United States District Court, D. Colorado
MARTINES PALMERIO CONSTRUCTION, LLC, a Colorado limited liability company, Plaintiff,
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
CHRISTINE M. ARGUELLO United States District Judge.
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
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.)
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.)
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
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.)
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).
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).
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
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.
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.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.
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