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ANGONE v. 990 LAKE SHORE DRIVE HOME OWNERS ASSN.

October 14, 1994

JOHN ANGONE, Plaintiff,
v.
990 LAKE SHORE DRIVE HOME OWNERS ASSOCIATION, INC., THE HOME INSURANCE COMPANY and EVA DIOSSY, Defendants.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Before the court is plaintiff John Angone's Motion for Remand to State Court.

 I. INTRODUCTION

 Defendants removed this case from the Circuit Court of Cook County, Illinois, to this court. Counts I (Retaliatory Discharge) and II (Conspiracy to Discharge) were removed on the basis of federal question jurisdiction, grounded in preemption by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1144, and by the labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. Count III (Libel) is asserted to be otherwise removable under 28 U.S.C. § 1441(c).

 Plaintiff now moves for remand. Plaintiff's motion raises two issues: (1) whether the case is non-removable under 28 U.S.C. § 1445(c) as a civil action arising under the workers' compensation laws of Illinois; and (2) whether federal preemption truly operates here, raising the question of federal subject-matter jurisdiction in general.

 The court considers first the Section 1445(c) issue, and then the issue of whether federal subject-matter jurisdiction exists.

 II. SECTION 1445(c)

 28 U.S.C. § 1445(c) directs that a civil action in state court arising under the workers' compensation laws of that state may not be removed to federal court. Section 1445(c) is put at issue here because the claimed retaliatory discharge is allegedly in retaliation for the filing of a workers' compensation claim. So, does such a retaliatory discharge claim arise under Illinois workers' compensation laws for purposes of Section 1445(c)?

 The Seventh Circuit in Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994), has answered that it does not. "That workers' compensation law is a premise of the [retaliatory discharge] tort does not mean that the tort 'arises under' the workers' compensation laws." Id. at 725. Plaintiff argues that Spearman is in conflict with the superior authority of Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988). The Spearman court interpreted a possible ambiguity in the Lingle Supreme Court opinion by holding that Lingle did not alter the Seventh Circuit's Section 1445(c) holdings. The Seventh Circuit having made that much clear, the result in this case is easily reached: plaintiff's cause of action does not arise under state workers' compensation law, and therefore Section 1445(c) does not render the case non-removable.

 III. SUBJECT-MATTER JURISDICTION

 Passing Section 1445(c), of course, does not resolve the larger subject-matter jurisdiction question. Defendant claims federal question jurisdiction based on preemption by the LMRA and ERISA, each considered separately.

 A. LMRA Preemption

 There are two separate disputes here regarding two different counts: Count I, alleging straight retaliatory discharge, and Count II, ...


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