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August 14, 1963

Jack ROBERTSON, as President of Flight Engineers' International Association EAL Chapter, AFL/CIO, an unincorporated association, Plaintiff,

The opinion of the court was delivered by: COOPER

This is a motion pursuant to 28 U.S.C.A. § 1447 to remand the action to the Supreme Court, State of New York, County of New York. Plaintiff contends that it was improvidently removed.

The underlying action is for monies had and received by defendant, Eastern Air Lines, Inc. (hereinafter Eastern), pursuant to an agreement (entitled Memorandum of Understanding) entered into between Eastern and Flight Engineers' International Association, EAL Chapter, AFL/CIO (hereinafter Union).

 The Momorandum of Understanding provided in part for a 'check-off' system under which Eastern would deduct the Union dues from the salaries of those flight engineers who had executed the proper check-off authorization. Eastern was then to remit this money to the Union. Since July 1962, Eastern has refused to do so, although it has continued to deduct the dues pursuant to the check-off authorization.

 The Union, through its President, instituted this action in New York State Supreme Court for $ 30,000.00, the amount it claims was deducted by Eastern but not remitted to the Union pursuant to the Memorandum of Understanding.

 Eastern thereafter, on May 29, 1963, filed a Petition for Removal in this Court on the basis of 28 U.S.C.A. § 1441, claiming that this Court had original jurisdiction of the action under 28 U.S.C.A. § 1331 and/or § 1337.

 Sec. 1441 provides in relevant part that:

 'Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenships or residence of the parties.'

 The parties to the instant action are in agreement that diversity of citizenship is lacking and jurisdiction of this court cannot be predicated upon that ground. Defendant contends that this court had original jurisdiction of the matter, pursuant to Sec. 1337, since the action was one '* * * arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies' and Sec. 1331 which provides for original jurisdiction '* * * of all civil actions wherein the matter in controversy exceeds the sum or value of $ 10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'

 Eastern claims that the Memorandum of Understanding is governed by the Railway Labor Act, 45 U.S.C.A. § 151 et seq. and as such this action is 'founded upon a claim or right arising under' a law of the United States, to wit, the Railway Labor Act.

 Section 2, Eleventh, of the Railway Labor Act (45 U.S.C.A. 152 (Eleventh)) allows a carrier and a Union to enter into a Union Shop agreement providing for a check-off system of dues payments to the Union. Such was the agreement entered into here. Eastern contends that since the agreement was founded upon the Railway Labor Act, any claim made on the agreement arises under the Act and therefore this Court has original jurisdiction.

 It is clear that a controversy under federal law must be present in the complaint. It is not sufficient to give this court jurisdiction if the federal question arises by way of defense, or even in anticipation of a defense. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908); Debevoise v. Rutland Ry. Corp., 291 F.2d 379 (2d Cir., 1961), cert. denied 368 U.S. 876, 82 S. Ct. 123, 7 L. Ed. 2d 77 (1961); Hart & Wechsler, The Federal Courts and the Federal System, p. 763.

 Union in the instant action seeks only the monies received by Eastern pursuant to the Memorandum of Understanding. It in no way challenges the validity of the agreement; its suit predicated upon non-compliance with the terms of a contract. The Railway Labor Act does not prescribe such a contract; it merely permits the making of such an agreement.

 The answer is found in Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936). Gully, the Tax Collector for Mississippi, sued the defendant, a national bank, in state court to recover a money judgment for unpaid state taxes. The taxes had been assessed upon the shares of another national bank, the assets and liabilities of which had been assumed by the defendant under a contract. The action was removed to the federal court on the ground that it arose under federal law, since a federal statute allowed the states to levy taxes upon the shares of national banks. The Supreme Court reversed the denial of a motion to remand and for dismissal of the suit, holding that there was no federal jurisdiction.

 Mr. Justice Cardozo, speaking for a unanimous court, said at page 112 of 299 U.S., at page 97 of ...

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