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CALHOON v. BONNABEL

July 12, 1982

CALHOON, et al., Respondents/Plaintiffs,
v.
BONNABEL, et al., Petitioners/Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

 MARY JOHNSON LOWE, D.J.

 INTRODUCTION

 This case presents a mixed question of procedure and substantive law which, though often probed, has produced no consistent answer nor a uniform doctrinal approach among the federal courts. Broadly framed, the question is whether the general removal statute codified at 28 U.S.C. § 1441 *fn1" permits a state court defendant to remove an action to federal district court on the sole ground that the state claims (causes of action) are wholly preempted by federal law? More specifically, this Court must determine whether it has removal jurisdiction over the present action, which states a claim under N.Y. Labor Law § 198-c 1 and 2 (McKinney Supp. 1980-81) *fn2" for unpaid, overdue contributions to benefit plans, where it is claimed by petitioners that the entire complaint is preempted by the Employee Retirement Income and Security Act of 1974, as amended ("ERISA"), 29 U.S.C. § 1144 (1975). *fn3"

 The present action was commenced on March 10, 1982 in the Supreme Court for New York County. It was removed pursuant to § 1441 on April 2, 1982. Respondents then moved to remand the matter to state court pursuant to 28 U.S.C. § 1447(c). *fn4" On May 28, 1982, oral argument was heard by the Court. Upon further review of the pleadings and judicial authority, the Court concludes that it does have removal jurisdiction over the complaint and therefore denies the motion to remand. The rationale supporting this conclusion is discussed below.

 DISCUSSION

 A. Background

 Respondents -- plaintiffs in the state proceeding -- include sixteen Trustees of the following employee benefit plans: the Marine Engineers' Beneficial Association ("MEBA") Pension Trust, the MEBA Medical & Benefits Plan, the MEBA Training Plan, the MEBA Vacation Plan, the Joint Employment Committee, and the Joint Maritime Congress (hereinafter referred to as the "MEBA Plans"). *fn5" Petitioners (defendants) are the executive officers of the American Coastal & Foreign Shipping Co., Inc., ("American Coastal"), a New York corporation which employs members of the National MEBA and District No. 1 -- Pacific Coast District, MEBA, AFL-CIO (hereinafter referred to as the "Union"), and which has a collective bargaining agreement with the Union. That agreement includes a provision requiring American Coastal to make payments to the MEBA Plans on behalf of its employees.

 Defendants admittedly are in default for contributions due January 1 and February 1, 1982, totalling $105,328.69. *fn6" On March 2, 1982, the respondents herein commenced a federal action against American Coastal pursuant to ERISA, 29 U.S.C. §§ 1145, 1132(a) (3). Their complaint, currently pending before this Court, alleges that American Coastal failed to make payments to the MEBA Plans due January 1 and February 1, 1982, totalling $105,328.69. The complaint requests an award of damages, costs and attorney's fees, as well as an order directing American Coastal to comply with its obligations under the MEBA Plans.

 Shortly after the initiation of the federal lawsuit, respondents commenced this action under the New York labor law against the company's officers. *fn7" The relief sought includes the overdue payments to the MEBA Plans, unpaid interest, costs and attorney's fees. Petitioners promptly removed the state action, claiming:

 
The above described action is a civil action of which this court has original jurisdiction under the provisions of Title 28, United States code, Section 1331, and is one which may be removed to this court by the petitioner, defendant therein, pursuant to the provisions of Title 28, United States Code, Section 1441 in that the Plaintiffs are identical in both actions and the defendants in the Supreme Court actions . . . are the officers and the directors of the defendant corporation . . . in the District Court action.

 Petition for Removal, filed April 2, 1982, at 2.

 B. General Principles

 Congress has provided in § 1441 that the federal district courts may assume jurisdiction over an action commenced in state court if, inter alia, that action could have been commenced by the (plaintiffs) in federal court under the court's original jurisdiction. *fn8" Before approving a petition for removal, the court must be satisfied that 1) the court from which the action has been removed acquired both subject matter and personal jurisdiction, *fn9" and 2) the subject matter of the removed action is within its original jurisdiction. The second requirement must be satisfied by review of the allegations in the state court complaint, uncolored by potential or ...


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