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EVANS v. KEYSTONE CONSOL. INDUSTRIES

May 4, 1995

CYNTHIA G. EVANS, PLAINTIFF,
v.
KEYSTONE CONSOLIDATED INDUSTRIES, INC., A DELAWARE CORPORATION, DOING BUSINESS UNDER THE NAME OF KEYSTONE STEEL & WIRE COMPANY; AND COLLEEN WALTERS AND KENNETH SCHORR, INDIVIDUALLY AND AS EMPLOYEES AND AGENTS OF KEYSTONE CONSOLIDATED INDUSTRIES, INC., DEFENDANTS.



The opinion of the court was delivered by: McDADE, District Judge.

  ORDER

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 disputed.

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 Keystone.

Plaintiff vehemently denies having sex in the locker room and filed the present case in response to her being discharged. Plaintiff filed her three-count Complaint in state court. Count One claims that Keystone breached its employment contract with Plaintiff. Count Two states a claim for defamation against Schorr and Walters based upon the oral and written assertions they made concerning the October 24, 1992, incident in the locker room. Count Three states a claim for defamation against Keystone for the statements of Schorr and Walters based upon a respondeat superior theory. Defendants removed the case to this court arguing the existence of federal question jurisdiction. Plaintiff filed a motion to remand the case to state court. Defendants filed motions to dismiss all three counts of the Complaint. These motions are now before the Court via the report and recommendation of the Magistrate Judge.

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 ...


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