Poole v. Mackey et al
Filing
22
MEMORANDUM AND ORDER granting 8 Motion to Remand; denying 18 Motion for Certificate of Appealability. So Ordered by Senior Judge Ronald R. Lagueux on 3/13/13. (Cavaco, Janice)
UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
BARBARA S. POOLE,
Plaintiff,
v.
C.A. No. 12-43L
SCOTT P. MACKEY, MINOO
TEHRANI, MICHAEL MELTON,
JOHN DOE 1-10, MARY ROE 1-10,
Individually and in their capacities
as employees and faculty members
and/or administration of Roger Williams
University, and ROGER WILLIAMS UNIVERSITY.
MEMORANDUM AND ORDER
This case involves a dispute between Plaintiff Barbara
Poole, Associate Professor of Finance at Roger Williams
University, and several co-workers, Defendants Scott P. Mackey,
Minoo Tehrani and Michael Melton, as well as unspecified John
Does and Mary Roes, and Roger Williams University.
Plaintiff’s
Amended Verified Complaint (“the Complaint”) is comprised of six
state-law claims and was originally filed in Providence Superior
Court in late 2011.
In January 2012, Defendants removed the
lawsuit to this Court and filed a motion to dismiss the Complaint
based on their argument that Plaintiff’s claims are preempted by
Section 301 of the Labor Management Relations Act, 29 U.S.C. §
185 (hereinafter “LMRA”), because she is a member of the
University faculty’s collective bargaining unit.
In a decision
issued September 19, 2012,1 this Court denied Defendants’ motion
to dismiss, holding that Plaintiff’s claims were not governed by
the collective bargaining agreement and were therefore outside
the scope of LMRA preemption.
Since that time, Defendants have
moved this Court to stay the proceedings and to certify an
interlocutory appeal, enabling them to appeal the Court’s ruling
on LMRA preemption to the Court of Appeals for the First Circuit.
Additionally, Plaintiff has renewed her motion to remand the case
to state court.
These issues, having been argued and briefed,
are now in order for decision.
For the reasons explained below,
the Court denies Defendants’ motion to certify an interlocutory
appeal and grants Plaintiff’s motion to remand the lawsuit to
Providence Superior Court.
Background
As explained in greater detail in the earlier decision,
Plaintiff alleges that her tenure application was sabotaged when
her colleagues, possibly at the urging of a member of the
University administration, sent a letter to the tenure review
committee that contained false representations concerning her
academic scholarship and professional integrity.
Citing the
shortcomings referenced in Defendants’ letter, the tenure review
committee recommended that Plaintiff not be promoted, and
1
Poole v. Mackey, __ F. Supp.2d __, (D.R.I. 2012), 2012 WL
4096368.
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eventually, through the customary channels, her tenure
application was denied.
Plaintiff filed a grievance with the faculty union and
pursued its resolution to arbitration.
In November 2011, the
arbitrator made an award in Plaintiff’s favor, finding that the
University violated the collective bargaining agreement during
its review of Plaintiff’s tenure application, and ordering that a
new committee be convened to review her candidacy.
In her complaint, Plaintiff claims that she was libeled by
her colleagues’ defamatory letter, which was disseminated
throughout the University community with no regard for its
truthfulness.
This caused her emotional distress and damaged her
reputation, both at Roger Williams and throughout the larger
professional community.
Plaintiff asserts that the University is
vicariously liable for the actions of her colleagues, and that it
was negligent in overseeing their conduct.
In reliance on the Supreme Court’s decision in Lingle v.
Norge Div. of Magic Chef, Inc., this Court analyzed Plaintiff’s
claims with a two-part test: 1) do the claims allege any breach
of duty arising from the collective bargaining agreement? or 2)
does the resolution of the claims rely on interpreting the
collective bargaining agreement?
486 U.S. 399, 405-06, (1988).
This Court concluded that Plaintiff’s central allegation, that
Defendants, negligently or wilfully, circulated a false, damaging
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and unprivileged statement about her, did not set forth a breach
of the collective bargaining agreement, nor would its resolution
require an interpretation of that agreement.
Consequently, the
Court denied Defendants’ motion to dismiss.
Motion for certification of interlocutory appeal
Defendants have moved for an immediate interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).2
Defendants argue that the
Court made a close call, and possibly an erroneous one, in an
unsettled area of the law.
According to Defendants, a present
appeal to the First Circuit might contribute to a speedy
resolution of this matter, possibly avoiding protracted
litigation and an appeal on the same issue at a later date.
The First Circuit has consistently resisted entertaining
interlocutory appeals, writing that they “should be used
sparingly and only in exceptional circumstances...”
Caraballo-
Seda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir.
2005).
In that case, the District Court granted defendants’
2
This section provides:
(b) When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of law as
to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so
state in writing in such order. The Court of Appeals which would
have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the
order.
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motion for an interlocutory appeal and the First Circuit
initially granted the petition to hear the appeal, then vacated
its order, writing, “As a general rule, we do not grant
interlocutory appeals from a denial of a motion to dismiss.”
Id.
The First Circuit went on to explain that its policy was based on
its disfavor of piecemeal litigation, its “prudential concerns
about mootness, ripeness, and lengthy appellate procedures...,”
as well as its explicit lack of concern about limiting trial time
at the district court level.
Id.
The rule set forth at 28 U.S.C. § 1292(b) provides the Court
with a three-part test for determining the propriety of
certification:
1) does the disputed issue involve a controlling
question of law? 2) does the disputed issue provide a substantial
ground for difference of opinion? and 3) would an immediate
appeal bring about the ultimate resolution of the lawsuit?
Cummins v. EG & G Sealol, Inc., 697 F.Supp. 64, 68 (D.R.I. 1988).
The issue that Defendants seek to appeal to the First
Circuit, whether or not Plaintiff’s claims are subject to LMRA
preemption, easily satisfies prongs one and three of the test.
If the First Circuit were to find that Plaintiff’s claims are
completely preempted by the LMRA, her lawsuit would be dismissed
in its entirety.
Because she has already sought and received a
remedy through the collective bargaining agreement, her search
for legal redress would be at an end.
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The second prong is the insurmountable obstacle for
Defendants, however, because there is no significant basis for a
difference of opinion on LMRA preemption on Plaintiff’s
particular claims.
The Court stands behind its original
determination that these claims fall squarely outside the scope
of the collective bargaining agreement.
The Court also notes
that, while Defendants argue that Plaintiff’s claims must be
preempted, they have not pointed to any section in the collective
bargaining agreement that addresses those claims.
On the subject of LMRA preemption, the Supreme Court has
drawn a clear line between lawsuits that involve an
interpretation of a collective bargaining agreement and those
involving “state rules that proscribe conduct, or establish
rights and obligations, independent of a labor contract.”
Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985); see also
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260-61 (1994);
Flibotte v. Penn. Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir.
1997).
The First Circuit has instructed courts to look for “a
real interpretive dispute” over the provisions of a collective
bargaining agreement. Lydon v. Boston Sand & Gravel Co., 175 F.3d
6, 10 (1st Cir. 1999)(emphasis in the original).
Cases involving tort claims against colleagues, rather than
the employer, are generally not preempted.
See Busey v. P.W.
Supermarkets, Inc., 368 F.Supp.2d 1045 (N.D. Cal. 2005) (union
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member’s claim against co-worker for defamation not preempted);
Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989)
(elements necessary to prove libel claim against co-worker do not
require interpretation of collective bargaining agreement).
In
Luecke v. Schnucks Markets, Inc., 85 F.3d 356, 360 (8th Cir.
1996), the Eighth Circuit Court held that a union member’s
defamation claims against his co-workers and his employer were
not preempted because the resolution of those claims would not
involve interpretation of the union contract: “no express or
implied term in that provision guides the factual inquiry into
whether the speakers actually said Luecke refused to take the
[drug] test, whether the statements were false, whether malice
attached, and whether damages resulted.”
This is not to say that no case can be found to support
Defendants position.
Defendants cite Rogers v. NSTAR Electric,
389 F.Supp.2d 100 (D.Mass. 2005) and Cullen v. E.H. Friedrich
Co., Inc., 910 F.Supp. 815 (D.Mass. 1995), as well as other cases
from other jurisdictions, where courts have found claims similar
to Plaintiff’s herein subject to LMRA preemption.
All the cases
in this area are fact-intensive and fact-driven, and small
differences dictate different outcomes.
In Rogers, the District
Court of Massachusetts found several of the claims preempted, but
not the libel claims against the plaintiff’s former co-worker,
whose allegations of harassment prompted his termination. 389
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F.Supp.2d at 111. In Cullen, plaintiff’s preempted libel claims
against co-workers stemmed from the written statements provided
to his employer in connection with his unsuccessful union
grievance procedure over his termination. 910 F.Supp. at 819.
In
many of the cases cited by Defendants, the central claims are
breach of contract claims, or even union grievances masquerading
as tort claims, such as tortious interference with contractual
relations, brought by an employee against the employer.
See
O’Donnell v. Boggs, 611 F.3d 50 (1st Cir. 2010); Alfieri v.
Koelle, 2007 WL 966745 (D.R.I.); Morris v. Ambassador Nursing
Home, Inc., 845 F.Supp. 1164 (E.D.Mich. 1994).
Judicial rulings vary on cases that appear to be, at least
superficially, similar.
judgment calls.
These cases involve line-drawing, and
However, fact-specific line-drawing is not the
same as a “substantial ground for difference of opinion.”
Preemption under the LMRA is a well-settled area of the law, with
clear and consistent rulings from both the Supreme Court and the
First Circuit to guide lower courts.
It is not an issue with
substantive differences of interpretation, and it is not an issue
of first impression.
See In re San Juan Dupont Plaza Hotel Fire
Litigation, 859 F.2d 1007, 1010 n. 1 (1st Cir. 1988)
(interlocutory appeal granted where issue is “sufficiently novel”
and “circumstances sufficiently out of the ordinary”).
The First
Circuit in McGillicuddy v. Clements noted that interlocutory
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appeals should be heard only in circumstances “where the proposed
intermediate appeal presents one or more difficult and pivotal
questions of law not settled by controlling authority.”
76 n. 1 (1st Cir. 1984).
746 F.2d
In Miara v. First Allamerica Financial
Life Ins. Co., a case involving federal preemption under ERISA,
the district court certified an interlocutory appeal to the First
Circuit, citing inconsistencies in rulings amongst the Circuit
Courts of Appeal nationally and the lack of a definitive ruling
from the First Circuit, and stating, “...binding direction from
the First Circuit would clarify and put to rest the existing and
abiding confusion in this circuit in this area of the law.”
379
F.Supp.2d 20, 68 (D.Mass. 2005).
The present case is wholly different.
While Defendants may
be convinced that the Court’s ruling is wrong, that is
insufficient to demonstrate “a substantial ground for difference
of opinion.”
See National Community Reinvestment Coalition v.
Accredited Home Lenders Holding Co., 597 F.Supp.2d 120 (D.D.C.
2009).
For all these reasons, the Court declines to certify the
question of LMRA preemption to the First Circuit and denies
Defendants’ motion.
Plaintiff’s motion to remand
Plaintiff has renewed her motion to remand this case to
Providence Superior Court.
Defendants urge the Court to retain
jurisdiction, arguing that, having exercised original subject
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matter jurisdiction over the federal preemption issue, the Court
may exercise supplemental jurisdiction over the state law claims.
The leading case in the First Circuit, Roche v. John Hancock
Mut. Life Ins. Co., supports Defendants’ argument:
A federal court exercising jurisdiction over
an asserted federal-question claim must also
exercise supplemental jurisdiction over
asserted state-law claims that arise from the
same nucleus of operative facts. ...
In a federal-question case, the
termination of the foundational federal claim
does not divest the district court of power
to exercise supplemental jurisdiction but,
rather, sets the stage for an exercise of the
court’s informed discretion.
81 F.3d 249, 256-57 (1st Cir. 1996).
This language indicates
that the Court has discretion to retain jurisdiction of this
matter.
However, the present case differs from Roche in at least
one important respect.
Roche’s original complaint, filed in
Massachusetts state court, alleged that his employer had violated
federal law, 42 U.S.C. § 1983, as well as Massachusetts law. Id.
at 252-53.
In the case before this Court, Plaintiff has asserted
no federal claim.
In Caterpillar Inc. v. Williams, the Supreme Court wrote:
Only state-court actions that originally
could have been filed in federal court may be
removed to federal court by the defendant.
Absent diversity of citizenship, federalquestion jurisdiction is required. 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
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question is presented on the face of the
plaintiff’s properly pleaded complaint. The
rule makes the plaintiff the master of the
claim; he or she may avoid federal
jurisdiction by exclusive reliance on state
law.
482 U.S. 386, 392 (1987)(citations omitted).
In the Caterpillar
case, the Supreme Court affirmed the Ninth Circuit Court of
Appeals’ ruling reversing the district court.
The district court
had determined that the plaintiffs’ claims were completely
preempted by the LMRA, and then dismissed the complaint when the
plaintiffs refused to add a federal claim under § 301. The
Supreme Court held that plaintiffs’ “state-law claims were not
grounded, either directly or indirectly, upon rights or
liabilities created by the collective-bargaining agreement,” and
so were not subject to the powerful complete preemptive power of
§ 301.
Id. at 390.
Caterpillar’s legal position was
characterized as a federal defense, and, consequently, inadequate
to provide a basis for federal jurisdiction. Id. at 398-99.
(“Congress has long since decided that federal defenses do not
provide a basis for removal.”)
In the present case before the bench, should Defendants
choose to pursue their privilege defense or any other defense
based on the collective bargaining agreement, the state court is
empowered with concurrent jurisdiction to hear and rule on those
issues.
See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507
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(1962) (“...nothing in the concept of our federal system prevents
state courts from enforcing rights created by federal law.”);
Lagana v. IBEW Local 1274, 767 A.2d 666 (R.I. 2001).
Moreover,
the Court notes that doubts about removal are traditionally
resolved in favor of remand.
Miara v. First Allamerica, 379
F.Supp.2d at 26.
Conclusion
For the foregoing reasons, the Court denies Defendants’
motion to certify an interlocutory appeal to the Circuit Court of
Appeals for the First Circuit.
The Court grants Plaintiff’s
motion to remand this matter to Rhode Island Superior Court,
siting in Providence for the counties of Providence and Bristol.
It is so ordered.
/s/Ronald R. Lagueux
Ronald R. Lagueux
Senior United States District Judge
March 13, 2013
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