An action may be removed from state court to this Court only if
the case could have initially been brought in federal court
(see 28 U.S.C. § 1441; see also Oklahoma Tax Comm'n v.
Graham, 489 U.S. 838 [109 S.Ct. 1519, 103 L.Ed.2d 924] 
[per curiam]). In the present case, the defendant predicates
federal jurisdiction over this action on 28 U.S.C. § 1331 or
On a motion to remand pursuant to 28 U.S.C. § 1447(c), "the
burden falls squarely upon the removing party to establish its
right to a federal forum by `competent proof'" (R.G. Barry Corp.
v. Mushroom Makers, Inc., 612 F.2d 651, 655 [2d Cir. 1979],
citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
189 [56 S.Ct. 780, 785, 80 L.Ed. 1135] ; see also Nicola
Prods. Corp. v. Showart Kitchen's, Inc., 682 F. Supp. 171, 173
[E.D.N.Y. 1988] [on a motion to remand, "the burden of persuasion
remains upon the removing party, and any substantial doubts as to
the propriety of the removal must be resolved against proponents
of the federal forum"]).
The determination of whether federal-question jurisdiction
exists for purposes of removal "is governed by the `well-pleaded
complaint rule', which provides that federal jurisdiction exists
only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint" (Caterpillar Inc. v.
Williams, 482 U.S. 386, 393 [107 S.Ct. 2425, 2430, 96 L.Ed.2d
318] , citing Gully v. First National Bank, 299 U.S. 109,
112-13 [57 S.Ct. 96, 97-98, 81 L.Ed. 70] ). "The
`well-pleaded complaint rule' is the basic principle marking the
boundaries of the federal question jurisdiction of the federal
district courts" (Metropolitan Life Ins. Co. v. Taylor,
481 U.S. 58, 64 [107 S.Ct. 1542, 1546-47, 95 L.Ed.2d 55] ,
citing Franchise Tax Board of Cal. v. Construction Laborers
Vacation Trust For Southern Cal., 463 U.S. 1, 9-12 [103 S.Ct.
2841, 2846-48, 77 L.Ed.2d 420] ). This rule makes the
plaintiff the "master of the claim" (Caterpillar Inc. v.
Williams, supra, 482 U.S. at p. 393 [107 S.Ct. at p. 2430]; see
also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33
S.Ct. 410, 411, 57 L.Ed. 716]  ["Of course, the party who
brings a suit is master to decide what law he will rely upon"]).
Ordinarily, defenses to a suit, which do not appear on the face
of a well-pleaded complaint, do not authorize federal removal,
even if the defense relies on federal law (see Caterpillar Inc.
v. Williams, supra; Gully v. First National Bank, supra). One
exception to this rule is the "complete pre-emption doctrine",
which essentially states that when the pre-emptive force of a
federal statute is so "extraordinary", it converts a state-law
claim into "one stating a federal claim for purposes of the
well-pleaded complaint rule" (Metropolitan Life Ins. Co. v.
Taylor, supra, 481 U.S. at pp. 64-65 [107 S.Ct. at pp.
1546-47]). When this occurs, "any claim purportedly based on that
pre-empted state law is considered, from its inception, a federal
claim, and therefore arises under federal law" (Caterpillar Inc.
v. Williams, supra, 482 U.S. at p. 394 [107 S.Ct. at p. 2430-31]
For example, in Metropolitan Life Ins. Co. v. Taylor, supra,
the Supreme Court held that common-law contract and tort causes
of action filed in state court that are in fact pre-empted by the
Employee Retirement Income Security Act ("ERISA"), and come
within the scope of section 514(a) of ERISA, 29 U.S.C. § 1144(a),
are removable to federal court under 28 U.S.C. § 1441(b).
Similarly, the Supreme Court has held that section 301 claims
under the LMRA, 29 U.S.C. § 185, completely pre-empt a state
cause of action based on violation of contracts between an
employer and a labor organization that amount to actions to
enforce a collective bargaining agreement (Avco Corp. v. Aero
Lodge No. 735, Int'l Ass'n of Machinists and Aerospace Workers,
390 U.S. 557, 558 [88 S.Ct. 1235, 1236, 20 L.Ed.2d 126] ;
but cf. Caterpillar Inc. v. Williams, supra [well-pleaded
complaint rule precludes removal of an action based on
individual labor contracts, even though they may implicate a
agreement subject to federal preemption]).
Newmark & Lewis contends that its suit was brought pursuant to
Article 75 of the CPLR, and not section 301 of the LMRA.
Accordingly, Newmark & Lewis urges remand based on its
well-pleaded complaint. The issue, therefore, is whether despite
the plaintiff's well-pleaded complaint, this is in actuality an
action preempted by the LMRA.
Section 301 of the LMRA contemplates suits "for violation of
contracts between an employer and a labor organization . . . or
between any . . . labor organizations" (29 U.S.C. § 185).
Significantly, a federal court is not divested of jurisdiction
merely because of "the employer's allegation that no contract
existed between the employer and union" (Baron Buick, Inc. v.
Local 259, 563 F. Supp. 688, 691 [E.D.N.Y. 1983] [McLaughlin, J.]
[citations omitted]; see also Paramount Bag Mfg. Co. v.
Rubberized Novelty & Plastic Fabric Workers' Union, 353 F. Supp. 1131,
1134 [E.D.N.Y. 1973] [federal court has jurisdiction over
"an action by an employer resisting arbitration on the ground
that an existing union contract did not cover the particular
controversy"]). This Court clearly has jurisdiction under section
301 to determine whether or not a valid collective bargaining
agreement exists between an employer and union (see, e.g.,
Benson v. Brower's Moving & Storage, 726 F. Supp. 31, 36
[E.D.N.Y. 1989], aff'd on other grnds., 907 F.2d 310 [2d Cir.],
cert. denied, [___ U.S. ___], 111 S.Ct. 511 [112 L.Ed.2d 524]
; Messinger v. Building Contractors Ass'n, Inc.,
703 F. Supp. 320, 323 [S.D.N.Y. 1989]).
The sole issue in this case is whether Newmark & Lewis is
contractually obligated to participate in the arbitration
demanded by Local 814 on the ground that Newmark & Lewis is a
"joint employer" of Westbury's employees, and whether Newmark &
Lewis is obligated to arbitrate. Newmark & Lewis commenced the
state-court action to determine precisely the issue of whether or
not it was bound to arbitrate under the collective bargaining
Although not in the context of a motion to remand, the Sixth
Circuit Court of Appeals was presented with a similar challenge
asserted by an employer claiming that the federal court lacked
jurisdiction to hear claims by a union that the employer was a
"joint employer", thus bound by the collective bargaining
agreement (see Metropolitan Detroit Bricklayers Dist. Council v.
J.E. Hoetger & Co., 672 F.2d 580 [6th Cir. 1982]). In rejecting
this argument, the court stated:
"We recognize that courts have generally held that
this section creates federal jurisdiction only over
parties to the contract being sued upon. . . .
However, since the primary issue in this case was
whether Hoetger was a "joint employer" such that it
could be bound by the collective bargaining
agreement, we conclude that the district court had
jurisdiction under § 301(a) to decide this claim"
(672 F.2d at p. 583 [citations omitted]).
Accordingly, based upon the above pursuasive precedent, this
Court finds that federal jurisdiction exists and is preemptive at
least to determine the issue of whether Newmark & Lewis is a
"joint employer" over Westbury's employees which, if so, would
contractually obligate Newmark & Lewis to arbitrate the dispute
with Local 814 under the Westbury Agreement. Newmark & Lewis'
denial that it is bound by the collective bargaining agreement
does not deprive this Court of jurisdiction to determine this
issue (see Metropolitan Detroit Bricklayers Dist. Council v.
J.E. Hoetger & Co., supra). Since the Court finds that section
301 preempts Article 75 on this issue, the Court denies the
plaintiff's motion for remand (cf. Avco Corp. v. Aero Lodge No.
735, Int'l Ass'n of Machinists and Aerospace Workers,
390 U.S. 557, 558 [88 S.Ct. 1235, 1236, 20 L.Ed.2d 126] ).
Based upon the foregoing, the motion of the plaintiff to remand
this action to the Supreme Court of the State of New York,
County of Nassau, pursuant to 28 U.S.C. § 1447(c), is denied.
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