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
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.
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. ¶
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
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
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
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,
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 ...