JAMES M MURPHY, Dallas, Texas, Counsel FOR DEFENDANTS: MED-TOX LABORATORIES, INC., THE ADDICARE GROUP OF TEXAS, R. NEIL STOUT, INDIVIDUALLY.
Mr. Kenneth Bruce Chaiken, Dallas, Texas, Counsel for Plaintiff.
Mr. David M. Ellis, Clark, West, Keller, Butler & Ellis, Dallas, Texas, Counsels for Defendant Willamette Industries, Inc.
Before Court is the motion of the plaintiff Anthony Harris ("Harris") to remand this case to the state court from which it was previously removed. For the reasons set forth below, the motion is denied.
This suit involves six state law claims, all relating to the termination of Harris's employment with Willamette Industries ("Willamette") in late 1994.
Willamette employed Harris as a finishing forklift operator and maintained a collective bargaining agreement ("CBA") with Local 895 of the United Paper workers International Union ("union"), of which Harris was a member. Affidavit of Michael Cunningham at 1, attached as Exhibit A to Defendant Willamette's Response to Plaintiff's Motion to Remand ("Response"). In November, 1994, Willamette notified Harris that he would have to undergo drug testing. Plaintiff's Fifth Amended Original Petition ("Fifth Petition") P 8. Before he received his test results, Harris informed Willamette that his test might show traces of marijuana and that he wished to receive Counseling in order to keep his job. Id.
On December 13, 1994, Harris, Willamette and a union representative signed a contract in which Harris agreed to be evaluated by a professional Counselor chosen by Willamette and to submit to random drug testing over a two-year period. Id. P 9; Agreement of Commitment ("AC") PP 1, 5, attached as Exhibit A to Fifth Petition. Willamette referred Harris to a rehabilitation program run by Employee Support Systems Company ("ESSCO"). Fifth Petition P 9. ESSCO sent Harris to The Addicare Group of Texas ("Addicare"), which collected urine samples from him. Id. These samples were analyzed by R. Neil Stout, M.D. ("Stout") at Med-Tox Laboratories, Inc. ("Med-Tox").Id.
In the second sample Stout analyzed, he found a small quantity of opiate, and he reported that Harris had tested positive for heroin use. Id. P 10. Although Harris claimed that he had never used heroin and that the opiate found in his urine likely resulted from the codeine his physician has prescribed for him, Willamette fired him on December 28, 1995. Id. PP 11-13.
On March 15, 1995, Harris filed this suit in a state district court, where the case penned until Harris filed his Fifth Petition on March 21, 1996. That petition added claims against Willamette for breach of contract and wrongful termination, in which Harris alleged that Willamette violated the AC when it fired him. Id. P 38, 41. On April 24, 1996, Willamette removed the case to Court on this basis that Harris's breach of contract and wrongful termination claims involved Willamette's obligations under the CBA and thus presented a federal question under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. SEC. 185. Notice of Removal at 2.
Harris now moves to remand the case on three grounds: (1) that "there exists a question as to whether the removal was untimely"; (2) "it is unclear whether a federal question has been presented"; and (3) the causes of action against Med-Tox, Stout, and Addicare are separate and independent from those against Willamette and do not involve a federal question. Plaintiff's Motion for Remand and Memorandum Brief in Support ("Motion") at 3-8. For the reasons set forth below, Court finds all of these arguments to be without merit.
A. Timeliness of Removal
28 U.S.C. SEC. 1446(b) provides that "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . ."
Harris alleges that Willamette received a copy of the Fifth Petition when James Murphy, Counsel for Med-Tox, Stout and Addicare, delivered it on Saturday, March 23, 1996, to the office of David Ellis ("Ellis"), who represented one of Willamette's corporate officers at a deposition on March 18, 1996. Motion at 3-4. Based on these facts, Harris argues, Willamette's removal of the case on April 24, 1996 was untimely because it occurred more than thirty days after Willamette received the Fifth Petition. Id. Willamette urges Court to reject Harris's position because (1) the version of the Fifth Petition delivered to Ellis was an un-filed draft and thus was not a "pleading"; (2) delivery on Saturday does not constitute "receipt"; and (3) Ellis, and not Willamette, received a copy of the petition. Response at 7.
Court is persuaded by Willamette's arguments. Harris does not dispute the fact that Ellis received a courtesy copy of a petition that had not yet been filed. Such a document, however, is not a "pleading" for purposes of the removal statute's delivery requirement. See Arnold v. Federal Land Bank of Jackson, 747 F. Supp.342, 343-44 (M.D. La. 1990) ("It is clear that the period for removal does not begin running upon the receipt of a mere courtesy copy of the state court petition that is not even filed with the state court."); see also Reece v. Wal-Mart Stores, Inc., 98 F.3d 839, 842 (5th Cir.1996) ("[28 U.S.C. SEC. 1446(b)] expresses a policy preference that removal occur as soon as possible, i.e., within thirty days after the defendant receives a pleading or other paper confirming that a removable case has been filed against it.") (emphasis added); Kerr v. Holland America-Line Westours, Inc., 794 F. Supp.207, 213 n.5 (E.D. Mich. 1992) (holding that formal service is not required to trigger thirty day period but noting that "this analysis. . . does not apply to 'draft pleadings', 'sample' courtesy pleadings, etc. which have not previously been filed with an appropriate state court" before they are provided to defendant).
In addition, Court is not convinced that delivery of the unfilled courtesy copy to Ellis's office on a Saturday constitutes "receipt" under 28 U.S.C. SEC.1446(b). See Tech Hills II Associates v. Phoenix Home Life Mutual Insurance Company, 5 F.3d 963, 968 (6th Cir.1993) ("We hold that delivery at defendant's place of business on a Saturday, when the offices are closed, . . . is not receipt under the removal statute. The removal period was commenced on Monday when the complaint was delivered to and thus, received by. . . [the defendant].") Ellis did not receive the pleading until the next Monday and thus was not on notice until that day of Harris's claims against Willamette. Affidavit of David M. Ellis, Esq. at 1, attached as Exhibit B to Response.
Nor could delivery to Ellis -- even if timely made -- be considered "receipt." The undisputed facts show that defendants' Counsel, not Harris, delivered Courtesy copy to Ellis, who was not at that time authorized to receive service on behalf of or to legally represent Willamette. Id. at 1-2. Ellis's receipt of Courtesy copy, therefore, does not satisfy the removal statute's requirement that the defendant receive notice of plaintiff's claims. See Pochiro v. Prudential Insurance Company of America, 827 F.2d 1246, 1248-49 (9th Cir.1987) (affirming district court's denial of motion to remand where plaintiffs served petition containing removable claims on law firm representing defendant in another action but made no allegation that law firm was authorized to receive service or that defendant had otherwise received copy of the petition); see also Tech Hills II, 5 F.3d at 968 (pleading must be received by agent authorized to accept service of process).
Because Willamette did not receive a copy of a properly filed pleading any earlier than March 25, 1996, the removal of this case on April 24, 1996 was timely.
B. Existence of a Federal Question
Harris contends that because neither his breach of contract nor his wrongful termination claims require interpretation of a collective bargaining agreement, Court is not presented with a federal question under the LMRA. Motion at 4-6.
The Fifth Circuit considered and rejected a similar argument on analogous facts in Thomas v. LTV Corporation, 39 F.3d 611, 618-19 (5th Cir.1994). Thomas involved an attendance probation agreement ("APA") presented to Thomas by a union steward and representatives of LTV Corporation ("LTV") as a result of Thomas's history of absenteeism at LTV. Id. at 614. Thomas's continued employment at LTV was conditioned on his acceptance of the APA, in which Thomas agreed that any unexcused absences would result in his immediate discharge without the benefit of the grievance or arbitration procedures provided by his union's collective bargaining agreement with LTV. Id. The union steward signed the APA. Id.
Court concluded that the APA was not independent of the collective bargaining agreement because it sought to limit or condition the terms of Thomas's employment as set forth in that agreement and because it "is a collectively-bargained instrument, manifesting a disciplinary action taken by LTV for Thomas' poor work attendance." Id. at 618. Relying in large part on evidence showing that the union steward participated in presenting the APA to Thomas and that the APA "was negotiated and entered into by LTV, the [union], and Thomas[,]" Court held that the APA "may be properly described as a collectively-bargained instrument and should be analyzed for preemption purposes just as if it was a CBA." Id. at 618-19.
Although the AC here addresses drug use and not absenteeism, it and the circumstances surrounding its execution are virtually indistinguishable from the APA in Thomas. Like the APA, the AC requires Harris to abide by set conditions in order to continue his employment and provides for his immediate termination if those conditions are not met. While the AC does not so state explicitly, it limits the applicability of the CBA because it authorizes Harris's discharge under certain circumstances without resort to CBA procedures that would otherwise be applicable. Finally, the union's involvement in negotiating and endorsing the AC is evidenced by the fact that its representative both signed the AC and attended the meeting at which it was presented to Harris.
Accordingly, Court concludes that the AC should be analyzed as if it were a collective bargaining agreement. Willamette's removal of this case -- on the ground that Harris's claims based on the AC would require application of the LMRA -- was therefore proper.
Because Harris's breach of contract and wrongful termination claims against Willamette involve questions of federal law, and because Willamette's removal to this court was timely under 28 U.S.C. SEC . 1446(b), Harris's motion to remand the case is DENIED. Harris's alternative motion to remand his negligence, gross negligence, defamation and negligent misrepresentation claims against Addicare, Stout and MedTox is also DENIED. See 28 U.S.C. SEC. 1441(c).