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Ljutovic v. 530 East 86th Street

August 31, 2006


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff pro se Stjefan Ljutovic brings this action against defendant 530 East 86th Street, Inc., alleging that defendant wrongfully and without cause terminated Ljutovic's employment as a doorman at defendant's building. Ljutovic filed his complaint in New York State Court in the Bronx on October 28, 2005. On November 21, 2005, defendant removed the action to this Court, and promptly moved to dismiss the action on December 5, 2005. For the reasons given below, defendant's motion will be granted.


The following facts are taken from the allegations in Ljutovic's complaint, which must be accepted as true for purposes of this motion to dismiss. Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994). On June 8, 2002, Ljutovic was hired to work as a doorman at defendant's building located at 530 East 86th Street in Manhattan. At the time Ljutovic was hired, he was told by defendant's agents that his position was a full-time permanent position, and Ljutovic accepted the position based on that understanding. This understanding continued throughout Ljutovic's employment, and at no time during his employment was he ever told that his position was not full-time or not permanent. Specifically, Ljutovic was never told that his position was a temporary substitute position for another employee who was on vacation.

On November 5, 2002, Ljutovic was dismissed. He was told by one of defendant's agents that his dismissal was based on defendant's view that Ljutovic's position was a temporary vacation-relief position. During his five months of employment, Ljutovic was verbally informed of only two complaints regarding his job performance, neither of which was sufficiently serious to warrant his dismissal. Ljutovic never received any complaints in writing.

As a result of his dismissal, Ljutovic claims that he has suffered various mental and physical ailments, including post traumatic stress disorder, adjustment disorder with depressed mood, reactive depression, and sleep disorders. Ljutovic asserts that each of these conditions is the direct result of his wrongful termination.


I. Jurisdiction

Ljutovic does not challenge the propriety of defendant's removal of the action to this Court. However, the Court has an independent obligation to ensure that jurisdiction exists and, on the face the complaint, Ljutovic does not assert a federal claim. Nor are the parties citizens of different states. However, because Ljutovic's state law claim is completely preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, this Court has subject matter jurisdiction under 28 U.S.C. § 1441(b) and § 1331.

In the usual case, subject matter jurisdiction exists "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, a district court is not deprived of jurisdiction when a plaintiff's complaint, while asserting no federal claim, is essentially based on federal law. Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005). Accordingly, a "federal court may construe [a] complaint as if it raised the federal claim that actually underlies the plaintiff's suit." Id. at 271-72.

One instance in which the Court has this power is when a plaintiff's state law claim is completely preempted by federal law. "Under the complete-preemption doctrine, certain federal statutes are construed to have such 'extraordinary' preemptive force that state-law claims coming within the scope of the federal statute are transformed, for jurisdictional purposes, into federal claims . . . ." Id. at 272. Therefore, "[w]hen a plaintiff raises such a completely preempted state-law claim in his complaint, a court is obligated to construe the complaint as raising a federal claim and therefore 'arising under' federal law." Id.

Section 301 of the LMRA is one of the few statutes with the power of complete preemption. Id.; see also Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 560-62 (1968). "Section 301 . . . governs actions by an employee against an employer for breach of a collective bargaining agreement." Dougherty v. Am. Tel. & Tel. Co., 902 F.2d 201, 203 (2d Cir. 1990). Even if a plaintiff formulates his complaint "as based on state tort law, that formulation is not binding upon [the Court] where rights and obligations under the pertinent collective agreement are inextricably involved in the underlying claim." Id. A plaintiff may, despite § 301 and the existence of a collective bargaining agreement, bring state law or other federal law claims against his employer, but only if those claims are "truly independent" of the applicable collective bargaining agreement. Id. In other words, the only claims against an employer that are not preempted by § 301 are claims based on an alleged breach of a duty created by a law or relationship other than the collective bargaining agreement. See United Steel Workers of Am. v. Rawson, 495 U.S. 362, 370-71 (1990).

In this matter, Ljutovic's claim against defendant is based on the Apartment Building Agreement between the Realty Advisory Board on Labor Relations Inc., an organization "acting on behalf of various owners of apartment buildings," and Local 32B-32J Service Employees International Union, acting "on behalf of its members and other building service employees . . . for whom it is the collective bargaining agency." (Martin Aff. Ex. C [hereinafter "Agreement"].) The Agreement itself purports to be a "collective bargaining agreement" (id. Art. I), defendant avers that it is a collective bargaining agreement (Martin Aff. ¶ 6), and Ljutovic does not claim otherwise.

In the complaint, Ljutovic alleges that he was hired as a full-time permanent employee pursuant to the Agreement (Compl. ¶ 3), that he was not a temporary employee under the Agreement (id. ¶ 9), that he was not a vacation-relief employee under the Agreement (id. ¶ 10), that he was not a probationary employee under the Agreement (id. ¶ 11), and that he paid union dues (id. ¶ 14). Accordingly, the plain language of the complaint indicates that Ljutovic's claims are based on the Agreement. Essentially, Ljutovic claims that under the terms of the Agreement he was a "full-time, permanent" (id. ¶ 3) employee, and that therefore his dismissal "without cause" (id. ¶ 18) after only five months was "wrongful" (id. ¶ 19). The Supreme Court ...

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