Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 5054 - John F. Grady, Judge.
Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.
PELL, Senior Circuit Judge.
Plaintiff-appellant Mitchell filed a two-count complaint against defendant-appellee Pepsi-Cola Bottlers, Inc. (Pepsi-Cola or Pepsi) in Illinois state court on May 11, 1984, alleging that Pepsi, by its agents, tortiously had procured Mitchell's resignation from employment and had defamed Mitchell. Mitchell amended his complaint on May 18, 1984, to include a third count joining as a defendant Automobile Mechanics Local #701 (the Union). Count III alleged that the Union and Pepsi-Cola had conspired to deprive Mitchell of whatever rights he possessed under a collective bargaining agreement negotiated by the Union and Pepsi-Cola. The Union and Pepsi-Cola thereafter jointly filed, in the United States District Court for the Northern District of Illinois, a petition to remove Mitchell's causes of action to federal court, on the ground that Mitchell's claims arose under section 301 of the Labor Management Relations Act. 29 U.S.C. § 185 (1978). Four days later, Mitchell voluntarily dismissed Count III of his amended complaint, leaving Pepsi-Cola as the sole defendant in the action. Mitchell then filed a motion to remand Counts I and II to Illinois state court. In a memorandum opinion dated October 26, 1984, the district court denied Mitchell's motion to remand, granted summary judgment for Pepsi-Cola on Count I, and dismissed Count II. Mitchell appeals from the district court's action.
Plaintiff Mitchell worked for defendant Pepsi-Cola as a mechanic until May 18, 1982. During his employment, plaintiff was a member of Automobile Mechanics Union #701, and was a beneficiary of a collective bargaining agreement negotiated by the Union and Pepsi-Cola. The collective bargaining agreement prohibited termination of employees without just cause and established a grievance and arbitration procedure for the settlement of employee grievances.
At some point prior to May 18, 1982, Pepsi-Cola transferred Mitchell from its Elk Grove, Illinois, facility to a facility located in Gurnee, Illinois. Mitchell maintains that defendant Pepsi-Cola's agents instructed him at that time to bring certain of defendant's tools to the Gurnee plant. Later, Pepsi-Cola accused Mitchell of stealing the tools. This dispute led to Mitchell's involuntary resignation.
Mitchell contends that Pepsi's conduct in procuring his resignation was fraudulent and coercive, amounting to a tort under Illinois law. Mitchell maintains that Pepsi's agents threatened that Mitchell would never work again unless Mitchell resigned from employment at Pepsi and that they threatened to blackball Mitchell if he sought employment at other plants. Mitchell further contends that Pepsi's agents defamed him in their efforts to procure his resignation.
In accordance with the collective bargaining agreement in force between Pepsi and the Union, Mitchell filed a grievance and requested a hearing to determine the validity of his involuntary resignation. The outcome of that hearing was apparently unfavorable to Mitchell. At oral argument, counsel for Mitchell contended that Mitchell failed to seek further review according to contract procedures because his union steward told him it would be useless to proceed further.
Approximately two year later, Mitchell filed suit in state court against Pepsi, challenging the manner of his termination from employment. One week later, Mitchell joined the Union as a defendant in the action, but later voluntarily dismissed his claims against the Union. Following removal of the action to federal court, on the ground that Mitchell's cause of action arose under 29 U.S.C. § 185 (1978), Pepsi successfully sought dismissal of Mitchell's involuntary resignation claim for failure to exhaust contractual remedies. The district court also dismissed Mitchell's defamation claim without prejudice, declining to exercise jurisdiction over the defamation claim after dismissal of the involuntary resignation claim, and observing that the defamation claim was untimely filed according to Illinois law. Mitchell argues that the district court erroneously exercised removal jurisdiction over his tort claims and contends that the court should have remanded the claims to state court.
II. REMOVAL JURISDICTION AND § 301
According to 28 U.S.C. § 1441(b), "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States [is] removable without regard to the citizenship of the parties." 28 U.S.C. 1441(b) (1973). In other words, a defendant may remove a cause of action presenting a federal question to federal court without regard to diversity of citizenship. In addition, subsection (c) of 28 U.S.C. § 1441 makes clear that a defendant may remove an entire case to federal court whenever a removable claim is joined with one or more otherwise non-removable claims. 28 U.S.C. § 1441(c) (1973).
In this case, defendant Pepsi removed plaintiff's case to federal court on the ground that plaintiff's cause of action for tortious termination of employment arose under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1978). Section 301 confers original jurisdiction on the district courts over suits for violation of collective bargaining agreements negotiated by labor organizations and employers in industries affecting commerce. 29 U.S.C. § 185 (1978). Defendant Pepsi contended that plaintiff's involuntary resignation claim alleged a violation of the collective bargaining agreement in force between Pepsi and the Union, even though plaintiff's complaint did not present explicitly such a theory of recovery. Plaintiff's complaint did allege, however, that plaintiff was a member of the Union at the time Pepsi forced him to resign from employment and that plaintiff possessed rights under a collective bargaining agreement negotiated between defendant and the Union. Plaintiff's short-lived amended complaint alleged that the Union and Pepsi had conspired to deny plaintiff such rights.
After reviewing these allegations in plaintiff's complaint, the district court concluded that the complaint stated a cause of action for violation of a collective bargaining agreement under section 301. We agree. We acknowledge, of course, that whether a complaint presents such a federal question ordinarily depends on the theory of recovery advanced in a plaintiff's well-pleaded complaint. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). We acknowledge, in addition, that a complaint dies not present a federal question merely because it anticipates or elicits a federal defense. Id. at ...