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SMITH v. HICKEY

December 19, 1979

R. C. SMITH, CHARLES CALHOUN, JOSEPH PENOT, MARTIN HICKEY, MICHAEL DIPRISCO, JAMES HAYES, THOMAS E. MURPHY, FRANKLIN K. RILEY and J. ERIC MAY, as Trustees of the R.O.U. Benefits Plan, Plaintiffs,
v.
MARTIN HICKEY, MICHAEL DIPRISCO, NICHOLAS TELESMANIC, C.J. BRACCO, DAVID SCHULTZE, ALLEN TAYLOR, WILLIAM RISTINE, WILLIAM STEINBERG, BERNARD SMITH, HARVEY STRICHARTZ, JOSEPH RUBIN, PHILLIP O'ROURKE, FLOYD HEPTING, RALPH BAIRD, As Trustees of the A.R.A.-P.M.A. Welfare Plan and the A.R.A. Pension and Welfare Plan and JOHN SOKOLOWSKI, as Administrator of the A.R.A. Pension and Welfare Plans and PAUL ANSELMO, as the Training Director of the A.R.A.-R.O.U. Training School, Defendants.



The opinion of the court was delivered by: SWEET

Plaintiffs commenced this action against defendants in New York Supreme Court for breach of contract and for an accounting. Defendants removed the action to this court under 28 U.S.C. § 1441. Plaintiffs now move to remand the action to state court pursuant to 28 U.S.C. § 1447(c). A review of the facts underlying this action demonstrates a lack of subject matter jurisdiction over the claims asserted in the complaint. *fn1" Therefore, the motion to remand is granted.

A. Parties and Factual Setting.

Plaintiffs are trustees of the R.O.U. Benefits Plan (the "ROU Plan"). The ROU Plan is a benefit and welfare trust fund for radio officers established pursuant to a collective bargaining agreement between the Radio Officers Union, United Telegraph Workers, AFL-CIO ("ROU") and employers in the American merchant marine. Defendants are trustees of the A.R.A.-P.M.A. Welfare Plan and of the A.R.A. Pension and Welfare Plan (the "ARA Plans"). These plans are benefit trust funds for radio officers created pursuant to a collective bargaining agreement between the American Radio Association, AFL-CIO ("ARA") and American merchant marine employers. All three plans are funded by contributions received from employers who are parties to the respective collective bargaining agreements. They are maintained in accordance with the requirements of Section 302(c) of the Labor Management Relations Act of 1947, as amended ("LMRA"), 29 U.S.C. § 186(c). In addition, defendant Sokolowski is the administrator of the A.R.A. Pension and Welfare Plan, and defendant Paul Anselmo is the training director of the A.R.A.-R.O.U. Training Program.

 In January, 1951, the trustees of the ARA Plans voted to establish a training program to provide correspondence and residence training courses for the benefit of ARA members, to be known as the ARA Technology Institute for Maritime Electronics ("T.I.M.E."). On October 4, 1960 and December 1, 1962; the ROU Plan signed contracts with the ARA Plans (the "Contracts") under which it agreed to contribute to T.I.M.E. and under which ROU members became eligible to participate in T.I.M.E. programs.

 T.I.M.E. itself is not a Section 302(c) trust. It receives no direct contributions from employers, but rather is funded by contributions from the ROU Plan and the ARA Plans in accordance with the Contracts. T.I.M.E. has no trust assets of its own and has no trustees. Defendants have not disputed plaintiffs' assertion that T.I.M.E. is regulated neither under the LMRA nor under the Employee Retirement Income Security Act of 1974, ("ERISA"), 29 U.S.C. §§ 1001 Et seq.

 Plaintiffs commenced this suit in New York Supreme Court in 1979, shortly after the ROU Plan terminated its participation in T.I.M.E. Plaintiffs allege that, beginning in 1976, the ARA Plans pursued a course of harassment of the ROU Plan by preventing the trustees of the ROU Plan from participating in setting policies pertaining to the operation of T.I.M.E. The complaint alleges that the defendants denied access to training programs to ROU officers, prevented the ROU Plan from participating in the restructuring of T.I.M.E."s curriculum, and withheld financial data concerning T.I.M.E. from ROU trustees. Plaintiffs aver that these actions constitute a breach of the Contracts, for which they are entitled to recover damages.

 Plaintiffs' second cause of action seeks an accounting of T.I.M.E."s assets and inventory, which the ARA Plans have allegedly prevented T.I.M.E. from providing.

 Defendants have counterclaimed for $ 200,000 for the averred failure of plaintiffs to make sufficient contributions to the T.I.M.E. program as required by the Contracts.

 Defendants urge that federal jurisdiction exists over the claims asserted in the complaint pursuant to Sections 301 and 302 of the LMRA, 29 U.S.C. §§ 185, 186, Section 502 of ERISA, 29 U.S.C. § 1132, and 28 U.S.C. § 1337. *fn2"

 Whether a basis for federal jurisdiction exists which will support removal of an action is determined solely by reference to the allegations in plaintiffs' complaint, and not to those contained in defendants' answer. Gully v. First National Bank, 299 U.S. 109, 113, 57 S. Ct. 96, 81 L. Ed. 70 (1936). Moreover, claims asserted in a counterclaim can not serve as the basis for a finding of federal jurisdiction. Coditron Corp. v. AFA Protective Systems, Inc., 392 F. Supp. 158, 161 (S.D.N.Y.1975).

 B. Section 301 of the LMRA.

 Section 301 of the LMRA provides:

 
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce or between any such labor organizations . . . may be brought in any district court of the United States having jurisdiction of the parties . . .

 29 U.S.C. § 185(a). Defendants argue that this suit should be viewed as one involving the breach of the collective bargaining agreement between ROU and the employers it represents, or as one concerning the ...


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