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Martines Palmeiro Construction, LLC v. Southwest Regional Council of Carpenters

United States District Court, D. Colorado

November 21, 2017

MARTINES PALMERIO CONSTRUCTION, LLC, a Colorado limited liability company, Plaintiff,
v.
THE SOUTHWEST REGIONAL COUNCIL OF CARPENTERS, THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, a foreign non-profit corporation, and MILLWRIGHT AND MACHINERY ERECTOR LOCAL 1607, Defendants.

          ORDER DENYING PLAINTIFF'S EMERGENCY MOTION TO REMAND

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Plaintiff's Emergency Motion to Remand this case to state court. (Doc. # 6.) Based on the doctrine of complete preemption, the Court concludes that it has original jurisdiction over this case pursuant to 28 U.S.C. § 1331 and therefore denies the motion.[1]

         I. BACKGROUND

         Plaintiff Martines Palmeiro Construction, LLC (MPC) is a Colorado limited liability construction company that has been contractually retained by Industry Apartments, LLC to construct a building known as the Industry Apartments (the Project), located in Denver, Colorado. (Doc. # 3 at ¶ 8.) Construction on the Project is currently ongoing. (Id. at ¶ 14.)

         Defendants Southwest Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, and Millwright Erectors Local 1607 are labor unions or organizations affiliated with labor unions that represent carpenters, who are often employed by subcontractors to general managers. (Id. at ¶ 15.) According to the Complaint, Defendants believe that certain construction industry businesses within Colorado, including Plaintiff, are committing labor violations, and Defendants are therefore engaged in a public campaign against Plaintiff. (Id. at ¶ 17.)

         Plaintiff alleges that, since September 26, 2017, Defendants have trespassed on the Project site and loitered on public streets and private property nearby. (Id. at ¶ 18.) Plaintiff further contends that, while trespassing, Defendants' representatives have harassed Plaintiff's employees and subcontractors and interfered with ongoing operations on the site. (Id. at ¶ 25.) Plaintiff alleges that Defendants' harassing and intimidating conduct has caused Plaintiff's employees and subcontractors to leave the site and refuse to return, disrupting the Project and damaging Plaintiff's reputation.

         Based on these factual allegations, Plaintiff filed a Complaint in Denver County District Court on October 27, 2017. (Id.) Plaintiff pleads for relief under two legal theories: trespass and tortious interference with contract. (Id. at 5-6.) Defendants removed the action to this Court on the grounds that the doctrine of complete preemption requires that Plaintiff's tortious interference claim be construed to assert a federal cause of action. (Doc. # 1.) Plaintiff thereafter filed the instant motion to remand. (Doc. # 6.)

         II. DISCUSSION

         Federal district courts have limited jurisdiction, possessing “only that power authorized by Constitution and statute.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). An action may be removed from state court to federal court under 28 U.S.C. § 1441 when the federal district court has original jurisdiction over it. The removing party bears the burden of demonstrating federal subject matter jurisdiction over the action. Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014).

         According to Defendants, subject matter jurisdiction here is based on the existence of a federal question under 28 U.S.C. § 1331. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” “The presence or absence of federal question is governed by the well-pleaded complaint rule, which provides that federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded Complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Typically, then, federal question jurisdiction will lie only if the complaint pleads a federal cause of action. Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986); Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908). A defense based on federal law, including the defense of preemption, is not enough to make the case “arise under” federal law. Mottley, 211 U.S. at 152. Under the “artful pleading” doctrine, however, a plaintiff may not defeat removal by failing to plead federal questions that are essential elements of the plaintiff's claim. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 22 (1983).

         The Complaint in this action asserts only state law claims. Under the well-pleaded complaint rule, then, the Court would normally conclude that no federal question jurisdiction exists. Defendants, however, argue that removal of this action is supported by the “complete preemption doctrine, ” a corollary or exception to the well-pleaded complaint rule. Schmeling v. NORDAM, 97 F.3d 1336, 1339 (10th Cir. 1996). Defendants specifically maintain that Plaintiff's claim for tortious interference with contract falls within the purview of § 303 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 187, a statute which they argue triggers the application of the “complete preemption doctrine” and supports federal jurisdiction.

         To evaluate Defendants' complete preemption argument, the Court first reviews the scope of LMRA § 303. Section 303 creates a private cause of action that may be brought by any person injured in his business or property as a result of a labor union's unfair labor practices as defined by the National Labor Relations Act (NLRA) § 8(b)(4). 29 U.S.C. § 187. The NLRA § 8(b)(4), in turn, identifies various activities that constitute an unlawful “secondary boycott.” It specifically prohibits, insofar as it relates to the allegations in this suit, a labor union from threatening, coercing, or restraining a person engaged in commerce or in an industry affecting commerce with the object of forcing that person to cease doing business with another. 29 U.S.C. § 158(b)(4)(ii)(B); see also NLRB v. Retail Store Emp. Union, Local 1001, 447 U.S. 607, 611-12 (1980). This conduct is known as an unlawful “secondary boycott” because it is not aimed at the primary employer - here, Plaintiff - but rather at a secondary employer - Plaintiff's subcontractors. Id., 447 U.S. at 612.

         Defendants argue that the harassing and intimidating conduct, alleged to be causing interference with Plaintiff's contracts with Industry Apartments and various subcontractors, is precisely the kind of “unfair labor practice” addressed by LMRA § 303. The Court agrees that these allegations fall within the purview of LMRA § 303.[2]See Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1213 (9th Cir. 2005) (stating that conduct that rises to the level of intimidation to “threaten coerce, or restrain” potential customers could fall under NLRA § 8(b)(4)(ii)(B)); Silverman v. Verrelli, No. CIV.A. 11-6576 SRC, 2012 WL 395665, at *4 (D.N.J. Feb. 7, 2012) (considering whether claims that union defendants made coercive statements to induce secondary employees to cease doing business with a primary employer arose under § 303 of the NLRA). However, the mere fact that Plaintiff's claims fall within the purview of LMRA § 303, does not, by itself, suffice to confer federal jurisdiction where the claims pled do not arise under federal law. The Court therefore turns to examine whether Plaintiff's tortious interference claim is completely preempted by the LMRA § 303.

         The complete preemption doctrine provides that “Congress may so completely preempt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character.” Metro. Life Ins. Co. v. Taylor,481 U.S. 58, 63-64 (1987)). The doctrine applies where “the preemptive force of a statute is so extraordinary that it ‘converts an ordinary state common-law complaint into one stating a federal claim for ...


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