United States District Court, D. Colorado
GARY P. FINK, Plaintiff,
RAY SUMERALL, and MV PUBLIC TRANSPORATION, INC., a California Corporation, Defendants.
Brooke Jackson United States District Judge.
moves to remand this case to the District Court for the City
and County of Denver [ECF No. 13]. The motion is granted.
Fink works as a driver for MV Public Transportation, Inc.
(“MV Transportation”). ECF No. 1-2 at ¶ 7.
Mr. Fink and other MV Transportation employees, including
Reynaldo Sumrall,  are members of United Service Workers
Union, Local 455. ECF No. 1 at ¶¶ 7-8. The labor
union and MV Transportation are parties to a collective
bargaining agreement (“CBA”), which delineates
their respective rights and responsibilities. See
Id. ¶ 7. In August 2016 Mr. Sumrall allegedly
jabbed Mr. Fink in his side, causing him pain and aggravating
his Crohn's disease. ECF No. 1-2 at ¶¶ 9-13.
Fink filed suit against Mr. Sumrall and MV Transportation in
the Denver District Court on December 23, 2016. Id.
at 1. Mr. Fink's complaint asserts three claims for
relief: assault, battery, and negligent supervision.
Id. ¶¶ 16-41. Defendants received notice
of this action in January 2017. ECF No. 1 at ¶¶
filed a notice of removal with this Court on January 31,
2017. ECF No. 1. Defendants argue that although the complaint
raises only state law claims and the parties are not diverse,
they may remove to federal court plaintiff's negligent
supervision claim under the “complete preemption”
doctrine and section 301 of the Labor Management Relations
Act (“LMRA”). Id. ¶ 9. The Court
would then have supplemental jurisdiction over
plaintiff's other two state law claims. Id.
responded with the pending motion to remand. ECF No. 13.
Plaintiff contends that the complete preemption doctrine does
not apply here, so the case should be remanded back to the
state court. Id.
action filed in a state court may be removed to federal court
if the dispute “aris[es] under” federal law.
See 28 U.S.C. §§ 1331, 1441(a).
“Federal courts are courts of limited jurisdiction and,
as such, must have a statutory basis to exercise
jurisdiction.” Montoya v. Chao, 296 F.3d 952,
955 (10th Cir. 2002). “[R]emoval statutes are to be
narrowly construed in light of our constitutional role as
limited tribunals.” Pritchett v. Office Depot,
Inc., 420 F.3d 1090, 1095 (10th Cir. 2005). The removing
party bears the burden of establishing federal jurisdiction.
Martin v. Franklin Capital Corp., 251 F.3d 1284,
1290 (10th Cir. 2001).
a federal court has original jurisdiction to hear a dispute
only if a question of federal law appears on the face of the
well-pleaded complaint. See Louisville & Nashville
R.R. v. Mottley, 211 U.S. 149, 152 (1908). Thus, a
defense based on the preemptive effect of a federal law
usually will not provide a basis for removal. See
is, however, a corollary to the well-pleaded complaint rule:
the complete preemption doctrine. 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. Construction Laborers Vacation
Trust, 463 U.S. 1, 24 (1983). The Tenth Circuit has
clarified that “complete preemption” should be
not as a crude measure of the breadth of the preemption (in
the ordinary sense) of a state law by a federal law, but
rather as a description of the specific situation in which a
federal law not only preempts a state law to some degree but
also substitutes a federal cause of action for the state
cause of action, thereby manifesting Congress's intent to
Schmeling v. NORDAM, 97 F.3d 1336, 1342 (10th Cir.
1996). Accordingly, “removal based on preemption is
permissible only if federal law provides a replacement cause
of action. Id. at 1343.
defendants argue that section 301 of the LMRA completely
preempts plaintiff's negligent supervision cause of
action due to the CBA between MV Transportation and its
employees' union. Section 301 provides that any federal
district court may hear suits based on the breach of a
contract between an employer and a labor union. 29 U.S.C.
§ 185(a). The Supreme Court has read this provision
expansively, holding that “the preemptive force of
§ 301 is so powerful as to displace entirely any state
cause of action for violation of contracts between an
employer and a labor organization.” Franchise Tax
Bd., 463 U.S. at 23 (internal quotation marks omitted).
The Court later extended section 301's preemptive effect