# Reply Brief — International Mill Service v. Aubuschon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1023%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1106

## Text

| Supreme Court, U.S. 4
FILEG

| At 1
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1023%3A3. Public record. Not legal advice.