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Tossi v. UNITE HERE Local 1

United States District Court, N.D. Illinois, Eastern Division

December 19, 2016

Dennis Tossi, Plaintiff,
v.
UNITE HERE Local 1, Defendant.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah United States District Judge.

         Dennis Tossi, a patron of Ameristar Casino, brought claims against UNITE HERE Local 1 in the Circuit Court of Cook County for false-light invasion of privacy and intentional infliction of emotional distress arising from the union's alleged conduct toward Tossi's neighbors, employees and customers of his business, and a company consulting for his business. Local 1 removed the action under federal-question jurisdiction, arguing that Tossi's claims are preempted under 29 U.S.C. §§ 158(b)(4) and 187, [1] which allow private suits against labor organizations for secondary boycott activity. Tossi moves to remand. For the following reasons, the motion to remand is denied.

         I. Background

         Dennis Tossi is part owner of Albany Care, an intermediate care facility located in Evanston, Illinois, which is dedicated to treating individuals suffering from chronic mental illnesses. Tossi is a patron of Ameristar Casino, located in East Chicago, Indiana. Ameristar employs unionized workers represented by UNITE HERE Local 1. The union began a boycott of Ameristar when union workers went on strike in March 2015. Tossi alleges that since January 2016, Local 1 has:

• Distributed flyers at the private residences of Tossi's neighbors, which stated that members of the union have not had a fair contract since 2013 and that the affordable family health care plan they had for years was taken away;
• Approached Tossi's neighbors, advised them that he has been “a regular customer of Ameristar and has not signed a pledge to boycott Ameristar, ” and asked “What would you do if it was YOUR family's health insurance?”
• Approached persons and businesses neighboring Albany Care while making similar statements and advising these persons that Tossi “works a neighboring business Albany Care;”
• Approached persons and businesses neighboring Albany Care while making similar statements and advising these persons that Tossi “works a neighboring business Albany Care;”
• Appeared at Albany Care and made similar statements to employees, residents, and visitors;
• Sent letters to Tossi's business partners stating that members of the union have not had a fair contract since 2013 and that the affordable family health care plan they had for years was taken away;
• Appeared at Generations Healthcare Network, a consulting company to Albany Care, and picketed with a sign reading “Tell Dennis Tossi to Boycott Ameristar Casino.” [1-1] ¶ 7.2 Tossi alleges that these actions

[1-1] ¶ 7.[2] Tossi alleges that these actions placed him in a false light by implying that his refusal to boycott Ameristar meant that he did not want its employees to have access to affordable health care, and he alleges that these actions were extreme and outrageous conduct that intentionally inflicted emotional distress. [1-1] ¶¶ 9-16.

         II. Analysis

         Ordinarily, a court must determine the existence of a federal question by examining only the plaintiff's well-pleaded complaint-a federal defense to a state cause of action is typically insufficient to create a federal question, even if the defense relies on the preemptive effect of a federal statute. Smart v. Local 702 Int'l Bhd. of Elec. Workers, 562 F.3d 798, 803 (7th Cir. 2009) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987), Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908), and Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003)). The exception to the well-pleaded complaint rule is the “complete preemption” doctrine, which comes into play when “the preemptive force of a statute is 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.'” Id. (quoting Nelson v. Stewart, 422 ...


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