
comes within the scope of the federal cause of action necessarily arises
under federal law”).
Shanefelter, 784 F.Supp.2d at 557. “One such instance of complete preemption occurs in
the context of § 301(a) of the LMRA . . . .” Id.
Here, the preemptive force of Section 301 does not reach Plaintiff‟s claim.
The claim falls outside the scope of that statutory provision because the claim does not
involve a contractual violation. This was previously discussed when reviewing the basis of
Plaintiff‟s claim for relief, supra.

Accordingly, Plaintiff‟s claim against Defendant for

breaching the duty of fair representation is not completely preempted by Section 301(a) of
the LMRA.
C. Miscellaneous
The time for Defendant to substantively amend the notice of removal and
assert new jurisdictional bases has lapsed. At no point did Defendant amend (or seek to
amend) the notice of removal to include as grounds for removal that (1) the Court has
diversity jurisdiction or (2) Section 9(a) of the NLRA completely preempts Plaintiff‟s cause of
action. In this vein, the Court will not consider either proposition although they were raised

15

and addressed in the parties‟ briefs regarding Plaintiff‟s motion to remand.7 Also, to that
end, the removal statutes are to be strictly construed in favor of remand. Furthermore,
Defendant‟s notice of removal clearly rests on the assertions that the Court has federalquestion jurisdiction in that Plaintiff‟s claim is governed by Section 301(a) of the LMRA and
otherwise completely preempted by the same federal law. The notice makes no mention of
(or reference to) diversity jurisdiction or Section 9(a) of the NLRA.
IV.

Conclusion

Plaintiff pleads a state-law claim against Defendant, a labor union, for breach
of the duty of fair representation. And the state-law claim is not completely preempted by
Section 301(a) of the LMRA.

Accordingly, the Court does not have federal-question

jurisdiction. Moreover, the Court will not consider whether it has diversity jurisdiction or
whether Section 9(a) of the NLRA completely preempts Plaintiff‟s cause of action. Those
assertions were not made in Defendant‟s notice of removal and the time for substantive
amendments has lapsed. Plaintiff‟s motion to remand will be granted. An appropriate order
will follow.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date Signed: August 3, 2016

7

Plaintiff‟s motion to remand was filed after the thirty-day deadline in § 1446(b) expired.
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