MEMORANDUM OPINION AND ORDER
Plaintiff Brian Dobiecki was employed as a pharmacy technician at defendant Chicago Osteopathic Hospitals and Medical Centers ("Chicago Osteopathic"). Plaintiff was discharged, allegedly because he was stealing controlled and non-controlled drugs. Chicago Osteopathic reported the alleged offense to the local police and Dobiecki was indicted. Also named as defendants in this case are the following persons and entities. Defendant Gerald Palacios is a Forest Preserve District of Cook County sworn police officer. Palacios is also employed by defendant Star Investigations, Inc. ("Star") and defendant Investigative Services Bureau, Inc. ("ISB"). Chicago Osteopathic contracted with Star and ISB to have Palacios investigate Dobiecki. Defendant Beverly Tuck was employed by Chicago Osteopathic as its assistant vice president of administration. Defendant Leonard Sullivan was Chicago Osteopathic's director of safety and security.
Plaintiff contends that defendants falsely accused him of stealing drugs from the pharmacy. He contends that defendants also coerced him into confessing to stealing drugs. He further contends that defendants reported the false allegations to local authorities which resulted in Dobiecki being charged with theft. The charges were subsequently dismissed.
Count I of the complaint is against all defendants and alleges a conspiracy to commit the various state law claims asserted in the complaint.
Count II is a state law claim against all defendants for intimidation and extortion in violation of Ill. Rev. Stat. ch. 38, P 12-6 (1991) (now codified as 720 ILCS 5/12-6 (1993)). Count III is a state law claim for wrongful discharge which is only against Chicago Osteopathic. Count IV is a state law claim for malicious prosecution against all defendants. Count V is a state law claim against all defendants for infliction of emotional distress. Count VI is a state law claim against all defendants except Chicago Osteopathic for interference with the contractual relationship between plaintiff and Chicago Osteopathic. Count VII is a state law claim against all defendants except Chicago Osteopathic for interference with the business relationship between plaintiff and Chicago Osteopathic. Count VIII is only against Palacios. Count VIII is labeled as a "civil rights violation." Plaintiff expressly refers to 42 U.S.C. § 1983, but apparently is also claiming a civil rights violation under state law. The complaint does not specifically label the particular civil rights violations incorporated in Count VIII.
This case was originally filed in the Circuit Court of Cook County, Illinois. Defendants timely removed the case to this court. See generally 28 U.S.C. § 1441 et seq. Defendants claimed two grounds for removal. The federal claim in Count VIII is one ground for removal. It has been clarified, however, that the federal claim is only against Palacios. Defendants also claim that there is removal jurisdiction based on there being a collective bargaining agreement between Chicago Osteopathic and its employees, including Dobiecki. Defendants contend there is removal jurisdiction based on the contract claims being preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See generally Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). In some counts of the complaint, it is expressly alleged that plaintiff had a written contract with Chicago Osteopathic, specifically, the collective bargaining agreement between Chicago Osteopathic and plaintiff's union.
Under the well-pleaded complaint rule, claims cannot be removed on the basis of a federal defense. Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). Preemption is ordinarily a defense that cannot be a basis for federal question removal. Id.; Smith v. Colgate-Palmolive Co., 943 F.2d 764, 769-70 (7th Cir. 1991). A corollary to the well-pleaded complaint rule is the complete preemption doctrine. Under that doctrine, where the preemptive scope of a federal statute is so extraordinary that an ordinary state-law claim is converted into one stating a federal claim, the purported state law claim will be considered a federal claim that is a basis for original jurisdiction. Caterpillar, 482 U.S. at 393 (quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)). This rule can only apply where the area of law has been completely preempted by federal law. Id.; Smith, 943 F.2d at 770. That a state law claim is preempted by § 301 does not mean that federal jurisdiction exists. Caterpillar, 482 U.S. at 398-99; Smith, 943 F.2d at 770.
The complete preemption doctrine only applies to create jurisdiction where the plaintiff, regardless of whether he or she expressly alleges the existence of the collective bargaining agreement, invokes a right created by the collective bargaining agreement. Caterpillar, 482 U.S. at 399.
This case was properly removable because there is a federal claim against Palacios. As long as there is a federal claim against at least one defendant, removal of all claims is permitted. See 28 U.S.C. §§ 1441(b); 1441(c). Therefore, removal of the entire case was permissible even if § 301 preemption was not an additional basis for removal. This court, however, retains the discretion to remand all or some of the claims. 28 U.S.C. § 1441(c); Alber v. Illinois Department of Mental Health & Developmental Disabilities, 786 F. Supp. 1340, 1382-83 (N.D. Ill. 1992); Moralez v. Meat Cutters Local 539, 778 F. Supp. 368, 370 (W.D. Mich. 1991).
Presently pending are defendants' various motions to dismiss and for summary judgment. The federal issues presented should be resolved first. If federal claims remain, then it must be considered whether supplemental jurisdiction over the state law claims should be retained and, if so retained, then the merits of the state law claims must be considered.
On a motion to dismiss, all the well pleaded allegations of the complaint are assumed to be true and all reasonable inferences from the facts alleged are drawn in favor of plaintiff. Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir. 1987). Documents outside the pleadings, including court documents in other cases, may properly be considered if they are documents appropriate for judicial notice. Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir. 1983), cert. denied, 469 U.S. 830, 83 L. Ed. 2d 59, 105 S. Ct. 116 (1984); Green v. Warden, United States Penitentiary, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 77 L. Ed. 2d 1321, 103 S. Ct. 2436 (1983); Garcia v. City of Chicago, 1991 WL 289204 *1-2 (N.D. Ill. Dec. 23, 1991).
The standard applicable to the summary judgment motions is different. On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movants. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).
Palacios moves for summary judgment on Count VIII on the ground that the uncontested facts show that Palacios was not working for the Forest Preserve at the time of the conduct alleged in the complaint. In his affidavit, Palacios concedes that time records indicate that he was on duty at the time of the arrest of plaintiff, but Palacios states that the time records are in error and that he was not actually on duty. On the motion for summary judgment, however, plaintiff's reliance on the authenticated time records creates a factual dispute as to whether Palacios was on duty at the time of the arrest. On defendants' motions for summary judgment, it must be assumed that Palacios was on duty and, therefore, that the state action requirement was satisfied. Also, Palacios's argument that a false arrest claim fails because plaintiff has a remedy in state court is without merit. See Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990); Hood v. City of Chicago, 927 F.2d 312, 314 (7th Cir. 1991); O'Brien v. City of Chicago, 1993 WL 116757 *2 (N.D. Ill. April 15, 1993). The Count VIII claim against Palacios will not be dismissed.
Defendants argue that all the state law claims
are preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See generally Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). It is undisputed that plaintiff's employment was governed by a collective bargaining agreement. Plaintiff filed a grievance as to his dismissal. Plaintiff initially demanded arbitration of his grievance, but subsequently withdrew his demand. The arbitrator, therefore, did not rule on plaintiff's grievance.
Plaintiff concedes that Counts III, VI, and VII are preempted by § 301. The parties dispute whether the intimidation, malicious prosecution, and emotional distress claims are preempted.
Federal law governs the interpretation and construction of collective bargaining agreements and preempts the application of state contract law to such agreements. Lingle, 486 U.S. at 404-06. "If the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles--necessarily uniform throughout the Nation--must be employed to resolve the dispute." Id. at 405-06. Lingle makes clear that a state law claim is only preempted if its resolution requires the interpretation of the collective bargaining agreement. See id. at 407-10. The mere fact that the state law claim may require the resolution of the same factual issues as a federal labor claim is not a basis for holding that the state law claim is preempted. For example, in Lingle it was held that a state law claim for retaliatory discharge was not preempted even though the employees could grieve their discharges under the applicable collective bargaining agreement.
Mere factual overlap is not a basis for preemption. While defendants conclusorily assert that resolution of plaintiff's state law claims would require consideration of the terms of the collective bargaining agreement, they do not explain how that will come about nor do they specifically point to any situation where interpretation of the agreement will be necessary. The claim of malicious prosecution exists independent of the collective bargaining agreement and does not require interpretation of the just cause provision or any other provision of the collective bargaining agreement. The probable cause standard under state law has its own meaning independent of the just cause standard of the collective bargaining agreement.
The malicious prosecution claim is not preempted by § 301. See Johnson v. Anheuser Busch, Inc., 876 F.2d 620, 625 (8th Cir. 1989); Riggs v. Continental Baking Co., 678 F. Supp. 236, 239 (N.D. Cal. 1988); McElroy v. Safeway Stores, Inc., 1990 WL 11606 *6-7 (D. Kan. Jan. 23, 1990). See also Elliott v. Consolidated Rail Corp., 732 F. Supp. 954 (N.D. Ind. 1990) (Railway Labor Act).
Plaintiff's claim of intentional infliction of emotional distress is based on various conduct: (1) Palacios's, Tuck's, and Sullivan's conduct in threatening and forcing plaintiff to resign; (2) the filing of a criminal complaint against plaintiff; (3) the false reporting of the alleged theft to the Illinois Department of Professional Regulation; (4) Palacios's allegedly false testimony during a hearing on a motion to suppress in plaintiff's criminal case; and (5) Chicago Osteopathic's opposition to plaintiff's claim for unemployment benefits. Under Illinois law, conduct will not be found to be outrageous so as to satisfy the elements of an intentional infliction of emotion distress claim where the defendant "has done no more than to insist upon his [or her] legal rights in a permissible way, even though he [or she] is well aware that such insistence is certain to cause emotional distress." Douglas v. American Information Technologies Corp., 877 F.2d 565, 571 (7th Cir. 1989) (quoting Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765, 768, 4 Ill. Dec. 652 (1976)).
The first and fifth sets of conduct listed above involve the grounds for plaintiff's termination. As Lingle makes clear, however, not every claim involving a termination is necessarily preempted. In Lingle, it was unnecessary to consider whether the plaintiffs were properly terminated under their contract, only whether they were terminated in retaliation for filing workers' compensation claims. See Lingle, 486 U.S. at 407. Plaintiff's claim regarding the first and fifth forms of conduct may or may not require consideration of provisions of the contract. Plaintiff does not dispute that he could be discharged for stealing drugs. Instead, he claims there was no factual basis for the accusation that he was stealing drugs. Plaintiff also complains about misrepresentations as to Palacios's employment and Palacios's showing of a gun in an effort to frighten plaintiff. It is possible to resolve factual disputes about these issues without considering the provisions of the collective bargaining agreement. This is not a case like Douglas where it was already evident that issues of justifications for days off and warning provisions under the contract would arise. See Douglas, 877 F.2d at 572. It is unclear what the dispute may be as to opposing plaintiff's unemployment compensation benefits. As for the other three types of conduct, it is not evident that the terms of the collective bargaining agreement are at all relevant to those allegations. While it is possible that terms of the collective bargaining agreement will be pertinent to at least some aspects of the intentional infliction of emotional distress claim, that determination cannot be made in the case's present posture. The claim will not presently be found to be preempted, but denial of dismissal at this time is without prejudice to reconsideration of the issue after the completion of discovery.
Defendants also contend the Count II intimidation claim is preempted. This is a claim for threatening to falsely report plaintiff for theft. The principal issue would appear to be whether defendants knowingly made false reports as to the alleged theft of drugs. This does not appear to be a claim that will require consideration of the terms of the collective bargaining agreement. To the extent later proceedings indicate otherwise, defendants can again raise the issue on an appropriate motion.
Before proceeding further, it should be considered whether this court should retain jurisdiction over this case. Plaintiff has requested that state law claims be remanded. In particular, he wants Counts I and II to be resolved by the state courts because he contends the applicable law has not yet been developed in the Illinois courts. When state law would predominate, the entire case can be remanded to the state court. See 28 U.S.C. § 1441(c); Moralez, 778 F. Supp. at 370. Remaining is a federal claim against one defendant and three state law claims against all six defendants. Given the substantial overlap between the federal claim and the state law claims, which are all based on the same core of facts, it would not be appropriate to simply split off the claims against the five defendants against whom there are no federal claims. Therefore, the choice is either to remain in this court or remand the entire case to the state court. Another consideration is that plaintiff has indicated that he may seek to reallege his wrongful discharge claim as a federal hybrid § 301 claim, claiming breach of the collective bargaining agreement and failure of his union to fairly represent him. A further consideration is the fact that the case of plaintiff's brother is also before this court and, given the similarities between the two cases, judicial economy favors resolving both cases in this court. This court will not remand any aspect of the present case.
Still remaining to be resolved are the challenges to the merits of plaintiff's remaining state law claims. Plaintiff has requested that the conspiracy claims be dismissed without prejudice. Count I will be dismissed without prejudice to plaintiff later moving to reinstate them during the pendency of this case.
Defendants seek to dismiss the malicious prosecution claim. The parties agree that the elements of a malicious prosecution claim are: "1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; 2) the termination of the proceeding in favor of the plaintiff; 3) the absence of probable cause for such proceeding; 4) the presence of malice; and 5) damages resulting to the plaintiff." King v. Avila, 760 F. Supp. 681, 683 (N.D. Ill. 1989). The question raised is whether the termination of plaintiff's criminal case satisfies the second element. The parties provide court records that show plaintiff's confession was suppressed and then the criminal case was stricken from the docket with leave to reinstate. The time for reinstating the case has already run as has the statute of limitations for the criminal charges. Therefore, the case has been terminated. Bryant v. Whalen, 759 F. Supp. 410, 419-20 (N.D. Ill. 1991).
Mere termination, however, is not sufficient to satisfy the second element. The termination of the criminal case must be indicative of innocence. Id. at 419; Joiner v. Benton Community Bank, 82 Ill. 2d 40, 411 N.E.2d 229, 232, 44 Ill. Dec. 260 (1980); Burghardt v. Remiyac, 207 Ill. App. 3d 402, 565 N.E.2d 1049, 1052, 152 Ill. Dec. 367 (2d Dist. 1991); Carlsen v. Village of Oakwood Hills, 164 Ill. App. 3d 396, 517 N.E.2d 1107, 1109, 115 Ill. Dec. 421 (2d Dist. 1987), appeal denied, 119 Ill. 2d 554, 522 N.E.2d 1241, 119 Ill. Dec. 382 (1988); Hajawii v. Venture Stores, Inc., 125 Ill. App. 3d 22, 465 N.E.2d 573, 575, 80 Ill. Dec. 461 (1st Dist. 1984). Where the case is disposed of in a manner that leaves the question of the accused's innocence unresolved, there generally can be no malicious prosecution claim by the accused. Joiner, 411 N.E.2d at 232; Restatement (Second) of Torts § 660 (1977).
Surprisingly, no case has been found from any jurisdiction which addresses the question of whether dismissal of charges following the suppression of evidence can be considered indicative of innocence. Conclusory statements in treatises indicate that dismissals based on suppressions of evidence are not indicative of innocence. See Restatement § 660(b) cmt. d; Prosser & Keeton on the Law of Torts § 119 at 875 (5th ed. 1984). See also Union Oil of California v. Watson, 468 So. 2d 349, 353 n.4 (Fla. Dist. Ct. App.), review denied, 479 So. 2d 119 (Fla. 1985) (dictum).
The Restatement contains the following comment:
. . . If the proceedings have been abandoned however, because evidence has been suppressed by the accused or because of other improper acts done by him or on his behalf for the purpose of preventing a conviction, the abandonment of the proceeding does not amount to a sufficient termination in his favor.