RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Loftis v. United Parcel Service, et al. No. 01-6194 ELECTRONIC CITATION: 2003 FED App. 0306P (6th Cir.) File Name: 03a0306p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Larry W. Bridgesmith, WALLER, LANSDEN, FOR THE SIXTH CIRCUIT DORTCH & DAVIS, Nashville, Tennessee, for Appellants. _________________ Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville, Tennessee, for Appellee. ON BRIEF: Larry W. THOMAS P. LOFTIS, X Bridgesmith, Mark W. Peters, WALLER, LANSDEN, Plaintiff-Appellee, - DORTCH & DAVIS, Nashville, Tennessee, for Appellants. - Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville, - No. 01-6194 Tennessee, for Appellee. v. - > _________________ , UNITED PARCEL SERVICE, - OPINION INC.; DAVID COLE , - _________________ Defendants-Appellants, - - DAVID M. LAWSON, District Judge. The question KENNETH ADKINS, - presented by the parties in this appeal is whether the lower Defendant-Appellee. - court abused its discretion when, after some of the defendants - had removed the case to federal court under 28 U.S.C. § 1441, N the district court allowed the plaintiff to amend his complaint Appeal from the United States District Court to delete the allegations that made the case removable, and for the Eastern District of Tennessee at Knoxville. then remanded the case to state court. We do not reach that No. 01-00267—James H. Jarvis, District Judge. issue, because we find that there is a more fundamental defect in the removal procedure. Because we find that the removal Argued: March 11, 2003 was defective due to the failure of all defendants to join in the removal petition, we affirm the district court’s order of Decided and Filed: August 26, 2003 remand.

Before: MOORE and CLAY, Circuit Judges; LAWSON, I. District Judge.* The events giving rise to this case occurred on April 29, 1999 at the United Parcel Service facility on Callahan Road

* The Honorable David M. Lawson, United States District Judge for the Eastern D istrict of M ichigan, sitting by de signation.

1 No. 01-6194 Loftis v. United Parcel Service, et al. 3 4 Loftis v. United Parcel Service, et al. No. 01-6194

in Knoxville, Tennessee.1 Two UPS employees, Thomas plaintiff then amended his complaint on May 3, 2001 in state Loftis, the plaintiff-appellee, and Kenneth Adkins, the court to include allegations that all of the actions taken by the defendant-appellee, became involved in a “heated” argument defendants against the plaintiff were “to gain advantage in an involving job start times. Adkins reported the incident to the employment dispute” and “to discharge plaintiff Tom Loftis police, and later met with defendant-appellant Cole, a security since he fully and actively exercised his rights as a union supervisor for defendant-appellant UPS. Thereafter, Adkins member,” and that “[s]uch conduct is outrageous in the contended that the plaintiff had physically assaulted him. extreme and could serve to undermine the current peace Cole then terminated the plaintiff without further warning, as between labor and management throughout the United permitted by the terms of a collective bargaining agreement States.” First Am. Compl. ¶ 26. that listed fighting as a cardinal violation that warranted immediate discharge. Within thirty days of receiving the amended complaint, defendants UPS and Cole filed their removal petition in Criminal proceedings were initiated against the plaintiff on federal court pursuant to 28 U.S.C. § 1441(b), contending that the basis of Adkins’ complaint. UPS filed a civil complaint the new allegations asserted, in effect, an unfair labor practice seeking a temporary restraining order and permanent claim under 29 U.S.C. § 158(a) over which federal courts injunction against the plaintiff based on the alleged physical have original federal question jurisdiction under the doctrine assault. The criminal proceedings and the application for the of complete preemption. See Metro. Life Ins. Co. v. Taylor, injunction were eventually dismissed. 481 U.S. 58, 63-64 (1987) (citing Avco Corp. v. Machinists, 390 U.S. 557 (1968)); San Diego Building Trades Council, On April 27, 2000, the plaintiff filed a complaint in the Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 Circuit Court for Knox County, Tennessee, alleging that UPS, (1959). Adkins did not join in the removal petition, and in Cole, and Adkins engaged in behavior that constituted the fact filed a timely motion to remand based on lack of torts of outrageous conduct, malicious prosecution, and abuse jurisdiction. The plaintiff likewise filed a motion to remand. of process under Tennessee law. Thereafter, Adkins signed UPS and Cole opposed these motions. Soon thereafter, the an affidavit dated May 2, 2001 in which he recanted plaintiff filed a motion to further amend his complaint along testimony he had given previously in the injunction with a proposed second amended complaint, followed a day proceedings and at an arbitration hearing that the plaintiff had later by a second motion to remand. The proposed second physically assaulted him. In the affidavit, Adkins stated that amended complaint deleted the language added by the first the April 29, 1999 incident never involved any physical amended complaint, upon which UPS based its removal. The contact, and that UPS security supervisor Cole threatened and defendants filed responses in opposition to these motions as coerced Adkins to fabricate his story that the plaintiff had well. physically assaulted him so that Cole would have cause to fire the plaintiff from his union-protected job at UPS. The In a memorandum opinion and order dated August 23, 2001, the district court denied Adkins’ motion to remand, denied the plaintiff’s original motion to remand, granted the 1 plaintiff’s motion to amend, directed the clerk to file the The facts of this case are essentially the same as those in amended complaint, granted the plaintiff’s second motion to International Brotherhood of Teamsters, Local 519 v. United Parcel remand, and remanded the case to the Circuit Court for Knox Service, Inc., 335 F.3d 4 97 (6th Cir. 2003), which concerned a grievance arbitration brough t on the p laintiff’s behalf by his unio n local. County, Tennessee. The court reasoned that the plaintiff’s No. 01-6194 Loftis v. United Parcel Service, et al. 5 6 Loftis v. United Parcel Service, et al. No. 01-6194

amended complaint alleged an unfair labor practice within the Inc., 201 F.3d 754, 759 (6th Cir. 2000), it is the lower court’s meaning of Section 8(a) of the Labor Management Relations exercise of discretion to remand the plaintiff’s pendent state Act (LMRA), 29 U.S.C. § 158(a), thereby stating a cause of law claims that is called into question by defendants UPS and action “arising under” the laws of the United States, and was Cole in this appeal. See Carnegie-Mellon University v. properly removed under 28 U.S.C. § 1441(b). Because the Cohill, 484 U.S. 343, 348 (1988) (holding that “a district district court concluded it had removal jurisdiction, it felt court has discretion to remand a removed case to state court compelled to deny Adkins’ motion and the plaintiff’s first when all federal-law claims have dropped out of the action motion to remand. However, after permitting the plaintiff to and only pendent state-law claims remain.”). Were we to file his second amended complaint, the lower court observed reach that issue, we would review for abuse of discretion the that no federal cause of action remained. Although the court district court’s decision to refuse to exercise jurisdiction over believed that the amendment to the complaint did not divest pendent state claims, Landefeld v. Marion Gen. Hosp. Inc., it of subject matter jurisdiction over the remaining state law 994 F.2d 1178, 1182 (6th Cir. 1993), as we would employ a claims, the district court, in its discretion, declined to exercise deferential standard of review of a district court’s decision to supplemental jurisdiction over those claims and remanded grant a motion to amend a complaint pursuant to Federal Rule them to the state court. See 28 U.S.C. § 1367(c). of Civil Procedure 15(a). See Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989) (“The Defendants UPS and Cole filed a motion to stay the order decision as to when ‘justice requires’ an amendment is within of remand and a motion for reconsideration, both of which the discretion of the trial judge, and we review the decision were denied by the district court. The defendants then filed under an abuse of discretion standard.”); Hodges v. Rose, 570 a notice of appeal and a motion for stay pending appeal. The F.2d 643, 649 (6th Cir. 1978) (“The grant or denial of a motion for stay was denied by the district court. This appeal motion for leave to amend under Rule 15 is within the sound followed. discretion of the District Court, and will be reversed only for an abuse of discretion.”). II. However, we do not reach the question of the district The plaintiff previously filed a motion to dismiss this court’s exercise of discretion because we find that there was appeal, contending that this Court lacked jurisdiction to a more basic defect in the removal procedure, as explained review an order of remand because of the prohibition stated below, that normally would be insulated from appellate in 28 U.S.C. § 1447(d) (“An order remanding a case to the review by 28 U.S.C. § 1447(d), but which is presented to us State court from which it was removed is not reviewable on for decision by the unique procedural posture of the case. appeal or otherwise . . . .”). Another panel denied the Compare Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d plaintiff’s motion, finding that we have jurisdiction over an 1341 (6th Cir. 1993). Although the case is before this court appeal from a district court’s discretionary decisions to on a challenge to the district court’s exercise of discretion in remand that are not based on lack of subject matter refusing to retain jurisdiction over pendent state law claims jurisdiction or defects in the removal procedure. See under 28 U.S.C. § 1367(c), we believe that the record plainly Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 demonstrates that the removal petition was defective because (1996); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, all defendants did not join in the petition or consent to 460 (6th Cir. 2002). Although questions of subject matter removal. See Brierly v. Alusuisse Flexible Packaging, Inc., jurisdiction are reviewed de novo, Long v. Bando Mfg. of Am., 184 F.3d 527, 533 n.3 (6th Cir. 1999), cert. denied, 528 U.S. No. 01-6194 Loftis v. United Parcel Service, et al. 7 8 Loftis v. United Parcel Service, et al. No. 01-6194

1076 (2000). Defendant Adkins not only failed to consent to labor practice, and that claims of that nature are preempted by the removal, but affirmatively opposed it and filed a timely the LMRA. motion to remand. Adkins did not assert the rule of unanimity in support of his motion to remand. However, in Federal courts use the “well-pleaded complaint” rule to reviewing a lower court decision, we may affirm for any determine “arising under” jurisdiction. Long, 201 F.3d at reason presented in the record, even if the reason was not 758. That rule provides that “‘federal jurisdiction exists only raised below. U.S. Postal Serv. v. Nat’l Ass’n of Letter when a federal question is presented on the face of the Carrier, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003) (“We plaintiff’s properly pleaded complaint.’” Id. (quoting may affirm a decision of the district court if correct for any Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). reason, including one not considered below.”); City Mgmt. “[T]he party who brings the suit is master to decide what law Corp. v. U.S. Chem. Co. Inc., 43 F.3d 244, 251 (6th Cir. he will rely upon.” The Fair v. Kohler Die & Specialty Co., 1994) (explaining that court of appeals may affirm a decision 228 U.S. 22, 25 (1913). “The well-pleaded complaint rule of the district court “on any grounds supported by the generally provides that the plaintiff is the master of his record”). complaint, and the fact that the wrong asserted could be addressed under either state or federal law does not ordinarily The question of whether there is a defect in the removal diminish the plaintiff’s right to choose a state law cause of procedure is a purely legal one, which we review de novo. action.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943 We turn first, however, to the plaintiff’s challenge to the (6th Cir. 1994). district court’s subject matter jurisdiction. Generally, a state law claim cannot be “recharacterized” as A. a federal claim for the purpose of removal. Taylor, 481 U.S. at 63. Similarly, “a case may not be removed to federal court Among the arguments advanced by the plaintiff in support on the basis of a federal defense, including the defense of of the order of remand is the contention that the federal court pre-emption, even if the defense is anticipated in the had no subject matter jurisdiction to begin with, since the first plaintiff's complaint, and even if both parties concede that the amended complaint did not state a claim under Section 8 of federal defense is the only question truly at issue.” the LMRA, and therefore contained no cause of action Caterpillar, 482 U.S. at 393 (citing Franchise Tax Bd. v. “arising under” the laws of the United States. See 28 U.S.C. Constr. Laborers Vacation Trust, 463 U.S. 1, 12 (1983)). §§ 1331, 1441(b). The plaintiff reasons that want of federal However, if an area of the law is “completely preempted,” question jurisdiction required a remand. then the state law claim is displaced by the federal cause of action, and the action is subject to removal. Taylor, 481 U.S. Defendants UPS and Cole argue that the first amended at 63-64; Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th complaint’s added language, stating that Cole and UPS Cir. 1995) (en banc). The rationale undergirding this effectively suborned perjury in order to “gain advantage in an exception is that where federal preemption is so complete that employment dispute” and fabricate a reason to discharge the conflicting state law not only must yield but is effectively plaintiff in retaliation for exercising his rights as a union extinguished, the only theory of recovery remaining is the member, made out a claim “arising under” federal law, federal claim, which takes the place of the state law claim regardless of the plaintiff’s lack of intent to plead such a recited in the complaint. See Beneficial Nat. Bank v. claim. They contend that the allegations describe an unfair Anderson, 123 S. Ct. 2058, 2063 (2003) (“When the federal No. 01-6194 Loftis v. United Parcel Service, et al. 9 10 Loftis v. United Parcel Service, et al. No. 01-6194

statute completely pre-empts the state-law cause of action, a States.” Ibid. Whether or not he intended to plead it, the claim which comes within the scope of that cause of action, plaintiff defined an unfair labor practice. As the district court even if pleaded in terms of state law, is in reality based on correctly observed, the allegations describe acts that could federal law.”); Warner, 46 F.3d at 534. The complaint itself undermine the “industrial peace” that the NLRA was is therefore deemed to state a federal cause of action. designed to preserve. See Brooks v. NLRB, 248 U.S. 96, 103 (1954). See also NLRB v. Burns Int’l Sec. Services, Inc., 406 Complete preemption occurs in cases that fall within the U.S. 272, 287 (1972). The district court correctly concluded scope of the LMRA. Miller v. Norfolk and Western Ry. Co., that the first amended complaint contained a claim “arising 834 F.2d 556, 564 (6th Cir. 1987) (“The complete under” federal law. pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims pre-empted by B. section 301 of the LMRA.”) (citing Avco Corp. v. Machinists, 390 U.S. 557 (1968)). Section 7 of the Act secures a worker’s As noted earlier, there is a rule of unanimity that has been right to chose to join a labor union, and Section 8(a) provides, derived from the statutory language prescribing the procedure among other things, that an employer who interferes with an for removing a state action to federal court, 28 U.S.C. § 1446. employee’s exercise of that right, or discriminates or retaliates This rule of unanimity demands that all defendants must join against an employee because of membership in a labor union in a petition to remove a state case to federal court. See or participation in union activities, commits an unfair labor Brierly, 184 F.3d at 533 n.3 (“The rule of unanimity requires practice. 29 U.S.C. § 158(a); Goldtex, Inc. v. NLRB, 14 F.3d that in order for a notice of removal to be properly before the 1008, 1014 (4th Cir. 1994) (holding that “Section 8(a)(3) of court, all defendants who have been served or otherwise the Act ensures that no employee may be discharged because properly joined in the action must either join in the removal, of participation in union activities.”); Cumberland Farms, or file a written consent to the removal.”). Section 1446 Inc. v. NLRB, 984 F.2d 556, 560 (1st Cir. 1993) (“When an states that “[a] defendant or defendants desiring to remove employer discharges an employee for supporting a union, he any civil action . . . shall file . . . a notice of removal.” 28 violates the Act, 29 U.S.C. § 158(a)(3), unless he proves that U.S.C. § 1446(a) (emphasis added). In Chicago, R. I. & P. he would have taken the same action in the absence of the Ry. Co. v. Martin, 178 U.S. 245, 248 (1900), this statute’s employee’s union activities.”). The essence of an unfair labor precursor containing similar language was interpreted to mean practice under Section 8(a) is an employer’s unfair treatment that all the defendants must unite in a petition for removal to of an employee because of the employer’s anti-union animus. federal court. Although in Brierly we mentioned this rule in the context of determining the time within which an earlier- served defendant must consent to a later-served defendant’s The plaintiff’s first amended complaint filed in state court removal effort, see Brierly, 184 F.3d at 533 n.3, no case specifically alleged that UPS’s outrageous conduct was decided in this Circuit has made explicit the rule requiring perpetrated upon the plaintiff “in an attempt to discharge unanimous consent to removal. However, the rule is [him] since he fully and actively exercised his rights as a universally accepted in the other circuits to consider the union member.” First Am. Compl. ¶ 26. The plaintiff also question. See Marano Enters. of Kan. v. Z-Teca Rests., L.P., alleged that the defendants’ conduct might result in far- 254 F.3d 753, 754 (8th Cir. 2001); Balazik v. County of reaching consequences that could “undermine the current Dauphin, 44 F.3d 209, 213 (3d Cir. 1995); Doe v. Kerwood, peace between labor and management throughout the United 969 F.2d 165, 167 (5th Cir. 1992); Hewitt v. City of Stanton, No. 01-6194 Loftis v. United Parcel Service, et al. 11 12 Loftis v. United Parcel Service, et al. No. 01-6194

798 F.2d 1230, 1232 (9th Cir. 1986); N. Ill. Gas Co. v. Airco § 1367(c). However, we find that the district court should Indus. Gases, 676 F.2d 270, 272-73 (7th Cir. 1982); Cornwall have granted the plaintiff’s initial motion, and defendant v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981). Adkins’ motion, to remand because defendants UPS and Cole failed to satisfy the rule of unanimity. Because the lower Consistent with the prevailing view, we hold that all court arrived at the correct result, albeit by means of mistaken defendants in the action must join in the removal petition or reasoning, the order remanding the case to state court is file their consent to removal in writing within thirty days of AFFIRMED. receipt of (1) a summons when the initial pleading demonstrates that the case is one that may be removed, or (2) other paper in the case from which it can be ascertained that a previously unremovable case has become removable. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. 526 U.S. 344, 354 (1999). Failure to obtain unanimous consent forecloses the opportunity for removal under Section 1446. In the present case, only defendants UPS and Cole joined in the removal notice. Defendant Adkins did not consent to the removal; in fact, he opposed it, and registered his opposition by filing a motion to remand. It is true that technical defects in the removal procedure, such as a breach of the rule of unanimity, may not be raised sua sponte, and must be raised by a party within thirty days of removal or they are waived. See 28 U.S.C. § 1447(c); Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995). However, we believe that frank opposition to removal by a codefendant who affirmatively seeks a remand within the thirty-day period satisfies the prerequisite of a motion, and empowers the district court to enforce the unanimity requirement. Because the defendants were expressly divided in their desire to remove, the district court should have granted the initial motions to remand. III. We express no view on the district court’s decision to permit the plaintiff to amend his complaint to eliminate language that transformed his state law causes of action into an unfair labor practice claim, or the decision to remand the state law claims to the Tennessee state court under 28 U.S.C.