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DOBIECKI v. CHICAGO OSTEOPATHIC HOSPS. & MED. CTRS

July 13, 1993

BRIAN DOBIECKI, Plaintiff,
v.
CHICAGO OSTEOPATHIC HOSPITALS AND MEDICAL CENTERS, d/b/a Chicago Osteopathic Medical Centers, BEVERLY TUCK, individually and in her capacity as an employee and agent of Chicago Osteopathic Hospitals and Medical Centers, LEONARD SULLIVAN, individually and as an employee and agent of Chicago Osteopathic Hospitals and Medical Centers, STAR INVESTIGATIONS, INC., individually and in its capacity as agent of Chicago Osteopathic Hospitals and Medical Centers and Star Investigations, Inc., GERALD PALACIOS, individually and in his capacity as agent of Chicago Osteopathic Hospitals and Medical Centers, Star Investigations and Investigative Services Bureau, Inc., and INVESTIGATIVE SERVICES BUREAU, INC., Defendants.



The opinion of the court was delivered by: WILLIAM T. HART

 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. *fn1" 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. *fn2" 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 *fn3" 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. *fn4" Plaintiff ...


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