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August 28, 1986

JAMES G. BLACK, Plaintiff,

The opinion of the court was delivered by: MCAVOY



 In the present case, the plaintiff, James G. Black, seeks redress for wrongs he allegedly suffered in 1976 at the hands of his employer, defendant Niagara Mohawk Power Corporation ("NYMO"), his union, defendant International Brotherhood of Electrical Workers, Union Local 310 (the "Union"), and their respective representatives, defendants, Harry J. Atkinson and Charles A. Carl. The action currently before the Court is the third proceeding commenced by Black against essentially the same defendants. The underlying facts giving rise to the three actions are for the most part undisputed.

 In April 1976, Black was employed by NYMO as a Line Mechanic Hot Stick in Barneveld, New York. At that time, he received and accepted a promotion to the position of Chief Line Mechanic A-Hot Stick in Old Forge, New York. Black remained in that capacity until October 1976 when he was informed that he was being demoted to his former position because of his failure to change his residence to Old Forge in connection with the promotion. According to NYMO, the promotion was conditioned upon such a change of residence. Black disputed this fact and claimed that he had agreed with NYMO officials that he could be excepted from the residency requirement provided he maintained a post office box in Old Forge. When NYMO denied making such an agreement and demoted Black, he filed a grievance against NYMO through the Union.

 The Union pursued Black's grievance through two steps of the grievance procedure in the collective bargaining agreement between NYMO and the Union. On each occasion, Black's grievance was denied by NYMO. After the second denial, the Union referred Black's grievance to the International Brotherhood of Electrical Workers System Council U-11 (the "Council") for consideration. In February 1977, Black was notified that the Council had decided not to pursue his grievance to arbitration. Although he was notified of his right to appeal that decision, Black did not do so. Instead, he commenced an action against NYMO and its representatives in February 1979 in New York State Supreme Court ("Black I "). NYMO subsequently removed that action to this Court on the grounds that the action arose under section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 61 Stat. 156, 29 U.S.C. 185(a). Soon thereafter, Black was granted leave to amend his complaint to add claims for breach of the collective bargaining agreement against NYMO and its representatives and breach of the duty of fair representation against the Union and the Council.

 By Order dated November 10, 1980, this Court, Judge MacMahon presiding, granted the defendants' motions for summary judgment in Black I on the grounds that there was no evidence whatsoever that the Union had acted maliciously or arbitrarily with regard to the handling of Black's grievance. Judge MacMahon further held that Black had failed to exhaust his contractual remedies under the collective bargaining agreement. On appeal, the Second Circuit affirmed on the basis of Judge MacMahon's determination concerning the Union's conduct but expressed no opinion as to the effect of Black's failure to exhaust his contractual remedies.

 Five years later, Black commenced another action in this Court against NYMO, the Union, and their respective representatives ("Black II"), asserting causes of action based upon breach of an agreement to except Black from NYMO's residency requirements in connection with his 1976 promotion, breach of the duty of fair representation, and fraud in obtaining the judgment in Black I. After receiving some correspondence from defendants' counsel, Black voluntarily dismissed Black II on May 20, 1986. Ten days later, however, Black commenced the present action ("Black III ") in New York State Supreme Court against the same defendants alleging a single cause of action sounding in fraud. The defendants subsequently removed the action to this Court whereupon Black moved to remand to state court. The defendants oppose Black's motion and have cross moved for summary judgment and/or to dismiss Black's claims.

 In considering the propriety of removal, a district court must initially determine whether it has subject matter jurisdiction over the particular proceeding. In this case, Black maintains that the Court has no jurisdiction because his claim is couched solely in terms of state law. In the complaint, he alleges that the defendants obtained summary judgment in Black I by means of false statements in the affidavit of defendant Carl submitted in support of the defendants' motions. Specifically, Black claims that the statements in Carl's affidavit that Black accepted the 1976 promotion with full knowledge of and without objection to NYMO's residency requirements is false and was made with intent to deceive the Court. Black argues that because this claim does not involve a federal question, removal under 28 U.S.C. § 1441(b) was improper. *fn1"

 As a general rule, "removal based on federal question jurisdiction is improper unless a federal claim appears on the face of a well-pleaded complaint." Travelers Indemnity Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986). Under certain circumstances, however, the so-called "artful pleading" doctrine permits the removal court to look beyond the face of the complaint

 to determine whether the real nature of the claim is federal, regardless of plaintiff's characterization. For instance, in many contexts plaintiff's claim may be one that is exclusively governed by federal law, so that the plaintiff necessarily is stating a federal cause of action, whether he chooses to articulate it that way or not. If the only remedy available to plaintiff is federal, because of preemption or otherwise, and the state court must necessarily look to federal law in passing on the claim, the case is removable regardless of what is in the pleading.

 Wright, Miller & Cooper, Federal Practice and Procedure Jurisdiction § 3722, at 270-75 (2d ed. 1985) (footnotes and citations omitted).

 In the opinion of the Court, Black is necessarily relying upon federal law for the relief sought in his complaint despite his attempt to couch the complaint solely in terms of state law. His claim that the judgment in Black I was obtained by fraud clearly constitutes an attack on the validity of that judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. *fn2" As such, the viability of the claim must be determined by reference to standards enunciated in cases decided under the rule. Accordingly, his claim involves a general federal question and was properly removed to this Court. See 7 Moore's Federal Practice § 60.38(1), at 60-402 (1985). *fn3"

 Having determined that this action may proceed in federal court, the Court will now consider the merits of the defendants' motions. The defendants primarily argue that at this late date, Black has failed to identify any grounds for setting aside the judgment in Black I. In this regard, Rule 60(b) generally provides that an attack upon a judgment on the grounds that it was obtained by fraud must be made within one year after the judgment is entered. Nevertheless, under certain circumstances, a party can maintain an independent action for relief from a fraudulently obtained judgment beyond the one-year limitations period. See Wright & Miller, Federal Practice and Procedure: Civil § 2868, at 241 (1973). The Court thus concludes that Black's action based upon the defendants' alleged fraud upon this Court is not untimely. See M.W. Zack Metal Co. v. International Navigation Corp. of Monrovia, 675 F.2d 525, 529 (2d Cir.), cert. denied, 459 U.S. 1037, 74 L. Ed. 2d 604, 103 S. Ct. 449 (1982).

 It has been held, however, that "an independent action for fraud may not be entertained if 'there was an opportunity to have the ground now relied upon to set. aside the judgment fully litigated in the original action.'" Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895, 899 (2d Cir. 1985) (quoting Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 n. 2 (2d Cir.), cert. denied, 409 U.S. 883, 34 L. Ed. 2d 139, 93 S. Ct. 173 (1972). The fraud relied upon by Black in this case could certainly have been contested in Black I. Indeed, the assertions in the Carl affidavit that Black now claims were fraudulent went to the very heart of Black's claims. Black himself possessed all the knowledge that was necessary to dispute Carl's assertion's. His unexplained failure to do so is unfortunate but does not warrant a departure from the general rule precluding relief from a prior judgment where there was a prior opportunity to contest allegedly false testimony. Accordingly, even if the Court accepts as true all ...

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