The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is a Report and Recommendation of United
States Magistrate Judge Robert J. Kauffman that Plaintiff's
Motion to Remand [Doc. # 14] be denied, that Defendants'
Motions to Dismiss [Docs. # 6 and # 8] be allowed as to Count
One and denied as to Counts Two and Three, and that the pendant
state law claims alleged in Counts Two and Three be remanded to
the Circuit Court for the Tenth Judicial Circuit, Peoria County
for further proceedings. Defendant Keystone Consolidated
Industries, Inc. ("Keystone") objects to the portion of the
Magistrate Judge's recommendation relating to Counts Two and
Three. Defendants Colleen Walters and Kenneth Schorr ("Walters"
and "Schorr") object to the portion of the Magistrate Judge's
recommendation relating to Counts Two and Three, and his
reliance upon Bushnell v. Caterpillar, Inc., C.D.Ill. 88-1074
(Nov. 21, 1988). The Court, therefore, shall undertake a de
novo determination of those portions of the recommendation to
which objections were made. 28 U.S.C. § 636(b)(1)(C).
The facts pertinent to the motions before the Court are set out
in the report and recommendation and are not disputed by the
parties. Plaintiff is a former employee of Keystone who was
fired as a result of an incident which occurred on October 24,
1992, at Keystone. Plaintiff, although not scheduled to work,
was on Keystone's premises in the early morning hours of
October 24, 1992. At approximately 1:30 a.m. on this day,
Defendant Schorr was working in his capacity as a security
guard at Keystone. At this time, Schorr received an anonymous
call in which the caller stated that Schorr would find
interesting what was occurring in the wire mill foreman's
locker room. Schorr reported this call to his dispatcher,
requested that a second security guard assist him in
investigating the call, and proceeded to the wire mill
foreman's locker room via a patrol vehicle. En route to the
locker room, Schorr received a second call which stated
substantially the same message as the previous call referring
to the locker room. Schorr was joined by Defendant Walters, a
female security guard at Keystone, outside the locker room.
Schorr and Walters entered the locker room, with Schorr leading
the way. Once inside, Schorr and Walters discovered Plaintiff
and a fellow Keystone employee together. Just how together is
Schorr and Walters immediately reported both orally and in
writing to management the events which they observed in the
locker room. Schorr stated that upon entering the locker room,
he observed Plaintiff and a male co-worker having sexual
intercourse on a bench. Schorr stated that a Keystone employee
was lying on his back on a bench and Plaintiff was bouncing up
and down on his penis. Walters stated that upon entering the
locker room, she observed Plaintiff straddling a co-worker who
was lying on his back on a bench. Walters did not state that
Plaintiff was having sex with a fellow employee. As a result of
the incident, Plaintiff was discharged from the employ of
Initially, the Court notes that neither Plaintiff nor
Defendants have objected to the portion of the Magistrate
Judge's report which recommended that Plaintiff's Motion to
Remand [Doc. # 14] be denied. Similarly, neither Plaintiff nor
Defendants have objected to the portion of the Magistrate
Judge's report which recommends that Defendants' Motions to
Dismiss [Docs. # 6 and # 8] be granted as to Count One of the
Complaint. The Court, having reviewed the report and
recommendation and the record in this case, finds that the
Magistrate Judge's recommendation to be well reasoned as to
both Plaintiff's motion to remand and Defendants' motion to
dismiss Count One. Accordingly, the Court adopts the Magistrate
Judge's recommendation in both these regards.
Both Defendant Keystone and Defendants Walters and Schorr have
objected to the Magistrate Judge's Report regarding the issue
of preemption in Counts Two and Three. The Magistrate Judge
found that Plaintiff's claims of defamation in Counts Two and
Three were not preempted by § 301 of the Labor Management
Relations Act ("the LMRA"), 29 U.S.C. § 185. As such, the
Magistrate Judge found that original subject matter
jurisdiction over these counts was lacking and recommended that
supplemental jurisdiction not be exercised and that these
counts be remanded to the state court from whence they came.
The Magistrate Judge, in so finding, cited the unpublished and
unreported case Bushnell v. Caterpillar, Inc., 88-1074
(C.D.Ill. Nov. 21, 1988) authored by District Judge Michael M.
Mihm. The Magistrate Judge found the facts in Bushnell to be
indistinguishable from the present case and, in the absence of
binding precedent from either the Supreme Court or the Seventh
Circuit, recommended that it be followed.
Defendants Schorr and Walters object to the Magistrate Judge's
recommendation by arguing that reliance upon Bushnell was
misplaced, issues involving publication and privilege require
the interpretation of the Collective Bargaining Agreement ("the
CBA"), a number of courts have found that claims of defamation
are preempted by the LMRA, and the Seventh Circuit and the
Supreme Court have found similar torts to be preempted by the
LMRA. Defendant Keystone objects to the Magistrate Judge's
recommendation by arguing that the determination of whether the
individual Defendants were acting within the scope of a
privilege requires the determination of whether they exceeded
the authority and responsibility conferred upon them by
Keystone. Keystone argues that this determination, in turn,
requires a review of the CBA to determine Keystone's authority
to investigate incidents of employee misconduct. Finally,
Keystone points to other courts which have found that
defamation claims are preempted by the LMRA and cases within
the Seventh Circuit which have found certain torts preempted by
the LMRA as persuasive authority for the proposition that
Plaintiff's claims of defamation in the present case are
preempted by the LMRA. Based upon these objections, the Court
shall conduct a de novo review of the Magistrate Judge's
recommendation as it pertains to the Court's subject matter
jurisdiction over Counts Two and Three.
A suit filed in state court may be removed to federal district
court under the authority of 28 U.S.C. § 1441(a) only if the
case could have originally been brought in the federal district
court. Illinois v. KerrMcGee Chemical Corp., 677 F.2d 571,
574 (7th Cir. 1982). A defendant may, pursuant to 28 U.S.C. § 1441(b),
remove a suit which states a claim founded upon a
federal question. Diversity of citizenship is not a concern
when removal is based upon federal question jurisdiction.
Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342, 344 (7th
Cir. 1985) cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89
L.Ed.2d 575 (1986). Defendants have removed the present case to
this Court on the basis of federal question jurisdiction.
Accordingly, the Court must inquire whether the claims set
forth in Counts Two and Three
of the Complaint arise under the Constitution, treaties, or
laws of the United States. The Court notes that "a federal
court may, in some situations, look beyond the face of the
complaint to determine whether a plaintiff has artfully pleaded
her suit so as to couch a federal claim in terms of state law."
Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031,
1038 (7th Cir. 1987) rev'd on other grounds by, 486 U.S. 399,
108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Accordingly, if neither
Count Two nor Three contain a claim presenting a federal
question, the Court is without jurisdiction, and Plaintiff's
motion to remand must be granted.
The Supreme Court stated in Caterpillar v. Williams:
The presence or absence of federal-question jurisdiction is
governed by the "well-pleaded complaint rule," which provides
that federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff's properly pleaded
complaint. The rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.
482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987).
Accordingly, "a case may not be removed to federal court on the
basis of a federal defense, including preemption. . . ." Id.
at 393, 107 S.Ct. at 2430. However, the doctrine of "complete
preemption" holds that:
The preemptive force of a statute [may be] so "extraordinary"
that it "converts an ordinary state common-law complaint into
one stating a federal claim for purposes of the well-pleaded
complaint rule." Once an area of state law has been completely
preempted, any claim purportedly based on that pre-empted state
law is considered, from its inception, a federal claim, and
therefore arises under federal law.
Id. at 393, 107 S.Ct. at 2430 quoting Metropolitan Life Ins.
v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d
55 (1987). The complete preemption doctrine is most often
applied in cases which raise claims preempted by § 301 of the
LMRA. Jackson v. Southern California Gas Co., 881 F.2d 638,
642 (9th Cir. 1989). Federal jurisdiction is provided by § 301
over "[s]uits for violation of contracts between an employer
and a labor organization." 29 U.S.C. § 185(a). In ...