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LA FRENIERE v. GE

October 21, 1983

RAYMOND LA FRENIERE, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, SCHENECTADY, NEW YORK, LAWRENCE HACK, FOREMAN BLDG. 273, RECEIVING, JOHN H. DEGEN, INVESTIGATOR SECURITY, R. L. COLMAN, C. W. GILGORE, K. MC IVER, MGR. FACILITY MAINTENANCE MACHINE REPAIR, H. BACHORIK, E. BEAULIEU, FOREMAN, G. ZMITHROVITCH, F. R. LINDSEY, JR. MGR. OF SECURITY COMMUNICATIONS, CHARLES J. WILDER, Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION AND ORDER

 HOWARD G. MUNSON, C.J.

 This action was commenced in the Supreme Court of the State of New York, Schenectady County, by service of the summons and complaint on April 13, 1983. The action was removed to this court by a petition for removal filed by the defendants on May 12, 1983. Plaintiff now moves pursuant to Rule 81(c) of the Federal Rules of Civil Procedure for an Order remanding this action to state court on the ground that it was improvidently removed. Defendants oppose this motion and also move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an Order granting summary judgment in their favor. For the reasons hereinafter stated the motion for remand is granted. In view of the court's disposition of plaintiff's motion for remand, defendant's motion for summary judgment need not be addressed.

 FACTS

 The subject matter of this litigation is plaintiff's claim that he was defamed in the course of General Electric's [GE] investigation of a theft of compapny property. Plaintiff was employed by GE as a tool crib operator. Commencing on November 22, 1982 plaintiff was suspected of stealing two barrels and a pail of carboloy inserts, valued at approximately $6,000. An investigation was held to determine whether plaintiff was involved in the theft. Based on the results of the investigation, it was concluded by GE officials that plaintiff was involved in the theft and that discharge was the appropriate sanction. On December 15, 1982 plaintiff was discharged. Plaintiff protested his discharge through the grievance and arbitration mechanisms provided for in the collective bargaining agreement, and the dispute was arbitrated on May 24, 1983. On August 24, 1983 an award of arbitration was rendered determining that plaintiff was discharged for just cause.

 Plaintiff moves for an order remanding this action to state court on the ground that original federal subject-matter jurisdiction is lacking in this case. Specifically, plaintiff argues that this is a civil action for defamation arising under the laws of the State of New York and does not present a claim for relief "arising under" the Constitution, treaties or laws of the United States. Plaintiff contends that the instant cause of action may be resolved wholly in terms of New York State tort principles. Defendants' position is that the issues involved in this litigation are matters over which there is an overriding federal policy which requires the exclusive application of federal law. Specifically, defendants contend that because certain defamatory statements are alleged to have been made during grievance and/or arbitration proceedings, the doctrine of preemption mandates that the issue of privilege be resolved in terms of federal law. In effect, it is defendants' position that preemption as a matter of law provides an adequate basis for removal jurisdiction.

 DISCUSSION

 A. Removal Jurisdiction

 The right of the defendant in a state court civil action to remove the action to federal court is governed by 28 U.S.C. § 1441, which provides as follows:

 
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants to the district court of the United States for the district and division embracing the place where such action is pending.

 In order to establish the presence of federal question jurisdiction for removal under 28 U.S.C. § 1441(b), the federally created right which is said to be present in the complaint must be an essential element of plaintiff's cause of action. Gully v. First National Bank in Meridian, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936). An action does not "arise under" federal law "unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends." Shulthis v. McDougal, 225 U.S. 561, 569, 56 L. Ed. 1205, 32 S. Ct. 704 (1912).

 More importantly, the federal question which is the predicate for removal must be disclosed upon the face of the complaint. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 53 L. Ed. 126, 29 S. Ct. 42 (1913). It has been repeatedly held that "the party who brings a suit is master to decide what law he will rely upon and therefore . . . whether he will bring suit 'arising under' the laws of the United States." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410, 57 L. Ed. 2d 716 (1913). As a general rule, therefore, the court must ascertain from the complaint whether federal law is pivotal. See Ivy Broadcasting Co. v. A.T. & T., 391 F.2d 486, 489 (2d Cir. 1968). Thus, if plaintiff elects to root his claims exclusively in state law, his choice will generally not be disturbed. Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 964 (2d Cir. 1981).

 There exists one caveat to these seemingly immutable principles of federal law: a plaintiff will not be permitted, by "artful pleading," to skew his complaint so as to avoid original federal jurisdiction where federal law supplies the underlying basis for relief. Artful pleading cannot be used to conceal an essentially federal cause of action. See Franchise Tax Board of California v. Construction Laborers Vacation Trust of Southern California, 461 U.S. 1, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983); New York v. Local 1115 Joint Bd., Nursing & Hosp. Employees Div., 412 F. Supp. 720 (E.D.N.Y. 1976).

 Whether removal of the present case is proper hinges on defendants' assertion that the cause of action arises under federal law and the district court, therefore, has original jurisdiction under 28 U.S.C. § 1331. Application of the above-stated principles indicates that the present action arises under state law. The suit is predicated solely upon defamation principles which are firmly entrenched in New York State law. There is no necessary connection between the alleged defamation and the existence of a controversy arising under federal law. Plaintiff has not sought relief under any labor statutes, nor has he requested reinstatement pursuant to the collective bargaining agreement. Federal law is invoked by defendants solely by way of defense. The fact that the defamation issue may ultimately depend upon resolution of defendants' affirmative defense of privilege does not miraculously transform plaintiff's claim into a federal cause of action. It is clear, therefore, that ...


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