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January 14, 2004.

BARBARA ANN CHILLE, a/k/a Barbara Ann McMillin, Plaintiff,

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiff, Barbara McMillin (formerly known as Barbara Chille), has commenced two actions relating to her termination from employment with United Airlines ("United") in March 2000. The first, Chille v. United Airlines, has been stayed pursuant to 11 U.S.C. § 362(a), after United filed a Page 2 suggestion of bankruptcy in December 2002. Plaintiff commenced the second action, McMillin v. Johnson, against her former supervisor at United, Hugh Johnson, in March 2003 in New York State Supreme Court (Monroe County). Johnson removed that action to this court in April 2003, asserting federal-question jurisdiction under 28 U.S.C. § 1331 and 1441.

  United and Johnson (both of whom are represented by the same counsel) have now moved to consolidate these two actions pursuant to Fed.R. Civ. P. 42(a). Defendant also moves to dismiss the complaint in McMillin for lack of subject matter jurisdiction, or in the alternative, to extend the automatic stay under § 362(a) to the McMillin action. Plaintiff has cross-moved for an order remanding McMillin to state court pursuant to 28 U.S.C. § 1447(c).*fn1


  Plaintiff commenced the Chille action against United in November 2000, asserting claims (the substance of which is not important with respect to the motions now before the Court) under the Americans with Disabilities Act and the New York State Human Rights Law. In April 2002, plaintiff, with leave of court, filed a second amended complaint that added the following allegations:
Additionally, as a result of the Plaintiff's disability and her requests that United accommodate that disability, United orchestrated Plaintiff's separation from United by forging a letter of resignation. This letter led to Plaintiff's involuntary separation from employment with United. This involuntary separation, which was procured by fraud and deceit, caused unnecessary financial hardship and intense emotional anguish and stress for the Plaintiff.
Docket #34, ¶ 40. Page 3

  Both parties subsequently moved for summary judgment in Chille, but while the motions were pending, United filed for bankruptcy under Chapter 11, and the automatic stay provision of § 362(a) took effect.

  ln March 2003, plaintiff commenced the McMillin action in state court. The McMillin complaint alleges, inter alia, that after plaintiff submitted a letter to Johnson requesting two weeks' vacation, Johnson "drafted an altered version of the . . . letter" to indicate that plaintiff had resigned from her employment at United, and that "[t]his [altered] letter bore the forged signature of the Plaintiff." Docket # l, Ex. Y, ¶ 9. Plaintiff alleges that "by virtue of this fraud and misrepresentation, the Plaintiff was separated from her employment with United and she has been damaged in the sum of $1,000,000.00." Id. ¶ 10. A second cause of action alleges that Johnson "intentionally and willfully interfered with [Plaintiff's] employment contract [with United] by improper means." Id. ¶ 14.

  Although the McMillin complaint, on its face, thus asserts only two claims under state law, defendant contends that it was properly removed to federal court on the ground that those claims are preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq. Defendant asserts that Plaintiff's claims "are inextricably intertwined" with certain issues relating to the collective bargaining agreement ("CBA") governing Plaintiff's employment and, therefore, properly prosecuted in federal court. See Hawaiian Airlines v. Norris, 512 U.S. 246, 252-53 (1994) (RLA establishes mandatory arbitral mechanism for settlement of "minor" disputes, which "involve `controversies over the meaning of an existing collective bargaining agreement in a particular fact situation'") (quoting Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 33 (1957)), and id at 261 ("where the resolution of a state-law claim depends on an interpretation of the CBA, the claim is preempted"). Defendant Page 4 also asserts that this Court (indeed, any court) lacks subject matter jurisdiction because minor disputes "must be resolved only through the RLA mechanisms, including the carrier's internal dispute-resolution processes and an adjustment board established by the employer and the unions." Id. at 253 (citing 45 U.S.C. § 184; emphasis added).


  I believe that the threshold issue here is whether the McMillin action should be remanded to state court. If the Court grants Plaintiff's motion to remand, defendant's other motions will be moot.

  Under 28 U.S.C. § 1441(a), a defendant may remove from state court to federal court "any civil action . . . of which the district courts of the United States have original jurisdiction." It is the complaint that determines removal. "Normally, a defense that Plaintiff's claims are preempted by federal law will not suffice to confer federal question jurisdiction, which must be determined by reference to the allegations that `appear on the face of a well-pleaded complaint.'" Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 45 (2d Cir. 2002) (quoting Plumbing Indus. Bd v. E.W. Howell Co., 126 F.3d 61, 66 (2d Cir. 1997); see also Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) ("Federal pre-emption is ordinarily a federal defense to the plaintiff's suit. As a defense, it does not appear on the face of a well-pleaded complaint, and, therefore, does not authorize removal to federal court").

  There are exceptions to this general rule, however, two of which must be considered here. The first is the principle that "a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint." Franchise Tax Bd of State of Cal. v. Construction Laborers Page 5 Vacation Trust for Southern California, 463 U.S. 1, 22 (1983) (citation omitted). "If a court concludes that a plaintiff has `artfully pleaded' claims in this fashion, it may uphold removal even though no federal question appears on the face of the Plaintiff's complaint." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).

  The second relevant exception applies to cases involving "complete preemption." Such cases involve claims that are "of necessity so federal in character that [they] arise[] under federal law for purposes of 28 U.S.C. § 1331." Plumbing Indus. Bd., 126 F.3d at 66; see also Rivet, 522 U.S. at 475 ("The artful pleading doctrine ...

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