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KENNEDY v. COMMERCIAL CARRIERS

May 25, 1990

CLINTON KENNEDY, DALE LONG, KENNETH H. CHANDLER, and HAROLD SUTPHIN, individually and on behalf of a class of similarly situated persons, Plaintiffs,
v.
COMMERCIAL CARRIERS, INC., a Michigan corporation, Defendant



The opinion of the court was delivered by: GRADY

 JOHN F. GRADY, UNITED STATES DISTRICT JUDGE

 The issue before us is whether defendant properly removed this case. For the reason stated below, we hold that removal was improper.

 BACKGROUND

 Plaintiffs Clinton Kennedy ("Kennedy"), Dale Long ("Long"), Kenneth Chandler ("Chandler"), and Harold Sutphin ("Sutphin") filed this purported class action, for breach of contract and an accounting, in the Circuit Court of Cook County, Illinois. In their state complaint, plaintiffs alleged as follows. Kennedy, Long, Chandler, and Sutphin are, respectively, citizens of Kentucky, Illinois, Tennessee, and Alabama. Defendant Commercial Carriers, Inc. ("Commercial"), a Michigan corporation with its principal place of business in Michigan, transports automobiles as a contract and common carrier. Each of the plaintiffs leased a transport vehicle (a tractor/truck) to Commercial, which used those trucks in its business. Each plaintiff had a separate written lease agreement with Commercial, and each lease required Commercial to pay as rent a percentage of Commercial's gross revenues from loads carried on the lessor's truck. Commercial agreed to pay sixty-five percent of its gross revenues (based upon billings to customers), less certain charges: final delivery charges where the vehicles did not make final delivery; drivers' wages and vacation pay at the union contract rates; and transportation costs attributable to the deliveries.

 Plaintiffs allege that Commercial breached the leases by failing to pay them the proper rents. They claim that Commercial calculated the base rents on something less than its gross revenues. According to plaintiffs, Commercial incorrectly calculated the base rents by deducting "ancillary charges" from its gross billings prior to applying the sixty-five percent rental factor. Plaintiffs assert that Commercial should not have deducted the ancillary charges *fn1" prior to applying the rental factor. Plaintiffs fail, however, to allege any specific amount of damages in their complaint.

 Plaintiffs also seek an accounting. They allege that Commercial's tariffs require it to bill its customers for various surcharges under certain circumstances. Plaintiffs have made numerous demands on Commercial, seeking to inspect Commercial's bills to its customers to determine whether Commercial included any and all surcharges to its customers in the base rents. Plaintiffs maintain that Commercial calculated the rents due based on the presumed billings at the standard vehicle rate, but failed to include the surcharges in the base rents.

 Commercial also maintains this court has federal-question jurisdiction. According to Commercial, during the time periods alleged in the complaint, plaintiffs were members of the Central and Southern Conference of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"), and Commercial had a collective bargaining agreement with the Union which covered the plaintiffs. Commercial claims that the lease agreements between it and plaintiffs Chandler, Long, and Sutphin, respectively, incorporated provisions of the collective bargaining agreement. It maintains that the collective bargaining agreement defines the term "gross revenues," which is an essential compensation term of the lease agreements, and thus plaintiffs' claims are, in reality, claims for breach of the collective bargaining agreement. Commercial insists that it properly removed this case inasmuch as the Labor Management Relations Act ("LMRA") provides jurisdiction over suits alleging violations of collective bargaining agreements. 29 U.S.C. § 185(a).

 Plaintiffs counter that Commercial's grounds for removal are improper. First, plaintiffs maintain that there is no federal-question jurisdiction. Plaintiffs argue that they do not allege a breach of any collective bargaining agreement. Rather, they claim that Commercial breached the lease agreements. Based on the face of their complaint, plaintiffs insist there is no federal-question jurisdiction. Further, plaintiffs assert that Caterpillar, Inc. v. Williams, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987), forecloses Commercial's reliance on federal-question jurisdiction. Second, plaintiffs argue that Commercial failed to make proper allegations of all the necessary elements of diversity jurisdiction. Specifically, plaintiffs maintain that Commercial failed to allege that each plaintiff has an individual claim in excess of the jurisdictional amount of $ 50,000.00.

 Although plaintiffs contest Commercial's grounds for removal, they nonetheless maintain that there is a basis for this court to retain jurisdiction of the entire case based on diversity and the provisions of 28 U.S.C. § 1441(c). Plaintiffs assert that, although the claims of other named plaintiffs and some putative class members may be less than $ 50,000.00, plaintiff Kennedy's claim against Commercial is in excess of $ 50,000.00. Each plaintiff and each class member, they argue, has a separate contract with Commercial and has suffered a separate injury. Thus, plaintiffs contend, the claims of each plaintiff and each class member are separate and independent. Because there is diversity of citizenship between Kennedy and Commercial and the amount in controversy is in excess of $ 50,000.00 and because Kennedy's claim is separate and independent from the other plaintiffs' claims, Kennedy's claim supports removal of the entire case pursuant to 28 U.S.C. § 1441(c), plaintiffs contend.

 DISCUSSION

 The removal statute provides in relevant part:

 
(a) 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 defendants, to the district court of the United States for the ...

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