United States District Court, D. New Jersey
REPORT & RECOMMENDATION
L. WALDOR UNITED STATES MAGISTRATE JUDGE
matter comes before the Court by way of referral from the
Honorable Madeline Cox Arleo to issue a report and
recommendation regarding Plaintiff Eugene DiGiovacchino's
Motion to Remand and for Attorneys' Fees (ECF No. 7) and
Defendants Pipefitters Local Union No. 274 and John
Wende's Opposition (ECF No. 11). The Court declined to
hear oral argument pursuant to Rule 78 and as set forth more
fully below, the Court recommends the Motion to Remand be
GRANTED and the attendant Motion for Attorneys' Fees be
first filed this action in Essex County Superior Court on
April 6, 2018, alleging that Defendants violated the New
Jersey Law Against Discrimination (“NJLAD”).
(see generally Compl., ECF No. 1-1). Plaintiff was a
member of Defendant Pipefitters Local Union No. 274
(“Local 274”) from 2004 through July 2016, at
which point he was allegedly constructively discharged.
(Compl. ¶ 7). According to Plaintiff, Defendant John
Wende was Plaintiff's business agent and controlled the
allocation of union pipefitting jobs for Plaintiff and other
union members. (Compl. ¶ 3).
alleges that over the course of twelve years, members of
Defendant Local 274 created a hostile work environment by
subjecting Plaintiff to pervasive verbal harassment, threats,
and physical violence because of his perceived sexual
orientation. (Compl. ¶¶ 8-21). Plaintiff also
asserts that Defendant John Wende caused his constructive
discharge. Wende allegedly “kicked [Plaintiff] out of
the union because of his perception that Plaintiff was gay,
” and threatened to “bury [Plaintiff] under a
pipe” if Plaintiff did not “stop paying [his]
union dues and leave.” (Compl. ¶¶ 25-26).
Plaintiff pleads two counts of NJLAD violations and seeks
relief under NJLAD, including compensatory and punitive
damages, reinstatement, and attorneys' fees. (Compl.
¶¶ 36, 49).
9, 2018, Defendants removed this action to this Court
pursuant to 28 U.S.C. § 1441. (Notice of Removal, ECF
No. 1). Defendants' bases for removal were the Labor
Management Relations Act and National Labor Relations Act.
Defendants contend that these statutes confer federal
jurisdiction over Plaintiff's complaint, because his
state law claims are “inextricably intertwined with
[his] membership in a labor union and his employment under
the terms and conditions…in collective bargaining
agreements.” (Id. at 6). On June 4, 2018,
Plaintiff filed his Motion to Remand and For an Award of
Attorneys' Fees. (ECF No. 7). Plaintiff argues that
Defendants' removal was improper because the federal
labor statutes do not completely preempt his claims.
Defendants filed their Opposition on July 2, 2018. (ECF No.
11). On July 9, 2018, Plaintiff filed a Reply. (ECF No. 14).
The Court concludes that neither the LMRA nor the NLRA
completely preempt Plaintiff's NJLAD claims.
Consequently, there is no federal jurisdiction over this
action, and its removal was improper.
federal removal statute provides, “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction, may be
removed…to the district courts of the United States
for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441. Federal
district courts have original jurisdiction over “all
civil actions arising under the… laws, or treaties of
the United States.” 28 U.S.C. § 1331; see also
Parrish v. ARC of Morris Cty., LLC, 193 F.Supp.3d 425,
430 (D.N.J. 2016).
party asserting “jurisdiction bears the burden of
showing at all stages of the litigation that subject matter
jurisdiction is proper in the federal court.”
DeJoseph v. Cont'l Airlines, Inc., 18 F.Supp.3d
595, 597 (D.N.J. 2014). The federal removal statute should be
“strictly construed against removal…[and] all
doubts should be resolved in favor of remand.”
Id. There is a “presum[ption] that federal
courts lack jurisdiction unless the contrary appears
affirmatively from the record.” Id. at 598
(quoting Renne v. Geary, 501 U.S. 312, 316 (1991)).
PREEMPTION UNDER THE LMRA
the well-pleaded complaint rule, “federal 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). A complaint that “facially asserts only state
law causes of action against the
Defendants…[o]rdinarily would present an easy case for
remand.” DeJoseph, 18 F.Supp.3d at 599.
complete preemption doctrine is an exception to this rule,
and Defendants argue that this exception applies to the
Complaint here. (Def.'s Opp., ECF No. 11 at 4). There are
areas where the “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 purposes
of the well-pleaded complaint rule.” Caterpillar
Inc., 482 U.S. at 393 (internal quotations omitted). The
Supreme Court has held that Section 301 of the LMRA possesses
this preemptive force. Id. Section 301 provides:
“Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this
chapter… may be brought in any district court of the
United States having jurisdiction of the parties, without
respect to the amount in controversy or without regard to the
citizenship of the parties.” 29 U.S.C. § 185(a).
Section 301 of the LMRA does not apply here. As the Third
Circuit explained, “claims based squarely on a
collective bargaining agreement or requiring analysis of its
terms are pre-empted by section 301 and are removable to the
federal courts, ” while claims “that are
independent of a collective bargaining agreement” are
not. Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir.
1996) (internal citations omitted). Plaintiff's NJLAD
claims belong in the latter category. “[I]t is now well
settled law that…a claim asserted under the
NJLAD” is not completely preempted by the LMRA, because
“both the existence and the scope of plaintiff's
state law discrimination claims under the NJLAD are derived
independently from state law, and not from the obligations
assumed by the parties under [a CBA].” Boone v.
Local Union 475 Pipefitters/Steamfitters, No. CV 16-5482
(JLL), 2016 WL 7325472, at *2 (D.N.J. Dec. 16, 2016) (quoting
Carrington v. RCA Global Commc'ns, Inc., 762
F.Supp. 632, 641 (D.N.J. ...