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MCKAY PLACE REALTY CORP. v. 32B-32J

December 23, 1983

15 McKAY PLACE REALTY CORP., DOLLY BARKSDALE, SHELDON CRUTCHFIELD, CHET DASH, MARTIN CARSON and ADAM KELLER, Plaintiffs, against AFL-CIO, 32B-32J, SERVICE EMPLOYEES INTERNATIONAL UNION, GUS BEVONA, President, and THOMAS LATIMER, Contract Director of said Union, JOSEPH SIMPSON, ISAAC BORNWELD, ROOSEVELT SINGLETON and DARIO NUNEZ, Defendants.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Plaintiff, 15 McKay Place Realty Corp., a New York corporation, and five individual plaintiffs *fn1" instituted this action against defendant AFL-CIO, Local 32B-32J, Service Employees International Union ("Union") and six individual defendants *fn2" in the Supreme Court for the State of New York, Kings County, on June 21, 1982, seeking relief from alleged violent illegal picketing and other tortious conduct of defendants. In June 1982, *fn3" defendants removed this action to this Court pursuant to 28 U.S.C. § 1446, *fn4" alleging original federal jurisdiction under the Labor-Management Relations Act ("LMRA"), 29 U.S.C. §§ 141-197, and sections 8(a)(1), (3) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-168. Plaintiffs now move for an order remanding the case to the state court. For the reasons stated below, plaintiff's motion is granted.

 Facts

 Plaintiff, 15 McKay Place Realty Corp. ("Corporation") was the mortgagee of an apartment building located at 255 Eastern Parkway in Brooklyn. After the mortgagor, Eastern Parkway Corporation, defaulted, the Corporation purchased the building at a foreclosure sale on May 26, 1982. The prior owner of the building, through its agent, apparently had been party to a collective bargaining agreement with defendant Union under which the individual defendants performed services at that building. When it acquired ownership of the building, the plaintiff Corporation discharged the individual defendants.As to its potential contractual relationship with defendant Union, plaintiff Corporation alleges in the complaint:

 SIXTH: That said plaintiff corporation, at no time prior to May 26, 1982, owned said building, nor entered into any agreement with the former owner (mortgagor) to purchase the said building but came into possession and title of said building by being the successful bidder and purchaser of said building, at public auction, held pursuant to a duly constituted foreclosure sale.

 * * *

 TENTH: . . . that the defendants and all of them are not in privity with the plaintiff either by contract with the plaintiff and plaintiffs have had no transaction with the foreclosed mortgagor or previous owner of said apartment building.

 Shortly thereafter, the discharged employees began picketing in front of plaintiffs' building. Plaintiffs allege that defendants illegally congregated in large numbers, interefered with the tenants' and new employees' ingress and egress to the building, harassed the tenants and new employees, and otherwise variously caused damage to the premises and to an adjacent building owned by plaintiffs. Defendants contend, on the other hand, that the picketing defendants were engaged in activity which is protected under the LMRA. Plaintiffs seek injunctive relief.

 Procedural Background

 This case had a confusing procedural beginning. Prior to plaintiffs' institution of this suit in state court by filing and service of a complaint and order to show cause on June 21, 1982, defendant Union had filed charges against the Corporation with Region 29 of the National Labor Relations Board ("NLRB") on June 7, 1982. The hearing on the order to show cause was scheduled for June 25, 1982 and defendants filed their petition for removal with this Court on that date.

 On July 21, 1982, the NLRB filed a formal complaint against the plaintiff Corporation ("NLRB Complaint"). The NLRB Complaint designated January 10, 1983 as a hearing date on the charges contained therein. That hearing was since adjourned to January 16, 1984.

 Discussion

 Section 1441 of Title 28 governs the type of actions which may be removed from state to federal court. In the context of the instant case, the ...


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