# Badalato v. Wish to Give Production LLC

> District Court, E.D. North Carolina · August 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10250601

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** August 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10250601

## How later opinions describe it (automated extraction)

- noting that plaintiff “emphatically represented that his claims were based solely on the West Virginia Human Rights Act and the West Virginia Workers’ Compensation Act and that he had no intention of 12 referring to the CBA”
- recognizing the court’s “duty to construe removal jurisdiction strictly and resolve doubts in favor of remand”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:19-CV-66-FL
WILLIAM F. (BILLY) BADALATO, )
)
Plaintiff, )
)
v. )
) ORDER
WISH TO GIVE PRODUCTION, LLC; )
16:14 ENTERTAINMENT INC.; )
INTERNATIONAL ALLIANCE OF )
THEATRICAL STAGE EMPLOYEES, )
MOVING PICTURE TECHNICIANS, )
ARTISTS AND ALLIED CRAFTS OF )
THE UNITED STATES ITS )
TERRITORIES AND CANADA, )
AFL-CIO, CLC; IATSE LOCAL 491; )
SCOTT D. HARBINSON; VAL T. HILL; )
YALE BADIK; STEVEN P. WEGNER, )
)
Defendants. )
This matter is before the court on plaintiff’s motion to remand (DE 28) and motion to dismiss
counterclaims for failure to state a claim (DE 43). Also before the court are a motion to transfer
venue by defendants 16:14 Entertainment Inc. (“16:14”), Yale Badik (“Badik”), Val T. Hill (“Hill”),
Steven P. Wegner (“Wegner”) and Wish to Give Production, LLC (“WTGP”) (DE 32); and a motion
to dismiss for lack of jurisdiction and failure to state a claim by defendants Scott D. Harbinson,
IATSE Local 491, International Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United States Its Territories and Canada, AFL-CIO,
CLC (“IATSE”) (collectively, “union defendants”) (DE 37). The issues raised have been fully
briefed and are ripe for ruling. For the following reasons, plaintiff’s motion to remand is granted
and the court leaves the remaining motions for further proceedings in state court.
STATEMENT OF THE CASE
Plaintiff, a resident of Los Angeles, California, commenced this action in New Hanover
County Superior Court by complaint filed February 6, 2019, asserting claims against defendants

arising out of an alleged employment contract between plaintiff and defendant WTGP for work
performed as “Executive Producer” on a film called “Hope’s Wish” to be filmed on location in
Charlotte, North Carolina. (Compl. ¶¶ 13, 29). Plaintiff asserts state law claims for unpaid wages,
tortious interference with contract, civil conspiracy, defamation, actual fraud, wrongful termination,
and unfair and deceptive trade practices.
Plaintiff’s claims are based on the assertion that the union defendants interfered with the
alleged employment contract between plaintiff and WTGP, defendant Wegner made defamatory
statements, defendants Hill and Badik made false representations, WTGP wrongfully terminated him

and failed to pay wages due, and union defendants, Hill, Badik, and WTGP engaged in unfair and
deceptive trade practices. Plaintiff seeks compensatory, punitive, and trebled damages.
Defendant WTGP noticed removal on March 29, 2019, asserting federal subject matter
jurisdiction on the basis that plaintiff’s claims are completely preempted by Section 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Defendant WTGP asserts that
plaintiff’s claims necessitate the interpretation of provisions of a collective bargaining agreement
governing plaintiff’s work with WTGP.
Plaintiff filed the instant motion to remand on April 23, 2019, relying on his declaration and

2
excerpts of a “Directors Guild of America [‘DGA’] Basic Agreement of 2014.” (DE 29-2 at 2).1
Defendants Hill, Badik, Wegner, 16:14 and WTGP, filed an answer and counterclaims, on
April 26, 2019, along with the instant motion to transfer venue to the United States District Court
for the Central District of California. In support of the motion to transfer, these defendants rely upon

declarations of Badik, Hill, and their counsel. That same date, the union defendants filed the instant
motion to dismiss, relying upon a declaration of Adrian Healy, associate counsel for IATSE.
Defendant WTGP responded in opposition to plaintiff’s motion to remand, relying on a
declaration of Alan M. Brunswick (“Brunswick”), counsel for defendant WTGP, with reference to
correspondence between him and the Directors Guild of America, Inc (“DGA”). Defendant WTGP
also relies upon a declaration of defendant Badik, referencing the following documents: 1) a “Letter
of Adherence” executed by DGA and Badik for WTGP; 2) documents pertaining to plaintiff’s work
for WTGP; and 3) excerpts of the DGA “Basic Agreement of 2014.”
Plaintiff filed the instant motion to dismiss counterclaims of the union defendants, as well

as a response in opposition to the union defendants’ motion to dismiss, on May 17, 2019. That same
date, plaintiff responded in opposition to the motion to transfer venue, relying upon his declaration.
Plaintiff thereafter filed a reply in support of his motion to remand, relying upon his additional
declaration.
Defendants WTGP, 16:14, Badik, Hill, and Wegner, replied in support of their motion to
transfer, relying upon a letter from counsel for plaintiff listing witnesses. That same date, the union
defendants replied in support of their motion to dismiss. Defendants WTGP, 16:14, Badik, Hill, and

1 Throughout this order, unless otherwise specified, page numbers in citations to documents in the record
are to the page number specified in the court’s Electronic Case Filing (ECF) system, and not to the page number, if any,
specified on the face of the underlying document.
3
Wegner, thereafter responded in opposition to plaintiff’s motion to dismiss counterclaims relying
upon a second declaration of Brunswick, attaching additional excerpts of the DGA “Basic
Agreement of 2014.” (DE 52-1). Finally, on June 21, 2019, plaintiff replied in support of his
motion to dismiss counterclaims.

STATEMENT OF FACTS
The facts alleged in the complaint may be summarized as follows.
In April 2017, plaintiff, who had worked previously as a “production manager” and an
“assistant to a producer” on prior films, “was approached regarding a potential role as Executive
Producer of the film ‘Hope’s Wish’ (the ‘Film’), to be filmed in 2018 on location in Charlotte, North
Carolina and to star Queen Latifah.” (Compl. ¶¶ 12-13). Defendants Hill, Badik, and Wegner “were
three of the Film’s producers.” (Id. ¶ 13). “Throughout the remainder of 2017, [plaintiff] worked
in furtherance of the Film, awaiting funding of the Film before joining the venture as an employee.”

(Id.). “It was understood and agreed that, partially in exchange for his services to the venture in this
prefunding stage, [plaintiff] would be named Executive Producer of the Film after funding had been
secured and that his compensation as Executive Producer would reflect the value of the services
rendered in the pre-funding stage.” (Id.).
On January 22, 2018, plaintiff attended a meeting with defendants Hill, Badik, and Wegner.
During the meeting, defendants Hill and Badik “stated that the Film had secured full funding, in an
amount in excess of $20 million, and that the funds were fully in place and available for the Film.”
(Id. ¶ 14). Defendants Hill and Badik further “stated that, because they had secured full funding for
the Film, they were ‘green-lighting’ the Film.” (Id.). According to plaintiff, “[i]n the entertainment

industry, ‘green-lighting’ is a term that refers to a preproduction stage in which offices are opened,
4
stages rented, and crew hired to produce the Film.” (Id.). “Green-lighting marks the point at which
money on a film can be spent and thus only occurs once there has been a funding commitment.”
(Id.).
According to plaintiff, in reliance on the representations by defendants Hill and Badik

described in the preceding paragraph, plaintiff “agreed to join the venture as an employee, serving
as Executive Producer of the Film.” (Id. ¶ 15). Plaintiff’s “first date of employment was January
22, 2018.” Plaintiff “would not have agreed to be an employee of the venture, would not have agreed
to serve as Executive Producer of the Film, and would not have elected to forgo other valuable
business opportunities had he known that full funding for the Film had not in fact been secured.”
(Id.). “During his period of employment with the venture, [plaintiff] was employed first by
[d]efendant 16:14 and, subsequently, by [defendant WTGP].” (Id. ¶ 16).
“In his role as Executive Producer, [plaintiff] was tasked, in part, with the recruitment and
management of the Film’s crew.” (Id. ¶ 17). “At all times during his service as Executive Producer,

[plaintiff] acted upon the direction of the Film’s producer.” (Id.). “On March 7, 2018, the venture’s
accountant informed [plaintiff] that the venture did not have funds with which to pay the crew, who
were due to be paid.” (Id.). On March 8, 2018, and again on March 9, 2018, defendants Hill and
Badik “reassured [plaintiff] that ‘financing was intact,’ that this was a ‘banking error,’ that this was
a temporary situation, and that the Film was still fully funded.” (Id.). According to plaintiff, “[i]n
reliance on these representations, plaintiff continued as Executive Producer of the Film and, on
March 9, 2018, called a meeting of some of the crew and informed them that . . . checks would be
available for pick-up as soon as the issues had been resolved.” (Id.).

Plaintiff “did not know, and did not learn until later, that the producers had not secured full
5
funding for the film and that the representations made” to plaintiff by defendants Hill and Badik
regarding funding were, allegedly, in fact false. (Id. ¶ 18). According to the complaint, “during the
second week of March 2018, defendant Harbison, acting as an agent for [the union defendants], told
defendant Hill and/or the Film’s other producers, that IATSE would not permit its members to work

on the Film unless [plaintiff] was terminated as the Film’s Executive Producer.” (Compl. ¶ 19). In
addition, according to the complaint, “Kelly Boudreaux, an agent or employee of [defendant IATSE
Local 491], informed members of IATSE [that it was] forcing the producers to remove [plaintiff]
as Executive Producer on the Film and instructed those members (and employees on the Film) not
to return [plaintiff’s] calls.” (Id. ¶ 19).
“On March 13, 2018, [plaintiff] was terminated from his employment as Executive Producer
of the Film.” (Id. ¶ 20). According to the complaint, “[w]hen [plaintiff] asked why he was being
terminated, [defendant Hill] admitted that the reason for the termination was that ‘The unions won’t
work with us if you are on the film.’” (Id.). “When [plaintiff] complained that this was illegal,”

defendant Hill allegedly responded: “‘We know but the Unions said we need to fire you or they
won’t make a deal with us and we can’t make the film.’” (Id.). According to the complaint,
defendants Harbinson and IATSE “had longstanding animus and hostility towards” plaintiff, dating
to an incident in 2013 when plaintiff “did not take steps to secure a union crew” on another film.
(Id. ¶ 21).
According to the complaint, following plaintiff’s termination, defendant Wegner, “acting
both for himself and as an agent of [defendant WTGP], initiated a campaign to defame [plaintiff]
and impugn his business reputation.” (Id. ¶ 24). “Defendant [Wegner] made false statements about

[plaintiff] to third-parties, including: a. That [plaintiff] had been terminated for dereliction of duty;
6
b. That [plaintiff] had not engaged with IATSE; and c. That [plaintiff] had caused ‘a million dollars
in damages’ to the venture.” (Id.). Defendants WTGP and 16:14 allegedly “continue to owe unpaid
wages to [plaintiff] for his services as Executive Producer, in an amount totaling $54,900.” (Id. ¶
25).

COURT’S DISCUSSION
A. Motion to Remand (DE 28)
1. Standard of Review
In a case removed from state court, “[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”
Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994). “Because removal
jurisdiction raises significant federalism concerns, [the court] must strictly construe removal

jurisdiction.” Id. “If federal jurisdiction is doubtful, a remand is necessary.” Id.; see Palisades
Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008) (recognizing the court’s “duty to
construe removal jurisdiction strictly and resolve doubts in favor of remand”).
2. Analysis
Defendant WTGP bases removal on complete preemption, principles of which the court sets
forth below, followed by application to the instant case.
“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.” Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987) (quoting Gully v. First National Bank, 299 U.S. 109, 112–113 (1936)).
7
“The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law.” Id. “[A] case may not be removed to federal court on the basis of
a federal defense, including the defense of pre-emption, even if the defense is anticipated in the
plaintiff’s complaint, and even if both parties concede that the federal defense is the only question

truly at issue.” Id. at 393.
“There does exist, however, an ‘independent corollary’ to the well-pleaded complaint rule,
known as the ‘complete pre-emption’ doctrine.” Id. (quoting Franchise Tax Board of Cal. v.
Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 22 (1983)). “On occasion, the
[United States Supreme] Court has concluded that the pre-emptive 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 Metropolitan Life Insurance
Co. v. Taylor, 481 U.S. 58, 65 (1987)).
“The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily

in cases raising claims pre-empted by § 301 of the LMRA,” id., which provides: “Suits for violation
of contracts between an employer and a labor organization representing employees in an industry
affecting commerce as defined in this chapter, or between any such labor organizations, may be
brought in” federal court. 29 U.S.C. § 185(a). “[T]he pre-emptive force of § 301 is so powerful
as to displace entirely any state cause of action ‘for violation of contracts between an employer and
a labor organization.’” Franchise Tax Board, 463 U.S., at 23 (quoting 29 U.S.C. § 185(a)). “Any
such suit is purely a creature of federal law, notwithstanding the fact that state law would provide
a cause of action in the absence of § 301.” Id.

“Section 301 not only provides federal courts with jurisdiction over employment disputes
8
covered by collective bargaining agreements, but also directs federal courts to fashion a body of
federal common law to resolve such disputes.” McCormick v. AT & T Techs., Inc., 934 F.2d 531,
534 (4th Cir. 1991) (en banc). “Section 301 governs claims founded directly on rights created by
collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a

collective-bargaining agreement.’” Caterpillar, 482 U.S. at 394 (quoting Electrical Workers v.
Hechler, 481 U.S. 851, 859, n. 3 (1987)). Complete preemption “occur[s] when resolution of a state
claim ‘is inextricably intertwined with consideration of the terms of the labor contract.’” Davis v.
Bell Atl.-W. Virginia, Inc., 110 F.3d 245, 247–48 (4th Cir. 1997) (quoting Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 213 (1985)).
Nevertheless, “[c]laims bearing no relationship to a collective-bargaining agreement beyond
the fact that they are asserted by an individual covered by such an agreement are simply not
pre-empted by § 301.” Caterpillar, 482 U.S. at 397 n. 10. “[I]f an employer wishes to dispute the
continued legality or viability of a pre-existing individual employment contract because an employee

has taken a position covered by a collective agreement, it may raise this question in state court.” Id.
at 397. “It is true that when a defense to a state claim is based on the terms of a
collective-bargaining agreement, the state court will have to interpret that agreement to decide
whether the state claim survives.” Id. at 398. “But the presence of a federal question, even a § 301
question, in a defensive argument does not overcome the paramount policies embodied in the
well-pleaded complaint rule—that the plaintiff is the master of the complaint, that a federal question
must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on
federal law, choose to have the cause heard in state court.” Id. at 398-99.

Here, plaintiff’s action is not completely preempted by the LMRA because plaintiff does not
9
claim a “violation of [a] contract[] between an employer and a labor organization.” 29 U.S.C. §
185(a). None of plaintiff’s claims are “founded directly on rights created by a collective-bargaining
agreement[],” “substantially dependent on analysis of a collective-bargaining agreement,” or are
“inextricably intertwined with consideration of the terms of” a collective bargaining agreement.

Caterpillar, 482 U.S. at 394; Allis-Chalmers, 471 U.S. at 213.
Plaintiff’s claims rely, instead, upon an alleged contract for employment with defendants
16:14 and WTGP for plaintiff’s services as “Executive Producer,” and termination from the position
of “Executive Producer.” (Compl. ¶¶ 13, 15, 20, 25, 29). Plaintiff does not rely upon terms of a
collective bargaining agreement or invoke rights that arise from a collective bargaining agreement.
Plaintiff has chosen to limit his claims to the type of contract he alleges in the complaint, limited to
relief sought for work performed solely in the capacity as “Executive Producer” of the film. (See
id.). That choice limits the scope of plaintiff’s claims and precludes application of the complete
preemption doctrine in the instant case. Absent complete preemption, plaintiff’s action premised

upon state law must be remanded to state court. See Caterpillar, 482 U.S. at 399.
Defendant WTGP raises several arguments in support of its position that plaintiff’s claims
are preempted, all of which are unavailing. Defendant WTGP argues that a collective bargaining
agreement (“CBA”) between WTGP and the DGA “governed the working relationship of all
directors, assistant directors, and unit production managers working with WTGP on its film,”
including plaintiff. (Notice of Removal (DE 1) ¶ 9 (citing Brunswick Decl. ¶ 3)). Plaintiff,
however, does not assert claims based upon his work as a director, assistant director, or unit
production manager, but rather solely asserts claims based upon his work as “Executive Producer.”

(Compl. ¶¶ 13, 15, 20, 25, 29). The fact that plaintiff may have worked in a position of unit
10
production manager, and that such position may have been covered by the CBA, while plaintiff was
also covered by an alleged agreement for work as “Executive Producer,”2 is “irrelevant to the
removal question.” Caterpillar, 482 U.S. at 398 n. 12. Defendants may wish to advance numerous
limitations and defenses to these claims due to the terms of the CBA. But plaintiff’s claims

grounded solely in an Executive Producer position, and alleged agreement therefor, are what “the
plaintiff has chosen to plead,” and plaintiff “may, by eschewing claims based on federal law, choose
to have the cause heard in state court.” Caterpillar, 482 U.S. at 399 (emphasis in original).
In this manner, the Caterpillar case is informative, where the defendant’s “basic error [was]
its failure to recognize that a plaintiff covered by a collective-bargaining agreement is permitted to
assert legal rights independent of that agreement, including state-law contract rights, so long as the
contract relied upon is not a collective-bargaining agreement.” 482 U.S. at 396. The same can be
said here, where defendant WTGP seeks to transform plaintiff’s claims arising out of an alleged
separate employment agreement into ones arising out of a collective bargaining agreement.

Defendant WTGP argues that plaintiff’s alleged role as “Executive Producer” is without any
substance, and that plaintiff “was expected to receive a ‘vanity’ on-screen credit of ‘Executive
Producer’ as a benefit of his position as the Unit Production Manager (‘UPM’)” of the film. (Resp.
(DE 40) at 5; Badik Decl. (DE 42) ¶ 3). Defendant notes that many of the purported Executive
Producer duties claimed by plaintiff fall within the UPM duties set forth in the CBA. (See Resp.
(DE 40) at 20-21). This argument, however, goes squarely to the ultimate merits of plaintiff’s
claims and defendant’s defenses, drawing inferences in the light most favorable to defendant. As

2 Plaintiff disputes that his position as a unit production manager was even covered by the CBA, because
defendant WTGP did not execute the CBA until after plaintiff was terminated. The court need not and should not resolve
this dispute for purposes of complete preemption analysis. See Caterpillar, 482 U.S. at 398 n.13 (“We intimate no view
on the merits of . . . questions that must be addressed in the first instance by the state court.”).
11
such it “impermissibly attempts to create the prerequisites to removal by ignoring the set of facts
(i.e., the individual employment contract[]) presented by [plaintiff], along with [its] legal
characterization of those facts, and arguing that there are different facts [plaintiff] might have
alleged that would have constituted a federal claim.” Caterpillar, 482 U.S. at 396-97.

Defendant WTGP asserts that plaintiff drafted “numerous contemporaneous documents,”
which defendant contends “irrefutably demonstrate” his employment, termination, and all related
claims are “inextricably intertwined with, and require the interpretation of,” the CBA. (Resp. (DE
40) at 6). Defendant points out that the Film’s budget, weekly time cards, salary worksheet, and deal
memo, all state that plaintiff’s total compensation for all services rendered was governed by the
CBA. (Id. at 18). These arguments, however, again pertain to the merits of plaintiff’s claims. If it
is true that all documents and evidence pertaining to plaintiff’s work requires all terms to be
governed by the CBA, and leaves no room for any separate agreement regarding plaintiff’s
Executive Producer position, then defendant WTGP may prevail on the merits. But, these are not

the facts alleged in the complaint. Plaintiff alleges expressly that a “valid contract existed between
[plaintiff] and defendant [WTGP] pursuant to which [plaintiff] was employed by [WTGP] to serve
as Executor Producer on the film.” (Compl. ¶ 29). Plaintiff asserts that he agreed with WTGP that
“his compensation as Executive Producer would reflect the value of the services rendered in the pre-
funding stage” of the film. (Id. ¶ 13). Albeit potentially at his own peril on the merits, plaintiff is
entitled to limit the source of his contractual and tort claims, thereby precluding federal jurisdiction
over his claims. See, e.g., Harless v. CSX Hotels, Inc., 389 F.3d 444, 449 (4th Cir. 2004) (noting that
plaintiff “emphatically represented that his claims were based solely on the West Virginia Human

Rights Act and the West Virginia Workers’ Compensation Act and that he had no intention of
12
referring to the CBA”).
Defendant WTGP also points out that plaintiff lodged a grievance with the DGA, and
reached a negotiated settlement with DGA, for unpaid wages. (Resp. (DE 40) at 19). Critically,
however, “it is the legal character of a claim, as independent of rights under the

collective-bargaining agreement, (and not whether a grievance arising from precisely the same set
of facts could be pursued) that decides whether a state cause of action may go forward.” Livadas
v. Bradshaw, 512 U.S. 107, 123–24 (1994) (internal quotations omitted). Thus, the fact that plaintiff
pursued a grievance concerning one aspect of his employment with defendant WTGP, does not
transform plaintiff’s state law claims into federal claims under the LMRA. In any event, where
plaintiff alleges claims arising out of a separate employment agreement, the availability or pursuit
of grievance procedures under the CBA is irrelevant. See Caterpillar, 482 U.S. at 399 n. 15 (noting
employer’s “argument presumes that [plaintiff’s] claims are arbitrable, when, in fact, they are
alleged to grow out of individual employment contracts to which the grievance-arbitration

procedures in the collective-bargaining agreement have no application”).
Defendant WTGP argues that this case is analogous to Barton v. House of Raeford Farms,
Inc., 745 F.3d 95 (4th Cir. 2014), where the Fourth Circuit held a state law wage and hour claim
preempted because it sought “to displace the CBA that established the terms and conditions of their
employment and to replace it with what they understood to be [the employer’s] individual
agreements” with them. 745 F.3d at 109. Barton, however, is inapposite in several critical respects.
First, it did not involve an issue of federal question jurisdiction arising from complete preemption,
but rather preemption as a defense to a state law wage claim in a case arising under original

jurisdiction of the Fair Labor Standards Act, 29 U.S.C. § 201. See 745 F.3d at 99. Accordingly, the
13
case did not involve the same standard of review requiring the court to “construe removal
jurisdiction strictly and resolve doubts in favor of remand.” Palisades Collections LLC, 552 F.3d
at 336.
Second, Barton concerned employees who indisputably held a single position, as “production

employees,” for a chicken processor. 745 F.3d at 99. This is in contrast to the instant case, where
plaintiff claims he held a position of Executive Producer that was subject of a contract for
employment with defendant WTGP, which is separate from his role as “Unit Production Manager.”
(Compl. ¶¶ 13, 15, 20, 25, 29; Pl’s Decl. (DE 29-1) ¶¶ 2-6, 10). Third, it was undisputed in Barton
that the plaintiffs’ wages “were governed by a collective bargaining agreement” between the
employer and a union, and that all plaintiffs “were members of the bargaining unit covered by the
CBA.” 745 F.3d at 99, 100-101. Here, none of those facts are alleged in the complaint, and plaintiff
disputes that he was hired into any position covered by the CBA, and that defendant WTGP was a
signatory to the CBA at the time of plaintiff’s employment. (Pl’s Decl. (DE 29-1) ¶¶ 7-9).

Accordingly, Barton is inapposite where the case stands for the proposition that a contract
claim “concern[ing] a job position governed by [a] collective bargaining agreement” is completely
preempted. 745 F.3d at 109 (quoting Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1286
(9th Cir.1989)) (emphasis added). More analogous and pertinent to the instant case is Caterpillar,
in which plaintiffs claimed contract rights under a position “outside the coverage of the collective-
bargaining agreement,” and where disputed issues regarding the individual employment contracts
and the employer-employee relationship precluded removal jurisdiction. 482 U.S. at 388 & 396.
Defendant WTGP also cites several other cases which it contends demonstrate preemption

over plaintiff’s claims for wrongful termination, unfair and deceptive trade practices, and
14
defamation. (See Resp. (DE 40) at 22-25 (citing Davis v. Bell Atl.-W. Virginia, Inc., 110 F.3d 245,
249 (4th Cir. 1997); Barbe v. Great Atl. & Pac. Tea Co., No. 89-1566, 1991 WL 136779 (4th Cir.
July 26, 1991); Martin v. Watkins, No. 7:10-CV-00423, 2010 WL 5371341, at *1 (W.D. Va. Dec.
22, 2010)). These cases are all distinguishable where they presume coverage of a plaintiff’s position

by a collective bargaining agreement, see, e.g., Davis v. Bell Atl.-W. Virginia, Inc., 110 F.3d 245,
249 (4th Cir. 1997) (addressing contract and wrongful termination claims, stating without
qualification that the employer’s “collective-bargaining agreement remained in force to govern [the
plaintiff’s] employment relationship”); Barbe, 1991 WL 136779 * 1 (addressing defamation claims,
stating “the employee[] was covered by a collective bargaining agreement”), or presume that a claim
arises out of a grievance meeting arising under a collective bargaining agreement that “governs the
relationship between [the employer’s] management personnel and hourly production workers,”
Martin, 2010 WL 5371341 *1.
In sum, defendant WTGP has not demonstrated that any of plaintiff’s claims are completely

preempted by the LMRA. Therefore, the court lacks federal subject matter jurisdiction over
plaintiff’s claims, and the case must be remanded to state court.
3. Attorney’s Fees and Costs
Plaintiff requests attorney’s fees and costs upon remand. “An order remanding the case may
require payment of just costs and any actual expenses, including attorney fees, incurred as a result
of the removal.” 28 U.S.C. § 1447(c).
Absent unusual circumstances, courts may award attorney’s fees under § 1447(c)
only where the removing party lacked an objectively reasonable basis for seeking
removal. Conversely, when an objectively reasonable basis exists, fees should be
denied. In applying this rule, district courts retain discretion to consider whether
unusual circumstances warrant a departure from the rule in a given case. For
instance, a plaintiff’s delay in seeking remand or failure to disclose facts necessary
15
to determine jurisdiction may affect the decision to award attorney’s fees. When a
court exercises its discretion in this manner, however, its reasons for departing from
the general rule should be faithful to the purposes of awarding fees under § 1447(c).
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Plaintiff has not demonstrated that he
is entitled to costs and expenses, including attorney fees, under the circumstances of this case.
Defendant WTGP did not lack an objectively reasonable basis for seeking removal. Its removal
petition sets forth in detail grounds for removal and it has comprehensively briefed the issues arising
from the removal, including with reference to a wide range of case law and documents in the record.
The court declines in its discretion to award fees and costs. See In re Lowe, 102 F.3d 731, 733 n.
2 (4th Cir.1996) (rejecting request for attorney’s fees where basis for remand is not “obvious’’).
B. Remaining Motions
Lacking jurisdiction over this action, the court does not reach the remaining motions to
dismiss claims and counterclaims, and to transfer venue. See Roach v. W. Virginia Reg’| Jail &
Corr. Facility Auth., 74 F.3d 46, 49 (4th Cir. 1996). The court leaves these remaining motions for
consideration by the state court in the first instance, including polling of the parties as to whether
the motions may be decided as presented or re-filed in conjunction with further proceedings upon
remand.
CONCLUSION
Based on the foregoing, plaintiffs motion to remand (DE 28) is GRANTED. In accordance
with 28 U.S.C. § 1447(c), this matter is REMANDED to the Superior Court of New Hanover
County. The court leaves remaining motions to dismiss and to transfer venue (DE 32, 37, 43) for
consideration by the state court in the first instance. The clerk is DIRECTED to close this case.
SO ORDERED, this the 6th day of August, 2019.

nited States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10250601. Public record. Not legal advice.