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MCELROY v. SOS INTL.

December 20, 1989

HERBERT McELROY, Plaintiff
v.
SOS INTERNATIONAL, INC. Defendant


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, United States District Judge

 Plaintiff Herbert McElroy originally brought this suit against defendant Strategic Organization Systems Environmental Engineering Division, Inc. ("SOS International") in the Circuit Court of Cook County, Illinois. SOS International removed the action to this court. Now, McElroy has moved to remand the case back to the state court. SOS International, in turn, has moved to dismiss the action for failure to state a claim upon which relief can be granted under Fed.R.Civ.Pro. 12(b)(6), contending that provisions of the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et seq., preempt McElroy's claims.

 This court finds that McElroy's action was properly removed to this court and thus his motion to remand must be denied. Additionally, the court holds that OSHA does not preempt McElroy's claims. Thus, this case should be dismissed without prejudice to its reassertion in the state courts.

 BACKGROUND FACTS

 SOS International employed McElroy as an asbestos worker. (State Complaint at paras. 1-2; First Amended Complaint at para. 1.) In April of 1988 McElroy complained to his supervisor about SOS International's violations of OSHA requirements relating to the removal of asbestos. (State Complaint at paras. 2-3; First Amended Complaint at paras. 5-6.) On April 25, 1988 SOS International fired McElroy in retaliation for his complaints about the OSHA violations. (State Complaint at paras. 8-9; First Amended Complaint at paras. 11-13.)

 On May 8, 1989 McElroy filed this action for retaliatory discharge in the Circuit Court of Cook County, Illinois. A month later SOS International removed this case, claiming that it raised a federal question.

 DISCUSSION

 This court's inquiry is divided into two parts. First, this court must determine whether it has jurisdiction over this action. Since McElroy originally brought his suit in state court, jurisdiction hinges upon whether SOS International properly removed the suit. Only if removal was proper may this court determine the second question -- whether or not federal law preempts McElroy's claims. Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031, 1037 (7th Cir. 1987), rev'd on other grounds, 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988).

 I. SOS International Properly Removed This Action

 McElroy has moved to remand this case back to the state court. SOS International opposes remand, claiming that the case involves a federal question because OSHA provides the only remedy for McElroy's alleged retaliatory discharge.

 The federal removal statute states:

 
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

 28 U.S.C. § 1441(a); see also Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 574 (7th Cir. 1982). A defendant may remove a cause of action presenting a federal question to a federal court regardless of diversity of citizenship. 28 U.S.C. § 1441(b); see also Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342 (7th Cir. 1985).

 To determine whether McElroy's claim arises under federal law this court applies the "well-pleaded complaint rule", which provides that the "federal claim must generally appear on the face of the complaint unaided by any other pleadings, including a removal ...


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