Reply Brief — International Mill Service v. Aubuschon

| Supreme Court, U.S. 4

FILEG

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No. 88-1479 JOSEPH F. SPANIOL, JR.

as

IN FHE

Supreme Court of the United States

OcTOBER TERM, 1988

INTERNATIONAL MILL SERVICE and

THOMAS VAN DEN HANDEL,

Petitioners,

VS.

JamMeES AUBUSCHON,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

PETITIONERS’ REPLY TO BRIEF

IN OPPOSITION

IRA L. BLANK

Counsel of Record

LAURA J. KIPNiS

POPKIN & STERN

8182 Maryland Avenue

15th Floor

St. Louis, Missouri 63105

(314) 862-0900

Attorneys for Petitioners

Si. Lous Law Printine Co., Ine., «13308 Manchester Road 63131 314-231-4477

TABLE OF CONTENTS

Tae Ge Peas oe ee re

Reply to Respondent’s New Argument ....

TABLE OF AUTHORITIES

Page

Cases:

Avco Corp. v. Aero Lodge, I.A.M. & A.W., 390 U.S.

SST ISG) ok ce kccacdsveunan thee z

Caterpillar Inc. v. Williams, 482 U.S. , 96 L.Ed. 2d

SUR CIGGT oa 5 uke wanw can Soe ee 2

Franchise Tax Bd. v. Laborers Vac. Trust, 463 U.S. 1

(C2) Sr nerE ei has yore steg Leto « 2

No. 88-1479

IN THE

Supreme Court of the United States

OcTOBER TERM, 1988

INTERNATIONAL MILL SERVICE and

THOMAS VAN DEN HANDEL,

Petitioners,

VS.

JAMES AUBUSCHON,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

PETITIONERS’ REPLY TO BRIEF

IN OPPOSITION

The Respondent, at page 3 of his opposing brief No. 88-1479,

has argued that the harms alleged in the Respondent’s suit for

malicious defamation ‘‘are capable of remedy only outside the

scope of a collective bargaining agreement”’ and, therefore, that

preemption of the Respondent’s defamation claim, based on

federal iabor laws, ‘‘is clearly inappropriate.’’ Respondent has

cited no authority for this argument or the allegation that the

Respondent’s alleged injuries can only be adequately remedied

“outside the scope of a collective bargaining agreement.’’

Nonetheless, even if one were to assume for the sake of argu-

ment that the only avenue by which Respondent can obtain ade-

wins,

quate relief for his alleged injuries is a state law defamation

claim, it does not follow that preemption of such a claim, based

on federal labor laws, is inappropriate.

Respondent’s argument places the proverbial horse before the

cart. When a potential state law cause of action is preempted by

federal labor laws, it means that no court has proper subject

matter jurisdiction over the state law action. This Court has

previously ruled that the ‘‘nature of the relief available after

jurisdiction attaches is, of course, different from the question

whether there is jurisdiction to adjudicate the controversy.’’

Avco Corp. v. Aero Lodge, I.A.M. & A.M., 390 U.S. 557, 561

(1968) (emphasis added). The threshold question, therefore,

must be whether the court has jurisdiction over the claim and

not whether the claim affords the preferred remedy or even any

adequate remedy. A plaintiff’s preference for a particular

remedy, in other words, cannot create subject matter jurisdic-

tion where it does not otherwise exist.

Thus, in Avco Corp., this Court ruled that a claim based on

§301 of the Labor Management Relations Act was properly

removed to federal court even though the injunctive relief the

plaintiff had sought could only be obtained in a state court pro-

ceeding. In so ruling, this Court specifically stated:

the breadth or narrowness of the relief which may be

granted under federal law and § 301 cases is a distinct ques-

tion from whether the court has jurisdiction over the par-

ties and the subject matter.

Avco Corp., 390 U.S. 557, 561 (1968); see Caterpillar v.

Williams, 482 U.S. , 96 L.Ed. 2d 318, 326 n.4 (1987); Fran-

chise Tax Bd. v. Laborers Vac. Trust, 463 U.S. 1, 23 (1983).

{n light of this Court’s prior rulings in Avco Corp., Franchise

Tax Bd. and Caterpillar, the Respondent’s apparent preference

for a remedy allegedly not available under federal labor laws is

not a valid reason for denying Petitioners’ Petition for a Writ of

a a

ee

Certiorari. The questions raised in this case remain important

questions of federal labor law which should be resolved by this

Court. Accordingly, Petitioners respectfully request that this

Court grant the writ of certiorari.

Respectfully submitted,

Ira L. Blank

Counsel of Record

Laura J. Kipnis

Popkin & Stern

8182 Maryland Avenue

15th Floor

St. Louis, Missouri 63105

(314) 862-0900

Dated: May 31, 1989