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SCHEPIS v. LOCAL UNION NO. 17

January 8, 1998

BENEDETTO SCHEPIS, Plaintiff, against LOCAL UNION NO. 17, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, and DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 Plaintiff Benedetto Schepis ("Schepis") moves to remand this removed action to the New York Supreme Court, Bronx County, for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). For the reasons discussed below, the plaintiff's motion is GRANTED.

 BACKGROUND

 The plaintiff, a New York resident, is a former union delegate and business representative of defendants District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("District Council"), and its local affiliate, Local Union No. 17, United Brotherhood of Carpenters and Joiners of America ("Local 17") (collectively, the "Union"). In or about 1989, Schepis was indicted in New York County for bribing a fellow union official, and was convicted on one count of the indictment following a jury trial. He appealed. In July 1994, the state appellate court overturned Schepis' conviction because of insufficient evidence and dismissed the indictment. See People v. Schepis, 206 A.D.2d 278, 614 N.Y.S.2d 719, 720 (1st Dep't 1994).

 After the dismissal of his conviction, Schepis demanded that the Union indemnify him for his costs and attorney's fees in defending against the criminal action. The Union refused. As a result, Schepis filed the instant lawsuit in the New York State Supreme Court for Bronx County, seeking the reimbursement of $ 400,000 in legal defense costs incurred in his criminal defense. The complaint filed by Schepis asserts only state law claims for reimbursement, based upon New York statutory and common law principles of agency, trustfiduciary duties, and contract. No federal claim is included in the complaint.

 The Union removed this action to federal court pursuant to 28 U.S.C. § 1441, asserting that Schepis' claims raise "substantial questions" under Section 501(b) of the Labor Management Disclosure and Reporting Act of 1959 ("LMRDA"), 29 U.S.C. § 501(b). *fn1" Schepis denies that he alleged any federal claim and seeks remand to the state court on the ground that this Court is without subject matter jurisdiction. See 28 U.S.C. § 1447(c) ("if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Schepis also requests the Court to award its fees and costs incurred in bringing this motion.

 DISCUSSION

 On a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper. See United Food & Commercial Workers Union v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994); R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) ("the burden falls squarely upon the removing party to establish its right to a federal forum by competent proof").

 Section 1441(b) of Title 28 of the United States Code permits removal to federal court of any civil action over which the district court has original jurisdiction, including any action that arises under federal law. *fn2" Removal on the basis of federal question jurisdiction is improper unless a federal question is an essential element of a plaintiff's cause of action, and is apparent on the face of the plaintiff's well-pleaded complaint. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-11, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987); Barbara v. New York Stock Exchange, Inc., 99 F.3d 49, 53-4 (2d Cir. 1996); Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269 (2d Cir. 1994). Under the well-pleaded complaint rule, the plaintiff is "master to decide what law he will rely upon." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913). Thus, where the plaintiff's claims involve both state and federal grounds, "the plaintiff is free to ignore the federal question and pitch his claim on the state ground" to defeat removal. Travelers Indemnity Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986) (citation omitted). See also Caterpillar, 482 U.S. at 392 (plaintiff "may avoid federal jurisdiction by exclusive reliance on state law"). Furthermore, removal may not be predicated on the existence of a federal defense, such as the defense of preemption, "even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Caterpillar, 482 U.S. at 393. See also Barbara 99 F.3d at 53-54 (fact that federal defense might bar suit entirely not sufficient to create removal jurisdiction).

 A limited exception to the well-pleaded complaint rule arises, however, where Congress has mandated the "complete preemption" of a specific area of law, such that any civil complaint raising a state law claim in that area "is of necessity so federal in character that it arises under federal law . . . and permits removal to federal court under 28 U.S.C. § 1441." Plumbing Indus. Bd., Plumbing Local Union No. 1 v. E.W. Howell Co., Inc., 126 F.3d 61, 66 (2d Cir. 1997) (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)). In those rare instances, a plaintiff cannot avoid removal by artfully pleading his complaint to rely upon state law, because the real nature of the claim is federal. See Travelers, 794 F.2d at 758; Franchise Tax Bd., 463 U.S. at 24 ("If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law").

 Here, Schepis' complaint facially asserts only state claims. The Union's removal petition contends, however, that the complaint raises "substantial questions of federal law" under LMRDA § 501, 29 U.S.C. § 501, the federal labor law provision concerning the fiduciary duties of union officials. (See Removal Petition, P4.) The Union's argument, as briefed for the Court, is somewhat contorted in that it stops short of asserting that § 501 preempts all of Schepis' state law claims, yet devotes the bulk of its analysis to comparing § 501 to ERISA provisions that do completely preempt state rules. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987) (finding complete preemption by ERISA of state rules concerning employee benefits). The Union also accuses Schepis of artfully pleading his complaint to avoid federal jurisdiction although, according to the Union, any cognizable claim Schepis has to reimbursement arises from and "exist[s] only by virtue of' the fiduciary standard expressed in § 501. (Def. Brief at 9.) Alternatively, the Union argues that this Court has subject matter jurisdiction over Schepis' claims under Section 301 of the Labor Management Relations Action of 1947 ("LMRA"), 29 U.S.C. § 185. Significantly, § 301 was not cited as a basis for jurisdiction in the Union's removal petition.

 A. Removal Premised on § 501 of the LMRDA

 Section 501 of the LMRDA contains two parts. Subsection 501(a) declares that union officials are fiduciaries who hold certain enumerated duties to their labor organization. *fn3" 29 U.S.C. § 501(a). Subsection 501(b) provides individual union members with a cause of action to sue union officials who are alleged to have violated their fiduciary duties, as set forth in § 501(a). Suits under § 501(b) may be brought only "upon leave of the court" and if the union itself refuses or fails to bring suit after being requested to do so by a member. Id. Section 501(b) further provides that the trial court may allot part of the recovery ...


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