Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 83-672C -- James E. Noland, Judge.
Bauer, Circuit Judge, Pell, Senior Circuit Judge, and Dupree, Senior District Judge.*fn*
DUPREE, Senior District Judge.
In this action filed originally in the Marion County, Indiana Superior Court on April 27, 1983, plaintiff, Dana Oglesby, sought recovery of damages resulting from the termination of his employment by defendant, RCA Corporation, approximately twenty-two months earlier. Pursuant to 28 U.S.C. § 1441 the case was promptly removed by defendant to the United States District Court for the Southern District of Indiana upon allegations that plaintiff's alleged causes of action arose under Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Shortly thereafter plaintiff's motion to remand was denied, defendant's motion for summary judgment was allowed and judgment of dismissal was entered from which plaintiff brought this appeal. Defendant cross-appeals from the denial of its request for an award of attorney's fees pursuant to 28 U.S.C. § 1927. We affirm.
In the first and second counts of his three-count complaint plaintiff alleged in substance that defendant discharged him for refusing to perform an assigned task for which he had not been furnished tools and protective clothing as required by regulations promulgated under the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 654; 29 C.F.R. 1910.132. In the third count it was alleged in substance that plaintiff was discharged in retaliation for having asserted "his statutory rights and privileges." In each count it was alleged that defendant's actions were "intentional, egregious, and exhibited reckless disregard" and that plaintiff had been caused to suffer "loss of wages and other benefits." Actual and punitive damages were sought.
There was no mention in plaintiff's complaint of his membership in a labor union or of a collective bargaining agreement, but in defendant's petition for removal it was alleged that defendant was an employer in an industry affecting commerce; that the terms and conditions of plaintiff's employment were governed by a collective bargaining agreement between RCA and International Brotherhood of Electrical Workers, Local No. 1048; that plaintiff's action was for alleged wrongful discharge; and that since defendant's right to discharge an employee is limited by the agreement to termination for "just cause," the action is in fact "an action by Plaintiff for alleged violation of said agreement." In his motion to remand plaintiff confirmed that RCA was an employer engaged in an industry affecting commerce; that it had a collective bargaining agreement with the union as alleged and that plaintiff was a member of the union. But, protested plaintiff, he is not suing on a contract theory but "on a tort theory for the breach of a statutory duty which caused the plaintiff to refuse an assigned task which resulted in termination of his employment."
The district court, adopting RCA's position that the action was in fact one for wrongful discharge governed by Section 301, LMRA, held that it had been properly removed, and applying the six-month statute of limitations held applicable in such cases in Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983), granted defendant's motion for summary judgment and dismissed the action. Plaintiff concedes that if the action was properly removed, this latter ruling was correct, and so the only issue raised by plaintiff's appeal is whether the district court erred in denying plaintiff's motion to remand the case to the state court.
Under 28 U.S.C. § 1441 any civil action brought in a state court of which the district courts of the United States have original jurisdiction may be removed to the district court for the district and division embracing the place where such action is pending, and where the action is founded on a claim or right arising under the Constitution or laws of the United States it is removable without regard to the citizenship or residence of the parties. To bring a case within the statute the claim or right created by the Constitution or laws of the United States must be an essential element of the plaintiff's cause of action and the subject of a genuine and present controversy. Moreover, the controversy must be revealed in the complaint unaided by the answer or petition for removal. Gully v. First National Bank in Meridian, 299 U.S. 109, 112-114, 81 L. Ed. 70, 57 S. Ct. 96 (1936); Jones v. General Tire & Rubber Company, 541 F.2d 660, 664 (7th Cir. 1976).
If given a literal construction these rules would allow a plaintiff to exercise a veto over a defendant's right of removal by the simple expedient of omitting from his complaint direct reference to those essential elements and indicia of his claim which would serve to identify it as one grounded in federal law. To avoid such result the courts have developed the "artful pleading" doctrine.
The federal claim must generally appear on the face of the complaint, unaided by any other pleadings, including a removal petition. E.g., Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 188, 22 S. Ct. 47, 48, 46 L. Ed. 144 (1901). American Invs-Co. Countryside, Inc. v. Riverdale Bank, 596 F.2d 211 (7th Cir. 1979). A qualification of this so-called "well-pleaded complaint" rule for determining jurisdiction is that a plaintiff may not deny a defendant his right to a federal forum by artfully disguising an essentially federal law claim in terms of state law.
Nuclear Engineering Company, Inc. v. Scott, 660 F.2d 241, 249 (7th Cir. 1981), cert. denied sub. nom, Nuclear Engineering Company, Inc. v. Fahner, 455 U.S. 993, 71 L. Ed. 2d 855, 102 S. Ct. 1622 (1982).
The plaintiff here leaves us with little doubt that he was striving assiduously to allege his claims in terms of state law in order to avoid the certain bar of his federal claims by the statute of limitations.
There is no fraud or attempt to avoid the federal forum present in the instant case. In fact, the plaintiff-appellant-cross-appellee had precluded himself from the federal forum long before the commencement of this suit by missing time limitations and mandatory actions requisite ...