The opinion of the court was delivered by: Trager, J.
On April 25, 2005, plaintiff Thomas Atanasio brought suit in state court against his union and its president and vice-president alleging that their actions in the proceedings leading to his demotion violated their duties to him and constituted discrimination. On May 23, 2005, defendants removed the case to federal court. On June 22, 2005, plaintiff filed a motion to remand. Because a decision on a motion to remand relies on the facts pleaded at the time of the petition for removal, the facts below are taken from the complaint. Vera v. Saks & Co., 335 F.3d 109, 116 n.2 (2d Cir. 2003) (stating that a defendant's right to remove a case to federal court is generally evaluated at the time the removal notice is filed).
Plaintiff Thomas Atanasio began working for the MTA - Long Island Railroad ("MTA") on May 7, 1997. On February 15, 2001, Atanasio obtained the position of locomotive engineer within the MTA. As a locomotive engineer, Atanasio became a member of defendant Brotherhood of Locomotive Engineers and Trainmen ("BLET"), the union that acts as the collective bargaining representative for all locomotive engineers and trainmen employed by the MTA within the County of Queens, in the state of New York. During the period of Atanasio's employment, defendant Robert M. Evers was general chairman of BLET, and defendant Michael J. Quinn was vice-general chairman. Compl., ¶¶ 2-14.
On October 18, 2002, Evers and Quinn met with Atanasio to represent him in an incident conference (also known as an employment trial) being conducted by the MTA to address a work-related mistake that occurred on September 24, 2002. During this meeting, Evers and Quinn falsely advised him that he would "not win" in the employment trial and that the MTA wanted to terminate his employment as a locomotive engineer. Evers and Quinn also advised him that BLET would not "appoint an arbitrator to appeal an adverse decision." Id. at ¶¶ 16-21.
As an alternative, Evers and Quinn informed him that he could continue working for the MTA in the Signal Department if he signed an absolute waiver of his right to a trial. Signing such a waiver would preclude Atanasio from working as a locomotive engineer in the future. Atanasio signed the absolute waiver without receiving a written offer for a position in the Signal Department and never received such an offer. He contends he was pressured into signing the waiver without first being afforded the opportunity to speak to an attorney, as he requested of Evers and Quinn. Id. at ¶¶ 22-25.
Atanasio spoke with the MTA's Human Resources Department two to three weeks later and was told there was no position for him in the Signal Department, and Evers and Quinn later denied making the offer. Four to five weeks after the October 18, 2002 meeting, Atanasio requested a due process hearing from BLET and was denied. Upon signing the waiver, Atanasio was demoted to Car Appearance Maintainer, also known as a sweeper. Id. at ¶¶ 28, 47-50.
Atanasio commenced this action against the defendants in New York State Supreme Court, Nassau County, on April 25, 2005. Atanasio alleges that because he did not receive a position in the Signal Department, he lost wages, seniority, pension, fringe benefits and other rights that would have accrued. In four causes of action based on the same facts, Atanasio seeks $2,000,000 in damages. Id. at ¶¶ 34-35. Although the complaint does not label the causes of action, they essentially state claims of breach of the duty of fair representation, breach of the terms of the collective bargaining agreement, negligent infliction of emotional distress and discrimination.
On May 23, 2005, defendants removed the action to the United States District Court for the Eastern District of New York. The action was removed on the ground that because BLET is a labor representative under the Railway Labor Act, 45 U.S.C. § 151 Sixth, the claims arise under federal law, thus granting original jurisdiction to the federal courts pursuant to 28 U.S.C. § 1331. Not. of Removal, ¶¶ 5-6.
Atanasio filed a motion to remand on June 22, 2005, asserting that the removal was improper because the notice of removal failed to establish an adequate basis of federal question jurisdiction under 28 U.S.C. § 1331. Although filing of the motion to remand was timely, the electronic filing only included the first page of the motion. The motion was fully submitted after a fourth attempt on July 13, 2005, but the motion remains unsigned. Mot. in Opp. to Removal, ¶¶ 6-7.
The complaint does not specify whether a remedy is being sought under state or federal law. Because the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., is not a statute that enjoys the force of complete pre-emption, and ordinary pre-emption cannot serve as a basis of federal question jurisdiction, the action must be remanded to state court.
(1) The Standards for Removal and Remand Under the Railway Labor Act
The standard governing removal of cases from state to federal court is well-settled. A state court action can be removed by a defendant to federal court if the case could have originally been brought in federal court. 28 U.S.C. § 1441(a); Hernandez v. Conriv Realty Assoc., 116 F.3d 35, 38 (2d Cir. 1997). In the absence of diversity jurisdiction, which neither party asserts here, federal question jurisdiction is required for removal.
Under the "well-pleaded complaint" rule, federal question jurisdiction exists where a federal cause of action appears on the face a plaintiff's properly pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A complaint that only anticipates a defense based on federal law, even the defense of ordinary pre-emption, does not entitle a defendant to removal. Hernandez, 116 F.3d at 38; Caterpillar, 482 U.S. at 393. Thus, "the rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Hernandez, 116 F.3d at 38 (quoting Caterpillar, 482 U.S. at 392) (internal quotation marks omitted); see also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913) ("[T]he party who brings a suit is master to decide what law he will rely upon and therefore does determine whether he will bring 'a suit arising under' [the laws] of the United States...."). In this case, analysis of the propriety of removal is impeded somewhat by that fact that Atanasio did not specify in his complaint whether he was bringing his claims under state or federal law.
The standard for remanding a case back to state court after it has been removed to federal court is also well-settled. The party seeking remand is presumed to be entitled to a remand unless the party seeking to sustain the removal can demonstrate that removal was proper. United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (holding ...