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April 23, 1976

LOCAL 1115 JOINT BOARD, NURSING HOME AND HOSPITAL EMPLOYEES DIVISION, ALEX DeLAURENTIS, Vice-President, and JOHN DOE and MARY ROE, names being fictitious and intended to describe all persons acting in concert or participation with the foregoing defendants, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 This motion to remand this removed case to the State court presents an interesting question of federal-State jurisdiction in controversies involving labor unions. The action and motion arise out of the following circumstances.

 The Attorney General, on behalf of the plaintiff State of New York, instituted this action against the defendant union ("Local 1115") in the New York Supreme Court, Suffolk County, on or about January 21, 1976. The Attorney General acted at the request of the New York State Commissioner of Health, made pursuant to New York's Public Health Law § 12(5), *fn1" who advised that thousands of elderly and/or chronically ill patients of nursing homes in Nassau and Suffolk would suffer irreparable injury, if Local 1115 were to carry out a threatened strike against employer-operators of the nursing homes. *fn2" Alleging those facts, the Attorney General moved by order to show cause for a preliminary injunction preventing Local 1115 from engaging in a strike or slowdown. The show cause order, signed by a Justice of the State court, temporarily restrained the union pending a hearing on the application for a preliminary injunction.

 Local 1115 appeared in the State court and filed its response in opposition to the Attorney General's application. Additionally, it affirmatively cross-moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a cause of action and, alternatively, to vacate the temporary restraining order, asserting that the State law upon which the Attorney General relied had been preempted by the 1974 Congressional amendments extending the coverage of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., to health care facilities. *fn3" On February 5, 1976 the State court, citing the State constitution, the Public Health Law and the common law powers of the Attorney General, granted the motion for a preliminary injunction and denied the cross-motion to dismiss.

 Instead of appealing the decision, Local 1115 removed the action to this court on February 25, 1976, *fn4" claiming that the Attorney General is "seeking to enjoin activities [the strike] the right of which are [ sic ] guaranteed by the National Labor Relations Act" and that consequently the action arises under the laws of the United States. 28 U.S.C. § 1441(b). The Attorney General promptly moved to remand the case to the State court, 28 U.S.C. § 1447(c), contending that the complaint seeks relief solely under State law. Local 1115 cross-moved to dismiss, arguing that since Congress has preempted the area, the State court never had subject matter jurisdiction of the action and therefore this court has no derivative jurisdiction.


 A defendant sued in a State court upon a claim or right arising under the Constitution or laws of the United States may, of course, remove the action to a federal court. 28 U.S.C. § 1441. A defense based on federal law, however, will not sustain removal jurisdiction. Application of State of New York, 362 F. Supp. 922, 926 (S.D.N.Y. 1973).

 Whether an action arises under federal law is determined with reference solely to plaintiff's complaint, Gully v. First National Bank, 299 U.S. 109, 113, 81 L. Ed. 70, 57 S. Ct. 96 (1936), and "[the] party who brings a suit is master to decide what law he will rely upon . . . ." The Fair v. Kohler Die and Specialty Company, 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913) (Holmes, J.). Thus, if relief is available under both federal and State law, federal jurisdiction may be defeated by the plaintiff's chosen reliance solely on the latter. Great Northern Ry. Co. v. Alexander (Hall's Adm'r), 246 U.S. 276, 282, 62 L. Ed. 713, 38 S. Ct. 237 (1918). There is, however, a caveat that a plaintiff may not, by artful pleading, cast a claim, the essence of which is a federal right, in terms of State law and thereby defeat removal.

 The inquiry then is whether the claims asserted by the Attorney General are in essence founded on rights exclusively resting upon federal law. See Gully v. First National Bank, supra, 299 U.S. at 112. Clearly on their face they are not. The Attorney General's complaint seeks relief supported solely by the State Constitution, the Public Health Law and State common law. As Justice Holmes noted in American Well Works v. Layne, 241 U.S. 257, 260, 60 L. Ed. 987, 36 S. Ct. 585 (1916).


"A suit arises under the law that creates the cause of action."

 Local 1115 argues, however, that by virtue of the 1974 Health Care Amendments, P.L. 93-360, Congress preempted the area of strikes involving health care facilities, thereby rendering inoperative the State laws upon which the Attorney General relies, citing Division 1287 v. Missouri, 374 U.S. 74, 10 L. Ed. 2d 763, 83 S. Ct. 1657 (1963), and San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1958). The union reasons from this that the Attorney General's complaint must therefore be based on federal law. *fn5"

 This argument assumes too much. It does not necessarily follow that because State law has been preempted, a litigant must be held to rely on superseding federal law. Certainly in situations where preempting federal law provides the litigant, whose State claims have been preempted, with an alternative federal claim, see, e.g., Hearst Corp. v. Shopping Center Network, Inc., 307 F. Supp. 551, 556 (S.D.N.Y. 1969) (dictum) (copyrights); Coditron Corp. v. AFA Protective Systems, Inc., 392 F. Supp. 158, 160 (S.D.N.Y. 1975) (dictum) (patents); Sylgab Steel & Wire Corp. v. Strickland Transportation Co., 270 F. Supp. 264 (E.D.N.Y. 1967) (interstate shipments), it is reasonable to assume that a litigant will choose to seek relief under federal law rather than abandon his claim altogether. Where, however, superseding federal law does not replace rights formerly granted by State law, it is illogical to say that the litigant's claim is really predicated on a body of law which grants him no rights.

 Here, assuming arguendo that State law, which clearly constitutes the gravamen of the Attorney General's complaint, has been preempted, there is no basis for concluding that the Attorney General's claim has therefore been converted into one arising under federal law. Federal law is cast in terms of employers, *fn6" labor organizations, the National Labor Relations Board *fn7" and, as concerns health care institutions, the Federal Mediation and Conciliation Service, with primary recourse to the courts severely limited. See Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 38 L. Ed. 2d 583, 94 S. Ct. 629 (1974); Boys Markets, Inc. v. Retail Clerks' Union, 398 U.S. 235, 26 L. Ed. 2d 199, 90 S. Ct. 1583 (1970). Nowhere in the federal scheme is there a procedure relating to the State, as a party, intervening in a labor dispute in the exercise of its police powers.

 The Attorney General's right to relief in this action thus depends solely on the continued vitality of State law and does not arise under federal law. *fn8" As the Court said in Gully, supra :


"By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. Louisville & Nashville R. Co. v. Mottley [211 U.S. 149, 53 L. Ed. 126, 29 S. Ct. 42 (1908)]." 299 U.S. at 116.

 Whether the Union's preemption contention is correct should be decided as a matter of defense in the State courts in the first instance, see Application of State of New York, supra, 362 F. Supp. at 928; Beacon Moving and Storage, Inc. v. Local 814, IBT, 362 F. Supp. 442, 445 (S.D.N.Y. 1972); City of Galveston v. International Organization of Masters, Mates & Pilots, 338 F. Supp. 907, 909 (S.D. Tex. 1972), with ultimate recourse to the Supreme Court. State courts are obliged under the Supremacy Clause to follow federal law where applicable and there is no reason to believe that they are unwilling or incapable of so doing, see, e.g., Pennsylvania v. Nelson, 377 Pa. 58, 104 A.2d 133 (1954), aff'd, 350 U.S. 497, 100 L. Ed. 640, 76 S. Ct. 477 (1956); State ex rel. Rogers v. Kirtley, 372 S.W.2d 86 (Sup. Ct. Mo. 1963); John Hancock Mutual Life Insurance Co. v. Commissioner of Insurance, 349 Mass. 390, 208 N.E.2d 516 (1965). *fn9" See also De Canas v. Bica, 40 Cal. App. 3d 976, 115 Cal. Rptr. 444 (2d Dist. 1974), rev'd, 424 U.S. 351, 47 L. Ed. 2d 43, 96 S. Ct. 933 (1976).

 The Attorney General's motion to remand is granted and the Union's cross-motion to dismiss is denied.



 Dated: Brooklyn, New York April 23, 1976

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