Opinion
No. 02 Civ. 4273 (LTS)(THK)
March 3, 2003
MEMORANDUM ORDER
This matter comes before the Court on Plaintiffs' motion to remand this case to New York State Supreme Court, Bronx County. The Court has considered thoroughly all written submissions made in connection with the present motion. For the following reasons, the motion to remand is granted.
Plaintiffs commenced this action in state court on or about April 24, 2002, by filing a Summons and Complaint and Jury Demand. On or about June 4, 2002, Plaintiffs served an amended complaint alleging intentional retaliation and discrimination on the basis of national origin in violation of the New York City Human Rights Law, NYC Code § 8-107 (Westlaw 2002), and the New York State Human Rights Law ("NYHRL"), Executive Law §§ 290-301 (McKinney 2001 Supp. 2002). On June 6, 2002, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1331 and 1441. Plaintiffs' motion to remand was filed on June 4, 2002. Defendants submitted a memorandum of law in opposition to the motion to remand on July 15, 2002.
According to the amended complaint Plaintiffs, all of whom are alleged to be Hispanic, are delivery drivers for Defendants, though they are at least nominally employed by Cordial Trucking, Inc. Plaintiffs allege that they are jointly employed by Cordial Trucking and Defendants, and that the day-to-day supervision of their work is controlled by Defendants. Defendants also directly employ other drivers, almost all of whom, Plaintiffs allege, are white. Plaintiffs allege that Defendants' white drivers receive better terms of employment, including coverage "under a union contract that protects them against unjust discharge."
Discussion
A state court action may be only be removed to federal court if the action could originally have been filed in federal court. See 28 U.S.C.A. § 1441(a) (West 2002). Where, as here, neither party has alleged diversity jurisdiction, removal requires federal question jurisdiction. Defendants allege two grounds for subject matter jurisdiction, and thus for removal: complete preemption of Plaintiffs' state law claims by the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151-169, and complete preemption by sections 502 and 510 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1132 and 1140. The Court will address each ground in turn.
NLRA Preemption
Defendant argues that Plaintiffs' employment discrimination claims, although asserted pursuant to state and local civil rights laws, are in essence claims of unfair labor practices and are therefore preempted by the NLRA. In San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the Supreme Court held that the National Labor Relations Board has original, exclusive jurisdiction of claims of unfair labor practices arising under sections 7 and 8 of the NLRA. Hayden v. Reickerd, 957 F.2d 1506, 1511-12 (9th Cir. 1992). Section 7 of the NLRA ( 29 U.S.C. § 157) "defines protected union activities," and section 8 of the statute ( 29 U.S.C. § 158) "protects employees engaged in those activities against employer coercion and discrimination." Id. at 1512. The Garmon court found that, "[w]hen an activity is arguably subject to section 7 or section 8 of the Act, the states as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board. . . ." Garmon, 359 U.S. at 245. Defendants argue that, because the essence of Plaintiffs' discrimination claim is that they are excluded from the collective bargaining agreement but white drivers are not, the amended complaint "alleges conduct within the compass of 29 U.S.C. § 158(a)(5), which is within the exclusive jurisdiction of the National Labor Relations Board under the NLRA." (Not. of Removal, ¶ 2.) In their Memorandum, they further assert that "it is the [NLRB] and not . . . a Bronx jury, that has the exclusive jurisdiction to resolve these issues."
29 U.S.C. § 158(a)(5) provides in part that, it shall be an unlawful labor practice for an employer "to refuse to bargain collectively with the representatives of his employees. . . ." 29 U.S.C.A. § 158(a)(5) (West 1994).
The question of whether or not preemption under Garmon may provide a basis for removal does not appear, to date, to have been addressed by the Second Circuit. See Foy v. Pratt Whitney Group, 127 F.3d 229, 237 n. 4 (2d Cir. 1997) ("We express no view as to whether or not Garmon preemption is ever a proper basis for removal.") In that same footnote in its Foy v. Pratt Whitney opinion, however, the Court cited with apparent approval a Ninth Circuit decision holding that Garmon preemption is not a valid basis for removal. Id. (citing Hayden v. Reickerd, 957 F.2d 1506, 1512 (9th Cir. 1992)). The Ninth Circuit in Hayden found that "[i]f the Garmon doctrine preempts state claims, jurisdiction vests in neither state nor federal court, but rather exclusively in the NLRB." Hayden, 957 F.2d at 1512. See also Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 49 (1998) ("When a plaintiff challenges an action that is arguably subject to § 7 or § 8 of the NLRA, this challenge is within the primary jurisdiction of the NLRB." (internal quotation marks and citation omitted)). The Hayden Court explained that, if the defendant had wanted to invoke Garmon preemption, "it should have done so in state court" because the "assertion of Garmon preemption does not create a federal question for federal court jurisdiction. . . . If the Garmon doctrine indeed preempts [plaintiff's] claims, the federal district court never had jurisdiction in the first place, and the state court properly should have heard arguments on Garmon preemption." Id.
If the NLRB indeed has exclusive jurisdiction, then this case could not have been brought originally in federal court, and thus it cannot be removed to federal court. Lower courts that have considered this question have uniformly held that an assertion of Garmon preemption is insufficient to provide a basis for removal. TKO Fleet Enterprises v. District 15, 72 F. Supp.2d 83, 87 (E.D.N.Y. 1999) (collecting cases). See also Ramsay v. Steeltech Mfg., Inc., 895 F. Supp. 225, 228 (E.D.Wis. 1995) (granting plaintiff's motion to remand because "[i]f Garmon applies, both the state and federal courts lack jurisdiction. Because the plaintiff cannot bring an action under 29 U.S.C. § 157 or 158 in federal district court, removal is impossible."); Pitchford v. Aladdin Steel, Inc., 828 F. Supp. 610, 613-14 (S.D.Ill. 1993) (adopting 9th Cir. analysis and holding that Garmon preemption could not support removal).
Accordingly, the removal of this case was improper to the extent it was premised on federal court jurisdiction under NLRA.
ERISA Preemption
The second ground for removal offered by Defendants is that the Amended Complaint "includes claims which are completely preempted by §§ 502 and 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132 and 1140, and arise under the laws of the United States." (Not. of Removal, ¶ 6.) Defendants perceive such claims in Plaintiffs allegations, in paragraph 19 of the Amended Complaint, that white drivers receive "better benefits . . . than the plaintiffs."
Plaintiffs purport to bring these claims pursuant to the New York City and New York State Human Rights laws. The question of whether or not ERISA preempts the New York State Human Rights Law ("HRL") was addressed almost twenty years ago in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). Delta Air Lines, which at the time did not provide benefits to employees "disabled" by pregnancy as required by the HRL and New York's Disability Benefits Law, had sought federal declaratory judgments that the HRL and the Disability Benefits Law were preempted by ERISA. Id. at 92. The Court found that the statutes at issue fell within ERISA section 514(a), 29 U.S.C. § 1144(a), which preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." Shaw, 463 U.S. at 100. The Court then considered whether the HRL was exempted from preemption by section 514(d), which provides that 514(a) preemption shall not be "construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States," in light of the "significant role" state laws play in Title VII enforcement. Id. at 101. Interpreting ERISA to preempt the HRL with respect to covered benefit plans, the Court reasoned, "would frustrate the goal of encouraging joint state/federal enforcement of Title VII," and would therefore impair federal law in violation of section 514(d). Id. at 102. The Court held therefore that the HRL "was preempted only to the extent it prohibited practices lawful under Title VII." Id. at 108. "To the extent the New York law prohibited practices also prohibited under federal law . . . the New York law was not preempted." Humana, Inc. v. Forsyth, 525 U.S. 299, 310 (1999) (explaining Shaw).
The issue in this case is identical to the issue in Shaw in that Title VII also prohibits discrimination on the basis of national origin. See 42 U.S.C.A. § 2000e-2(a) (West 1994). The HRL and New York City Human Rights Law provisions prohibiting employment discrimination on the basis of national origin prohibit conduct also forbidden under federal law, and therefore are not completely preempted by ERISA. See also Devlin v. Transportation Communications International Union, 173 F.3d 94, 98-101 (2d Cir. 1999) (conducting Shaw analysis for age discrimination claims brought under the HRL, and finding that, because of similarities between Title VII and the ADEA, the HRL claims were not preempted by ERISA). Accordingly, Plaintiffs' state law claims of national origin discrimination are not completely preempted by ERISA, and do not provide a basis for removal.
Attorneys' Fees
Plaintiffs' motion also includes a request for attorney fees pursuant to Rule 11 and Rule 37 of the Federal Rules of Civil Procedure, as well as "the Court's inherent powers" to award fees, because the removal was "frivolous, tantamount to bad faith, and unreasonably extended the judicial proceedings." Plaintiffs' request does not fall within Rule 37, which provides for sanctions within the context of discovery. Furthermore, Plaintiffs did not make their request for fees separately from their motion to remand, nor did they provide Defendants an opportunity to withdraw their notice of removal before submitting the Rule 11 request to the Court, as required by Rule 11. See Fed.R.Civ.P. 11(c)(1)(A). Nor does the Court find it appropriate to invoke its inherent powers as a basis for an award of fees. Consequently, Plaintiffs' request for fees is denied. Each party shall bear its own costs and attorney fees.
Conclusion
Defendants have cited no legitimate grounds for federal court subject matter jurisdiction of this case. Therefore, this case must be remanded to state court. Plaintiffs' motion to remand this case to the Supreme Court of the State of New York, Bronx County, is hereby granted, and their request for attorneys' fees is denied.
IT IS SO ORDERED.