equipment such that the
injuries were prevented. He also alleges that the defendants violated
statutes requiring proper protection for laborers at the work site and
that the equipment provided was inherently dangerous. On its face, the
complaint brings action for violations of New York State Labor Laws
§§ 200, 240, 241(6) (2002).
Defendants argue that the risks associated with demolition, clean-up,
and removal of the collapsed WTC towers presented conditions and risks
that were considerably graver than normal construction sites, that
contractors operated under severe time pressures and without normal
insurance coverage (and perhaps without any insurance coverage), and that
the potential liability to the Port Authority and the owner of the WTC
may be very substantial. They also argue that Congress intended to cause
all such litigation against New York City, the Port Authority, and the
owner to be brought exclusively in the United States District Court of
the Southern District of New York.
With rare exceptions, I must judge federal subject matter jurisdiction
from the face of a properly pleaded complaint. See Holmes Group, Inc. v.
Vornado Air Circulation Sys., Inc., 122 S.Ct. 1889, 1893-94 (2002);
Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 153-54
(articulating the well-pleaded complaint rule).
Because the well-pleaded complaint rule requires that the federal
question appear in plaintiff's complaint, a case may not be removed to
federal court on the basis of a federal defense that the defendant might
possibly raise to defeat plaintiff's claim. Therefore, the well-pleaded
complaint rule allows a plaintiff to foreclose federal jurisdiction by
choosing to forgo a potential federal claim and to proceed solely under
15 James Wm. Moore et al., Moore's Federal Practice ¶ 103. 42 (3d
ed. 1997). Under 28 U.S.C. § 1331, federal courts have jurisdiction
to hear "only those cases in which a well-pleaded complaint establishes
either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on resolution of a
substantial question of federal law." Franchise Tax Bd. v. Construction
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).
Removal of an otherwise non-federal claim is permitted only in the few
instances of complete preemption by federal law. See Metropolitan Life
Ins. Co. v. Taylor, 481 U.S. 58, 63-67 (1987) (holding that Congress
intended the civil enforcement provisions of section 502(a)(1)(B) of
ERISA to apply to a beneficiary's attempt to recover benefits from a
covered plan); Avco Corp. v. Machinists, 390 U.S. 557, 560 (1968)
(finding that section 301 of the Labor Management Relations Act preempts
state law claims "for violation of contracts between an employer and a
labor organization"). These exceptions have been construed narrowly by
the U.S. Supreme Court. See New York State Conf. of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661 (1995) (ruling that
ERISA cannot be read "as displacing all state laws affecting costs and
charges on the theory that they indirectly relate to ERISA plans"); Boys
Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 245 (1970) (noting
that "the congressional purpose embodied in § 301(a) [of the LMRA]
was to supplement, and not to encroach upon, the pre-existing
jurisdiction of the state courts"). Removal is not permissible if the
cause of action in the complaint does not fall within the scope of
the federal cause of action. See Caterpillar, Inc. v. Williams,
482 U.S. 386, 399 (1987) (concluding that state law claims alleging breach of
employment agreement were not preempted, even though plaintiffs could
have chosen to bring suit under section 301 of the LMRA); Franchise Tax
Bd., 463 U.S. at 27-28.
This suit does not plead a federal cause of action nor facts warranting
exclusive federal jurisdiction under section 408(b) of the Air
Transportation Safety and System Stabilization Act of 2001,
49 U.S.C. § 40101 (2001). As in Graybill, the complaint does not
allege that the plaintiff's injury arose from any special condition or
risk linked to the tasks of demolition, clean-up, and removal on the WTC
site. Thus, Spagnuolo's claims do not fall within section 408(b) and the
jurisdictional requirements for removal under 28 U.S.C. § 1441 are
Accordingly, I deny defendants' motion for reconsideration, and
dissolve the temporary stay of remand ordered on October 11, 2002.
The Clerk of the Court shall mark this matter closed.
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