REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge

To the Honorable Allen G. Schwartz

Plaintiff Renee Ryan brought suit pro se in Civil Court of the City of New York, County of Bronx, alleging legal malpractice committed by defendant Tarik Fouad Ajami, an attorney hired by Ryan's union to represent her in a grievance. Ajami removed the case to this Court on the ground that it presented a federal question. Ajami has now moved for a judgment dismissing the complaint. For the reasons stated below, this Court lacks subject matter jurisdiction over the complaint and the case should be remanded to the Civil Court.

I. BACKGROUND A. Facts

Ryan worked as an operator for the Beth Israel Medical Center ("Beth Israel"). See Summons and Complaint (reproduced in Petition for Removal of State Court Action, filed May 28, 2002 ("Removal Pet."), Ex. A), at 1. Ryan was a member of a union, Local 1199/SEIU ("Local 1199"), that represents health care and hospital workers in the New York area. See Reply to Motion, dated September 19, 2002 ("Pl. Mem."), at 2. Local 1199 has entered into a collective bargaining agreement with Beth Israel that governs the working relationship between the hospital and its employees. See Agreement and Memorandum of Understanding between 1199-NHHSEU/AFL-CIO and Beth Israel Medical Center ("1199/Beth Israel CBA") (reproduced in Affirmation of Richard Dorn, Esq., in Support of Defendant Ajami's Motion to Dismiss ("Dorn Aff."), Ex. 4).

Ryan was working as an operator on October 3, 2000 at 5:45 a.m. when a "Code-77" occurred at Beth Israel. Complaint at 1-2. While the complaint does not indicate what a Code-77 is, Ajami defines the incident as a "medical emergency." See Answer, filed May 31, 2002, ¶ 9. Ryan says she was not the operator who received the Code-77. Complaint at 1-2. As a result of the events of October 3, a Beth Israel patient died and Ryan was fired shortly thereafter.

See id. Ryan states she was not responsible for the death and that her firing was in retaliation for an earlier unrelated lawsuit she filed against Beth Israel. See id.

After Ryan was fired, Local 1199 retained a law firm to represent her in a grievance proceeding against Beth Israel. See Pl. Mem. at 1. Ajami was the attorney who appeared on behalf of Ryan. Id. The circumstances of Ajami's representation at the grievance proceeding are the basis for Ryan's claims. Ryan alleges that Ajami did not provide proper representation and thereby caused her to suffer harassment and emotional distress. Complaint at 1-2.

B. Procedural History

Ryan originally filed suit in Civil Court of the City of New York, County of Bronx, on March 15, 2002. Ajami removed the case to this Court on the ground that exclusive federal question jurisdiction exists under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. See Removal Pet. at 2. On September 23, 2002, Ajami moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Ajami claims to be entitled to this relief because (1) an attorney acting on behalf of a union is immune from suit under § 301 of the LMRA and (2) because the grievance proceeding at issue has not yet been concluded. See Def. Mem. at 2-7.

In response to Ajami's motion, Ryan submitted a document dated September 19, 2002, entitled "Reply to Motion" that attaches a number of exhibits, consisting in large part of letters she has written complaining about the grievance proceeding and Ajami's representation. Her submission does not otherwise address the motion to dismiss.

II. DISCUSSION

Even though no party raised the issue, this Court has the obligation to determine in the first instance whether subject matter jurisdiction exists. See, e.g., Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 583 (1999); Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). As noted, Ryan's purported claim against Ajami is essentially one for malpractice. See, e.g., Complaint at 1 (Ajami "refused to give me 100 percent representation, and to put on the proper defense for me, and defend me against Beth Israel . . ."). Ajami removed the case to this Court pursuant to 28 U.S.C. § 1441(a) on the ground that the suit stated an exclusive federal question under section 301 of the LMRA.

See Removal Pet. at 2. Ajami claims that Ryan's claims are removable because her "entitlement to relief on her claims turns solely on the interpretation of the parties' collective bargaining agreement . . ." Id.

Ordinarily, federal question jurisdiction is established only where a question of federal law is presented on the face of the complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, an exception exists when federal law has so completely preempted state law in an area that the state claim must be deemed to arise under federal law. See, e.g., Foy v. Pratt Whitney Group, 127 F.3d 229, 232 (2d Cir. 1997). The theory of "complete preemption" is that Congress has so completely pre-empted the field in some areas "that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Thus, the doctrine of complete preemption "converts an ordinary state common law complaint into one stating a federal claim." Id. at 65.

In the case of section 301 of the LMRA, case law holds that section 301 will completely preempt a state law claim only where the claim involves the interpretation and application of a collective bargaining agreement. See United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368-69 (1990); see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994) ("where the resolution of a state-law claim depends on an interpretation of the collective-bargaining agreement, the claim is pre-empted.") (citations omitted). However, merely because a collective bargaining agreement could be referred to or consulted during litigation does not establish preemption under section 301. See Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). If a claim can be decided without a judicial interpretation of the collective bargaining agreement, a right or cause of action created under state law is not preempted by section 301. See Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 410 (1988) ("as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes").

To determine if resolution of a state law cause of action will require interpretation of a collective bargaining agreement, it is necessary to examine the elements of the state law claim.

See Foy, 127 F.3d at 233 (citing Lingle, 486 U.S. at 407). In New York, malpractice requires proof of three elements: "the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages." Between the Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy Viener, 290 A.D.2d 380 (1st Dep't) (citing cases), leave to appeal denied, 98 N.Y.2d 603 (2002).

None of these elements require any interpretation of the collective bargaining agreement.

Thus, courts have held that malpractice claims against an attorney hired by a union are not preempted by section 301 of the LMRA and do not confer subject matter jurisdiction on the federal courts. See, e.g., Niezbecki v. Eisner Hubbard, P.C., 1999 WL 144513, at *2 (S.D.N.Y. Mar. 16, 1999) (remanding malpractice claim against a union attorney for lack of federal jurisdiction); Donato v. McCarthy, 1999 WL 1327392, at *2 (D.N.H. Nov. 18, 1999) (same); cf. Piper v. Yamaha Corp. of Am., 1992 WL 21199, at *6 (W. D.Mich. Jan. 13, 1992) (in action removed based on diversity, malpractice action was "not preempted by [LMRA] Section 301"). In In re Glass, Molders, Pottery, Plastics Allied Workers Int'l. Union, 983 F.2d 725 (6th Cir. 1993), the Sixth Circuit concluded that a claim of malpractice, amongst others, brought against a union was actually a claim for breach of the duty of fair representation and therefore preempted. See id. at 729. In re Glass is inapposite, however, as Ryan has not asserted any claims against the union itself.

The effect of remanding this case may merely be to delay the inevitable dismissal of the complaint since New York State recognizes that an attorney acting on behalf of a union has immunity for claims of malpractice. See, e.g., Mamorella v. Derkasch, 276 A.D.2d 152, 155 (4th Dep't 2000). This court, however, cannot dismiss the complaint on this ground because it lacks subject matter jurisdiction to do so. See, e.g., Lyndonville Sav. Bank Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("federal courts are courts of limited jurisdiction and may not decide cases over which they lack subject matter jurisdiction."). The Court is mindful that there exist numerous federal cases that have dismissed state law claims of malpractice based on the immunity afforded a union attorney. See, e.g., Arnold v. Air Midwest, Inc., 100 F.3d 857, 862 (10th Cir. 1996); Breda v. Scott, 1 F.3d 908, 909 (9th Cir. 1993); Montplasir v. Leighton, 875 F.2d 1, 8 (1st Cir. 1989); Peterson v. Kennedy, 771 F.2d 1244, 1258 (9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986); Waterman v. Transport Workers Union Local 100, 8 F. Supp.2d 363, 370-71 (S. D.N.Y. 1998), aff'd, 176 F.3d 150 (2d Cir. 1999). But the only reason these cases reached the question of immunity was that an independent ground of federal jurisdiction existed — either diversity or a separate claim against the union for a breach of the duty of fair representation. Neither circumstance exists here.

Conclusion

For the reasons stated above, the case should be remanded to Civil Court of the City of New York, County of Bronx.