The opinion of the court was delivered by: Campbell, Chief Judge:
Plaintiffs are presently before the court on motion to remand
this cause back to the state court. (28 U.S.C.A. § 1447(c)). The
cause was originally filed in the Superior Court of Cook County,
Illinois (now the Circuit Court of Illinois, Cook County,
Illinois) and therefrom removed to this court by the defendants.
Defendants, in support of removal and in opposition to the
instant remand motion, argue several grounds upon which they
predicate this court's jurisdiction over the complaint. They
correctly call attention to the fact that the actions alleged in
the complaint took place at a time when the defendant labor union
was involved in union organizing campaign activities directed at
the employer plaintiff's employees. Defendants further reason
that the acts about which plaintiffs complain would, if true,
constitute unfair labor practices. From these premises defendants
conclude that its alleged activities were "* * * within the scope
of supervision exercised by the National Labor Relations Board."
(Defendants' Petition for Removal, par. #1).
Assuming the accuracy of defendants' syllogistic premises and
their resulting broadly stated conclusion, the National Labor
Relations Board, and not this court would have exclusive
jurisdiction over such labor disputes. 29 U.S.C.A.
§ 160; Garner v. Teamsters, Chauffeurs and Helpers Local Union
No. 776 (A.F.L.), 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228;
N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed.
368; N.L.R.B. v. International Union, United Automobile, Aircraft
etc. (C.A.7th Cir.) 194 F.2d 698.
Moreover, defendants contention that labor dispute involvement
deprives the state courts of jurisdiction further serves to
preclude removal jurisdiction in this court. Assuming without
accepting defendants' argument that the state court is and was
without jurisdiction it necessarily must and does follow that
this court is also without jurisdiction. Removal jurisdiction
cannot be equated with original jurisdiction. Jurisdiction on
removal is necessarily derivative; where jurisdiction was
initially lacking in the state court it is equally lacking in the
federal court, Lambert Run Coal Co. v. Baltimore and O.R.R. Co.,
258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671; Venner v. Michigan
Cent. R. Co., 271 U.S. 127, 46 S.Ct. 444, 70 L. Ed. 868. This
result obtains even where, as defendants argue the facts to be
here, the case is one over which the federal courts have
exclusive jurisdiction. General Investment Co. v. Lake Shore &
M.S. Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244.
In its present posture the complaint fails to distinguish
between common law tort allegations and injunctive relief matters
arising out of alleged unfair labor practices. However, this
distinction or failure of distinction has no effect on the
present absence of federal jurisdiction.
To the extent that the complaint can be read as alleging a
common law tort cause of action, notwithstanding the prior
necessary relationship of such action to employer-employee unfair
labor disputes, state courts, or even this court assuming a
proper jurisdictional base such as diversity of citizenship,
would have jurisdiction. United Const. Workers, etc. v. Laburnum
Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025. On the other
hand, to the extent that the complaint alleges and seeks to
enjoin unfair labor practices, not only this but the state court
as well is precluded from exercising jurisdiction. Garner v.
Teamsters, Chauffeurs and Helpers Union, 346 U.S. 485, 74 S.Ct.
161, 98 L.Ed. 228.
The above legal comments, albeit gratuitous, are included
merely to introduce the last of defendants' federal jurisdiction
arguments. In an obvious attempt to avoid the holding in the
United Workers' case wherein the Court specifically acknowledged
state court jurisdiction over common law tort matters
notwithstanding their interdependence upon past labor dispute
matters, defendants now argue that their defenses to the
complaint might require interpretations of the National Labor
As already observed in this Memorandum such interpretations,
where in fact required, are to be made in the first instance by
the National Labor Relations Board and not the district courts.
However, still another more fundamental procedural reason
requires the return of this case to the state court. Since State
Tennessee v. Union and Planters Bank, 152 U.S. 454, 14 S.Ct. 654,
38 L.Ed. 511, an 1894 decision, it has been accepted that removal
jurisdiction cannot be predicated upon a defense based upon
federal law where the complaint itself is essentially
On the basis of the complaint, the removal petition and the
motion to remand it is apparent that the instant case is not one
arising under the Constitution or laws of the United States over
which this court has jurisdiction.
Accordingly, plaintiffs' motion to remand this case to the
appropriate state court from which it was removed is granted
without costs. The Clerk of the Court is directed to prepare and
mail a certified copy of this order of remand to the Clerk of the
Circuit Court of Illinois, Cook County, Illinois.
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