Petition for Writ of Certiorari — Adams v. Apogee Coal Co.

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s :

O04 117 APR 26 2004

No. __OPFIOE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

GREGORY ADAMS; THOMAS J. BOGGS; BARRY L.

CARMICAL; JOE COMBS; GLENN W. CORNETT;

MIKE CREECH; RONNIE W. DUDASH; ROGER E. ELLIS;

CLIFTON D. FOX; DONALD MASSEY, SR.;

JACQUALINE D. MCINTOSH; WILLIAM M. MILLER; DENVER

W. POWERS; FRANCIS SEXTON; THOMAS SOLTESS; JAMES

C. STEPHENS; MURL THOMAS; ROSCOE YOUNG;

PETITIONERS

V.

APOGEE COAL COMPANY; ARCH COAL INC.; BITUMINOUS

COAL OPERATORS ASSOCIATION; UNITED MINE

WORKERS OF AMERICA;

RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT

PETITION FOR WRIT OF CERTIORI

Hon. Robert E. Cato

Counsel of Record for Petitioners

222 West Fifth Street

London, Kentucky 40741

Telephone: (606) 864-2252

QUESTIONS PRESENTED FOR REVIEW

This matter was originally filed by the Petitioners in the

Harlan Circuit Court, Harlan County, Kentucky, alleging only

state law causes of action. The Respondents subsequently

removed this matter to the United States District Court for the

Eastern District of Kentucky, London Division, based on

federal question jurisdiction, 28 U.S.C. §1331, and §1441.

The sole question presented for review is whether or not

the District Court properly exercised federal question

jurisdiction in this matter, or should the District Court have

remanded this case back to the Harlan Circuit Court.

TABLE OF CONTENTS

Questions Presented for Review

Table of Contents

Table of Authorities

Opinions Below

Statement of Jurisdiction

Statutes Involved

Statement of the Case

Argument.

Conclusion.

Appendix

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TABLE OF AUTHORITIES

ases:

Caterpillar, Inc: v. Williams,

482 U.S. 386 (1987) . ; 5-6, 7, 8, 10, 11

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) 6

Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988) . ; , . 6,7,8

Smolarek v. Chrysler Corp.,

879 F.2d 1326 (6" Cir. 1989) . Nt ee 7

O’Shea v. The Detroit News,

887 F.2d 683 (6" Cir. 1989) . . 7

McKenzie v. Ford Motor Co.,

1994 U.S.Dist. LEXIS 18734 (E.D.Mich. 1994) 7

Roy v. Ford Motor Co.,

748 F.Supp. 492 (E.D.Mich. 1990). ; 7

Akerman vy. International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America,

1973 U.S.Dist. LEXIS 15304 (N.D.Ohio 1973) ; 7

Wells v. General Motors Corp.,

881 F.2d 166 (5" Cir. 1989) . ; 7

Berda v. Berda, 881F.2d 20 (3 Cir. 1989). 7-8

Giba v. International Union of Electrical, Radio

and Machine Workers, AFL-CIO,

ill

205 F.Supp. 553 (U.S.Dist.Ct.Conn. 1962). 8

Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103-104 (1962) . : 8

Agnifili v. KFC Corp., 924 F.Supp. 78 (W.D.Ky. 1996) 8-9

Warner v. Ford Motor Co., 46 F.3d 531 (6" Cir. 1995) 8-9

Messick v. Toyota Motor Mfg.,

45 F.Supp.2d 578 (E.D.Ky. 1999). il

Her Majesty the Queen v. City of Detroit,

874 F.2d 332 (6" Cir. 1989) . ; 11

Ahearn v. Charter Township of Bloomfield,

100 F.3d 451 (6" Cir. 1996) . 1]

Folks v. Bell, 462 S.W.2d 895 (1971) , 12

Statutes:

28 U.S.C. §1331. ; : 1,4

28 U.S.C. §1441 : ; . 1-2,4

29 U.S.C. §185 a

Rules:

Kentucky Practice, Rules of Civil Procedure Annotated,

Clay, Author’s Comment 3, CR 8.01 . :, 12

iV

OPINIONS BELOW

The January 27, 2004, Order Affirming of the United

States Court of Appeals for the Sixth Circuit, Case No. 03-

5443, which was unpublished, and is reprinted in Appendix 1.

The February 13, 2003, Memorandum Opinion & Order

of the United States District Court for the Eastern District of

Kentucky, London Division, Case No. 02-537-JMH, which was

unpublished, and is reprinted in Appendix 2. The United States

District Court for the Eastern District of Kentucky, London

Division’s Judgment, Memorandum Opinion & Order, entered

December 26, 2002, which was unpublished, and is reprinted in

Appendix 3.

STATEMENT OF JURISDICTION

The basis of the Supreme Court’s Jurisdiction is 28 USC

§1254(1).

STATUTES INVOLVED

1. 28 U.S.C. §1331 - Federal question

The district courts shall have original jurisdiction of all

civil actions arising under the C onstitution, ] aws, or

treaties of the United States.

2. 28 U.S.C. §1441 - Actions Removable Generally

(In Pertinent Part)

(a) Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of

which the district courts of the United Siites have

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original jurisdiction, may be removed by the defendant

or the defendants, to the district court of the United

States for the district and division embracing the place

where such action is pending.

2K §301 of the Labor Management Relations Act of 1947,

29 U.S.C. §185 - Suits by and against labor

organizations (In Pertinent Part)

(a) Venue, amount, and citizenship. Suits for violation

of contracts between an employer and a labor

organization representing employees in an industry

affecting commerce as defined in this Act, or between

any such labor organizations, may be brought in any

district court of the United States having jurisdiction of

the parties, without respect to the amount in controversy

or without regard to the citizenship of the parties.

(c) Jurisdiction. For the purposes of actions and

proceedings by or against labor organizations in the

district courts of the United States, district courts shall

be deemed to have jurisdiction of a labor organization

(1) in the district in which such organization maintains

its principal office, or (2) in any district in which its

duly authorized officers or agents are engaged in

representing or acting for employee members.

4. Employment Retirement Income Security Act

STATEMENT OF THE CASE

This matter arises out of fraudulent m representations

made to the Petitioners (hereinafter “Miners”’) in regards to their

voting to ratify the National Bituminous Coal Wage Agreement

(hereinafter “NBCWA”) of 1998, between the Respondent,

United Mine Workers of America (hereinafter “UMWA”), and

the Respondent, Bituminous Coal Operators Association

(hereinafter “BCOA”).

The Miners were all employees u/ Respondents’,

Apogee Coal Company, Inc., d/b/a Arch of Kentucky, Arch

Coal, Inc. (hereinafter ““Arch”), and members of the UMWA,

when they were laid off on September 10, 1997. At the time the

Miners were laid off, each had twenty (20) or more years of

signatory service. Another group of coal miners were laid off

on December 13, 1997; this group also contained miners with

twenty (20) or more years of signatory service.

Each of the Miners were sent letters from the UMWA

encouraging them to vote to ratify the NBCWA, and making the

representation that if the NBCWA was ratified they would

come under the new “20 and out” provision, allowing them to

obtain their retirement. (Letter, Appendix) The Miners did in

fact vote to ratify the NBCWA, but due to failure to recall the

Miners, they were not covered by the NBCWA. The members

of the December lay off group with twenty (20) or more years

of service were extended the option of returning to work for

four (4) hours, following the ratification of the NBCWA, so as

to allow them to be covered by the NBCWA (Letter 2,

Appendix) The Miners were not extended this option.

The “20 and out” provision allowed miners with

twenty (20) or more years of signatory service to retire, no

matter their age. Prior to the adoption of the NBCWA, a miner

had to be fifty-five (55) years of age, with twenty (20) or more

years of service to retire. Due to the failure to recall the

Miners, they did not come under the NBCWA, therefore, they

were denied their retirement, as they were not covered under the

new “20 and out” provision.

-_

The Miners filed the instant action in the Harlan Circuit

Court, Harlan County, Kentucky, alleging only state law claims.

The Respondents removed this matter to the United States

District Court for the Eastern District of Kentucky, London

Division, and then each filed a Motion to Dismiss. The Miners

responded with an Objection to Removal, and sought remand

to the Harlan Circuit Court. The District Court granted

Respondents’ Motions to Dismiss, and the Miners then filed a

Motion to Alter, Amend or Vacate. The Motion to Alter,

Amend or Vacate was denied. The Miners then timely filed

their Notice of Appeal to the Sixth Circuit Court of Appeals.

The decision of the District Court was affirmed by Order

entered January 27, 2004. The Miners now Petition this

Honorable Court for a Writ of Certiori.

The District Court exercised federal question

jurisdiction. 28 U.S.C. §§1331, and 1441.

ARGUMENT

The Petitioners move this Honorable Court to exercise

their judicial discretion, and grant Petitioners’ Writ of Certion,

pursuant to Rule 10(a) of the Rules of the Supreme Court of the

United States, as the United States Court of Appeals, for the

Sixth Circuit, by affirming the removal of the instant case from

the Harlan Circuit Court to the United States District Court,

Eastern District of Kentucky, London Division, has sanctioned

such a departure by the U.S. District Court, as to call for an

exercise of this Court’s supervisory power.

This matter was wrongfully removed to federal court

based on the doctrine of complete preemption. The complaint

contains only state law claims, none of which are preempted;

therefore, the District Court was without jurisdiction to hear the

matter. The law of the Commonwealth of Kentucky should

have been applied, as the Miners’ claims are not preempted by

4

———ee

either the Labor Management Relations Act of 1947 or ERISA,

as alleged by the Respondents. The Miners have clearly stated

a claim under Kentucky law; therefore, the District Court was

without jurisdiction, and the case should have been remanded

to the Harlan Circuit Court.

I. Miners’ Claims Are Not Preempted by §301 of the

Labor Management Relations Act of 1947,

29 U.S.C. §185.

The Miners’ claims are not preempted by §301 of the

Labor M anagement Relations Act of 1947, 29 U.S.C. §185

(hereinafter “Section 301"), as they are based completely on

state law. The Petitioners’ cite to the case of Caterpillar, Inc.

v. Williams, 482 U.S. 386 (1987), which held that absent a

claim founded directly on rights created by a collective

bargaining agreement, or a claim that is substantially dependent

on the analysis or interpretation of a collective bargaining

agreement, Section 301 does not preempt state law claims. The

claims set forth in the Miners’ Complaint are not founded on

rights created in the NBCWA, nor are the claims substantially

dependent on the analysis or interpretation of the NBCWA;

therefore, the claims are not preempted.

The Caterpillar Court was faced with the issue of

whether or not claims based on individual employment

contracts were preempted by Section 301. /d. at 388. This

_ Court held that they were not, and ordered the case remanded to

state court, as removal was improper. Jd. The Court found it

telling that:

“.. Section 301 says nothing about the content

or validity of individual employment contracts.

It is true that respondents, bargaining unit

members at the time of the plant closing,

5

possessed substantial rights under the collective

agreement, and could have brought suit under

§301. As masters of the complaint, however,

they chose not to do so. . . respondents’

complaint is not substantially dependent upon

interpretation of the collective-bargaining

agreement. It does not rely upon the collective

agreement indirectly, nor does it address the

relationship between the individual contracts

and the collective agreement. As the Court has

stated, ‘it would be _ inconsistent with

congressional intent under [§ 301] to pre-empt

state rules that proscribe conduct, or establish

rights and obligations, independent of a labor

contract.’” Citing, Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985).

This same analysis should be applied to the instant case.

The Miners did not have any rights under the NBCWA, as they

were never employed under that collective agreement, making

it impossible for their claims to be based on said agreement.

Furthermore, the claims made by the Miners do not rely on the

NBCWA. The NBCWA is clear, if the Miners had worked

under the agreement they would have been part of the “20 and

out” provision and entitled to their retirement. The Miners’

cause of action arose out of the fraudulent misrepresentations

inducing them to vote in favor of the NBCWA, and Arch’s

subsequent failure to recall them as they did the members of the

December lay off group. The NBCWA simply plays no role in

the determination of the Miners’ claims. The only reference to

the NBCWA is that the Miners were induced to sign it, and if

they had been recalled, they would have been eligible for

retirement.

This Court again visited the issue in the case of Lingle

6

v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988), this

time in regards to a state law claim for retaliatory discharge.

The Court found the questions involved in the case to be

“purely factual” pertaining only “to the conduct of the employee

and the conduct and motivation of the employer” neither of

which, “requires a court to interpret any term of a collective-

bargaining agreement.” /d. at 419. The state law claim was

said to be completely “independent” of the agreement, meaning,

“resolution of the state-law claim does not require construing

the collective-bargaining agreement.” /d. at 420. The Sixth

Circuit has adopted the reasoning of Lingle and applied it to bar

Section 301 removal of state law claims. See, Smolarek v.

Chrysler Corp., 879 F.2d 1326 (6" Cir. 1989), O'Shea v. The

Detroit News, 887 F.2d 683 (6" Cir. 1989), and McKenzie v.

Ford Motor Co., 1994 U.S.Dist.LEXIS 18734 (E.D.Mich.

1994). Again, this analysis can be applied to the case at bar.

The Miners’ claims are entirely independent of the collective-

bargaining agreement, and resolution of the claims do not

require the construction or interpretation of the NBCWA.

The analysis and policy expressed in both Caterpillar

and Lingle have been applied repeatedly, both before and after

those decisions, and the same should be done in this case. See,

Roy v. Ford Motor Co., 748 F.Supp. 492 (E.D.Mich.

1990)(Holding individual employment contracts not preempted

by Section 301, as they did not depend on interpretation of

collective-bargaining agreement); Akerman v. International

Union, United Automobile, Aerospace and Agricultural

Implement Workers of America, 1973 U.S.Dist. LEXIS 15304

(N.D.Ohio 1973)(Holding that Section 301 did not confer

jurisdiction on federal courts to adjudicate individual rights of

employee/union members); Wells v. General Motors Corp., 881

F.2d 166 (5" Cir. 1989)(Section 301 is not implicated unless

resolution of the state claim requires interpretation of a

collective bargaining agreement); Berda v. Berda, 881F.2d 20

7

(3™ Cir. 1989)(Contract and tort claims for monetary relief not

preempted b y S ection 301); Giba v. International Union of

Electrical, Radio and Machine Workers, AFL-CIO, 205 F.Supp.

553 (U.S.Dist.Ct.Conn. 1962)(Whether breach of contract,

breach of trust, third-party beneficiary or whatever, as the

source of plaintiffs’ rights, none is federally created; all are

ancient common law).

It should also be noted that finding state law applicable

in this case will not frustrate or interfere with the congressional

goals of Section 301 to have uniform interpretation of labor

contract terms. See, Local 174, Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103-104 (1962). This analysis of Caterpillar and

Lingle should have been applied to the case at bar in finding

that the Miners’ claims are not preempted by Section 301, they

are not dependent upon the NBCWA, nor do they require the

interpretation of NBCWA. The Sixth Circuit, sanctioned the

District Court’s departure from this analysis, and the Writ of

Certiori should be granted.

II. Miners’ Claims Are Not Preempted by ERISA.

Miners’ claims are not to recover benefits due them

under the terms of the NBCWA, to enforce rights under the

terms of the plan, or to clarify any nghts under the terms of the

plan; therefore, said claims are not preempted by ERISA. The

? Sixth Circuit has provided guidance in determining if a state

law claim is preempted by ERISA, and states a federal cause of

action:

“In order to come within the [complete

preemption] exception a court must conclude

that the common law or statutory claim under

state law should be characterized as a

superseding ERISA action ‘to recover benefits

due to him under the terms of his plan, to

enforce his rights under the terms of the plan, or

8

—— |

to clarify his rights to future benefits under the

terms of the plan,’ as provided in §

1132(a)(1)(B).” Agnifili v. KFC Corp., 924

F.Supp. 78 (W.D.Ky. 1996); citing, Warner v.

Ford Motor Co., 46 F.3d 531 (6" Cir. 1995).

Applying this analysis to the case at bar, it is clear that

the Miners’ claims are not preempted by ERISA. The Miners’

have admitted that they do not come under the NBCWS, nor do

they claim that they are entitled to benefits from the NBCWA;

rather, the Miners’ are seeking monetary damages from the

Respondents themselves due to the fraudulent inducements

made, and the subsequent refusal to rehire. This is precisely

what was sought in Agnifili, where the Court held:

“Plaintiff seeks to collect her damages not from

any ERISA plan or administrator, but from the

corporate defendant itself Plaintiff seeks

damages which are computed in part by

reference to an employee benefit plan.

However, she does not seek to enforce rights,

recover benefits or clarify rights under the

authority of the plan. She invokes ERISA

benefits merely as a measure of damages.

Under these circumstances, such a claim is

insufficient to establish an action under §

1132(a)(1)(B).” Agnifili, at 81.

This is the same situation as in the instant case, and the

District Court should have applied the same rule. The Miners’

only reference to the NBCWA is to measure damages, they are

not seeking to enforce, recover or clarify any rights or benefits

from the NBCWA. Therefore, ERISA preemption is not

present, and state law is applicable. The Sixth Circuit should

have directed the District Court to remand the case.

9

Ill. The Miners are Masters of the Complaint, All Doubt

is to be Cast Against Removal, and the Removing

Party Bears the Burden of Showing Removal is

Proper.

The District Court failed to take cognizance of the fact

that the plaintiff is the master of the complaint, and the Court of

Appeals for the Sixth Circuit sanctioned said failure:

“the presence of a federal question, even a §301

question, in a defensive argument does not over

come 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. When a

plaintiff invokes a right created by a collective-

bargaining agreement, the plaintiffhas chosen to

plead what we have held must be regarded as a

federal claim, and removal is at the defendant’s

option. But a defendant cannot, merely by

injecting a federal question into an action that

asserts what is plainly a state-law claim,

transform the action into one arising under

federal law, thereby selecting the forum in

which the claim shall be litigated.” Caterpillar,

supra, 398-399 (Emphasis in original).

In the instant action, there is no federal question on the

face of the complaint, the Miners chose t o eschew federal

claims and have the case heard in state court, and they have an

absolute night to do so. The Miners did not invoke any rights

created by a collective bargaining agreement; rather, the

10

Respondents have injected a federal question into the complaint

in their attempt to have this matter heard in federal court. This

is inappropriate, the Respondents cannot be allowed to choose

the forum for litigation, “Ifa defendant could do so the plaintiff

would be master of nothing.” /d. Therefore, in the case at bar,

by this rule alone it should have been evident to the Court that

removal was improper.

The Court of Appeals and District Court also ignored

applicable law stating that all doubts are to be cast against

removal. Messick v. Toyota Motor Mfg., 45 F.Supp.2d 578

(E.D.Ky. 1999); citing, Her Majesty the Queen v. City of

Detroit, 874 F.2d 332 (6" Cir. 1989). The District Court simply

made no mention of this presumption in its opinion, nor did it

mention the burden of the Respondents in this matter: The

Respondents, as the removing party, had the burden of showing

that removal is proper. Jd. at 580; citing, Ahearn v. Charter

Township of Bloomfield, 100 F.3d 451 (6" Cir. 1996). This

activity was sanctioned by the Sixth Circuit’s affirming of the

District Court’s decision.

Neither of the three Respondents provided any support

for removal when they removed this case to federal court, nor

did they provide any support in their motions to dismiss.

Furthermore, the District Court placed the burden on the Miners

to show why removal is improper, a clear error of law, again

affirmed by the Sixth Circuit. Neither the District Court, nor

the Court of Appeals made any mention of the burden the

Respondents were to bear or what they did to meet that burden.

IV. The Miners Have Alleged Facts Sufficient to

Support Numerous Claims Arising Under Kentucky

Common Law.

In their Complaint, the Miners alleged sufficient facts to

support several state law claims. As masters of the complaint,

11

the Miners had the ability to proceed under any cause of action

in any court. See, Caterpillar, supra. Furthermore, a Plaintiff

need not prove every aspect or element of his claim, as stated by

the Kentucky high court in Folks v. Bell, 462 S.W.2d 895

(1971):

“It is not necessary to state a comprehensive

‘cause of action’. *** The true objective of a

pleading stating a claim is to give the opposing

party fair notice of the essential nature, the

basis of the claimant's right, the adverse party's

wrong, and the type of relief to which the

claimant deems himself entitled.” Citing,

Kentucky Practice, Rules of Civil Procedure

Annotated, Clay, Author’s Comment 3, CR

8.01. (Emphasis in original).

The Miners would put forth to this Court that sufficient

facts were pled in the complaint to support various causes of

action arising under Kentucky law, and to give the Respondents

fair notice as to the essential nature and the basis of the Miners’

rights, the Respondents’ wrongs, and the requested relief.

The Miners would submit that three se parate claims

under the laws of the Commonwealth of Kentucy can be

adequately supported by the facts alleged in their complaint: (1)

the common law tort of outrage; (2) the tort of fraud; and (3) a

breach of contract claim.

CONCLUSION

Due to the foregoing reasons, this Court should grant the

Petitioners’ Wnt of Certiori. This matter was improperly

removed from the Harlan Circuit Court, to the United States

District Court. The Petitioners are masters of the complaint,

and alleged only state law causes of action, none of which rely

12

on or are dependent upon the LMRA or ERISA. The

Respondents have never produced evidence to warrant removal.

The Sixth Circuit Court of Appeals sanctioned the erroneous

findings of the District Court in affirming the District Court’s

decision, thereby warranting this Honorable Court’s review.

Respectfully submitted,

Khe LOS

Hon. Robert E. Cato

Counsel of Record for Petitioners

222 West Fifth Street

London, Kentucky 40741

Telephone: (606) 864-2252

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APPENDIX

Order of the United States Court of Appeals for the

Sixth Circuit, January 27, 2004.

Memorandum Opinion & Order of the United States

District Court for the Eastern District of Kentucky,

London Division, February 13, 2003.

Judgment, Memorandum Opinion & Order, of the

United States District Court for the Eastern District of

Kentucky, London Division, December 26, 2002.

Letter from the United Mine Workers of America to

its members, December 10, 1997.

Letter from Arch of Kentucky to Mr. Terry W. King,

January 2, 1998.

14

1. United States Court of Appeals for the Sixth Circuit

Gregory Adams, et al. v. Apogee Coal Company, et al.

No. 03-5443, Order Entered January 27, 2004

Before: Nelson, Gilman, and Rogers, Circuit Judges

These eighteen former coal miners appeal through

counsel a district court order dismissing their complaint that

purported to raise a state tort claim of outrage, but was removed

to federal court as preempted by section 301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. §185, and the

Employee Retirement Income Security Act (ERISA), and

ultimately dismissed for failure to state a claim. Defendants

have waived oral argument, and plaintiffs’ counsel failed to

respond to the court’s request to show cause why oral argument

would be necessary. This panel unanimously agrees that oral

argument is not needed in this case. Fed. R. App. P. 34(a).

Plaintiffs filed their complaint in Kentucky circuit court.

They alleged that they had been laid off in September 1997,

with over twenty years of employment in coal mining, but were

not eligible for early retirement because they were less than

fifty-five years old. In December 1997, the United Mine

Workers of America (the union) negotiated a new collective

bargaining agreement which would allow miners laid off in the

future to obtain early retirement where they had twenty years of

employment, regardless of their age. The union sent a letter to

its members urging them to vote for the new agreement.

Plaintiffs alleged that the letter represented that they would be

eligible for early retirement if the agreement were ratified. A

group of miners with at least twenty years of seniority but

younger than fifty-five was also laid off in December, after the

agreement had been reached but before its effective date of

January 1, 1998. Those miners were temporarily recalled in

1998 and then laid off so that they could take early retirement.

15

Nee eee

No such opportunity was given to plaintiffs. Plaintiffs alleged

that defendants’ conduct as described above stated a claim of

outrage.

Defendants removed the complaint to the district court.

Plaintiffs did not move for a remand, but in responding to the

defendants’ subsequent motions to dismiss the complaint for

failure to state a claim, argued that the complaint should be

remanded. The district court found that the complaint was

properly removed as preempted by th LMRA and ERISA, and

dismissed it for failure to state a claim under those statutes.

The court held in addition that the LMRA claim would be

barred by the statute of limitations and for failure to exhaust

administrative remedies. Plaintiffs’ motion for reconsideration

was subsequently denied. In responding to the motions to

dismiss and in moving for reconsideration, plaintiffs also

argued that they had asserted state-law torts of fraud and breach

of contract, but they never moved to amend their complaint to

assert such claims. In any event, those alleged claims would be

subject to the same analysis as the outrage claim that was

asserted.

On appeal, plaintiffs do not take issue with the district

court’s ruling that the complaint did not state a claim under the

LMRA or ERISA. However, they argue that the complaint

should have been remanded to the state circuit court.

The standard of review ofa removal decision is de novo.

Peters v. Lincoln Elec. Co., 285 F.3d 456, 465 (6" Cir. 2002).

Plaintiffs argue that, under the well-pleaded complaint rule,

they are the masters of the complaint and can avoid removal by

opting to assert only a state-law claim. This argument

overlooks the Supreme Court’s holding that the well-pleaded

complaint rule is inapplicable in cases where the claims asserted

are completely preempted, s uch as c laims arising under t he

16

LMRA and ERISA. Metropolitan Life Ins. Co. v. Taylor, 481

U.S. 58, 63-67 (1987).

The district court properly concluded that the complaint

in this case essentially raised a claim that the union had failed

to represent plaintiffs fairly when it allegedly misled them to

believe that they would be eligible for early retirement if the

1998 collective bargaining agreement were ratified. When a

plaintiff invokes a right created by a collective bargaining

agreement, he has chosen to plead a federal claim under the

LMRA, and the defendants may opt to remove the case to

federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386, 399

(1987). This court has also held that a fraud claim was

preempted by the LMRA where the collective bargaining

agreement created the nght claimed by the plaintiff. Terwilliger

v. Greyhound Lines, Inc., 882 F.2d 1033, 1038 (6" Cir.

1999)(claims of breach of fiduciary duty); Tassinare v.

American Nat'l Ins. Co., 32 F.3d 220, 224-25 (6" Cir.

1994)(intentional infliction of emotional distress claim arising

out of failure to make contributions to retirement benefit plan

preempted).

Because the complaint was properly removed as

completely preempted by the LMRA and ERISA, and plaintiffs

do not contest the district court’s conclusion that they failed to

state a claim under either of those statutes, the district court’s

order is affirmed.

ENTERED BY ORDER OF THE COURT

s/Clerk

17

2. United States District Court for the Eastern District of ©

Kentucky, London Division, No. 02-537-JMH

Gregory Adams, et al. v. Apogee Coal Company, et al.

Memorandum Opinion & Order, Entered February 13,

2003.

This matter is before the Court on plaintiffs’ motion to

alter, amend, or vacate [Record No. 23]. Fully briefed,

plaintiffs’ motion is ripe for review.

The purpose of a Fed. R. Civ. P: 59(a) motion is to

enable a Court to correct manifest errors of law or fact or to

consider the importance of newly discovered evidence. See

Helton v. ACS Group, 964 F.Supp. 1175, 1182 (W.D.Ky. 1997).

A party should not file such a motion for the purpose of

relitigating issues already presented before the Court. See /d. at

1182. The law is clear that Fed. R. Civ. P. 59 is not intended to

allow a party to “rehash” old arguments. /d. The Court will

grant relief for such motions under the following circumstances:

“(1) An intervening change of controlling law; (2) Evidence not

previously available has become available; or (3) It is necessary

to correct a clear error of law or prevent manifest injustice.” /d.

Plaintiffs’ motion to alter, amend, or vacate argues that,

in finding that federal law preempted plaintiffs’ asserted state

law “outrage” cause of action and in dismissing the case on the

merits, the Court committed clear error of law. Plaintiffs also

attempt to assert ne claims; this, however, is inappropriate for

a motion for reconsideration.

The Court previously found that plaintiffs’ claims -

however defined - were preempted by the Employee Retirement

Income Security Act of 1974 and the Labor Management

Relations Act of 1947. While it is true that generally a plaintiff

is “master o f his complaint,” this is simply not the c ase in

18

instances where, as here, federal law is found to be completely

preemptive. In such cases as these, any cause of action is

federal.

Accordingly,

IT IS ORDERED that plaintiffs’ motion to alter,

amend, or vacate [Record No. 23] be, and the same hereby is,

GRANTED.

This the 13" day of February, 2003.

/s/ Joseph M. Hood, Judge

19

3. United States District Court for the Eastern District of

Kentucky, London Division, No. 02-537-JMH

Gregory Adams, et al. v. Apogee Coal Company, et al.

Judgment, Memorandum Opinion & Order, entered

December 26, 2002.

JUDGMENT

In accordance with the Memorandum Opinion and

Order of even date and entered contemporaneously herewith,

IT IS HEREBY ORDERED:

(1) That this action be, and the same hereby is,

DISMISSED;

(2) That all pending motions be, and the same

hereby are, DENIED AS MOOT; and

(3) That this action be, and the same hereby is

STRICKEN FROM THE ACTIVE DOCKET.

This the 26" day of December, 2002.

/s/ Joseph M. Hood, Judge

20

MEMORANDUM OPINION & ORDER

This matter is before the Court on defendants’ separate

motions to dismiss [Records Nos. 4, 6, & 11]. Fully briefed,

defendants’ motions are ripe for review.

I. INTRODUCTION

The instant action is, at is core, a labor dispute. The

following are the facts, as alleged by plaintiff.

Plaintiffs are a group of veteran coal-miners who have

earned, individually, at least twenty (20) years of signatory

service with Apogee Coal Company (““Apogee’’), a subsidiary

of Arch Coal, Inc. (““Arch’’), as defined under the National

Bituminous Coal Wage Agreement (““NBCWA”) of 1988. The

NBCWA is an agreement between the United Mine Workers of

America (““UMWA” or “union’’), a labor organization to which

plaintiffs belong, and the Bituminous Coal Operators

Association (“BCOA”). The NBCWA governs the employment

relationship between plaintiffs an Apogee, and plaintiffs are all

either “plan participants or beneficiaries of the defined pension

plan, NBCWA, between the UMWA and the BCOA.”

[Complaint, 4 8].

Plaintiffs complaint alleges that on or about September

10, 1997, a large number of coal miners were laid off by

defendant Apogee Coal Company. Many of those laid off had

twenty (20) or more years of signatory service with Apogee.

Subsequently, on or about December 10, 1997, the UMWA

reached a tentative agreement with the BCOA with respect to

a new collective bargaining agreement for 1998. Unlike the

1997 agreement, the 1998 agreement contained a “20 and out”

provision, a clause providing that all miners with twenty (20) or

more years of service who are laid off are permitted to retire -

21

irrespective of how old they are. This new “20 and out”

provision was a significant and marked departure from the 1997

agreement, which required for retirement (with full benefits)

twenty-years service plus attainment of the age of fifty-five (55)

On December 10, 1997, defendant UMWA sent a letter to its

members (including plaintiffs) stating that the union had

“negotiated an historic 20-and-out pension benefit for miners

who may be laid off in the future, along with the largest pension

increases in the history of the UMWA.” The letter urged the

union members (including plaintiffs) to vote in favor of the new

agreement.

On or about December 13, 1997, Apogee laid off a

second group of miners. Many of these, too, had twenty (20) or

more years of signatory service with the company.

On or about December 16, 1997, the UMWA voted to

ratify the NBCWA between the UMWA and the BCOA. The

new NBCWA - the one that contained the new “20 and out”

provision - went into effect on January 1, 1998.

On or about January 2, 1998, Apogee sent Conditional

Recall Notices to those miners laid-off in December who had

twenty (20) years service with the company. The recipients

were instructed to report for work on January 7, 1998, at noon;

they would work four (4) hours and would then be placed back

on lay-off status the same day. By “working” after January 1,

1998, of course, this group of miners became eligible for the

“20 and out” provision under the new NBCWA. Plaintiffs,

consisting of the group of miners laid off in September, were

not afforded this option. Because they were not hired and

subsequently laid-off under the new NBCWA (as were the

December layoffs), plaintiffs (the September layoffs) could not

take advantage of the “20 and out” provision.

22

The aforementioned is undisputed. What is disputed are

plaintiffs’ allegations - contained in paragraphs 18-21 of their

complaint - that defendants were “plan administrators”

(presumably of the pension plan to which plaintiffs seek

access), that as “plan administrators” defendants “stood in a

fiduciary relationship with the plaintiffs” and “owed a duty of

good faith, fair dealing and . . . honesty,” and that defendants

breached the “fiduciary duty” owed plaintiffs by “represent[ing]

to the plaintiffs that a vote in favor of the NBCWA would allow

the plaintiffs to actively participate in the ‘20 and out’ provision

of the agreement.” [Complaint, §] 18-21].

Plaintiff goes on to transform the above allegation into

a single asserted claim - one for the Kentucky common law tort

of “outrage.” Plaintiffs’ is a one-count complaint.

I. STANDARD OF REVIEW

In the Sixth Circuit, the standard applicable to motions

to dismiss is well-established. In Persian Galleries, Inc. v.

Transcontinental Ins. Co., 38 F.3d 253, 258 (6" Cir. 1994), the

Court of Appeals held that ‘‘[a] district court’s grant of a motion

to dismiss is proper when there is not set of facts that would

allow the plaintiff to recover. All factual allegations are

deemed true and any ambiguities must be resolved in plaintiffs

favor.” Jd. While this standard of review is liberal, the plaintiff

is required to put more than the bare assertion of legal

conclusions. “In practice, a... complaint must contain either

direct or inferential allegations respecting all the material

elements to sustain a recovery under some viable legal theory.”

Allard vy. Weitzman, 991 F.2d 1236, 1240 (6" Cir.

1993)(quoting Scheid v. Fanny Farmer Candy Shops, 859 F.2d

434, 436 (6" Cir. 1988)).

Il. ANALYSIS

23

The court addresses, as an initial matter, the question of

subject matter jurisdiction. Defendants, asserting that plaintiffs’

claim is preempted by § 310 of the Labor Management

Relations Act of 1947, 29 U.S.C. § 185 (“LMRA”) and by the

Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 ef seg., predicate jurisdiction on the basis of a federal

question. Plaintiffs counter that their claim is a state-law,

common-law claim, and that therefore removal to this Court

was improper.

Upon close inspection, plaintiffs’ specific allegations

reveal their true colors. Though plaintiffs allegations are

abstruse and convoluted, the Court’s best efforts at a liberal

construction surface two distinct causes-of-action, both federal.

To the extent plaintiffs have pled anything at all, they have pled

1) aclaim under ERISA against defendants for breach of duties

relating to their status as “plan administrators,” and 2) a claim

against the union itself for unfair representation. ERISA is

preemptive of plaintiffs’ first claim, the LMRA of the second.

Consequently, federal jurisdiction lies.

As for the ERISA claim, the most obvious problem is

that the complaint does not identify who, precisely, administers

the pension plan. (The parties’ briefs suggest that the plan is

run by Trustees of the UNWA 1974 Pension Plan and Trust.)

Because plaintiffs’ ERISA claim turns on purported breaches of

alleged fiduciary duties, this would appear to be a serious

omission. Under ERISA, a fiduciary is defined as someone who

exercises discretionary control over plan management and

administration. 29 U.S.C. § 1002 (21) (A). Case law makes

~ clear that “(t]he administrative discretion to grant or deny

claims is the crucial factor that makes an entity a fiduciary

within the terms of ERISA.” Voyk v. Brotherhood of

Locomotive Engineers, 198 F.3d 599, 604 (6 Cir. 1999).

Plaintiffs, however, do not allege that any of the defendants

24

have such discretion. Because a fiduciary relationship is a

prerequisite, it is insufficient simply to assert the label.

Even assuming that defendants owed plaintiffs some

sort of fiduciary duty, plaintiffs’ ERISA claim still fails for

another reason: the complaint is totally devoid of any allegation

that defendants made any affirmative representation to plaintiffs

at all. Any such representation - even if read into the

complaint- is certainly not identified. The only representation

specifically referenced is that made by the UMWA in its letter

to plaintiffs (in which the UMWA urged plaintiffs to vote for

the new collective bargaining agreement). Such representation,

however, cannot be charged to Apogee or the BCOA.

As for plaintiffs’ “unfair representation” claim under the

LMRA, here too plaintiff's complaint is unclear. The essence

of plaintiffs’ allegation is this respect is that in advocating for

ratification of the new collective bargaining agreement the

UMWA misrepresented the nature of the new agreement. Here,

too, however, plaintiffs’ complaint gives no indication as to

_ how, specifically, they were misled. The only representation

cited is that made in the UMWA’s letter to the membership; the

letter, however, makes clear that the new “20 and out”

provision applies only to those “laid off in the future.” Given

that the letter is unambiguous, and that plaintiffs do not point to

any additional representations, the Court cannot perceive the

foundation for plaintiffs’ claim that they were misled. What’s

more, even if plaintiffs complaint can be construed to assert a

substantive claim under the LMRA, such a claim could would

face a procedural bar: plaintiffs failed to exhaust their

administrative remedies via the collective bargaining grievance

procedures. Also, given that plaintiffs waited more than six

months to file suit, it would seem that plaintiffs’s LMRA claim

is barred by the applicable statute of limitations.

25

All in all, plaintiffs’ complaint presents the Court with

the difficult task of de-coding a loose-knit panoply of factual

allegations. Though plaintiffs attempt to style their claim as

one for “outrage” under the Kentucky common law, it is beyond

cavil that in considering a complaint substance - and not form -

governs. Looking to the substance of plaintiffs’ complaint, the

Court’s best efforts at a liberal construction surface two distinct

claims: one claim versus Arch/Apogee/BCOA under ERISA,

and one claim for “unfair representation” versus the UMWA.

For the reasons outlined above, both claims fail as a matter of

law.

Accordingly,

IT IS ORDERED that defendants’ motions to dismiss

[Record Nos. 4, 6, & 11] be, and the same hereby are

GRANTED.

This the 26" day of December, 2002.

/s/ Joseph M. Hood, Judge

26

4. Letter from the United Mine Workers of America to its

members, December 10, 1997.

Dear Brothers and Sisters:

We are writing to inform you that the UMWA has

reached a tentative agreement with the BCOA on the National

Bituminous Coal Wage Agreement (NBCWA) of 1998. There

are significant improvements in wages, pensions and other

benefits, and no concessions. Most importantly, we have

negotiated an historic 20-and-out pension benefit for miners

who may be laid off in the future, along with the largest pension

increases in the history of the UMWA. For the vast majority of

our members, this provision means that you will be assured of

either having a good-paying job to support your family, or the

ability to retire regardless of your age should you be laid off.

As you can see in the attached summary, there are

significant improvements for both active and retired members.

We also believe that the timing is right for concluding a

successor agreement. The coal industry is _ under

assault—climate change, acid rain, EPA regulations and utility

deregulation all will affect ouremployment opportunities in the

future. In addition, about half of al local supply agreements

with electric utilities will expire in the next few years. Given

these circumstances, we believe that it is in the interests of all

UMWA members to ratify an agreement now, rather than wait

until next year.

You will be asked to vote on the new agreement in a

few days. We wanted to provide the background of these

negotiations and some of the important highlights from the new

agreement. You will receive complete explanation at your local

union meeting.

VAs Sateen iain ai

As you know, the Union exercised its right to reopen the

1993 NBCWA last August. At that time we negotiated pension

improvements for active miners and pension bonuses for our

retirees. We also negotiated wage bonuses for all active miners

and pension bonuses for our retirees. We also negotiated wage

bonuses for all active miners. The second of the $600 wage

bonuses and the retirees’ bonuses are payable December 16,

1997. Perhaps most significantly, we resolved the deferred

vested pension problem for any miner with 20 years who

worked under the 1993 NBCWA, providing significant pension

income protection for them should they be laid off. We also

agreed that we would begin negotiations for a successor

agreement no later than August of this year.

This spring we held a series of regional conferences for

local unions at which there was substantial discussion of the

state of the U.S. coal industry and the importance of securing an

early agreement that met the needs of both active and retired

miners. We also spent a considerable amount of time in the last

two years visiting local unions halls, bath houses and mine sites

to hear directly from the rank and file their expectations and

desires for the contract.

We heard clearly that the number one priority of our

members is improvements in the pension plan. The average

working miner is 48 years old, and knows the assaults the coal

industry is under. Many of you told us you were concerned

whether your mine would be working until you reached

retirement age. You told us you wanted more pension income

when you retire, and that we should never forget our retired

brothers and sisters.

We are submitting this tentative agreement to you for

ratification because we believe that we have met the goals of

the membership. There are gains in every area of the contact,

28

with no concessions. Wages, pensions, life insurance, death

benefits, vision and dental care, sickness and accident benefits

have all been improved. There is something for all working and

retired members in this agreement, and no concessions. Your

line officers believe this tentative agreement is in the best

interests of the membership of the UMWA, and deserves to be

ratified.

Of course, the ultimate decision on ratification rests

with you and your UMWA brothers and sisters. We trust your

wisdom and judgment without question, just as you have trusted

us. We urge you to attend the explanation meeting at your local

union, consider the contract carefully, and vote in the interests

of your family and your Union.

We want to thank you for the support and solidarity you

have shown since we took office two years ago. The contract

improvements we have achieved in last year’s reopener and this

year’s tentative agreement—with no need to engage in a

strike—are a testament to your strength and determination.

Solidarity forever, for the Union makes us strong.

We wish you a safe and happy holiday season.

In solidarity,

/s/Cecil E. Roberts

/s/Jerry D. Jones

/s/Carlo Tarley

29

5. Letter from Arch of Kentucky to Mr. Terry W. King,

January 2, 1998.

Mr. Terry W. King

Box 235

Cumberland, KY 40823

Conditional Recall Notice and Agreement

Apogee Coal Company (“the Company’) and the International

Union, United Mine Workers of America (“Union”) have

agreed to offer you an opportunity to participate in a conditional

recall. In order to be eligible to participate in the recall, you

must verify that you understand the terms of the conditional

recall and that you accept such terms by signing this agreement

and returning it to the Company, as described below.

Participation in this conditional recall is voluntary. If you elect

not to participate, your panel rights under the National

Bituminous Coal Wage Agreement of 1998 (“1998 NBCWA”)

will not be affected in any way.

If you elect to participate, the Company will recall you for

work, subject to the limitations set forth below, on Wednesday,

January 7, 1998. If you accept this conditional recall, you must

report to the mine office at 12:00 noon, Wednesday, January 7,

1998. If you report, you will be paid four (4) hours reporting

pay, based on the hourly rate for your most recent job

classification. You will be placed back on lay-off status

effective January 7, 1998.

In order to participate in this conditional recall, you must agree

to the following:

I fully understand that by electing to participate in the

30

conditional recall, the only contractual benefit under the 1998

NBCWA I am entitled to receive is four (4) hours pay. I

understand and acknowledge that I am not entitled to and will

not receive any other contractual benefit, including, but not

limited to, graduated vacation, floating vacation, regular

vacation, sick days, holiday pay, clothing allowance, and any

and all other benefits.

In order to participate in this conditional recall, you must sign

this agreement and return it to the Company when you report

for work at 12:00 noon on January 7, 1998.

AGREED:

BY: /s/ Terry W. King

SSN:xxx-xx-8287

Date: 1-7-98

3]