Trans Penn Wax Corp. v. McCandless , 50 F.3d 217 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-28-1995
Trans Penn Wax Corp. v McCandless
Precedential or Non-Precedential:
Docket 94-3093
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-3093
___________
TRANS PENN WAX CORPORATION;
ASTOR WAX CORPORATION;
ABI CORPORATION,
Petitioners
v.
MICHAEL McCANDLESS;
BENJAMIN REYNOLDS; BRADLEY PEARSON;
BRIAN PATTERSON; JERRY SNYDER
and JOHN E. BULKLEY,
Respondents
MAURICE B. COHILL, JR.,
Nominal Respondent
______________________________________________
On Petition for Writ of Mandamus
Related to W.D.Pa. Civil Action No. 93-cv-00126E
___________________
Argued July 19, 1994
Before: SCIRICA, LEWIS and ROSENN, Circuit Judges
(Filed February 28, l995)
ROBERT E. RIGRISH, ESQUIRE (Argued)
Clark, Paul, Hoover & Mallard
1360 Peachtree Street, Suite 900
Atlanta, Georgia 30309
KENNETH W. WARGO, ESQUIRE
Quinn, Buseck, Leemhuis, Toohey & Kroto
2222 West Grandview Boulevard
Erie, Pennsylvania 16506-4508
Attorneys for Petitioners
JOSEPH E. ALTOMARE, ESQUIRE (Argued)
Altomare & Barnhart
228 East Central Avenue
P.O. Box 373
Titusville, Pennsylvania 16354
Attorney for Respondents
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
In this appeal, we must decide whether section 301 of
the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a)
(1988), mandates federal preemption of state contract and tort
claims brought by collective bargaining unit members based on
promises and misrepresentations of job security by their
employer, Trans Penn Wax Corporation. Trans Penn contends these
claims are preempted because they relate to mandatory subjects of
collective bargaining and require interpretation of the
collective bargaining agreement. Trans Penn also claims the
district court abused its discretion in remanding the case to
state court after the employees withdrew their sole federal cause
of action.
The employees brought suit in the Court of Common Pleas
of Crawford County, Pennsylvania, alleging breach of contract,
fraud, intentional infliction of emotional distress, and
violations of the Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. §§ 1961-68 (1988 & Supp. V 1993), by
Trans Penn and its corporate affiliates, Astor Wax Corporation
and ABI Corporation. The employees alleged Trans Penn induced
them to decertify their union through contractual promises of job
security and later breached those promises by terminating them.
Defendants removed the case to the United States District Court
for the Western District of Pennsylvania. The employees then
sought leave to delete their RICO claims and have the case
remanded back to state court. The district court granted their
motion and then denied Trans Penn's subsequent motion for
reconsideration. McCandless v. Trans Penn Wax Corp., 840 F.
Supp. 371 (W.D. Pa. 1993).
Trans Penn now petitions for a writ of mandamus
directing the nominal respondent, Maurice Cohill, Jr., District
Judge for the United States District Court for the Western
District of Pennsylvania, to rescind his order remanding this
case to the Court of Common Pleas of Crawford County,
Pennsylvania and to exercise jurisdiction over the employees'
claims. We have jurisdiction to address this claim under the All
Writs Act, 28 U.S.C. § 1651 (1988).1
We hold that resolution of the employees' contract and
tort claims is not substantially dependent upon an analysis of
the collective bargaining agreement and therefore section 301
does not require preemption. We also find the district court
1
. The text of 28 U.S.C. § 1651 provides in part:
(a) The Supreme Court and all courts
established by Act of Congress may issue all
writs necessary or appropriate in aid of
their respective jurisdictions and agreeable
to the usages and principles of law.
acted within its sound discretion in remanding after the
employees withdrew their federal claims. We will deny the
petition for a writ of mandamus.
I.
A.
Trans Penn is a Pennsylvania corporation engaged in the
manufacture of industrial wax products in Titusville,
Pennsylvania. The Oil, Chemical, and Atomic Worker's
International Union ("OCAWI") represented Trans Penn employees
for the purpose of collective bargaining beginning in 1988. On
January 15, 1990, OCAWI and Trans Penn entered into a collective
bargaining agreement in which the company recognized OCAWI as the
exclusive representative of full-time employees at the Titusville
plant.
On April 27, 1990, a majority of the bargaining unit
members voted to decertify OCAWI as their bargaining
representative. The election was certified by the National Labor
Relations Board on May 7, 1990. On the eve of the
decertification election, Trans Penn presented the employees with
a written "contract" for employment and guarantee of job
security. The document is entitled "Guarantee" and states:
This is our PERSONAL GUARANTEE and your
LEGAL CONTRACT that you . . . will have a job
here . . . as long as you perform your work
satisfactorily, follow our customary rules,
and we are economically able to operate this
institution successfully and work is
available. This GUARANTEE is given to you
because of the FALSE UNION RUMOR that you
will lose your job if the Union loses the
election . . . . This is our WRITTEN LEGAL
CONTRACT AND GUARANTEE TO YOU . . . .
App. at 62.
On October 30, 1991, Trans Penn terminated the six
employees who are plaintiffs in this action, and later contracted
with Manpower, Incorporated to provide temporary production
workers.
B.
The employees filed a complaint in the Court of Common
Pleas of Crawford County, Pennsylvania, alleging Trans Penn had
committed: (1) breach of contract by terminating the "Guarantee";
(2) fraud in making false and misleading statements concerning
the "Guarantee" upon which the employees relied in decertifying
the union; (3) intentional infliction of emotional distress; and
(4) RICO violations under 18 U.S.C. § 1964(c).
Based on the employees' RICO claims, Trans Penn removed
the action to the United States District Court for the Western
District of Pennsylvania. The employees then sought leave to
withdraw their RICO claims and remand the case to the Court of
Common Pleas of Crawford County. The District Court granted the
request and remanded the case to state court. Trans Penn asked
for reconsideration, arguing section 301 of the LMRA preempted
the employees' claims so that federal questions remained even
after dismissal of the RICO claims. Trans Penn also claimed the
employees had alleged unfair labor practices under sections 7 and
8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 157
& 158 (1988), which protect the rights of employees to organize
without interference from their employer. Unfair labor practice
charges must be brought before the National Labor Relations
Board. Huge v. Long's Hauling Co., 442 F. Supp. 1041, 1043 (W.D.
Pa. 1977), aff'd, 590 F.2d 457 (3d Cir. 1978), cert. denied, 442
U.S. 918 (1979).
The district court denied Trans Penn's motion for
reconsideration. McCandless, 840 F. Supp. at 374. The court
found that the employees' complaint comprised state law claims
based on the guarantee, not on the collective bargaining
agreement. Id. The court also accepted the employees' argument
that they were not raising unfair labor practice claims based on
Trans Penn's execution of individual contracts, but rather were
seeking state law tort and contract remedies based on those
contracts. Id. at 373. Therefore, the court found no preemption
under either the LMRA or the NLRA. Id. at 373-74.
Trans Penn petitions for a writ of mandamus, contending
the employees' claims substantially depend on an interpretation
of the collective bargaining agreement between OCAWI and Trans
Penn and therefore are preempted by section 301 of the LMRA.
Alternatively, if those claims are not preempted, Trans Penn
characterizes the employees' deletion of their RICO claims as
"forum shopping" and asserts the district court abused its
discretion in remanding the case to state court. Trans Penn does
not raise the NLRA claim in its petition.
II.
A.
We must first address the threshold issue of whether we
have jurisdiction to address this petition for a writ of
mandamus. The power of the courts of appeals to review district
court remand orders is circumscribed by 28 U.S.C. § 1447(d)
(1988), which states, "[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise" with one exception not relevant here. While the
language seems straightforward, analysis of § 1447(d) is not
simple and its bar is not absolute. As one court has noted,
"'[s]traightforward' is about the last word judges attach to §
1447(d) these days . . . ." In re Amoco Petroleum Additives Co.,
964 F.2d 706, 708 (7th Cir. 1992).
The Supreme Court has interpreted the bar of § 1447(d)
narrowly, stating it only applies to remand orders issued under
28 U.S.C. § 1447(c): "[Section 1447(d)] and § 1447(c) must be
construed together . . . . This means that only remand orders
issued under § 1447(c) and invoking the grounds specified
therein--that removal was improvident and without jurisdiction--
are immune from review under § 1447(d)." Thermtron Prods. Inc.
v. Hermansdorfer 423 U.S. 336, 345-46 (1976).2 In Thermtron, a
2
. At the time Thermtron was decided, § 1447(c) provided in
part:
If at any time before final judgment it
appears that the case was removed
improvidently and without jurisdiction, the
district court shall remand the case . . . .
district court had remanded a case to state court because its
docket was overloaded, and the Court held review appropriate
because the remand had been based "on grounds not authorized by
the removal statutes." Id. at 353. The Court allowed review of
the remand order itself upon petition for a writ of mandamus.
The Court held that "because an order remanding a removed action
does not represent a final judgment reviewable by appeal, '[t]he
remedy in such a case is by mandamus to compel action and not by
writ of error to review what has been done.'" Id. at 352-53
(quoting Chicago & Alton R.R. v. Wiswall, 90 U.S. (23 Wall.) 507,
508 (1875)).
Thermtron and its progeny provide jurisdiction for
appellate courts to review remand orders other than in cases
removed "improvident[ly] and without jurisdiction." That is,
§ 1447(d) bars review of remands that are issued under § 1447(c).
See PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993);
Bradgate Assocs. v. Fellows, Read & Assocs., 999 F.2d 745, 750 &
n.4 (3d Cir. 1993); see also Kolibash v. Committee on Legal
Ethics, 872 F.2d 571, 573 (4th Cir. 1989); cf. Foster v. Mutual
Fire, Marine & Inland Ins. Co., 986 F.2d 48, 50 (3d Cir. 1993).
The language of § 1447(c) has changed since Thermtron. It now
provides for remand based on a procedurally defective removal and
requires remand "[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction
(..continued)
28 U.S.C. § 1447(c) (1970).
. . . ." 28 U.S.C. § 1447(c) (1988).3 Thus, Thermtron's holding
is applicable today to remands based on a lack of subject matter
jurisdiction or for defects in removal procedure. PAS, 7 F.3d at
352; In re Amoco, 964 F.2d at 708.
Forty years before Thermtron, the Supreme Court had
created another partial exception to the bar on review in Waco v.
United States Fidelity & Guaranty Co., 293 U.S. 140 (1934). In
Waco, the Supreme Court addressed a case where removal had been
based on the entry of a diverse third party into the underlying
dispute. The district court dismissed the third party and
remanded for lack of jurisdiction because diversity had been
destroyed. Id. at 142. The Supreme Court held that no appeal
could lie from the remand order itself, but that "in logic and in
fact the decree of dismissal preceded that of remand and was made
by the District Court while it had control of the cause.
Indisputably this order is the subject of an appeal . . . ." Id.
at 143. The Court in Waco did not create an exception to the bar
of review of remand orders; it held only that separable decisions
underlying and preceding the remand could be reviewed. Id. at
143-44; see Rhonda Wasserman, Rethinking Review of Remands:
Proposed Amendments to the Federal Removal Statute, 43 Emory L.J.
83, 112 (1994). Courts of appeals have relied on the Waco
decision to provide an avenue to review decisions underlying
remand orders where Thermtron would otherwise seem to bar review
3
. For the text of § 1447(c) at the time Thermtron was decided,
see supra note 2.
altogether (i.e., where the remand was based either on a removal
defect or because the court lacked subject matter jurisdiction).
See, e.g., Powers v. Southland Corp., 4 F.3d 223, 224 (3d Cir.
1993); Mitchell v. Carlson, 896 F.2d 128, 131-33 (5th Cir. 1990);
Allen v. Ferguson, 791 F.2d 611, 613 & n.3, 614 (7th Cir. 1986).
We have further extended Waco's holding in some circumstances to
allow review of the remand order itself in addition to review of
the underlying decision. Carr v. American Red Cross, 17 F.3d
671, 680 (3d Cir. 1994).
Courts of appeals have applied the exceptions to the
bar of § 1447(d) initiated by Waco and Thermtron to a variety of
remand situations, such that the bar now governs a fairly narrow
range of cases. See, e.g., Foster v. Chesapeake Ins. Co., 933
F.2d 1207, 1210-11 (3d Cir.) (interpreting Thermtron to mean the
bar of § 1447(d) applies only to cases remanded on § 1447(c)
grounds), cert. denied, 502 U.S. 908 (1991); Baldridge v.
Kentucky-Ohio Transp., Inc., 983 F.2d 1341, 1345 (6th Cir. 1993)
(noting decisions that "reflect the prevailing view that §
1447(d)'s prohibition against appellate review is fairly
narrow"); 14A Charles A. Wright et al., Federal Practice and
Procedure § 3740, at 237 (Supp. 1994) (observing the Thermtron
exception, while conceived as narrow, has been applied in
"numerous decisions"). The two lines of exceptions are
reasonably distinct, however, both as a matter of theory and as a
matter of practical impact. Cases under Thermtron are
analytically simple: Once the court determines that the remand
was not pursuant to § 1447(c), the bar of § 1447(d) is
inapplicable and review is appropriate. Cases following Waco,
however, are more complex, as the court must first determine
whether there was a separable decision underlying the remand
order that preceded the remand order "in logic and in fact," and
then whether the underlying decision is, in fact, reviewable
(normally an issue of whether it is final for purposes of 28
U.S.C. § 1291). See, e.g., Aliota v. Graham, 984 F.2d 1350,
1352-53 (3d Cir.), cert. denied, 114 S. Ct. 68 (1993); Powers, 4
F.3d at 226-31. The Waco analysis adds further complexity in
those circumstances where the court can review the remand order
itself. See Carr, 17 F.3d at 680.
Selecting the appropriate analytical framework has
proved difficult. One important element is the timing of the
lack of subject matter jurisdiction, as a remand only falls under
§ 1447(c) if the removal itself was jurisdictionally improper,
not if the defect arose after removal. In re Amoco, 964 F.2d at
708 (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343
(1988)); see also Baldridge, 983 F.2d at 1348 & nn.11-12. Remand
decisions based on grounds other than (1) that jurisdiction was
improper at the time of removal or (2) that the removal was
procedurally defective are therefore reviewable under Thermtron
as they do not implicate § 1447(c).
So many different patterns underlie remand decisions
that we cannot comprehensively categorize them here. We can,
however, set the present case within the remand jurisprudence.
This case was originally removed based on federal question
jurisdiction because the complaint included counts alleging RICO
violations. 18 U.S.C. §§ 1961-68. The plaintiffs sought and
were granted a dismissal of the RICO counts, thus leaving the
district court with supplemental jurisdiction under 28 U.S.C. §
1367 (Supp. V 1993).
After dismissing the RICO counts, the district court
declined to exercise supplemental jurisdiction and remanded the
case to state court. We would have had jurisdiction to review
the remand had defendants petitioned for a writ of mandamus at
that point. As the Supreme Court has said, "Section[] . . .
1447(c) . . . do[es] not apply to cases over which a federal
court has pendent jurisdiction. Thus, the remand authority
conferred by the removal statute and the remand authority
conferred by the doctrine of pendent jurisdiction overlap not at
all." Carnegie-Mellon, 484 U.S. at 355 n.11. At least eight
other circuit courts have agreed, and have held the discretionary
decision not to exercise jurisdiction over pendent state claims
is not a remand under § 1447(c). Accordingly, they have allowed
review of remand orders based on the discretionary refusal to
exercise supplemental jurisdiction. See Jamison v. Wiley, 14
F.3d 222, 231-33 (4th Cir. 1994); Burks v. Amerada Hess Corp., 8
F.3d 301, 304 (5th Cir. 1993); In re Glass, Molders, Pottery,
Plastics & Allied Workers Int'l, Local No. 173, 983 F.2d 725, 727
(6th Cir. 1993); Albertson's, Inc. v. Carrigan, 982 F.2d 1478,
1479-80 (10th Cir. 1993); In re Surinam Airways Holding Co., 974
F.2d 1255, 1257 (11th Cir. 1992); J.O. v. Alton Community Unit
Sch. Dist. 11, 909 F.2d 267, 269-71 (7th Cir. 1990); In re Life
Ins. Co. of N. Am., 857 F.2d 1190, 1193 n.1 (8th Cir. 1988);
Price v. PSA, Inc., 829 F.2d 871, 873-74 (9th Cir. 1987), cert.
denied, 486 U.S. 1006 (1988).
We have allowed review of discretionary remands based
on the decision to decline supplemental jurisdiction.4 In PAS v.
Travelers Insurance Co., 7 F.3d 349 (3d Cir. 1993), the plaintiff
brought suit in state court. Three of its four counts were
undisputedly governed by the Employee Retirement Income Security
Act ("ERISA") and the defendant removed on that basis. The
plaintiff requested that the fourth count, based on state law, be
remanded to state court. Defendants claimed the state statutes
were preempted by ERISA. Id. at 351.
After concluding that the state statutes were not
preempted by ERISA, the district court exercised its discretion
to remand the state claim because it involved a "novel and
complex issue of state law," a basis for remand provided by 28
U.S.C. § 1367(c)(1). Holding that the state action could become
dispositive of the federal claims, the district court dismissed
the federal action without prejudice. After the district court
denied defendant's motion for reconsideration, the defendant
petitioned for a writ of mandamus. Id.
We held in PAS that jurisdiction to review the remand
decision was proper, notwithstanding § 1447(d). Id. at 352. The
district court's decision was neither for a defect in the removal
4
. Indeed, we have held more generally that remands not covered
by § 1447(c) are not barred from review by § 1447(d). See, e.g.,
Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1211 (3d Cir.
1991); Hewlett v. Davis, 844 F.2d 109, 115 (3d Cir. 1988).
procedure nor for lack of district court subject matter
jurisdiction, but rather was based on an exercise of the district
court's discretion to decline to exercise supplemental
jurisdiction. Section 1447(c) and (d) therefore did not apply
and review was proper. Id.; cf. Carr v. American Red Cross, 17
F.3d 671 (3d Cir. 1994).5 We then proceeded to consider the
merits of defendant's claim that ERISA did in fact preempt the
state law claim. PAS, 7 F.3d at 354-57.
Here, as in PAS, the district court properly removed
the case based on federal question jurisdiction and exercised its
discretion under the supplemental jurisdiction statute6 to remand
5
. In Carr, federal jurisdiction was predicated on the joinder
of the Red Cross, whose federal charter conferred federal
jurisdiction over cases to which it was a party. Carr, 17 F.3d
at 674. The Red Cross was subsequently dismissed as a party, and
the district court remanded the case pursuant to 28 U.S.C. §
1367(c), as it declined to exercise supplemental jurisdiction.
Id. Having assumed that § 1447(d) presented a problem for review
in the first instance, we held the district court's dismissal
reviewable on appeal based on the Waco exception to § 1447(d)
combined with the notion that the dismissal was final under the
collateral final order doctrine. Id. at 675-77. We continued by
deciding that the remand order was also reviewable. Id. at 680.
PAS and Carr are two paths to the same result. While
in Carr the court assessed the Waco elements of separability and
then finality for purposes of appeal of the decision which
underlay the remand order, PAS went by way of the Thermtron
exception straight to review of the remand order and its
underlying reasoning. We think the PAS route, when available, is
the more felicitous method, and we therefore use it here. We do
not intimate any view on how future courts should decide which
method better serves the particular facts of their cases.
6
. Prior to the 1990 enactment of this version of 28 U.S.C. §
1367, we held, "Absent `extraordinary circumstances,' a district
court in this circuit is powerless to hear claims lacking an
independent jurisdictional basis, and `time already invested in
litigating the state cause of action is an insufficient reason to
the case. Also in both cases the district court determined the
state claims were not preempted. The only difference between
this case and PAS is that the district court here made the
preemption decision on a motion for reconsideration after, rather
than before, it had granted plaintiff's motion for remand. We
see no reason why this should require a different result.
The timing of the motion for reconsideration, after the
district court's remand, raises a potential problem for our
review of the remand order.7 The question is whether after
(..continued)
sustain the exercise of pendent jurisdiction.'" Lovell Mfg. v.
Export-Import Bank of the United States, 843 F.2d 725, 735 (3d
Cir. 1988) (quoting Weaver v. Marine Bank, 683 F.2d 744, 746 (3d
Cir. 1982)). However, in Growth Horizons, Inc. v. Delaware
County, Pa., 983 F.2d 1277 (3d Cir. 1993), we observed that even
if Lovell mandated remand of state claims following any dismissal
of the federal claim:
Lovell was decided prior to the passage of
the current version of § 1367. The language
in § 1367 expressly contradicts [this]
reading of Lovell in that it states that
federal courts shall exercise supplemental
jurisdiction over pendent claims arising out
of the same case or controversy and may
decline to exercise jurisdiction if all
federal claims are dismissed.
Id. at 1285 n.14. Because at the time of removal "there was a
colorable federal claim" under RICO, the district court had
original jurisdiction of that claim, Weaver, 683 F.2d at 747, and
§ 1367(a) gave the court supplemental jurisdiction over the
pendent state law claims. The court retained supplemental
jurisdiction until it declined to exercise that jurisdiction
under § 1367(c).
7
. We note that were the district court considering preemption
as a basis to assert jurisdiction in the first instance, the bar
of § 1447(d) may well apply and it is not clear that the Waco
exception could be used. See, e.g., Nutter v. Monongahela Power
Co., 4 F.3d 319, 321-22 (4th Cir. 1993) (holding where "complete
preemption was the basis for the district court's jurisdiction,
remand the district court had jurisdiction in order to reconsider
its remand and whether the preemption issue upon which the motion
for reconsideration was based is properly before us.
The general rule is that a district court loses
jurisdiction over a case once it has completed the remand by
sending a certified copy of the remand order to the state court.
See Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir. 1992).
This view is premised on both the language of § 1447(c) and (d)
and the need to establish a determinable jurisdictional event
after which the state court can exercise control over the case
without fear of further federal interference. The district court
is also barred from reconsidering its decision if the remand was
under § 1447(c) and the case thereby falls under the bar of §
1447(d). See, e.g., New Orleans Public Serv., Inc. v. Majoue,
802 F.2d 166, 167 (5th Cir. 1986) (per curiam); FDIC v. Santiago
Plaza, 598 F.2d 634, 636 (1st Cir. 1979) (per curiam). But the
physical mailing of the certified copy is the key jurisdictional
event to divest the district court of jurisdiction, because a
remand order is not self-executing. Hunt, 961 F.2d at 1081
(citing Bucy v. Nevada Constr. Co., 125 F.2d 213 (9th Cir.
1942)).
(..continued)
the court's findings regarding preemption and jurisdiction are
indistinguishable," and thus § 1447(d) applies to bar review;
Waco would also not provide an exception to allow review);
Whitman v. Raley's Inc., 886 F.2d 1177, 1181 (9th Cir. 1989)
(holding no review allowed because "[a] remand based on lack of
'complete preemption' is a remand required by 28 U.S.C. § 1447(c)
. . . ."). This would present a significant jurisdictional
problem given the bar to review in § 1447(d), but as we explain
below it is not the situation we face here.
The courts of appeals have debated the issue of whether
a district court can freely reconsider its own remand order when
the bar of § 1447(d) is not implicated. Some courts have held a
district court has jurisdiction to reconsider such a remand order
within the time for filing an appeal unless the remand is on §
1447(c) grounds.8 See, e.g., Thomas v. LTV Corp., 39 F.3d 611,
615-16 (5th Cir. 1994) (holding a remand based on 28 U.S.C. §
1367 is not a § 1447(c) remand and therefore is not barred by §
1447(d); such a remand is reviewable by the district court within
the time for filing an appeal); J.O. v. Alton Community Unit Sch.
Dist. 11, 909 F.2d 267, 273-74 (7th Cir. 1990) (holding that
where an exception to the appellate review of remands applies the
district court also can reconsider its order of remand during the
time for filing of a notice of appeal).
Other courts have construed the district court's
jurisdiction to reconsider remand orders more narrowly. In Three
J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir.
1979), cert. denied, 445 U.S. 911 (1980), the court held the mere
entry of the district court's remand order divested it of
8
. Where the district court's reconsideration of its own remand
is appropriate because the bar of § 1447(d) does not apply, some
courts have been indifferent as to whether a certified copy of
the remand order was sent. In re Digicon Marine, Inc., 966 F.2d
158, 160-61 (5th Cir. 1992). Thus, the issue of whether a
certified copy of the remand order has been sent to the state
court may only be relevant when the bar of § 1447(d) applies.
See In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991),
cert. denied, 502 U.S. 1049 (1992). We need not decide whether
to follow that view, however, since as we discuss below there is
no evidence in the record that a certified copy of the remand
order was sent to the state court.
jurisdiction to reconsider the order. While the remand fell
under § 1447(c) and was barred from review by § 1447(d) anyway,
the court also took a more restrictive view of when the district
court was divested of jurisdiction. Similarly, in Santiago Plaza
the court held § 1447(d) "has been universally construed to
prohibit even a motion for reconsideration once the state court
has resumed jurisdiction." 598 F.2d at 636. The court did not
discuss the possibility of the Thermtron exception's application,
nor did it explain the basis for the district court's remand.
Significantly, both cases were decided shortly after Thermtron
when neither court had the benefit of the nearly two decades of
judicial expansion of Thermtron's holding upon which we and other
courts have been able to draw.
Our own precedent is inconclusive on the issue of when
a district court's jurisdiction to reconsider its own remand
order ends. One case, Hunt v. Acromed Corp., 961 F.2d 1079 (3d
Cir. 1992), appears to take a narrow view of the district court's
jurisdiction to reconsider a case once it has remanded it. In
Hunt, we held the district court lost jurisdiction after sending
a certified copy of the order of remand to the state court so
that it could not consider a motion to file an amended notice of
removal. 961 F.2d at 1082. We observed that a timely motion to
reconsider a remand order would be barred after a certified copy
had been mailed. Id. at 1082 n.6. We also observed that while
the bar of § 1447(d) did not directly apply since the appeal was
from a denial of a motion to amend the notice of removal and not
from the removal itself, the policy underlying § 1447(d) was
implicated. Id. at 1082. We then noted that "[t]he remand in
this case could not possibly have been subject to review under an
exception to 28 U.S.C. § 1447(d)." Id. at 1082 n.9. Because no
exception to § 1447(d) applied, Hunt is more analogous to
Santiago Plaza than to J.O or Thomas (where an exception to
§ 1447(d) did apply).
Thus, where the bar of § 1447(d) applies our precedent
suggests a district court would lack jurisdiction to reconsider
its order of remand once a certified copy of the remand order has
been sent to the state court. We have not faced the question of
whether a district court has the power to reconsider a remand
order either when a certified copy of the order has not yet been
sent or when the remand itself is not covered by § 1447(d). In
this case we have both factors. There is no evidence in the
record that a certified copy of the remand order was sent to
state court,9 cf. J.O., 909 F.2d at 273-74 & n.5 (allowing
district court to reconsider its remand order during the time for
filing a notice of appeal when the record shows no evidence a
certified copy was mailed to the state court), and we have held
that the initial remand was not covered by § 1447(d).
Because this issue has not been squarely presented to
us before, we look to a persuasive decision from the Court of
Appeals for the Fifth Circuit, Thomas v. LTV Corp, 39 F.3d 611
(5th Cir. 1994), whose facts are similar to this case. In
9
. The district court's remand order was entered on October 12,
1993, and on October 29, 1993, Trans Penn filed its motion for
reconsideration.
Thomas, a union employee who had been fired for poor attendance
brought suit in state court, alleging breach of contract,
infliction of emotional distress, and wrongful discharge under
the Texas Labor Code. Id. at 614-15. LTV, the employer, removed
the case claiming section 301 of the LMRA preempted Thomas' state
law claims. Id. After removal, the district court granted LTV's
motion for summary judgment on all but the wrongful discharge
claim, finding the other claims preempted and barred by the
LMRA's six-month statute of limitations. Id. at 615. After the
district court remanded the wrongful discharge claim to state
court, LTV filed a motion for reconsideration. The district
court changed its mind, held the wrongful discharge claim
preempted by section 301, and dismissed that claim as well. Id.
Thomas asserted before the court of appeals that the
district court had no jurisdiction to reconsider its order of
remand. Id. The Court of Appeals for the Fifth Circuit
disagreed, holding because the remand was a discretionary
decision to decline supplemental jurisdiction under 28 U.S.C. §
1367(c), it was not a remand under § 1447(c). Id. The court
held the bar of § 1447(d) did not apply, and therefore the
district court had jurisdiction to reconsider its order of
remand. Id. at 615-16. We agree with this analysis. We hold
the district court here had jurisdiction to reconsider its order
of remand, first because there is no evidence in the record that
the district court had sent a certified copy of the remand order
to the state court, and second because the initial remand was not
covered by § 1447(c) and the bar of § 1447(d) is therefore not
implicated.
In sum, with respect to the rather intricate
jurisdictional posture of this case, we hold: this case falls
under the Thermtron exception to § 1447(d)'s bar of review of
remand orders; we have jurisdiction to review this case on writ
of mandamus because the order of remand being appealed is not
final; and even though the district court decided the preemption
issue on a motion for reconsideration it did not lack
jurisdiction to make that determination.
B.
Had we determined this case fell under the Waco line of
cases we would review the decision underlying the remand order
(if at all) as an appeal. Also we would have had to address the
question of finality, the question of the appropriate standard of
review of the preemption issue, and whether the remand order
itself could be reviewed.10 But the appropriate manner of review
under Thermtron of a remand order is mandamus, and Trans Penn has
properly petitioned for mandamus rather than filed an appeal.
The All Writs Act, 28 U.S.C. § 1651, empowers courts to issue
"all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law."
The Supreme Court has stated:
10
. On allowing review of the remand order itself (rather than
just review of the decision underlying the remand), compare Waco,
293 U.S. at 143 (holding no review of the order of remand
allowed), with Carr, 17 F.3d at 680 (holding review of the order
of remand allowed when the Waco exception applies).
[B]ecause an order remanding a removed action
does not represent a final judgment
reviewable by appeal, "[t]he remedy in such a
case is by mandamus to compel action, and not
by writ of error to review what has been
done." Absent statutory prohibitions, when a
remand order is challenged by a petition for
mandamus in an appellate court, "the power of
the court to issue the mandamus would be
undoubted."
Thermtron, 423 U.S. at 352-53 (citations omitted).
A petition for a writ of mandamus must demonstrate the
district court committed a "clear error of law `at least
approach[ing] the magnitude of an unauthorized exercise of
judicial power, or a failure to use that power when there is a
duty to do so.'" Richman Bros. Records, Inc. v. U.S. Sprint
Communications Co., 953 F.2d 1431, 1448 (3d Cir. 1991) (quoting
Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988)), cert.
denied, 112 S. Ct. 3056 (1992). The writ is an extraordinary
remedy, only to be used in exceptional circumstances where the
party seeking it demonstrates a clear and indisputable right to
the writ. Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 232
(3d Cir. 1990), cert. denied, 113 S. Ct. 61 (1992). This
stringent standard governs our review.
III.
Ordinarily, a case is not removable to federal court
simply because, as here, the defendant raises federal preemption
as a defense. Rather, removal on the basis of federal question
jurisdiction, 28 U.S.C. §§ 1331 & 1441 (1988 & Supp. V 1993),
generally requires that a federal question be presented on the
face of the plaintiff's properly pleaded complaint. This well-
pleaded complaint rule "makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law." Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). In certain limited circumstances, however, a
defendant may be able to remove a case notwithstanding a
complaint's apparent grounding in state law. One such
circumstance occurs when a state-law claim is preempted under
section 301 of the LMRA. Id. at 393; see also Goepel v. National
Postal Mail Handlers Union, 36 F.3d 306, 311 (3d Cir. 1994)
(recognizing LMRA preemption), petition for cert. filed, 63
U.S.L.W. 3574 (U.S. Jan. 23, 1995) (No. 94-1258); Railway Labor
Executives Ass'n v. Pittsburgh & Lake Erie R.R., 858 F.2d 936,
941 (3d Cir. 1988) (same).11
Trans Penn contends that plaintiffs' claims in this
case are, in fact, "completely preempted" in this manner,
requiring the district court to retain jurisdiction over the case
because of the implicit federal questions that Trans Penn
believes are raised on the face of the complaint. In answer, we
first discuss the contours of section 301 preemption and then
evaluate whether plaintiffs' claims are, indeed, preempted.
A.
11
. We have discussed elsewhere the contours of the well-
pleaded complaint rule and its corollary principle, the "complete
preemption doctrine," and need not duplicate that discussion
here. See Goepel, 36 F.3d at 310-11; Railway Labor Executives
Ass'n, 858 F.2d at 939-42.
Section 301 of the Labor Management Relations Act
provides for federal jurisdiction over disputes regarding
collective bargaining agreements, and mandates the application of
uniform federal law to resolve such disputes. The statute
provides:
Suits for violation of contracts between an
employer and a labor organization
representing employees in an industry
affecting commerce . . . or between any such
labor organizations, may be brought in any
district court of the United States having
jurisdiction of the parties, without respect
to the amount in controversy or without
regard to the citizenship of the parties.
29 U.S.C. § 185(a). While the provision only explicitly refers
to federal jurisdiction, the Supreme Court has held "that
§ 301(a) is more than jurisdictional--that it authorizes federal
courts to fashion a body of federal law for the enforcement of
these collective bargaining agreements . . . ." Textile Workers
Union of Am. v. Lincoln Mills, 353 U.S. 448, 450-51 (1957)
(footnote omitted). The exclusive application of federal law
serves important national policies: "[Section] 301 mandate[s]
resort to federal rules of law in order to ensure uniform
interpretation of collective-bargaining agreements, and thus to
promote the peaceable, consistent resolution of labor-management
disputes." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 404 (1988) (footnote omitted).
The Supreme Court has set forth a clear "principle of §
301 pre-emption" to guide our inquiry:
[I]f the resolution of a state-law claim
depends upon the meaning of a collective-
bargaining agreement, the application of
state law (which might lead to inconsistent
results since there could be as many state-
law principles as there are States) is pre-
empted and federal labor-law principles--
necessarily uniform throughout the Nation--
must be employed to resolve the dispute.
Id. at 405-06. The preeminence of federal law in interpreting
collective bargaining agreements applies to tort as well as
contract actions. In Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 210-11 (1985), the Court held "the pre-emptive effect of §
301 must extend beyond suits alleging contract violations," to
"questions relating to what the parties to a labor agreement
agreed, and what legal consequences were intended to flow from
breaches of that agreement," whether such questions arise in a
tort or contract suit. Thus, where a plaintiff sued his
employer, Allis-Chalmers, in tort for the bad-faith handling of
his insurance claims and his insurance policy was incorporated by
reference in the collective bargaining agreement between the
plaintiff's union and his employer, the court held section 301
preempted the tort claims. The Court reasoned, "It is a question
of federal contract interpretation whether there was an
obligation under this labor contract to provide the payments in a
timely manner, and, if so, whether Allis-Chalmers' conduct
breached that implied contract provision." Id. at 215.
At the same time, the mere existence of a collective
bargaining agreement does not prevent an individual from bringing
state law claims based on some independent agreement or
obligation. The plaintiffs in Caterpillar had been hired for
positions covered by a collective bargaining agreement but later
assumed management and other positions outside the bargaining
unit. At that time, Caterpillar allegedly made statements to the
plaintiffs guaranteeing their employment, and when it later
downgraded the plaintiffs to unionized positions it assured them
these positions were temporary. When Caterpillar later laid off
the plaintiffs, they sued claiming breach of the individual
employment contracts.
The Supreme Court held "a plaintiff covered by a
collective-bargaining agreement is permitted to assert legal
rights independent of that agreement, including state-law
contract rights, so long as the contract relied upon is not a
collective-bargaining agreement."12 Caterpillar, 482 U.S. at
396. The Court observed the plaintiffs' complaint neither relied
on the collective bargaining agreement indirectly nor addressed
the relationship between the individual contracts and the
agreement. Id. at 395. The Court also noted that individual
12
. The Court had noted this limit on § 301 in Allis-Chalmers:
Of course, not every dispute concerning
employment, or tangentially involving a
provision of a collective-bargaining
agreement, is pre-empted by § 301 or other
provisions of the federal labor law. . . .
[I]t would be inconsistent with congressional
intent under that section to pre-empt state
rules that proscribe conduct, or establish
rights and obligations, independent of a
labor contract.
471 U.S. at 211-212.
employment contracts could not subtract from collective
agreements but they could create additional rights. Id. at 396.
Furthermore, a plaintiff may bring a state law tort
action against an employer, even where he could have brought a
similar claim based on a provision in his collective bargaining
agreement, so long as the state claim does not require
interpretation of the collective bargaining agreement. The tort
claim falls under state law even though the claim based on the
bargaining agreement provision must apply federal law pursuant to
section 301. In Lingle, 486 U.S. at 401, the plaintiff notified
her employer she had been injured in the course of her employment
and requested workers' compensation for medical expenses, but the
employer discharged her for allegedly filing a false worker's
compensation claim. Her union filed a grievance under a
collective bargaining agreement provision protecting employees
from discharge except for "proper" or "just" cause, and she filed
a retaliatory discharge action in an Illinois state court. Id.
at 401-02. The employer removed the action to federal district
court and filed a motion to dismiss the case pursuant to section
301.
The Court held section 301 did not preempt the state
law retaliatory discharge claim because it could be resolved
without interpretation of the collective bargaining agreement.
Id. at 407. The issues raised--whether the employee was
discharged or threatened with discharge to deter her from
exercising her legal rights--were "purely factual questions
pertain[ing] to the conduct of the employee and the conduct and
motivation of the employer." Id. It did not matter, the Court
said, that the claim under the collective bargaining agreement
would involve the same factual issues, for the state law claim
was "`independent' of the collective-bargaining agreement in the
sense of `independent' that matters for § 301 pre-emption
purposes: resolution of the state-law claim does not require
construing the collective-bargaining agreement." Id.
We followed this precedent in Berda v. CBS, Inc., 881
F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990), where
we allowed an employee to bring state contract, promissory
estoppel, and tort claims against his employer based on alleged
misrepresentations made before the employee became a member of
the bargaining unit. Berda, 881 F.2d at 20. The plaintiff
claimed the employer violated its oral promises of job security
by laying him off. We found his claims did not "substantially
depend" on the interpretation of a collective bargaining
agreement. Id. at 25. Rather, they were based on the oral
agreement, which could create rights in addition to those under
the bargaining agreement. We noted that it was of no
significance that the alleged misrepresentations in the oral
statements related to layoffs, and layoffs were referred to in
the bargaining agreement, so long as the plaintiff did not need
to refer to the bargaining agreement in making his claims. Id.
at 27.
B.
We now turn to the employees' particular claims, which
Trans Penn asserts are inextricably intertwined with and
substantially dependent on the terms of the collective bargaining
agreement. At the outset, we reject Trans Penn's general
contention that because the "foundation" of plaintiffs' state
tort and contract claims--job security in the face of layoffs or
discharge--is a mandatory subject of collective bargaining under
federal labor law and is covered in their bargaining agreement,
the claims are preempted.13 The employees have not alleged Trans
13
. Trans Penn seeks support for this proposition in Angst v.
Mack Trucks, Inc., 969 F.2d 1530 (3d Cir. 1992), and Darden v.
United States Steel Corp., 830 F.2d 1116 (11th Cir. 1987).
Neither case, however, does more than apply the standard rule
that § 301 preempts claims either founded directly on rights
created by a collective bargaining agreement or substantially
dependent upon an analysis of a collective bargaining agreement.
Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987).
In Angst, employees brought suit against Mack Trucks
alleging a violation of a "buy-out plan" Mack Trucks and the
employees negotiated as a modification of their collective
bargaining agreement. 969 F.2d at 1535. Because the state law
claims depended on interpretation of the collective bargaining
agreement and its modifications, the claims were preempted by §
301. Id. at 1536-37. While we distinguished Caterpillar and
Berda because "the aggrieved employees [in those cases] were not
represented by a union and thus were not subject to collectively
bargained labor agreements," id. at 1537, we did not indicate
that all claims arising while an individual is subject to a
collective bargaining agreement are preempted by § 301. The tort
claim in Lingle, for example, arose while the employee was
represented by a union, and the collective bargaining agreement
provided her with a grievance procedure to address her claim.
Lingle, 486 U.S. at 401-02.
Similarly, the Darden court found § 301 preemption
after finding the employees' claims required examination of the
collective bargaining agreement. The court noted that "plaintiffs
actually allege a violation of the collective bargaining
agreement in their complaints. Having done so, it is
disingenuous for them now to maintain that their claims are not
'inextricably intertwined with consideration of the terms of the
labor contract.'" Darden, 830 F.2d at 1120 (quoting Allis-
Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985)).
Penn violated the terms and conditions of the collective
bargaining agreement. While the state law claims here relate to
job security, they are grounded in the guarantee given the
employees by Trans Penn.14 The collective bargaining agreement
does not mention the individual employment contracts, nor does
Trans Penn explain how the claims are substantially dependent on
analysis of the collective bargaining agreement. The fact that
job security is addressed in the collective bargaining agreement
is "of no consequence, because [the employees] need not refer to
. . . the collective bargaining agreement in order to make out
[their] claim." Berda, 881 F.2d at 27.
Berda, Caterpillar, and Lingle show that "there is
nothing novel about recognizing that substantive rights in the
labor relations context can exist without interpreting
collective-bargaining agreements." Lingle, 486 U.S. at 411. Our
examination of the employees' contract, fraud, and emotional
distress claims demonstrates they assert substantive rights
independent of the collective bargaining agreement.
14
. We have stated, "[E]mployees who are members of a collective
bargaining unit cannot negotiate individual contracts that are
inconsistent with the . . . collective bargaining agreement."
Malia v. RCA Corp., 794 F.2d 909, 912 (3d Cir. 1986), cert.
denied, 482 U.S. 927 (1987). However, in Malia we held an
employee could sue under state law based on an oral labor
contract he negotiated while a member of a collective bargaining
unit. We stated, "Nothing in the LMRA prevents an individual--
whether that individual is to be newly hired or promoted from a
bargaining unit--from negotiating an employment contract for a
management position." Malia, 794 F.2d at 913. Similarly,
nothing in the LMRA prevents an individual from negotiating a
contract to take effect after the termination of a collective
bargaining agreement.
1. Breach of Contract
The employees charge Trans Penn breached the guarantee
contracts when it dismissed them on October 30, 1991.15 Trans
Penn contends that adjudication of the employees' contract claims
requires an analysis and interpretation of the terms of the
collective bargaining agreement.
The employees may assert legal rights, including state
law contract rights, provided they are independent of the
collective bargaining agreement. Caterpillar, 482 U.S. at 396.
Here, the employees allege Trans Penn violated its duties and
responsibilities under the separate guarantee to provide
continued employment. The duties claimed to be owed to Trans
Penn employees are firmly rooted in the separate guarantee, not
the collective bargaining agreement.
Under Pennsylvania law, "[i]n order to recover for
damages pursuant to a breach of contract, the plaintiff must show
a causal connection between the breach and the loss." Logan v.
Mirror Printing Co., 600 A.2d 225, 226 (Pa. Super. Ct. 1991)
(citing Exton Drive-In, Inc. v. Home Indem. Co., 261 A.2d 319
(Pa. 1969), cert. denied, 400 U.S. 819 (1970)). Where one party
to a contract breaches without any legal justification, the non-
breaching party may receive whatever damages it suffered (unless
15
. The complaint states, "Plaintiffs believe and therefore
aver that their termination from employment with Defendants did
not result from any diminution in Defendants' business sufficient
to justify termination under the terms of the Contract." First
Am. Compl. ¶ 26. The "Contract" refers to the guarantee, not the
collective bargaining agreement.
the contract provides otherwise) if: "(1) [the damages] were such
as would naturally and ordinarily result from the breach, or (2)
[the damages] were reasonably foreseeable and within the
contemplation of the parties at the time they made the contract,
and (3) [the damages] can be proved with reasonable certainty."
Logan, 600 A.2d at 226 (citing Taylor v. Kaufhold, 84 A.2d 347,
351 (Pa. 1951)).
Considering these factors, assessing contract liability
under Pennsylvania law will not require an analysis or
interpretation of the collective bargaining agreement. "Section
301 says nothing about the content or validity of individual
employment contracts." Caterpillar, 482 U.S. at 394. Rather,
these are issues to be resolved under state law.
2. Fraud
Trans Penn insists section 301 preempts the employees'
fraud claims16 because proof of fraud requires clear and
convincing evidence of justifiable reliance by the recipient upon
the misrepresentation. Such an analysis, Trans Penn argues,
requires an interpretation of the collective bargaining agreement
to determine if the employees justifiably relied on
representations guaranteeing job security. We do not agree.
Pennsylvania law requires the plaintiff alleging fraud
to prove the following elements by clear and convincing evidence:
16
. The employees allege, in part, "[Trans Penn] knowing the
same to be false and misleading when made, and never intending to
honor same, . . . intentionally, recklessly, [and] maliciously
. . . represented and promised job security [for the purpose of
inducing the work force to decertify the union]." Id. ¶ 35.
"(1) a misrepresentation; (2) a fraudulent utterance of it; (3)
the maker's intent that the recipient be induced thereby to act;
(4) the recipient's justifiable reliance on the
misrepresentation; and (5) damage to the recipient proximately
caused." Seven v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. Ct.
1992).
We conclude that the employees need not depend on the
collective bargaining agreement to satisfy these elements of
state law fraud. This is not a situation, as in Allis-Chalmers,
where the alleged tort is a violation of duties assumed in the
collective bargaining agreement. 471 U.S. at 215. An
examination of the employer's behavior, motivation, and
statements does not substantially depend upon the terms of the
collective bargaining agreement. The essence of the employees'
case is proof of justifiable reliance on the separate guarantees,
not on the collective bargaining agreements. As in Lingle, 486
U.S. at 407, "[e]ach of these purely factual questions pertains
to the conduct of the employee and the conduct and motivation of
the employer," and may be appropriately resolved under state law.
3. Intentional Infliction of Emotional Distress
Trans Penn maintains resolution of the employees' claim
of intentional infliction of emotional distress requires an
analysis of the collective bargaining agreement because the terms
of that agreement, "which gave the plaintiffs seniority benefits
and protection from arbitrary discharge, provide the context
against which the relative effects of the `Guarantee' and
subsequent layoffs must be measured." Appellants' Br. at 20
(citation omitted). Furthermore, Trans Penn asserts that
assessing the "outrageousness" of these facts requires analysis
of the terms of the collective bargaining agreement.17 Id. We
disagree.
Pennsylvania courts recognize a cause of action under
the Restatement (Second) of Torts section 46 (1965) for the
intentional infliction of emotional distress.18 Field v.
Philadelphia Elec. Co., 565 A.2d 1170, 1183-84 (Pa. Super. Ct.
1989). To prevail, plaintiff must prove defendant, by extreme
and outrageous conduct, intentionally or recklessly caused
plaintiff severe emotional distress. Motheral v. Burkhart, 583
A.2d 1180, 1188 (Pa. Super. Ct. 1990). Liability will be found
only where "the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." Id. (quoting Restatement (Second) of
Torts § 46 cmt. d).
17
. The employees' complaint alleges "the conduct of the
Defendants with respect to this Plaintiff was intentional,
wanton, malicious, reckless and outrageous. As a direct and
proximate result of the conduct . . . this Plaintiff has suffered
great, severe and actual mental distress and chronic depression
. . . ." Id. ¶¶ 47 & 48.
18
. The Restatement provides:
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to another is subject to
liability for such emotional distress, and
if bodily harm to the other results from it,
for such bodily harm.
Restatement (Second) of Torts § 46 (1965).
We fail to see how evaluating Trans Penn's conduct
requires interpretation of the collective bargaining agreement
and substantially depends on its construction. The same is true
for the employees' allegation that they suffered severe mental
distress--the analysis under state law will only focus on Trans
Penn's conduct while inducing the employees to enter into the
"Guarantee" agreement and on the employees' response. This
factual inquiry does not implicate any analysis of terms or
rights created by the collective bargaining agreement. See
Lingle, 486 U.S. at 407.
IV.
Because we conclude that the employees' claims are not
preempted under section 301, we turn to Trans Penn's alternative
argument. Trans Penn characterizes the employees' deletion of
their RICO claims as "forum manipulation" and contends the
district court abused its discretion in remanding back to the
Court of Common Pleas.
It is settled that district courts have discretion to
remand to state court "a removed case involving pendent claims
upon a proper determination that retaining jurisdiction over the
case would be inappropriate." Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 357 (1988). In deciding whether to remand, the
district court should consider what best serves the principles of
economy, convenience, fairness, and comity. Id. Of course, the
district court can consider whether the plaintiff has engaged in
any manipulative tactics. Therefore, an effort by the plaintiff
to manipulate the forum should be considered along with other
factors in the decision whether to remand. Id.
The employees note that they propounded and served
interrogatories and requests for production on the defendants
seeking evidence to substantiate their RICO claims. They say
they withdrew the RICO claims because the responses to these
discovery requests proved inadequate to substantiate these
claims.
The district court held, "Taking into consideration the
values of judicial economy, convenience, fairness and comity, we
do not believe that the present case should remain within our
jurisdiction." McCandless, 840 F. Supp. at 374. The court also
described the employees' assertions as "resulting from what they
perceived as a valid, enforceable employment contract which was
allegedly fraudulent." Id. The district court then concluded,
"This is not an action to challenge the conduct of the employer
to coerce anti-union votes. It is an action for damages for
breach of contract, and therefore, is better suited to be
adjudicated by the Pennsylvania courts." Id.
We believe that the district court acted within its
sound discretion in remanding the case to the state court.
V.
Trans Penn has not demonstrated a clear and
undisputable right to mandamus. Section 301 preempts the
application of state law only if the application substantially
depends on an interpretation of the collective bargaining
agreement. In concluding the employees' claims were not
preempted and remanding them, the district court neither engaged
in the unauthorized use of judicial power nor abused its
discretion. Trans Penn has failed to satisfy the stringent
standard necessary to issue a writ of mandamus.
For the foregoing reasons, we will deny Trans Penn's
petition for a writ of mandamus.