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dismissing an intentional infliction of emotional distress claim that would require determination of contractual rights
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1:03-cv-00945-SEB-VSS
March 29, 2004
ENTRY DENYING PLAINTIFFS' MOTION TO REMAND AND REQUEST FOR FEES AND COSTS
This case comes before the Court on Plaintiff's Willa Jean Dixon and Hobart Dixon's ("the Dixons") Motion to Remand and Request for Fees and Costs. Defendants BorgWarner Diversified Transmission Products, Inc. ("BorgWarner"), and Phenix Investigations, Inc. ("Phenix"), removed this case on the grounds that the Dixons' state law tort claims are completely preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The Dixons move for remand contending not only that their state law claims are not completely preempted but also that the Defendants did not follow the proper procedure for removal. For the reasons explicated below, we DENY Plaintiffs' Motion to Remand and Request for Fees and Costs.
Factual and Procedural Background
Defendant BorgWarner employed Plaintiff Willa Jean Dixon ("Mrs. Dixon") as a production worker at its automotive parts manufacturing facility in Delaware County, Indiana. Compl. ¶¶ 1, 2, 4. (Plaintiff Hobart Dixon is Mrs. Dixon's husband, and they are citizens and residents of Indiana. Id. ¶ 1.) During the entirety of Mrs. Dixon's employment with Borg Warner, from January 1988 to February 1998 and again from February 2002 to August 2002, BorgWarner and Local No. 287, International Union, United Automotive, Aerospace and Agricultural Implement Workers of America (UAW) ("the Union") were parties to a Collective Bargaining Agreement ("CBA"), which included Mrs. Dixon in the represented bargaining unit. Id. ff 4, 8, 33, 47; Answer ¶¶ 4, 47; Notice of Removal Ex. D; Goss Aff. 13.
When Mrs. Dixon was laid off from BorgWarner in February 1998, she participated in a job training program, paid for by BorgWarner, in which she learned a new trade, massage therapy. Compl. ¶¶ 5-6. In August 1999, she opened a massage therapy clinic in Muncie, Indiana.Id. ¶ 7. After being called back to work at BorgWarner in February 2002, Mrs. Dixon continued to operate her clinic on her own time. Id. ¶ 10.
On or about June 17, 2002, Mrs. Dixon tripped at home, spraining her right ankle and foot. Compl. ¶ 12. On doctor's orders, she remained off work from BorgWarner for approximately one month, until July 17, 2002. Id. ¶¶ 13-15. During this time, BorgWarner became suspicious that she was continuing her massage therapy while on medical leave, or more specifically, that she was "employed elsewhere while on leave of absence," without the prior mutual consent of BorgWarner and the Union, in violation of Article 5, Section 14(f) of the CBA. Goss Aff. ¶ 3; Notice of Removal Ex. D. BorgWarner hired Defendant Phenix Investigations, Inc. ("Phenix"), an Indiana corporation, to investigate whether Mrs. Dixon was, in fact, otherwise employed elsewhere while on leave from BorgWarner. Compl. ¶¶ 3, 28; Defs.' Resp. p. 4. As part of this investigation, Phenix conducted surveillance, including the videotaping of massage sessions provided by Mrs. Dixon. Id. ¶ 28. Upon Mrs. Dixon's return to work at BorgWarner, Louis Goss ("Goss"), Manager of Employment and Safety, revealed "that he had videotape of her giving massages while standing on her injured foot" and that BorgWarner would hold a disciplinary hearing to evaluate her conduct before she could return to work. Compl. ¶¶ 26-27. On July 22, 2002, Mrs. Dixon appeared before a disciplinary panel comprised of three management employees. Id. At the disciplinary hearing, Goss presented the affidavits of Michael and Brian Bauer, Phenix private investigators, which stated, falsely in Mrs. Dixon's opinion, that Mrs. Dixon stood during most of the massage sessions and showed no signs of pain or restriction with regard to her injured foot. Id. ¶¶ 28-29. Following the disciplinary hearing, the panel issued a verbal warning for allegedly providing false information, and one of the panelists allegedly harassed Mrs. Dixon with information he learned at the hearing, including telling her that" he needed a massage but that he promised not to bring a videotape to his appointment." Id. ¶¶ 30-31.
On May 16, 2003, Mrs. Dixon filed a Complaint against Defendants BorgWarner and Phenix in Marion County Circuit/Superior Court, alleging against BorgWarner state law claims of constructive termination, invasion of privacy, fraud, negligence, negligent supervision, intentional infliction of emotional distress and negligent infliction of emotional distress, and against Phenix state law claims of intentional interference with a contractual or business relationship, invasion of privacy, fraud, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. This Complaint was served on BorgWarner by certified mail on May 28, 2003, and on Phenix by certified mail on May 27, 2003.
On June 25, 2003, BorgWarner, with "the consent and joinder" of Phenix, filed a Notice of Removal of this case to this court on the grounds that the Dixons' state law claims are completely preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, because resolution of these claims will necessarily involve the examination and interpretation of the CBA. Although the removal notice was signed only by counsel for BorgWarner, paragraph 6 recites: "Counsel for Phenix has authorized counsel for BorgWarner to state that Phenix consents to and joins in the removal of this action." The Dixons filed a motion to remand this case, along with a request for fees and costs, on July 24, 2003, contending that Defendants' removal was both procedurally and substantively deficient. We address both the procedural and substantive issues below.
Legal Analysis
In moving for remand, the Dixons assert that Phenix failed to join in or consent to removal of this action to federal court in contravention of the procedure for removal set forth in 28 U.S.C. § 1446, and that this court does not have subject matter jurisdiction over this action. The parties are not of diverse citizenship, and the Dixons contend that this case does not present a federal question because their state law claims are independent of the CBA, and therefore not completely preempted by § 301 of the LMRA. Mindful that removal of a case from state to federal court is proper only if the case might have been brought originally in federal court, and hesitant to dispose of a case that is completely preempted on overly technical grounds, we address each of Mrs. Dixon's arguments, treating the issue of subject matter jurisdiction first. See 28 U.S.C. § 1441(a). Both a lack of subject matter jurisdiction or a defect in the removal procedure would require remand of the action to state court. 28 U.S.C. § 1447(c). Furthermore, the propriety of removal is to be strictly construed against removal, with all doubts resolved in favor of remand. Brewer v. State Farm Mut. Auto. Ins. Co., 101 F. Supp.2d 737, 739 (S.D. Ind. 2000): see also People of the State of Ill, v. Kerr-McGee Chem. Corp., 677 F.2d 571, 576 (7th Cir. 1982).
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. McCarty v. Reynolds Metals Co., 883 F. Supp. 356, 359 (S.D. Ind. 1995) (Barker, J.) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). Under this rule, the plaintiff is "master of the claim" and "may avoid federal jurisdiction by exclusive reliance on state law."Id.
The doctrine of complete preemption, however, exists as an "independent corollary to the well-pleaded complaint rule." Caterpillar, 482 U.S. at 393. Under this doctrine, "if a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily "arises under" federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust for Southern Cal. 463 U.S. 1, 24 (1983). The preemptive force of § 301 of the LMRA is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." Any 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 § 301. Id. at 23. To prevent clever litigants from evading § 301's broad preemptive force by recasting contract claims as claims brought under state tort law, § 301 also preempts tort claims, so long as they are those in which "state tort law purports to define the meaning of the contract relationship." Smith v. Colgate-Palmolive Co., 943 F.2d 764, 768 (7th Cir. 1991) (citing Allis-Chalmers Corp. v. Lueck 471 U.S. 202, 211, 213 (1985)).
Section 301 of the LMRA, 29 U.S.C. § 185(a), provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . 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.
Although the language of § 301 complete preemption sounds sweeping, "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement," arises under federal law. Lueck 471 U.S. at 211 (1985). The Supreme Court has recognized that § 301 completely preempts two types of claims: (1) claims founded directly on rights created by collective bargaining agreements, such as a claim that a defendant breached the CBA itself, and (2) claims "substantially dependent on analysis of a collective bargaining agreement." Int'l Bd. of Elec. Workers v. Hechler, 481 U.S. 851, 859, n. 3 (1987); Loewen Group Int'l. Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir. 1995). Another way of asking whether a plaintiff's claims are substantially dependent on a CBA is to inquire "whether state law `confers non-negotiable rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claims is inextricably intertwined with consideration of the terms of the labor contract."Lueck, 471 U.S. at 213.
Moreover, in Caterpillar, the Supreme Court differentiated between the invocation by a plaintiff of a right created by a collective bargaining agreement and the assertion by a defendant of a defense to a state law claim requiring a court to apply or interpret a CBA. In the former case, the plaintiff has chosen to plead what must be regarded as a federal claim; it is therefore removable at the defendant's option. In the latter case, however, the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule-that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court.Caterpillar, 482 U.S. at 398-99. Therefore, a careful plaintiff may assert legal rights in state court independent of a CBA without conferring jurisdiction upon a federal court, so long as the contract relied upon by plaintiff is not the CBA. Kittle v. Prudential Ins. Co. of Am., 102 F. Supp.2d 1029, 1033-34 (S.D. Ind. 2000) (Barker, J.) (citing Caterpillar, 482 U.S. at 396-97).
In this case, the Dixons referred to the CBA in paragraph 47 of their well-pleaded complaint. In alleging a claim of intentional interference with a contractual or business relationship against Phenix, they state that "[Mrs. Dixon] was a union employee of Borg Warner, and as such[,] had a valid contractual or business relationship with Borg Warner." The CBA, of course, is the contract that establishes the relationship of Mrs. Dixon, a union employee, with BorgWarner, her employer. Phenix allegedly interfered with Mrs. Dixon's contractual relationship with BorgWarner by "using false pretenses without justification" to videotape its investigators' massage sessions with Mrs. Dixon while she was on medical leave from BorgWarner. Compl. ¶¶ 19-29; 49.
The starting point for determining whether the resolution of this state-law claim depends on the meaning of the CBA is an examination of the state law claim. Smith, 943 F.2d at 768. To prove a claim for tortious interference with contract under Indiana law, the plaintiff must show: (1) the existence of a valid and enforceable contract; (2) the defendant's knowledge of the existence of the contract; (3) the defendant's intentional inducement of a breach of the contract; (4) the absence of justification; and (5) resulting damages. Short v. Haywood Printing Co., Inc., 667 N.E.2d 209, 212-213 (Ind.App. 1996).
We conclude that, should this case continue toward trial, it is inevitable that the CBA between BorgWarner and the Union would be brought into the litigation. See Kimbro v. Pepsico, Inc., 215 F.3d 723, 727 (7th Cir. 2000). The CBA is the valid contract with which Phenix allegedly interfered. To establish whether or not Phenix was justified in inducing a breach of the CBA, the trier of fact would have to establish the rights to which Mrs. Dixon was entitled under the contract. Specifically, it would have to decide whether Mrs. Dixon had a right to privacy or to "a reasonably safe and tolerable work environment" that would have shielded her from the investigation into her leave.See Compl. ¶¶ 49, 58-60, 80-81, 86-87. The fact finder's evaluation of reasonableness will require it to interpret terms of the CBA, including the "Management Prerogatives" clause, which gives BorgWarner the right to "maintain [the] discipline and efficiency of employees." See Notice of Removal Ex. D, CBA Art. 13, Sec. 1. Also relevant to the issues of justification and damages are the fact finder's determinations of whether being employed elsewhere while on leave of absence, without prior consent of BorgWarner and the Union, is cause for investigation and/or termination. See Notice of Removal Ex. D, CBA Art. 5, Sec. 14(f); see also CBA Art. 6 "Leaves of Absence." Thus, because we conclude that an evaluation of this tort claim is "substantially dependent on analysis of a collective bargaining agreement," see Caterpillar, 482 U.S. at 394-95, we find that it is completely preempted by § 301 of the LMRA.
A single federal claim suffices to support removal. 28 U.S.C. § 1441(c). Therefore, once the claim of tortious interference with a contractual or business relationship is brought under § 301, the case is removable. We note, though, that the reasoning used above would also apply to a number of Mrs. Dixon's other claims. See, e.g., Amoco Petroleum Additives, Co. v. Jackson 964 F.2d 706, 709-10 (7th Cir. 1992) (finding that § 301 completely preempted plaintiff's claim for invasion of privacy because privacy in the workplace is a "condition" of employment subject to the bargaining process, and therefore, the state court could not award damages without first construing the CBA and rejecting defendant's interpretation of the management-rights clause);Douglas v. Am. Info. Tech. Corp., 877 F.2d 565, 571-72 (7th Cir. 1989) (deciding that § 301 completely preempts plaintiff's claim for intentional infliction of emotional distress because analysis of an employee's intentional infliction of emotional distress claim may require a court to refer to and interpret the CBA; specifically, a court's determination of whether the defendant's allegedly wrongful conduct was "extreme and outrageous" may turn on whether that conduct was authorized under the CBA).
Douglas v. Am. Info. Tech. Corp., 877 F.2d 565 (7th Cir. 1989), involved a claim for intentional infliction of emotional distress under Illinois law. However, Illinois, like Indiana, follows the Restatement definition for the tort of intentional infliction of emotional distress, so the Douglas analysis would apply equally to this case. Filippo v. Northern Ind. Pub. Serv. Corp., Inc., 141 F.3d 744, 750-51 (7th Cir. 1998).
Having found that this case is, in fact, removable, we next consider the Dixons' argument that Defendants' removal of this action to federal court was procedurally defective. Although BorgWarner's Notice of Removal was timely, the Dixons contend that it is deficient because a representative of Phenix neither joined in the removal by signing the notice nor filed with the court a separate, written confirmation of its consent to the removal. It is well-established that all defendants must either join in or consent to a notice of removal within the 30-day period provided by 28 U.S.C. § 1446. In re Bridgestone/Firestone. Inc., 128 F. Supp.2d 1198, 1200 (S.D. Ind. 2001) (citing McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Or. 1998)). Failure to do so is a "defect in the removal procedure" within the meaning of § 1447(c). To "join" a motion is to support it in writing, i.e., to sign it. Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997). To require all defendants physically to sign the removal notice, however, would be a "senseless formalism." Therefore, as long as all defendants "consent" in writing to the removal within 30 days after service upon them of the complaint, the requirement that all defendants "join" in the removal is satisfied. Mechanical Rubber Supply Co. v. American Saw and Mfg. Co., 810 F. Supp. 986, 989 (C.D. 111.1990).
The requirement that a removing defendant file a written consent to removal from a co-defendant is a mandatory, but non-jurisdictional matter. As such, it may be waived. Allstate Life Ins. Co. v. Hanson, 200 F. Supp.2d 1012, 1015 (E.D. Wis. 2002); see also Shaw v. Dow Brands. Inc., 994 F.2d 364, 369 (7th Cir. 1993). By filing a motion to remand within 30 days after Defendants' filing of a notice of removal, however, the Dixons asserted and protected their rights under the removal statutes. Therefore, should any procedural defect be found by the court, it may not be waived.
Paragraph 6 of the Notice of Removal states: "Counsel for Phenix has authorized counsel for BorgWarner to state that Phenix consents to and joins in the removal of this action." Because Phenix did not sign the removal notice, however, it did not join in the removal, despite BorgWarner's representations to the contrary. See Gossmeyer, 128 F.3d at 489. Whether Phenix consented to the removal requires closer examination. Courts are adamant that "the mere assertion in a removal petition that all defendants consent to removal fails to constitute sufficient joinder." See e.g., Prod. Stamping Corp. v. Maryland Casualty Co., 829 F. Supp. 1074, 1076 (E.D. Wis. 1993). A crucial fact, however, distinguishes Production Stamping from the case at bar. See Spillers v. Tillman, 959 F. Supp. 364, 370 (S.D. Miss. 1997).
In Production Stamping, there was no allegation in the notice of removal that the filing defendant or its attorney had been authorized by the co-defendant to speak on its behalf on the removal issue. See Spillers, 959 F. Supp. at 370. Here, however, Paragraph 6 of the removal notice explicitly states that counsel for Phenix authorized counsel for BorgWarner to state that Phenix consents to the removal of this action. Counsel for Phenix filed with this court, as an attachment to Defendants' brief in response to the Dixons' motion to remand, an affidavit, which reads, in relevant part as follows:
I informed [counsel for BorgWarner] that Phenix consented to and joined in the removal of this case. [Counsel for BorgWarner] offered to prepare the removal paperwork, which I accepted, and I authorized [counsel for BorgWarner] to sign the removal paperwork on behalf of Phenix.
Defs.' Resp. Ex. 2.; Hansen Aff. ¶ 4. Although, in drafting the removal notice, counsel for BorgWarner and Phenix cut the corner of § 1446 more closely than we think is good practice, we conclude that Phenix did consent to the removal of this case to federal court. Meyer v. ERJ, Inc., 1996 WL 115164 *1 (N.D. Ill. 1996) ("Here the signers alleged consent and subsequent filings [provided after the 30-day period for removal under § 1446] establish that there indeed has been consent. And that is enough.") (internal citations omitted); Mechanical Rubber, 810 F. Supp. at 989 (citing Sicinski v. Reliance Funding Corp., 461 F. Supp. 649, 652 (S.D. N.Y.I 978)) (removal valid despite failure of all defendants to sign petition where petition stated that all consented and non-signing defendants submitted affidavit of consent after 30 day period had expired); contrast Martin v. Harshberger, 1994 WL 86020 *2 (N.D. Ill. 1994) (remanding case where co-defendant's counsel told removing defendant's counsel that he/she "had no objection" to removal, which the court found not to be the same as affirmative consent to removal, and where the affidavit in support of consent came from removing defendant's counsel not co-defendant's counsel as in this case).
As evidence that Phenix did not consent to removal, the Dixons point to the fact that Phenix filed an answer to her complaint in state court, rather than in this court, approximately two weeks after the case had been removed. Counsel for Phenix responds that this filing resulted simply from clerical error, which was corrected the following day. Defs.' Resp. Ex. 2.; Hansen Aff. ¶ 4. We do not find this fact persuasive and thus do not consider it in favor of either side. See Local Union No. 172 Int'l Ass'n of Bridge. Structural Ornamental and Reinforcing Ironworkers v. P.J. Dick Inc., 253 F. Supp.2d 1022, 1024 (S.D. Ohio 2003) (filing of answer in federal court insufficient to satisfy requirement that defendant consented to removal of case).
This case, the substance of which is completely preempted by § 301 of the LMRA, belongs in federal court. In addition, we reason that Defendants have complied, but not with the clarity we should be able to expect, with the procedural requirements of § 1446. Accordingly, Mrs. Dixon's Motion to Remand, and her corresponding Request for Fees and Costs, are both DENIED.
Conclusion
For the reasons stated above, we conclude that: (1) the Dixons' state law tort claims are completely preempted by § 301 of the LMRA; and (2) the Defendants' procedure of removal was not defective. Accordingly, the Dixons' Motion to Remand and Request for Fees and Costs areDENIED.
It is so ORDERED.