Petition for Writ of Certiorari — Craig v. Brigadier (No. 07-534)

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07-534 0C7T 3- 200:

OFFICE OF THE CLERK

In The

No. Ww

SUPREME COURT OF THE UNITED STATES

MATTHEW A. CRAIG,

Petitioner

JOHN BRIGADIER, SUSAN M. BRIGADIER,

DAVID L. BRIGADIER, JACQUELYN F. LENSON,

RISER FOODS COMPANY, d/b/a GIANT EAGLE,

INC.,

' Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LEONARD EHRENREICH

Counsel of Record

Ehrenreich & Associates

526 Superior Avenue, Suite 1130

Cleveland, Ohio 44114

(216) 861-1070

LLL Lee ee

QUESTIONS PRESENTED

This Court and_ several circuits have

previously held that the Labor Management

Relations Act on/y preempts a claim where the

claim requires interpretation of the terms of a

collective bargaining agreement. Here, the

Sixth Circuit acknowledged that Petitioner’s

complaint relies exclusively upon Ohio law but

concluded that, because resolution of the

claims in the complaint will require a court to

address relationships created through the

collective bargaining process and because the

asserted harm arises out of employment

generally governed by a collective bargaining

agreement, the Labor Management Relations

Act preempts the claims even though no

specific terms require interpretation. Does

the standard applied by the Sixth Circuit for

Labor Management Relations Act preemption

directly conflict with prior decision of this

Court and other circuits such that this Court

should grant certiorari to resolve the conflict?

This Court has_ previously held _ that

examining the existence or severity of the

harm of discharge alleged in a complaint does

not require a court to evaluate the parameters

for proper and improper discharge under a

collective bargaining agreement. Here, the

Sixth Circuit held that “examining the

existence and...severity” of the harm of

III.

discharge as alleged in Petitioner's complaint

will “require the court to evaluate the

parameters for proper and _ improper

discharge” under a_ collective bargaining

agreement and, therefore, the Labor

Management Relations Act preempts the

claims set forth in the complaint. Does the

Sixth Circuit’s decision directly conflict with

this Court’s prior decision such that this Court

should grant certiorari to resolve the conflict?

This Court has_ previously held that

evaluating the existence of an _ alleged

improper motive of a defendant does not

require a court to examine the terms of a

collective bargaining agreement. Here, the

Sixth Circuit held that the complaint’s

assertion of the improper motive of certain

Respondents for committing various torts

against Petitioner would “require the court to

assess the parameters of the current working

environment and the functioning of various

grievance procedures” and, therefore, causes

the Labor Management Relations Act to

preempt the claims. Does the Sixth Circuit's

decision directly conflict with this Court’s

prior decision such that this Court should

grant certiorari to resolve the conflict?

ill

The Labor Management Relations Act only

applies to suits for breach of a collective

bargaining agreement between an employer

and a labor organization. Here, the Sixth

Circuit held that the Labor Management

Relations Act preempted Petitioner’s state law

tort claims against persons who were neither

associated with any employer nor labor

organization at issue herein. Does the Sixth

Circuit's decision directly conflict with

doctrine of this Court and decisions of other

circuits such that this Court should grant

certiorari to resolve the conflict?

28 U.S.C. § 1654 and federal appellate court

decisions hold that any person may conduct

his/her own case in federal court to the same

extent as if represented by counsel. Fed. R.

App. P. 34(a) provides a general entitlement to

oral argument on appeal. Here, as it does in

virtually all cases involving pro se litigants,

the Sixth Circuit denied Petitioner's request

for oral argument. Is the Sixth Cuircuit’s

standing policy of denying oral argument in

cases involving pro se litigants unjust, run

contra to 28 U.S.C. § 1654 and the right of

self-representation otherwise expressed by

prior judicial decisions of this Court and other

circuits, and conflict with Fed. R. App. P. 34(a)

and the implementation of Fed. R. App. P.

34(a) by other circuits such that this Court

should grant certiorari to determine the

validity of the policy?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

DECISIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

I. Petitioner's Employment with Riser

Foods Company

Respondents commit the torts of slander,

libel, tortious interference with an

employment/contractual relationship,

and civil conspiracy against Craig

Craig suffers discharge from employment

for allegedly walking out of a meeting

and thereafter pursues remedy under the

Craig files suit against Respondents for

the commission of several state-law torts

Respondents refuse to respond to Craig's

discovery requests and remove the case

to federal district court

VI. Craig files motion to remand for lack of

subject matter jurisdiction and the

District Court denies the same

VII. Craig repeatedly requests permission to

conduct discovery and the District Court

fails to answer the requests

VIII. The District Court awards summary

judgment to Respondents ...............ccccceceececeeess g

IX. Craig appeals the denial of his remand

motion and entry of summary judgment

in favor of Respondents and the Sixth

Circuit denies the Parties’ request for

oral argument and affirms the District

Cer te i TE nn vcscoveceovaenee 9

ARGUMENT

I. THE SIXTH CIRCUITS DECISION IN

THE CAS. SUB JUDICE VASTLY

EXPANL. “ND CONFLICTS WITH THE

PRIOR DECISIONS OF BOTH THIS

COURT AND DECISIONS OF OTHER

CIRCUITS HOLDING THAT THE LMRA

DOES NOT PREEMPT A CLAIM

UNLESS THE CLAIM REQUIRES

INTERPRETATION OF TERMS OF A

CBA AND THIS COURT SHOULD,

THEREFORE, GRANT CERTIORARI TO

RESOLVE THE CONFLICT

. THE SIXTH CIRCUITS CONCLUSION

THAT “EXAMINING THE EXISTENCE

AND (POTENTIALLY) THE SEVERITY”

OF THE HARM OF DISCHARGE WILL

“REQUIRE THE COURT TO EVALUATE

THE PARAMETERS FOR PROPER AND

IMPROPER DISCHARGE” UNDER A

CBA AND, THEREBY, GIVE RISE TO

LMRA PREEMPTION DIRECTLY

CONFLICTS WITH THIS COURT'S

PRIOR DECISIONS AND THIS COURT

SHOULD, THEREFORE, GRANT

CERTIORARI TO RESOLVE THE

CONFLICT

. THE SIXTH CIRCUIT'S CONCLUSION

THAT EVALUATION OF

RESPONDENTS’ IMPROPER MOTIVE

OF ATTEMPTING TO “OBTAIN A

MORE LAX WORKING ENVIRONMENT

Vill

IV.

FOR JOHN M. BRIGADIER’ WILL

REQUIRE THE COURT TO ASSESS

THE PARAMETERS OF THE CURRENT

WORKING ENVIRONMENT AND THE

FUNCTIONING OF VARIOUS

GRIEVANCE PROCEDURES” UNDER A

CBA AND, THEREFORE, RESULT IN

LMRA PREEMPTION OF ALL OF

CRAIG’S CLAIMS DIRECTLY

CONFLICTS WITH THIS COURT'S

PRIOR DECISIONS AND THIS COURT

SHOULD, THEREFORE, GRANT

CERTIORARI TO RESOLVE THE

RTE Midi delsehicearasverssssorsiqseveveveunessseserens 28

THE SIXTH CIRCUIT'S DECISION

HOLDING THAT THE LMRA

PREEMPTED CRAIG’S CLAIMS

AGAINST PERSONS WHO HAD NO

RELATIONSHIP WITH UCFW NOR

RISER WHATSOEVER IS PATENTLY

CONTRARY TO THE LANGUAGE OF

THE LMRA, INTERPRETATION OF

THE LMRA BY THIS COURT AND

OTHER CIRCUITS, AND

FUNDAMENTAL CONCEPTS OF

CONTRACT LAW, AND THIS COURT

SHOULD, ACCORDINGLY, GRANT

CERTIORARI TO CORRECT THE SAME. ....30

". THE STANDING POLICY OF THE

SIXTH CIRCUIT AND SEVERAL OTHER

CIRCUITS OF DENYING ORAL

ARGUMENT TO PRO SE LITIGANTS

RUNS AFOUL OF 28 U.S.C. § 1654, FED.

R. APP. P. 34(a), PRIOR DECISION OF

THIS AND OTHER COURTS, THE

NOTION OF EQUALITY UNDER THE

LAW, EQUAL ACCESS TO THE

COURTS, AND CONFLICTS WITH

OTHER CIRCUITS’ IMPLEMENTATION

OF FED. R. APP. P. 34(a) SUCH THAT

THIS COURT SHOULD GRANT

CERTIORARI TO CORRECT THE SAME

APPENDIX

Sixth Circuit Order (7/10/07)

Denying Rehearing........................45 Appendix ~ 1

Sixth Circuit Order Affirming

District Court (6/4/07) ..........0000 cece Appendix - 1

First Amended Complaint ............ Appendix - 13

Listing of Private Party Civil Cases Denied Oral

Argument Pursuant to Sixth Circuit Rule 34G)

(April 1, 2005 - March 31, 2006) ...Appendix - 31

TABLE OF AUTHORITIES

Cases Page(s)

Allis-Chambers Corp. v. Lueck,

EE Be ais senha asi tnbvevninctneects 13, 16, 24

Brookeside Ambulance, Inc. v. Walker Ambulance

Serv., 112 Ohio App.3d 150, 678 N.E.2d 248

as ie datiusgileesess 19

Campbell v. Kane, Kessler, P.C.,

144 Fed. Appx. 127 (2d Cir. 2005)...............00000088 24

Caterpillar, Inc. v. Williams, 482 U.S. 386

<_ Eeshg Sk SREP URS HESS eee ee Aen em aon ee 13-15

Collins v. Bradley, 122 F.3d 1067

I sc vasdedgnccbustpneloaied 24

Dashields v. Robertson,

2000 U.S. App. LEXIS 9533 (4th Cir. 2000)........... 20

DeCoe v. Gen. Motors Corp., 32 F.3d 212

ae at 16, 22-23

Doyle v. Fairfield Mach. Co., Inc.,

120 Ohio App.3d 192, 697 N.E.2d 667

a cuuintndaiods 19

Dryden v. Cincinnati Bell Tel. Co.,

135 Ohio App.3d 394, 734 N.E.2d 409

CR I PO sic idics «ec dhcchsmeicces Sec tacipnuscsnssoupn 18-19, 21

Faretta v. California, 422 U.S. 806 (1975)............. 32

Farmer v. United Brotherhood of Carpenters

& Joiners of America, Local 26,

Ne es NE SF Pci oils icine dcbanisiindipos rdebaudany vensvas 34

Foy v. Pratt & Whitney Group, 127 F.3d 229

Tt EE isa hss hcaiela nies anccionsiees 34

Franks v. The Lima News, 109 Ohio App.3d 408,

672 N.E..2d 245 (3d Dist. 1906) ....:.icscccciscecesiesssencee 19

Fred Stegel Co., L.P.A. v. Arter & Hadden,

85 Ohio St.3d 171, 707 N.E.2d 853 (1999)....... 20, 29

Galvez v. Kuhn, 933 F.3d 773 (9% Cir. 1991)........ 34

Gay v. Carlson, 60 F.3d 83 (2d Cir. 1995).............. 21

Graham v. Contract Transp., Inc.,

I Oe Tr Ee iN Pi vcvciccressccveciaccccesssseees: 21

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246 (1994)......... 10. 34°15, 17, 21-22, 26°29

Int7 Union, United Mine Workers of America V.

Covenant Coal Corp., 977 F.2d 895

i a ie spel bivdddnaeane 30-31

Kern v. Dannon Co., Inc., 71 Fed. Appx. 442

RN I aa cla dds tba dendoseaonedsnkes 24

Laurel Valley O1l Co. v. 76 Lubricants Co.,

154 Ohio App.3d 512, 797 N.E.2d 1033

Be I hia sas ncacenscacidedisviseietnousucuin 18, 20

Lawson v. AK Steel Corp., 121 Ohio App.3d 251,

699 N.E.2d 951 (12th Dist. 1997) .............ccccccsccceeees 19

Lewis v. Fairview Hosp., 156 Ohio App.3d 387,

806 N.E.2d 185 (8t' Dist. 2004) .............ccceeeeeeeeeeeee: 29

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

486 U.S. 399 (1988) 10, 13-14, 17, 22, 24, 26-29

Linn v. United Plant Guard Workers of America,

Local 114, 383 U.S. 53 (1966)

Livadas v. Bradshaw, 512 U.S. 107

| RAE RAIL ERLE a A CSR hm 15, 17, 24, 26

Lopez v. Fox Television Animation, Inc.,

76 Fed. Appx. 769 (9 Cir. 2003)

Lydon v. Boston Sand & Gravel Co., 175 F.3d 6

Oe SD eae oe ek Rae eee ae 34

Mever v. Schnucks Markets, Jnc., 163 F.3d 1048

GPP EI, Be ssciavticiccevrenmaceociilctbiesnccciacien, 20

OReilly v. New York Times Co., 692 F.2d 863

(2d Cir. 1982)

Papa v. Truland Systems Corp., 162 F.3d 1155

(4th Cir. 1998)

Potts v. Wilson, 54 Fed. Appx. 190

(6 Cir. 2002)

Ratig v. A.H. Belo Corp., 203 F.3d 832

(9th Cir. 1999)

Shiflett v. I.T.O. Corp. of Baltimore,

eR ke eee 24

Texton Lycoming Reciprocating Engine Div.,

AVCA Corp. v. UAW, 523 U.S. 653 (1998)

Tindall v. Poultney High Sch. Dist.,

PoE eS GF 1G. ge: .| See 00, OO

Turner v. American Fed. of Teachers Local 1565,

138 F.3d 878 (11th Cir. 1998)

Wilds v. UPS, Inc., 262 F. Supp. 2d 163

I ee

Zbuka v. Marathon Ashland Petroleum, LLC,

No. 06-4314 (6t Cir. June 25, 2007)

Statutes

ts HE I ihcccinceiccbvousinipneninnsenaceeshcoulacel 2, 32, 35

Et ok SARA AR rs Pari aie Pee PALL passim

Other Page(s)

Note, Zhe Need for a New Approach

to Federal Preemption of Union Members’

State Law Claims, 99 Yale L.J. 209 (1989) ...........34

Administrative Office of the United States

Courts, 2006 Annual Report of the Director,

IS cilaicstladicsascssaacesiuliletiacl aig ood stains Ginsctdtlatesasapleabeits 23

Administrative Office of the United States

Courts, 2006 Federal Judicial Caseload

DECISIONS BELOW

The Sixth Circuit’s decision below is

unpublished. The District Court’s decision below is

also unpublished, but appears on Westlaw under the

citation: 2006 WL 840364.

JURISDICTION

The United States Court of Appeals for the

Sixth Circuit entered an order affirming the district

court below on June 4, 2007. With leave of court,

Petitioner filed a Petition for Rehearing with the

Sixth Circuit on July 3, 2007. The Sixth Circuit

denied the Petition for Rehearing on July 10, 2007.

This Court has jurisdiction to review the decisions

below pursuant to 28 U.S.C. § 1254(1).

STAT S INVOLVED

Section 301 of the Labor Management

Relations Act (29 U.S.C. § 185) provides, 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

chapter, 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.

28 U.S.C. § 1654, entitled “Appearance

personally or by counsel,” provides:

In all courts of the United States the

parties may plead and conduct their

own cases personally or by counsel as,

by the rules of such courts, respectively,

are permitted to manage and conduct

causes therein.

STATEMENT OF THE CASE

Petitioner’s Employment with Riser Foods

Company.

Respondent Riser Foods Company, a retail

grocery chain doing business as Giant Eagle, Inc.

(hereinafter “Riser’) hired Petitioner Matthew A.

Craig (hereinafter “Craig”) as a Part-Time Grocery

Clerk for its retail store #0185 located in Middleburg

Heights, Ohio (hereinafter “0185”), and Craig began

work on July 27, 2003. (First Amended Complaint

£10). Upon entering into the employment

relationship with Riser, Craig became subject to a

collective bargaining agreement (hereinafter “the

Agreement”) by and between Riser and United Food

& Commercial Workers Union Local No. 880

(hereinafter “UFCW”). (First Amended Complaint

his discharge on July 1, 2004. (First Amended

Complaint £11). Sometime after Riser hired Craig,

Riser hired Respondent John M. Brigadier to work

at 0185.

II. Respondents commit the torts of slander, libel,

tortious interference with an

employment/contractual relationship, and

civil conspiracy against Craig.

Sometime before June 25, 2004, without any

provocation or notice to Craig, John M. Brigadier

falsely and maliciously alleged to others including,

but not limited to, Respondents Sue M. Brigadier,

David L. Brigadier, Jacquelyn F. Lenson (hereinafter

“Lenson”), and two (2) persons identified by John M.

Brigadier in a written statement who are not parties

to this action, that Craig had committed sexual

harassment against him. (First Amended Complaint

921; First Affidavit of Matthew A. Craig 4414-16,

District Court Docket Item 28, Exhibit 'D'; Unsworn

Declaration of Jacquelyn Lenson Baon, Exhibit ‘A,’

District Court Docket Item 26). John M. Brigadier’s

motive in making the false and unprovoked

allegations was to injure Craig’s contractual

relationship with Riser and to secure a more lax

working environment for himself under the

supervision of a more lenient supervisor. (First

Amended Complaint 422, 64).

Upon receiving the false allegations, Sue M.

Brigadier and David L. Brigadier caused the further

publication of the allegations to others including, but

not limited to, Riser. by and through its employees,

even though they knew or should have known the

allegations to be specious. (First Amended

Complaint ©4926, 32-33; First Affidavit of Matthew

A. Craig 4914-17, District Court Docket Item 28,

Exhibit 'D') Unsworn Declaration of Jacquelyn

Lenson Baon, Exhibit ‘A,’ District Court Docket Item

26). Sue and David Brigadier’s motive in publishing

the false allegations was to injure Craig’s

contractual relationship with Riser, attempt to

vicariously obtain damages from Riser, and/or

attempt to obtain a more lax working environment

for their son John M. Brigadier. (First Amended

Complaint 9426, 67).

Upon receiving the false allegations, Lenson

and Riser, by and through Lenson, caused the

further publication of the allegations even though

they knew or should have known the allegations to

be specious. (First Amended Complaint 4938-40, 43-

45, 52-53). Lenson’s publication included statements

not made during the course of any legitimate

investigation of the false allegations and publishing

to others outside of Riser management. (First

Affidavit of Matthew A. Craig %14-16, District

Court Docket Item 28, Exhibit 'D'). Lenson’s motive

in publishing the false allegations was to benefit her

employer, Riser, by injuring Craig’s contractual

relationship with Riser and thereby reducing the

risk of Sue M. Brigadier and David L. Brigadier from

bringing a lawsuit on behalf of John M. Brigadier

against Riser. (First Amended Complaint 53).

In addition to perpetuating the false sexual

harassment allegations, Lenson also falsely and

maliciously accused Craig, in the presence of others,

of having committed criminal voyeurism in relation

to a non-party employee. (First Amended Complaint

48).

Sometime before June 25, 2004, without any

provocation or notice to Craig, John Doe falsely and

maliciously alleged to others in written and/or oral

form that Craig had ordered an employee under

eighteen years of age to operate hazardous

machinery in violation of federal and state laws

including 29 C.F.R. § 570.63, section 4109.05 of the

Ohio Revised Code, and section 4101:9-2-10 of the

Ohio Administrative Code. (First Amended

Complaint 4956, 60). John Doe’s motive in making

the false allegations was to injure Craig's

employment/contractual relationship with Riser and,

thereby, secure a more lax working environment

under the supervision of a more lenient supervisor.

(First Amended Complaint 9957, 61, 71, 73).

The tortious conduct of Respondents herein

has subjected Craig to ridicule and has caused Craig

to suffer personal humiliation, mental anguish, and

degradation of his reputation that, in turn, has

caused Craig to suffer personal, professional, and

financial injury. (First Amended Complaint © 22-23,

29-30, 33-34, 40-41, 45-46, 49-50, 54, 57-58, 61-62,

65, 69, 74, 77, 80).

III. Craig suffers discha t

allegedly walking out of a meeting and

thereafter pursues remedy under _ the

Agreement.

On June 25, 2004, Riser demoted Craig from

his position as Manager-in-Charge and terminated

his emjpyment on July 1, 2004.

In response to his discharge, Craig filed a

grievance with Riser on July 12, 2004, contesting his

discharge and alleging various other violations of the

Agreement by Riser. The grievance proceeding

ultimately culminated in arbitration to decide

whether Craig had impermissibly walked out of a

meeting with Riser management and, thus, whether

Riser validly discharged Craig for insubordination

under the terms of the Agreement. An arbitrator

rendered a decision on June 22, 2005, disposing of

Craig’s grievance under the Agreement.

IV. Craig files suit against Respondents for the

commission of several state-law torts.

On July 20, 2004, Craig commenced a civil

action against Respondents including John Doe, a

fictitiously named defendant whose true name and

address were unknown at the time of filing, in the

Court of Common Pleas, Cuyahoga County, Ohio, for

the commission of several state-law torts including

libel, slander, tortious interference with an

employment/contractual relationship, and _ civil

conspiracy. (First Amended Complaint 4417-80). On

August 5, 2004, Craig filed a First Amended

Complaint (hereinafter “FAC”) with the Court of

Common Pleas, correcting the names and addresses

of two (2) of the Respondents.

In setting forth the state-law tort claims in his

FAC, Craig specifically stated that he did not make

the claims pursuant to a _ collective-bargaining

agreement (hereinafter "CBA") nor did any of the

claims arise out of any rights contained therein.

(FAC 49). In addition, the FAC contained no claims

premised on federal law.

V. Respondents refuse to respond to Craig's

discovery requests and remove the case to

federal district court.

On August 26, 2004, Respondents, by and

through counsel, removed the action to the United

States District Court for the Northern District of

Ohio and refused to respond to the discovery

requests. (District Court Docket Item 28, Exhibit

'C'). Respondents based removal on their assertion

that Craig’s claims required interpretation of a CBA

and, therefore, section 301 of the Labor Management

Relations Act (““LMRA”), 29 U.S.C. § 185, preempted

the claims from adjudication in state court. (Notice

of Removal 4420, 22, 25-26, 28 (District Court

Docket Item 1)).

VI. Craig files motion to remand for lack of

subject matter jurisdiction and the District

Court denies the same.

On September 14, 2004, Craig served and filed

with the District Court a Motion in Opposition to

Removal and Motion to Remand for Lack of Subject

Matter Jurisdiction (hereinafter “Motion to

Remand’), along with a memorandum in support.

(District Court Docket Item 7). The District Count

entered an order denying Craig’s Motion to Remand

on May 23, 2005.

VII. Craig repeatedly requests permission to

conduct discovery and the District Court fails

to answer the requests.

In the months following Craig’s filing of his

Motion to Remand and prior to the District Court

reaching a decision on the same, Craig filed both a

Motion to Proceed with Discovery and an Amended

Request for Ruling on Motion to Remand. (District

Court Docket Items 13 & 18). The District Court

failed to respond to either filing until it declared

them as “moot” in its decision on the Motion to

Remand. (Order Denying Remand at 7, District

Court Docket Item 20).

On July 19, 2005, Respondents filed a Motion

for a Protective Order to Stay Discovery (hereinafter

“Motion to Stay Discovery’) and a Motion for

Summary Judgment (hereinafter “MSJ), (District

Court Docket Items 25 & 27), and refused to respond

to any of Craig’s discovery requests until the District

Court ruled on the Motion to Stay Discovery.’ Craig

opposed both motions. The District Court declined

to rule on the Motion to Stay Discovery until it

rendered its decision on Respondents' MS./, at which

' This Court should note that at no previous time had Craig been able to

obtain discovery from Respondents due to Respondents’ refusal to

produce documents requested prior to removal and due to the District

Court's subsequent continuance of the federal Case Management

Conference until it ruled on the Motion to Remand.

time it merely held the Motion to Stay Discovery to

be “moot”. (Order Granting Summary Judgment at

7, District Court Docket Items 50-51).

VIII. The District Court awards summary judgment

to Respondents.

On March 30, 2006, the District Court granted

summary judgment in favor of all Respondents.

(District Court Docket Items 50-51).

IX. Craig appeals the denial of his remand motion

and entry of summary judgment in favor of

Respondents and the Sixth Circuit denies the

Parties’ request for oral argument and affirms

the District Court’s decisions below.

On May 1, 2006, Craig filed his Notice of

Appeal from the final judgment of the District Court

with the United States Court of Appeals for the

Sixth Circuit. The Parties fully briefed the matter

and all Parties requested oral argument in

accordance with Sixth Circuit Rule 34(a). Following

the Sixth Circuit’s granting of Respondents’ motion

for leave to file an appendix on August 23, 2006, the

Parties received no further communication from the

Sixth Circuit until June 4, 2007. At no time prior to

June 4, 2007, did the Sixth Circuit indicate to the

Parties that it would refuse their request for oral

argument.

On June 4, 2007, the Sixth Circuit issued an

order reciting much of the _ District Court’s

memoranda below and affirming the District Court’s

decisions holding the LMRA to preempt Craig’s

claims against Respondents and awarding summary

judgment to all Respondents. As did the District

Court, the Sixth Circuit completely failed to respond

to or even acknowledge any of the arguments Craig

made in his briefs or acknowledge this Court’s

controlling decisions, such as Lingle, infra, Hawaiian

Airlines, infra, and Texton, infra, even though Craig

cited and discussed each of these cases in his briefs.

On July 3, 2007, Craig filed a Petition for

Rehearing with the Sixth Circuit, alerting the court

to a slew of clear factual and legal errors it made in

its decision of June 4, 2007. The erroneous factual

findings the Sixth Circuit made in reaching its

decision, as noted in the Petition for Rehearing,

include:

1. Its statement that Craig “originally filed this

civil action in the Cuyahoga County Court of

Common Pleas contesting the outcome of a

dispute he had with his former employer, Riser

Foods Company...” (Order at 1) even though

Respondents’ own admissions in their Brief (at

7), the arbitration decision Respondents

previously submitted, and the docket of Matthew

A. Craig v. John M. Brigadier, et al., Cuyahoga

County Court of Common Pleas Case No. 04-

536338, plainly show that Craig originally filed

this civil action in the Cuyahoga County Court of

Common Pleas long before he and Riser

submitted a separate dispute concerning an

alleged incident of insubordination to arbitration

and even before Craig and Riser held the first

meeting with respect to this separate dispute.?

2. Its statement that Craig’s termination resulted

from a grievance process established by a CBA

(Order at 4), even though the record contains no

evidence that Craig’s termination resulted from

a grievance process established by a CBA, even

though the arbitration decision submitted by

Respondents plainly indicates that Craig did not

initiate any grievance proceeding established by

a CBA until after the termination of his

employment, and even though the FAC clearly

indicates that the conduct forming the basis for

Craig’s claims occurred prior to any demotion,

prior to any discharge, and prior to Craig's

commencement of any grievance proceeding.?

3. Its suggestion that Craig commenced the instant

civil action to contest his termination of

employment (Order at 1-2, 5-6) even though the

insubordination matter Craig and_ Riser

submitted to arbitration appears nowhere in

Craig’s FAC and even though Craig has never

challenged or otherwise complained of the

arbitrator’s decision in this civil suit.

4. Its suggestion that the within action involves a

> Thus, Craig could not have filed this civil action in the Cuyahoga

County Court of Commen Pleas to contest an "outcome" of a dispute

with Riser because no “outcome” yet existed.

* Craig plainly states in his FAC that the claims first arose prior to June

25, 2004. (See FAC $921, 56, 60).

dispute solely between Craig and Riser even

though the FAC. evidences that Craig

commenced the instant civil action against six

(6) separate defendants, two (2) of which never

had any direct connection to Riser whatsoever,

and even though Craig charges only two (2) of

the fourteen (14) counts set forth in the FAC

against Riser.

On July 10, 2007, the Sixth Circuit denied the

Petition for Rehearing without opinion. Craig now

respectfully requests this Court to grant certiorari in

the within matter to correct significant legal conflict

between the Sixth Circuit’s decision of June 4, 2007,

and prior decisions of this Court and other circuits.

ARGUMENT

THE SIXTH CIRCUIT’S DECISION IN THE

CASE SUB JUDICE VASTLY EXPANDS

AND CONFLICTS WITH THE PRIOR

DECISIONS OF BOTH THIS COURT AND

DECISIONS OF OTHER’ CIRCUITS

HOLDING THAT THE LMRA DOES NOT

PREEMPT A CLAIM UNLESS THE CLAIM

REQUIRES INTERPRETATION OF TERMS

OF A CBA AND THIS COURT SHOULD,

THEREFORE, GRANT CERTIORARI TO

RESOLVE THE CONFLICT.

Section 301 of the LMRA provides that “[s]uits

for violation of contracts between an employer and a

labor organization...may be brought in any district

court of the United States having jurisdiction...” 29

U.S.C. § 185 (emphasis added). This Court has

interpreted the language and purpose of the LMRA

to preempt state court adjudication of claims

requiring interpretation of CBAs so as to allow the

federal courts to foster uniform meanings for

disputed labor-contract terms and to prevent the

chaos that would likely arise by allowing the

individual states to fashion their own meanings for

such terms. A//is-Chambers Corp. v. Lueck, 471 U.S.

202, 208-12 (1985).

To effectuate the purpose of the LMRA, this

Court has repeatedly held that the LMRA preempts

state-law claims brought in state court by a party to

a CBA from adjudication in state court on/y if the

claims require interpretation of CBA terms. Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413

(1988). Where adjudication of a state-law claim does

not absolutely require interpretation of the meaning

of a CBA term, the claim is “independent” of the

CBA and is not subject to LMRA preemption. /d. at

409-10. Mere consultation of a CBA’s terms is not

sufficient to cause LMRA preemption. /d. at 413

n.12. Even in instances where state law creates a

cause of action that is virtually identical to the

nature of a claim available under a CBA, the LMRA

does not preempt the state-law claim from

adjudication in state court so long as there exists a

possibility to reach a judgment on the claim without

interpreting the meaning of any term of a CBA. /d.

at 409-13: Caterpillar, Inc. v. Williams, 482 U.S. 386,

394-95 (1987). Where a plaintiff may prove claims

through factual circumstances and evidence of

tortious motive, rather than citation to CBA

language, the claims are beyond the preemptive

reach of the LMRA. Hawauian Airlines v. Norris, 512

U.S. 246, 261-62, 266 (1994); Lingle, 486 U.S. at 407-

13.

In the context of addressing LMRA

preemption, this Court has previously said that, in

order for subject matter jurisdiction based on a

question of federal law (e.g., interpretation of CBA

terms) to exist, the plaintiff must plainly disclose the

federal question on the face of the complaint.

Caterpillar, 482 U.S. at 392. This is the "well-

pleaded complaint rule". Jd. A plaintiff is the

“master” of the claims he brings against any

defendant and he, alone, has the power to determine

the theories under which he will sue and under what

law he will bring his claims. Lingle, 486 U.S. at 410

n.10; Caterpillar, 382 U.S. at 395-99.

A limited exception to the well-pleaded

complaint rule is the “complete preemption

doctrine”. Caterpillar, 382 U.S. at 393-94. The

complete preemption doctrine serves to prevent a

plaintiff from asserting a state law claim to enforce a

CBA. /d. at 393-94. This Court has said that the

complete preemption corollary to the well-pleaded

complaint rule only applies when a complaint asserts

rights created by a CBA or asserts claims

substantially dependent on CBA terms. /d. at 394-

95. This Court has further said that, despite the

complete preemption doctrine, “a federal question

must [still] appear on the face of the complaint” in

order for a defendant to remove the matter to federal

court. /d. at 398-99. “(I]t is the legal character of a

claim [rather than the facts underlying the

claim]...that decides whether a state cause of action

may go forward”. Livadas v. Bradshaw, 512 U.S.

107, 123-24 (1994). This Court has said that the law

fully entitles a plaintiff to assert only claims based

on state law and, when he chooses to do so, the

courts must respect this decision. Hawanan Airlines,

512 U.S. at 260-66. If a plaintiff does not plead

allegations sufficient to give rise to federal subject

matter jurisdiction on the face of the complaint, a

defendant cannot cause federal subject matter

jurisdiction to exist, and thereby choose the forum

for the action, by simply re-characterizing the claims

the plaintiff has pled or by raising defenses created

from federal law or found in a CBA. Caterpillar, 382

U.S. at 398-99.

In arriving at its decision in the case sub

Judice, the Sixth Circuit acknowledges that “Craig's

complaint relies exclusively upon Ohio law”. (Order

at 3). The court then suggests that Craig’s exclusive

reliance on Ohio law is not determinative of federal

subject matter jurisdiction in light of the “complete

preemption doctrine”. (/d.). In applying the doctrine

and LMRA preemption, the Sixth Circuit concludes,

without explanation, that resolution of Craig's

claims “will require a court to address relationships

that have been created through the collective

bargaining process and to mediate a dispute founded

upon right [sic] created by a CBA”. (Ud. at 4)

—

(quoting DeCoe v. Gen. Motors Corp., 32 F.3d 212,

218 (6th Cir. 1994)). In so doing, the Sixth Circuit’s

decision is not only logically and _ legally

inconsistent,4 but conflicts with this Court’s

decisions with respect to LMRA preemption in at

least three (3) significant ways.

First, the Sixth Circuit’s decision sanctions,

under the guise of the complete preemption doctrine,

construing a complaint based exclusively upon state

law as a complaint based on rights created by a CBA

without identifying any particular terms of a CBA

that require interpretation. As this Court has

explained, the entire purpose for LMRA preemption

is to allow the federal courts to foster uniform

meanings for disputed labor-contract terms. A//is

Chambers, 471 U.S. at 208-12. Holding a claim as

preempted by the LMRA without identifying those

CBA terms that a state court would necessarily need

to interpret to resolve the claim fails to advance the

purpose of LMRA preemption and _ needlessly

interferes with states’ interests in governing the

relationships among those within their boundaries.

Here, the courts below have utterly failed to cite to

any provisions of a CBA that govern Craig’s claims

whatsoever.

Second, the Sixth Circuit’s decision indicates

that a court’s finding that it will need to “address the

relationships that have been created through the

* The Sixth Circuit's decision is logically and legally inconsistent in that.

if Craig bases his claims “exclusively” upon Ohio law. he does not base

his claims upon nights created by a CBA.

collective bargaining process” in order to resolve a

claim is a sufficient substitution for this Court’s

requirement that a claim require interpretation of

CBA terms in order for a court to impose LMRA

preemption. Thus, in the Sixth Circuit’s view, the

mere existence of a collective bargaining relationship

between parties is sufficient to entangle any claims

between the parties in the quagmire of LMRA

preemption. Again, this Court has said that the

LMRA does not preempt claims that do not actually

require interpretation of CBA terms. Hawaiian

Alrlines, 512 U.S. at 262-63; Livadas, 512 U.S. at

123-24; Lingle, 486 U.S. at 407-13. Mere

consultation of CBA terms is not enough, and LMRA

preemption does not arise merely because the

plaintiff employee is a party to a CBA with the

defendant employer. Lingle, 486 U.S. at 413 n.12;

Caterpillar, 482 U.S. at 397 n.10.

Third, the Sixth Circuit’s decision holds that

the LMRA preempts Craig’s claims even though his

libel, slander, tortious interference, and _ civil

conspiracy claims fail to indicate, on their face, that

they rely on the terms of a CBA for their resolution

and even though they do not require interpretation

of a CBA for their resolution. This Court should first

observe that Craig expressly states in his FAC that

he premises none of the claims contained therein

upon rights of a CBA. In fact, the only instances in

which Craig even mentions a CBA in the FAC is in

paragraph nine, where he expressly states that

“none of the causes of action being alleged hereunder

are covered by or subject to the collective bargaining

agreement,” and in paragraph sixteen, where he

acknowledges for factual background purposes, his

involvement in an alternative dispute resolution

process concerning certain contractual violations

that he expressly excludes from this suit (emphasis

added). Craig makes no other reference to a CBA at

any other place in the FAC, which contains fourteen

separate counts/claims against six individual

defendants.®

Aside from Craig’s express denial in his FAC

that he premises any of his claims on a CBA and the

FAC’s plain lack of reference to CBA provisions, the

FAC plainly sets forth defamation, tortious

interference, and civil conspiracy tort claims based

entirely on state law. Linn v. United Plant Guard

Workers of America, 383 U.S. 53, 61-67 (1977) (the

right to be free of defamation is a right created by

state law, not a CBA); Dryden v. Cincinnati Bell Tel.

Co., 135 Ohio App.3d 394, 400-03, 734 N.E.2d 409

(1st Dist. 1999) (the rights to be free of defamation

and tortious interference with employment are

rights created by state law, not a CBA). Laurel

Valley Oil Co. v. 76 Lubricants Co., 154 Ohio App.3d

512 (5th Dist. 2003) (civil conspiracy as cognizable

under state tort law).

: Craig asserts only two (2) of the fourteen (14) counts’claims against

Riser and he expressly premises liability on these claims on ratification

of intentional torts by Riser's employees. (FAC %€52, 76). Craig never

mentions discharge of employment in these counts‘claims. (See /d.).

To establish a claim for libel (or slander)

under state tort law, a plaintiff must show the

existence of: (1) a false and defamatory statement:

(2) in written (or oral) form: (3) that is published

without privilege to a third person: (4) fault of the

publisher for making the publication and; (5) in some

instances, damages sustained therefrom. Lawson v.

AK Steel Corp., 121 Ohio App.3d 251, 256, 699

N.E.2d 951 (12th Dist. 1997); Franks v. The Lima

News, 109 Ohio App.3d 408, 412, 672 N.E.2d 245 (3d

Dist. 1996).

To establish a claim for tortious interference

with an employment/contractual relationship under

state tort law, a plaintiff must show the following:

(1) the existence of an employment relationship or

contract; (2) the wrongdoer’s awareness of the

existence of the relationship/contract; (3) the

wrongdoer’s intentional interference with the

relationship/contract so as to induce or otherwise

cause a discontinuance thereof; (4) lack of

* Ohio courts have interpreted this element as requiring a showing of the

“action taken” or "intent" by the wrongdoer to procure non-performance

of a contract or discontinuance of the relationship by a third person rather

than a showing of actual breach. See, e.g., Brookeside Ambulance, Inc. v.

Walker Ambulance Serv., 112 Ohio App.3d 150, 155-57, 678 N.E.2d 248

(6" Dist. 1996): Drvden, 135 Ohio App.3d at 400; Dovle v. Fairfield

Mach. Co., Inc., 120 Ohio App.3d 192, 215-17, 697 N.E.2d 667 (11"

Dist. 1997). Moreover, a plaintiff may prove tortious interference with

an employment relationship even where no contract exists. See Dove,

120 Ohio App.3d at 215-17. Craig has clearly alleged tortious

interference with the employment relationship between himself and

justification for the interference and; (5) resulting

damages. Fred Siegel Co., L.P.A. v. Arter & Hadden,

85 Ohio St.3d 171, 176, 707 N.E.2d 853 (1999).

To state a claim for civil conspiracy under

state tort law, a plaintiff must show the existence of:

(1) a malicious combination: (2) of two or more

persons; (3) to injure another in person or property;

(4) in a way not competent for one alone: (5) which

results in actual damages. Laurel Valley Oll, 154

Ohio App.3d at 520.

None of the elements of these claims turns on

the meaning of CBA terms. Rather, these elements

are products of purely factual inquiries, such as the

actions taken by Respondents, the motives

underlying those actions, and the underlying factual

circumstances.

Several courts of appeals confirm that the

LMRA does not preempt defamation and tortious

interference with employment claims. See, e.g.,

Lopez v. Fox Television Animation, Inc., 76 Fed.

Appx. 769 (9t Cir. 2003) (court held that the LMRA

did not preempt a terminated employee’s defamation

claim against his employer); Dashields v. Robertson,

2000 U.S. App. LEXIS 9533 (4 Cir. 2000) (court

held that the LMRA did not preempt a unionized

employee’s defamation and tortious interference

claims against several coworkers): Meyer v.

Schnucks Markets, Inc., 163 F.3d 1048 (8 Cir.

1998) (court held that the LMRA did not preempt a

unionized employee’s defamation and _ tortious

Riser. (FAC €963-74).

interference claims against a coworker and

employer); Graham v. Contract Transp., Inc., 220

F.3d 910 (8th Cir. 2000) (defamation claims not

preempted); Gay v. Carlson, 60 F.3d 83 (2d Cir.

1995) (court found that a terminated employee's

defamation and civil conspiracy claims against

several coworkers arose from state law rights and

did not require interpretation of a CBA); see also

Dryden, 135 Ohio App.3d at 399-403 (holding that

the LMRA did not preempt a terminated employee's

defamation or tortious interference claims against

former coworkers). In holding the LMRA to preempt

Craig’s defamation and tortious interference claims,

the Sixth Circuit enters into a direct conflict with

decisions of its sister circuits in addition to conflict

with this Court.

Despite the Sixth Circuit’s suggestion

otherwise, not only has an arbitrator never decided

the above claims against Respondents herein, but

empowered her to do so. There is no evidence of a

CBA involved here that contains a procedure for

remedying torts committed by members of UFCW

against co-members of the same, nor is there

evidence of a procedure for remedying Riser’s

ratification of intentional torts by its employees.*

Moreover, even if a CBA _ provided for such

procedures, a CBA may not be the "only source” of an

employee’s rights in the workplace. Hawaian

Airlines, 512 U.S. at 258-62. State law may place

* Again, this Court should remain mindful that the LMRA applies only to

CBA disputes between labor unions and employers. 29 U.S.C. § 185.

additional, separate rights and duties upon those

involved in a collective-bargaining relationship and

this Court has consistently rejected the notion that

an individual may not vindicate these separate and

independent rights in state court where he has an

alternative remedy available under a CBA. See, e.g.,

Hawaiian Airlines, 512 U.S. at 257-66; Lingle, 486

U.S. at 407-13.

In Hawauan Airlines, for example, Hawaii law

placed an additional and separate duty on the

defendant employer to not discharge its employees in

violation of public policy. 512 U.S. at 258-62.

Likewise, Ohio places a separate body of rights and

duties on those within its territorial limits that a

CBA may not impede or diminish. Here, Craig had a

state law right to be free from defamation, to not

have his employment/contractual relationship

tortiously interfered with by others, and a right to

not be tortiously conspired against. Respondents

herein had a corresponding duty under state law to

not defame, to not tortiously interfere, to not ratify

theortious conduct of another, and to not engage in

a civil conspiracy to tortiously injure another.

In rendering its decision below, the Sixth

Circuit lost sight of the separate body of rights Ohio

grants to those within its boundaries. The Sixth

Circuithas lost sight of the independent nature of

such rights for some time now with respect to

defamation and tortious interference claims. For

example, in DeCoe, supra, one of the most

consistently cited cases in the Sixth Circuit with

respect to LMRA preemption, the Sixth Circuit held

that the LMRA preempted an employee's defamation

and tortious interference claims against his

employer and several co-workers for allegedly falsely

accusing him of committing sexual harassment upon

several co-workers. /d. at 214-15. Even though the

face of the plaintiffs complaint made no indication

that the plaintiff based his claims on a CBA,® the

DeCoe court delve into a CBA to locate terms that

the defendant might have raised as a defense, or

that might have required interpretation if the

plaintiff had pled his claims differently, to determine

if a court could resolve the claims’ without

interpreting CBA terms. The impact of the DeCoe

decision has been widespread, encouraging district

courts to automatically hold defamation and tortious

interference claims as preempted without regard to

CBA terms or the independent nature of such

claims. For example, the district court below

concluded: "in...[DeCoel...the discharged...[plaintiff]

raised claims such as defamation, land] tortuous

interference... The Sixth Circuit upheld the finding

of preemption in...[that case]; the provisions of the

LMRA must likewise’ govern the resolution

of...[(Craig's] claims". (Order Awarding Summary

Judgment at 6, District Court Docket Items 50-51).

"See Appendix at !3.

” The widespread impact is especially significant when considering that

only the Ninth Circuit surpasses the Sixth Circuit in the number of cases

involving the LMRA. Administrative Office of the United States Courts,

2006 Annual Report of the Director, Table B-7.

The Sixth Circuit’s decision in the case sub

judice and DeCoe are neither anomalies within the

Circuit nor anomalies among the several other

circuits. See, e.g., Campbell v. Kane, Kessler, P.C.,

144 Fed. Appx. 127 (2d Cir. 2005); Shiflett v. L.T.O.

Corp. of Baltimore, 202 F.3d 260 (4th Cir. 2000);

Papa v. Truland Systems Corp., 162 F.3d 1155 (4th

Cir. 1998); Kern v. Dannon Co., Inc., 71 Fed. Appx.

442 (5th Cir. 2003); Collins v. Bradley, 122 F.3d

1067 (5th Cir. 1997); Potts v. Wilson, 54 Fed. Appx.

190 (6 Cir. 2002); Rafig v. A.H. Belo Corp., 203 F.3d

832 (9th Cir. 1999) (holding defamation claims

preempted); Turner v. American Fed. of Teachers

Local 1565, 138 F.3d 878 (11th Cir. 1998) (holding

tortious interference claim as preempted); but see

cases cited supra.

The much of the conflict between the decisions

in the above cases arises from the construction of

conclusions rather than application of facts to an

exacting legal test. More than thirteen (13) years

ago, in the last decision this Court rendered that

discussed LMRA preemption in any significant

detail, this Court acknowledged the lack of

uniformity among the circuits in their application of

the principles this Court set forth in Lingle and

Allis-Chambers. See Livadas, 512 U.S. at 124 n. 18.

There, this Court determined that the facts of that

case did not render the matter a fit occasion to

resolve the conflict among the circuits with respect

to LMRA preemption because, there, non-

preemption by the LMRA was “clear beyond

peradventure’. /d. Petitioner submits that the case

sub judice presents a fit occasion for this Court to

resolve the continuing chaotic conflict between and

within the circuits and to correct the numerous

decisions conflicting with this Court through the

adoption of a more definitive test for LMRA

preemption. !9

Il. THE SIXTH CIRCUITS CONCLUSION

THAT “EXAMINING THE EXISTENCE AND

(POTENTIALLY) THE SEVERITY” OF THE

HARM OF DISCHARGE WILL “REQUIRE

THE COURT TO EVALUATE THE

PARAMETERS FOR PROPER AND

IMPROPER DISCHARGE” UNDER A CBA

AND, THEREBY, GIVE RISE TO LMRA

PREEMPTION DIRECTLY CONFLICTS

WITH THIS COURT’S PRIOR DECISIONS

AND THIS COURT SHOULD, THEREFORE,

GRANT CERTIORARI TO RESOLVE THE

CONFLICT.

In arriving at its decision in the case sub

jJudice, the Sixth Circuit not only completely

misstates the facts in asserting that all of Craig’s

tort claims allege harm of demotion and discharge

(Order at 1), but then goes on to formulate a legal

conclusion that directly conflicts with this Court’s

10 oe . . . . . ‘

The cases cited immediately above represent cases decided since this

Court's decision in Livadas.

prior holdings under any set of facts.!! According to

the Sixth Circuit, as part of its justification in

holding Craig’s claims as preempted by the LMRA,

“examining the existence and (potentially) the

severity” of the harm of discharge will “require the

court to evaluate the parameters for proper and

improper discharge” under a CBA and, thereby, give

rise to LMRA preemption. (Order at 4). However,

this Court has repeatedly rejected the Sixth Circuit’s

conclusion that an allegation in a complaint of harm

of termination of unionized employment requires an

evaluation of the parameters for proper and

improper discharge under a CBA. See e.g,

Hawaiian Airlines, 512 U.S. at 266 (the Court

rejected the notion that examining the existence of

discharge requires interpretation of a CBA and

found that the existence of discharge was a “purely

factual question,” citing Lingle, 486 U.S. at 407).

This Court has likewise rejected the notion

that determining the severity of harm caused by

discharge from employment (i.e., value of lost wages

caused by the event of discharge) requires

interpretation of a CBA sufficient to cause

preemption by the LMRA. Livadas, 512 U.S. at 124-

25 (“when liability is governed by independent state

law, the mere need to ‘look to’ the [CBA] for damages

computation is no reason to hold the state-law claim

'' On review of the FAC. though. only the tortious interference and civi!

conspiracy claims (counts 10-14 of the FAC) allege harm of demotion

and discharge. Contrary to the assertions of the lower courts, none of

Craig's libel and slander claims alleges such harm.

defeated by [the LMRA]”); Lingle, 486 U.S. at 413

n.12 (although federal law would govern any

interpretation of CBA terms when calculating the

damages due on an employee's state-law claim, the

underlying state-law claim would stand).

Although Craig's tortious interference with

employment and civil conspiracy claims allege

damages that include discharge from employment,

Craig seeks monetary damages for these claims

rather than remedies under a CBA, such as

reinstatement of employment. Craig makes no

statement in his FAC that Riser improperly

terminated his employment under a CBA. Moreover,

this Court’s decisions in cases such as Lingle, supra,

and Hawatian Airlines, supra, involving employees

who brought actions in state court against their

former employers for wrongful discharge based on

state law,!2 support the notion that federal labor law

entitles a jury to find that improper/tortious motive

under state law resulted in discharge irrespective of

whether an employer was justified under a CBA in

discharging an employee. These decisions further

demonstrate the fallacy of the Sixth Circuit's

assertion that Craig’s allegation of harm from

demotion and discharge causes the LMRA to

preempt his claims and further demonstrate the

need to correct the Sixth Circuit’s decision in the

'? While Hawaiian Airlines involved the Railway Labor Act rather than

the LMRA, the Court explicitly adopted the preemption standard for the

LMRA sect forth in Lingle for determining preemption under the Railway

Labor Act. 512 U.S. at 261-66.

case sub judice.'8

Il. THE SIXTH CIRCUITS CONCLUSION

THAT EVALUATION OF RESPONDENTS’

IMPROPER MOTIVE OF ATTEMPTING TO

“OBTAIN A MORE LAX WORKING

ENVIRONMENT FOR JOHN M.

BRIGADIER’ WILL REQUIRE THE COURT

TO ASSESS THE PARAMETERS OF THE

CURRENT WORKING ENVIRONMENT

AND THE FUNCTIONING OF VARIOUS

GRIEVANCE PROCEDURES” UNDER A

CBA AND, THEREFORE, RESULT IN LMRA

PREEMPTION OF ALL OF _ CRAIG’S

CLAIMS DIRECTLY CONFLICTS WITH

THIS COURTS PRIOR DECISIONS AND

THIS COURT SHOULD, THEREFORE,

GRANT CERTIORARI TO RESOLVE THE

CONFLICT.

In holding the LMRA to preempt Craig’s

claims, the Sixth Circuit enters into another direct

conflict with this Court’s prior decisions. Referring

to Craig’s statement in his FAC that John M.

Brigadier’s, Sue M. Brigadier’s, and David L.

~ If the Sixth Circuit's assertion were true, then the LMRA would have

also preempted the claims involved in Lingle and Hawaiian Airlines

because. as the claims in those cases were “wrongful discharge” claims,

an allegation of harm from discharge would have been essential to the

claims.

Brigadier’s motive for tortiously interfering with the

employment relationship between Craig and Riser

was to “obtain a more lax working environment” for

John M. Brigadier, the Sixth Circuit concludes that

proof of this motive would “require the court to

assess the parameters of the current working

environment and the functioning of various

grievance procedures” created by a CBA. (Order at

4). However, the Sixth Circuit’s conclusion is

erroneous because such an assessment of the actual

conditions of the working environment and the

functioning of grievance procedures for resolution of

disputes between Riser and union members would be

irrelevant to establishing the existence of the

improper motive.!4 In fact, this Court has repeated)

said that showing the existence of an improper

motive is a factual inquiry and does not require

interpretation of a CBA. Hawauan Airlines, 512 U.S.

at 261-66; Lingle, 486 U.S. at 407-13.'> Accordingly,

'* Again, just as the libel and slander claims fail to allege harm of

discharge, the libel and slander claims in the FAC also fail to contain the

“obtain a more lax working environment” statement.

'* In both Hawaiian Airlines and Lingle, the plaintiffs alleged improper

motive of the defendants in their complaints for wrongful discharge

against the defendants. In Ohio, presumably like Hawaii and Illinois, a

complaint for wrongful discharge in violation of public policy must

contain an allegation of improper motive. See, e.g.. Lewis v. Fairview

Hosp.. 156 Ohio App.3d 387, 391-92, 806 N.E.2d 185 (8" Dist. 2004)

(indicating that a plaintiff must demonstrate improper motive for a

wrongful discharge claim under state tort 'aw); see also Fred Siege/, 85

Ohio St.3d at 171-79 (indicating that a plaintiff must demonstrate the

this Court should grant certiorari to resolve this

clear conflict.

IV. THE SIXTH CIRCUITS DECISION

HOLDING THAT THE LMRA PREEMPTED

CRAIG’S CLAIMS AGAINST PERSONS

WHO HAD NO RELATIONSHIP WITH

UCFW NOR RISER WHATSOEVER IS

PATENTLY CONTRARY TO THE

LANGUAGE OF THE LMRA,

INTERPRETATION OF THE LMRA BY THIS

COURT AND OTHER CIRCUITS, AND

FUNDAMENTAL CONCEPTS OF

CONTRACT LAW, AND THIS COURT

SHOULD, ACCORDINGLY, GRANT

CERTIORARI TO CORRECT THE SAME.

The notion that the LMRA cannot preempt a

claim against a defendant where the defendant is

not a party to a CBA should not come as a difficult

concept. After all, the LMRA applies only to “[s]uits

for violation of contracts between an employer and a

labor organization,’ and one cannot breach an

agreement that does not bind him/her. 29 U.S.C. §

185 (emphasis added); Jnt7 Union, United Mine

Workers of America v. Covenant Coal Corp., 977

F.2d 895, 897-98 (4 Cir. 1992). Accordingly, logic

dictates and several circuit courts have held that

existence of an unjustifiable motive for tortious interference with a

contractual relationship claim under state tort law).

federal courts do not have jurisdiction under the

LMRA to entertain claims against persons who are

not parties to a CBA. Covenant Coal Corp., 977 F.2d

at 897.

Here, Craig set forth several state law tort

claims against Sue M. Brigadier and David L.

Brigadier separately from claims against any of the

other Respondents in this action.'6 Respondents do

not dispute that neither Sue M. Brigadier nor David

L. Brigadier had any form of employment, business,

or contractual relationship with _ Riser.!

Consequently, the Sixth Circuit could not have

legally nor logically construed the LMRA to preempt

the claims asserted against Sue M. Brigadier and

David L. Brigadier in the FAC. In construing the

LMRA to preempt Craig’s claims against Sue M.

Brigadier and David L. Brigadier, the Sixth Circuit

has entered into direct conflict with doctrine of this

Court and decisions of other circuits that necessarily

requires resolution by this Court.

' See Counts 2, 3. and 11 of the FAC.

'” See Defendants’ Amended Answer to Plaintiff's First’ Amended

Complaint at ©68 (admitting that neither Sue M. Brigadier nor David L.

Brigadier had any form of employment, business, or contractual

relationship with Riser).

V. THE STANDING POLICY OF THE SIXTH

CIRCUIT AND SEVERAL OTHER

CIRCUITS OF DENYING ORAL

ARGUMENT TO PRO SE LITIGANTS RUNS

AFOUL OF 28 U.S.C. § 1654, FED. R. APP. P.

34(a), PRIOR DECISION OF THIS AND

OTHER COURTS, THE NOTION OF

EQUALITY UNDER THE LAW, EQUAL

ACCESS TO THE COURTS, AND

CONFLICTS WITH OTHER CIRCUITS’

IMPLEMENTATION OF FED. R. APP. P.

84(a) SUCH THAT THIS COURT SHOULD

GRANT CERTIORARI TO CORRECT THE

SAME.

Of separate, but no less significant, concern in

the case sub judice is the Sixth Circuit’s denial of the

Parties’ request for oral argument. At issue here are

28 U.S.C. § 1654, Fed. R. App. P. 34(a)(2), and the

Sixth Circuit’s consistent practice of prohibiting oral

argument in cases involving pro se litigants.

Deeply rooted in the history of this republic

and expressed in 28 U.S.C. § 1654 is the notion that

a litigant may personally conduct his own case in

court. Faretta v. California, 422 U.S. 806, 830 n.39

(1975); O'Reilly v. New York Times Co., 692 F.2d

863, 867 (2d Cir. 1982). 28 U.S.C. § 1654, entitled

“Appearance personally or by counsel,” provides: “In

all courts of the United States the parties may plead

and conduct their own cases personally or by counsel

as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.”

The Federal Rules of Appellate Procedure further

acknowledge self-representation in the United States

Courts of Appeals. See, e.g., Fed. R. App. P. 3(c)(2)

and (d)(1).

Found within the right of self-representation

is the general right of litigants to orally present their

own cases to courts on appeal. 7inda// v. Poultney

High Sch. Dist., 414 F.3d 281, 286 (2d Cir. 2005).

Fed. R. App. P. 34(a)(2) supports this general right

and provides:

Standards. Oral argument must be

allowed in every case unless a panel of

three judges who have examined the

briefs and record unanimously agrees

that oral argument is unnecessary for

any of the following reasons:

(A) the appeal is frivolous:

(B) the dispositive issue or issues

have been authoritatively decided: or

adequately presented in the briefs and

record, and the decisional process would

not be significantly aided by oral

argument.

Fed. R. App. P. 34(b) further provides: “Notice of

Argument; Postponement. The clerk must advise all

parties whether oral argument will be scheduled,

and, if so, the date, time, and place for it, and the

time allowed for each side. [...]” (emphasis added).

As noted in the facts above, all Parties in the

case sub judice properly requested oral argument

pursuant to Sixth Circuit Rule 34(a). However, as

also indicated above, the clerk of the Sixth Circuit

failed to advise the Parties “whether oral argument

[would] be scheduled” as required by Fed. R. App. P.

34(b). Craig did not learn that the Sixth Circuit

would not permit him oral argument until the court

stated the same in its decision affirming the decision

of the District Court.

As Craig noted in his request for oral

argument, made pursuant to Sixth Circuit Rule

34(a), “the existence of federal subject matter

jurisdiction in the wake of an allegation of LMRA

preemption is an exceedingly complex area of the

law,” especially deserving of oral advocacy. (Brief of

Plaintiff-Appellant, Appendix ‘A’) (citing Farmer v.

United Brotherhood of Carpenters & Joiners of

America, Local 25, 430 U.S. 290, 295-96 (1977);

Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 10

(1st Cir. 1999); Foy v. Pratt & Whitney Group, 127

F.3d 229, 233 (2d Cir. 1997); Wilds v. UPS, Inc., 262

F. Supp. 2d 163, 184-85 (S.D.N.Y. 2003)). At least

one court of appeals has described the LMRA

preemption inquiry as “one of the most confused

areas of federal court litigation”. See Ga/vez v. Kuhn,

933 F.3d 773, 776 (9 Cir. 1991) (citing Note, The

Need for a New Approach to Federal Preemption of

Union Members’ State Law Claims, 99 Yale L.J. 209,

209 (1989)). Craig requested oral argument in

particular to “elaborate on the summary of his

position...clarify whatever questions [the Sixth

Circuit) may have with respect to _ his

contentions...[and) clear up any _ lingering

misconceptions with respect to [his] claims...”. (Brief

of Plaintiff-Appellant, Appendix ‘A’). On review of

th practices of the Sixth Circuit, though, it is all but

certain that the Sixth Circuit would not have

permitted Craig to orally argue his case under any

set of circumstances.

Although Fed. R. App. P. 34(a) makes no

distinction between represented litigants and those

appearing pro se, and even though Congress has

evidenced its intent to eliminate any such distinction

through enactment of 28 U.S.C. § 1654, the Sixth

Circuit has consistently differentiated between cases

involving pro se litigants and those where no party is

pro se. The Administrative Office of the United

States Gourts reports that seven hundred fifty-one

(751) private party civil cases terminated on the

merits in the Sixth Circuit Court of Appeals between

April 1, 2005, and March 31, 2006.'8 The vast

majority of these cases, four hundred ninety-six

(496), terminated following oral argument and two

hundred fifty-five (255) of the cases terminated

following submission on the _briefs.!9 Upon

investigation, Craig has discovered that, of the (751)

private party civil cases terminating on the merits,

“ Administrative Office of the United States Courts, 2006 Federal

Judicial Caseload Statistics, Table B-1. Craig used this time period for

demonstrative purposes and has no reason to believe that the Sixth

Circuit has been more receptive to oral argument in cases involving pro

se litigants during any other me period.

only eighty-five (85) of the cases terminated

following the Sixth Circuit’s denial of oral argument

pursuant to Sixth Circuit Rule 34().2° Of the eighty-

five (85) cases in which the Sixth Circuit refused to

hear oral argument, eighty-three (83) of the cases

involved pro se litigants.2! In fact, Craig has

uncovered only a single instance in the referenced

year where the Sixth Circuit heard oral argument in

a case involving a pro se litigant.22 Craig has

uncovered no cases in which the Sixth Circuit denied

oral argument where all parties indicated a desire

for oral argument and where all parties had obtained

counsel.

In many of the cases where the Sixth Circuit

*” See Appendix at 31. Sixth Circuit Rule 34(j) is similar to Fed. R. App.

P. 34(a) except that it liberalizes the court's ability to deny oral argument

in cases beyond that permitted by Fed. R. App. P. 34(a). Whereas Fed.

R. App. P. 34(a) states that oral argument “must be allowed in every case

unless a panel of three judges who have examined the briefs and record

unanimously agrees that oral argument is unnecessary” for one of three

(3) specified reasons, Sixth Circuit Rule 34(j)(1) permits the aforesaid

panel to deny oral argument without the requirement of finding one of the

three (3) specified reasons and Sixth Circuit Rule 34(j)(2) merely states

that oral argument will “ordinarily” be allowed unless someone (the rule

does not specify who) finds that one of the three (3) specified reasons

applies. (emphasis added).

“' Jd. In the two cases not involving pro se litigants, one or both of the

parties expressed a desire that the court not hold oral argument. See Sixth

Circuit docket numbers 04-3304 and 04-6120.

-- See Sixth Circuit docket number 05-1155.

denied oral argument to pro se litigants, the Sixth

Circuit based its denial on Sixth Circuit Rule

34(j)(2)(C), which states that “[t]he facts and legal

arguments are adequately presented in the briefs

and record, and the decisional process would not be

significantly aided by oral argument”.23 Sixth

Circuit Rule 34(h)(1) states that oral argument

“should undertake to emphasize and clarify the

written argument appearing in the briefs”. Pro se

litigants are precisely those persons who are most

unlikely to adequately present the facts and legal

arguments in their briefs and are the persons most

likely to benefit from an opportunity to emphasize

and clarify the written arguments appearing in their

briefs. Thus, true application of the standards set

forth by Fed. R. App. P. 34(a) and Sixth Circuit Rule

34G)(2)C) would reveal that the vast majority of

private civil cases terminating after oral argument

involved pro se litigants. However, the statistics

reveal but a disingenuous application.

Aside from the raw numbers, Sixth Circuit

Internal Operating Procedure Rule 34(c) evidences a

general exclusion of pro se litigants from the oral

argument process.24_ The Sixth Circuit is not alone

* In the case sub judice, the Sixth Circuit denied oral argument pursuant

to Sixth Circuit Rule 34(j)(1) and completely failed to indicate which of

the three (3) permissible reasons set forth in Fed. R. App. P. 34(a) it

relied upon in denying oral argument.

4 > . : - ” :

™ Here, the Sixth Circuit refers exclusively to “counsel” instead of the

term “party.” as used throughout the Sixth Circuit's other rules.

in its refusal to afford the same consideration to pro

se litigants as it does those with counsel. For

example, Fourth Circuit Rule 46(f) states that

“[clases involving pro se litigants are ordinarily not

scheduled for oral argument” despite Fed. R. App. P.

34(a)’s requirement that all cases proceed to oral

argument “unless a panel of three judges who have

examined the briefs and record unanimously agrees

that oral argument is unnecessary” for one of three

(3) specified reasons. Rather than requiring “a panel

of three judges who have examined the briefs and

record” to unanimously agree that “oral argument is

unnecessary,” as set forth by Fed. R. App. P. 34(a),

Eight Circuit Rule 34(A) permits a clerk or senior

staff attorney to screen out cases for disposition

without oral argument. In contrast, the Second

Circuit has expressly embraced oral argument by pro

se litigants. See Tindall, 414 F.3d at 286; Second

Circuit Rule 34 (expressly providing each pro se

litigant an opportunity to elect to orally argue the

case and granting all parties an opportunity to

request reconsideration of a panel’s unanimous sua

sponte decision not to hear oral argument in

accordance with Fed. R. App. P. 34(a)).25

The hard numbers and facts are impossible to

ignore and readily evidence disparate treatment

toward those who cannot afford counsel or who

choose to not hire counsel when attempting to

-“ Second Circuit Rule 34 has some room for correction, though, because

it still affords lesser deference to cases involving pro se litigants by

lessening the time for oral argument in those cases.

resolve disputes through the judicial system. The

very same panel deciding the case below has

described oral argument as a “benefit”.26 Had the

Sixth Circuit afforded Craig the same benefit that it

would have afforded him had his name not carried

the pro se label, the court may have been less

inclined to “rubber stamp” the District Court’s

decision below and all of the factual and legal errors

contained therein.

Craig submits that the practice of the Sixth

Circuit and other circuits of allowing oral argument

“only for attorneys,” as Craig recalls the case

manager saying when discussing oral argument not

long after filing his Notice of Appeal below, is unjust,

defies the express policy set forth by Congress, defies

the policy set forth in the Federal Rules of Appellate

Procedure, and conflicts with the policies of other

circuits in implementing the aforesaid Federal

Rules. Accordingly, Craig respectfully requests that

this Court grant certiorari so that the process of

washing away this scarlet letter wrongfully imposed

upon litigants without an attorney may begin.

“* See Zbuka v. Marathon Ashland Petroleum, LLC. No. 06-4314, p. 2

(6"" Cir. June 25, 2007).

Respectfully submitted,

LEONARD EHRENREICH

Counsel of Record

Ehrenreich & Associates

526 Superior Avenue, Suite 1130

Cleveland, Ohio 44114

(216) 861-1070

40)

APPENDIX

Case No: 06-3607

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

MATTHEW A. CRAIG

FILED

JUL 10 2007

LEONARD GREEN, Clerk

Plaintiff - Appellant

JOHN BRIGADIER; SUE M. BRIGADIER; DAVID

L. BRIGADIER; JACQUELYN F. LENSON: RISER

FOODS COMPANY, d/b/a Giant Eagle, Inc.

Defendants — Appellees

BEFORE: GILMAN, GIBBONS and GRIFFIN,

Circuit Judges.

Upon consideration of appellant's motion to file

instanter the petition for panel rehearing,

It is ORDERED that the motion be and hereby

is GRANTED.

And after further consideration of the petition

for rehearing filed by appellant,

Appendix - 1

It is ORDERED that the petition for rehearing

be, and it hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

Appendix - 2

NOT RECOMMENDED

FOR FULL-TEXT PUBLICATION

No. 06-3607

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

JUN 04 2007

LEONARD GREEN, Clerk

MATTHEW A. ) ON APPEAL FROM THE

CRAIG, ) UNITED STATES

Plaintiff-Appellant, ) DISTRICT COURT FOR

) THE NORTHERN

v. ) DISTRICT OF OHIO

)

ORDER

Before: GILMAN, GIBBONS, and GRIFFIN,

Circuit Judges.

Matthew A. Craig appeals pro se a district

court judgment that dismissed his civil action, which

was removed from an Ohio state court pursuant to 28

U.S.C. §1441. This case has been referred to a panel

of the court pursuant to Rule 34G)(I), Rules of the

Sixth Circuit. Upon examination, this panel

unanimously agrees that oral argument is_ not

Appendix - 3

needed. Fed. R. App. P. 34(a).

Craig originally filed this civil action in the

Cuyahoga County Court of Common Pleas contesting

the outcome of a dispute he had with his former

employer, Riser Foods Company, d/b/a Giant Eagle,

Inc. (Giant Eagle). Essentially, Craig asserted claims

of defamation, slander, libel, conspiracy, and tortious

interference with contract - torts which allegedly

caused him harm in that they resulted in

his demotion and termination as a Giant Eagle

employee. The defendants alleged federal jurisdiction

over Craig's claims under the Labor Management

Relations Act (LMRA), 29 U.S.C. § 158(a), and

removed the case to the United States District Court

for the Northern District of Ohio. Craig's subsequent

motion to remand the case to the state court was

denied after the district court found that Craig's

claims were properly read as claims for improper

discipline and

No. 06-3607

° 2? «

discharge under the collective bargaining agreement

(CBA), and thus pre-empted under § 301 of the

LMRA.

Thereafter, Giant Eagle filed a motion for

summary judgment which the district court granted.

In so ruling, the district court found that Craig's

claims were preempted by § 301 of the LMRA, and

that the arbitrator's finding that Giant Eagle

properly terminated Craig for insubordination under

Appendix - 4

the terms ofthe CBA precluded judicial review. This

appeal followed.

Craig reasserts his argument that remand is

proper. Giant Eagle's removal was predicated upon

federal question jurisdiction in that Craig's claims

purportedly arose under § 301 of the LMRA, rather

than Ohio law. In reviewing the district court's denial

of Craig's motion to remand, this court looks to the

complaint at the time of removal, reviews the denial

of the motion to remand de novo, and determines

whether the action was properly removed in the first

place. See Ahearn v. Charter Twp. of Bloomfield, 100

F.3d 451,453 (6th Cir. 1996). "Removing defendants

bear the burden of establishing federal subject-

matter jurisdiction." Jd. at 453-54.

"Only state-court actions that originally could

have been filed in federal court may be removed to

federal court by the defendant." Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). To be removable

based upon federal question jurisdiction, generally

the complaint must affirmatively allege a federal

claim. See Beneficial Nat'l Bank v. Anderson, 539

U.S. 1,6 (2003). Federal courts examine the well-

pleaded allegations of the complaint for a federal

question on its face, and ignore potential defenses,

id., "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."

Caterpillar, Inc., 482 U.S. at 393. Since a plaintiff is

the master of his complaint, see AmSouth Bank v.

Dale, 386 F.3d 763, 776 (6th Cir. 2004), where a

Appendix - 5

choice is made to assert only a state-law claim, the

general rule prohibits recharacterizing it as a federal

claim for removal purposes. See Metro. Life Ins. Co.

v. Taylor, 481 U.S. 58, 63 (1987). Federal jurisdiction

can therefore generally be avoided by relying

exclusively on state law. See Smolarek v. Chrysler

Corp., 879 F.2d 1326, 1329 (6th Cir. 1989) (en banc).

No. 06-3607

- 3 Pe

The face of Craig's complaint relies exclusively

upon Ohio law. However, one limited exception to the

general rule is "when a federal statute wholly

displaces the state-law cause of action through

complete pre-emption." Beneficial Nat] Bank, 539

U.S. at 8. This narrow exception to the well-pleaded

complaint rule, known as the "complete preemption"

doctrine, occurs where “Congress [has] so completely

preempt| ed] a particular area that any civil

complaint raising this select group of claims is

necessarily federal in character." Metro. Life, Ins. Co.

, 481 U.S. at 63-64. When Congress has indicated an

intent to completely occupy the field, any seemingly

state-law claim is in fact a federal claim for purposes

of federal question jurisdiction. Beneficial NatT

Bank, 539 U.S. at 9. "[A |ny claim purportedly based

on that pre-empted state law is considered, from its

inception, a federal claim, and therefore arises under

federal law." Caterpillar, Inc., 482 U.S. at 393: see

also Franchise Tax Bd. of Cal. v. Constr. Laborers

Vacation Trust for S.Cal, 463 U.S. 1,24 (1983)

Appendix - 6

(noting that "if a federal cause of action completely

pre-empts a state cause of actionl,] any complaint

that comes within the scope of the federal cause of

action necessarily ‘arises under’ federal law").

As the party invoking removal, Giant Eagle

relies upon the LMRA. Section 301 of the LMRA is a

statute under which the Supreme Court has

recognized complete preemption. See, e.g., Allis

Chalmers Corp. v. Lueck, 471 U.S. 202, 209-11 (1985)

(citing Local 174, Teamsters, Chauffeurs,

Warehouseman & Helpers of Am. v. Lucas Flour Co.,

369 U.S. 95, 103 (1962); Aveo Corp. v. Aero Lodge No.

735, Int’ Assoc. of Machinists & Aerospace Workers,

390 U.S. 557, 55961 (1968) (citing Textile Workers

Union of Am. v. Lincoln Mulls, 353 U.S. 448,456-57

(1957)). This court has noted that § 301 has an

unusually powerful preemptive force over a claim for

relief sought exclusively under state law. A/ongi v.

Ford Motor Co., 386 F.3d 716, 723-24 (citing

Beneficial Nat'l] Bank, 539 U3S. at 7).

Section 301 of the LMRA provides that "I[sluits

for a violation of contracts between an employer and

a labor organization representing employees ... 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." 29 U.S.C. § 185(a). The

statute serves to

No. 06-3607

-4-

Appendix - 7

preempt state-law claims for what are in actuality

suits for violation of contracts between an employer

and a labor organization. Caterpillar, Inc., 482 U.S.

at 394.

To determine whether a state-law claim is

sufficiently "independent" to survive § 301

preemption, this court has adopted a_ two-step

inquiry. DeCoe v. Gen. Motors Corp., 32 F.3d 212,

216-17 (6th Cir. 1994). First, courts must determine

whether resolving the state-law claim would require

interpretation of the terms of the CBA. If so, the

claim is preempted. Second, courts must ascertain

whether the rights claimed by the plaintiff were

created by the CBA, or instead by state law. /d. at

216. If the rights were created by the CBA, the claim

is preempted. In short, if a state law claim fails ether

of these two requirements, it is preempted by § 301.

Using the approach established in DeCoe, we

conclude that preemption was warranted in this case

and that removal was proper. First, the resolution of

Craig's claims "will require a court to address

relationships that have been created through the

collective bargaining process and to mediate a

dispute founded upon right created by a CBA." /d. at

218 (quoting Jones v. Gen. Motors, Corp., 939 F.2d

380,382-83 (6th Cir. 1991). As stated by the district

court,

Craig complains of defamation, slander,

and libel- torts which allegedly caused

him harm in that they resulted in his

demotion and termination. Examining

the existence and (potentially) the

Appendix - 8

severity of this harm will evidently

require the court to evaluate the

parameters for proper and improper

discharge. Craig claims tortious

interference with his employment and

with his contractual relationship with

Giant Eagle (as well as conspiracy to

interfere). Evaluation of the defendants'

alleged attempts to "obtain a more lax

working ~~ environment" for John

Brigadier will require the court to assess

the parameters of the current working

environment and the functioning of

various Giant Eagle grievance

procedures, again as created. by the

CBA. As the second DeCoe criterion is

satisfied, preemption is clearly

warranted.

(May 23, 2005, Memorandum and Order at

unnumbered page 5).

Second, Craig asserts various wrongs alleged

to have caused his demotion and discharge. As

pointed out by the district court, "[Craig's]

termination resulted from a_ grievance process

established by a CBA, signed only by the parties

engaged in collective bargaining, and ended his

tenure at a job whose terms and conditions were

created by and subject to a CBA." (May 23, 2005,

Memorandum and Order at unnumbered pages 5-6).

Accordingly, removal was proper and remand was not

warranted.

No. 06-3607

“5°

Appendix - 9

This court reviews de novo a district court's

grant of summary judgment. See Harrow Prods., Inc.

v. Liberty Mut. Ins. Co., 64 F.3d 1015 (6th Cir. 1995).

Summary judgment is proper if there are no genuine

issues as to any material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). In this case, the parties do not allege there

are any issues of material fact; therefore, the court

must consider whether the defendant is entitled to

judgment as a matter of law.

Upon review, we conclude that the district

court properly upheld the arbitrator's decision.

"[(Clourts must accord an arbitrator's decision

substantial deference because it is the arbitrator's

construction of the agreement, not the court's

construction, to which the parties have agreed."

Solvay Pharms., Inc. v. Duramed Pharms., Inc., 442

F.3d 471,476 (6th Cir. 2006) (citation and internal

quotation marks omitted): see also Michigan Family

Resources, Inc. v. Servo Employees Int'] Union, Local

517M, 475 F.3d 746,755 (6th Cir.*2007) (en banc)

(referring to “the exceedingly deferential task of

considering whether to vacate an arbitration award"),

pet. cert. filed, 75 U. S.L. W. 3598 (U.S. Apr. 26,

2007) (No. 06'-1435). “[C]lourts must refrain from

reversing an arbitrator simply because the court

disagrees with the result or believes the arbitrator

made a serious legal or factual error." Solvay, 442

F.3d at 476 (quoting United Paperworkers Int']

Union v. Misco, Inc., 484 U.S. 29, 38 (1987)): see also

Michigan Family Resources, 475 F.3d at 748 (en

banc) ("[Blecause the company has shown no more

Appendix - 10

than that the arbitrator made an error, perhaps even

a ‘serious error,’ 1n interpreting the contract, we ...

direct the district court to enter an order enforcing

the award.") (citing Misco, 484 U.S. at 38-39).

If the arbitrator's award "draws its essence

from the ... agreement," and is not merely the

arbitrator's “own brand of industrial justice," the

award is legitimate. So/vay, 442 F.3d at 476 (quoting

United Steelworkers of Am. v. Enter. Wheel & Car.

Co., 363 U.S. 593, 597 (1960)). As this court recently

explained, the Supreme Court's decisions in Misco,

484 U.S. 29 (1987) and Major League Baseball

Players Ass 'nV. Garvey, 532 U.S. 504 (2001)

define the line between a permissible

award (that "draws its essence from the

contract") and an impermissible award

(that "simply reflects the arbitrator's

own notionl] of industrial justice) based

on whether the arbitrator "is even

arguably construing or applying the

contract and acting within the scope of

his authority."

No. 06-3607

. 6 «

Misco, 484 U.S. at 38 ... | see Garvey,

532 U.S. at 509 ....*** In both cases, the

[Supreme] Court held that once it was

established that the arbitrator was

construing or applying the contract (and

acting within the scope of his authority),

it made no difference whether the

Appendix - 11

arbitrator had committed "serious,"

"iImprovident," or even "silly" errors in

resolving the merits of the dispute.

Misco, 484 U.S. at 38-39 ... ; Garvey, 532

U.S. at 509-10...

Michigan Family Resources, 475 F.3d at 752-53 (en

bane).

Craig does not challenge the validity of the

arbitration process on appeal. Nevertheless, we have

examined the arbitrator's decision and, in light of the

deference we must give to such decisions, conclude

that the decision is drawn from the essence of the

CBA. The arbitrator was charged with deciding

whether Giant Eagle had just cause to discharge

Craig. To do so, she had to evaluate Craig's particular

conduct and determine whether that conduct fell

within the’CBA's discharge provision. The arbitrator

duly executed her authority under the CBA and did

not dispense her own brand of industrial justice so as

to overcome the deferential standard of review

afforded arbitration awards. /d.

Accordingly, the district court's judgment is

affirmed. Rule 34())(2(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

Appendix - 12

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

Matthew A. Craig

11325 Cheyenne Trail

Suite 302

Parma Heights, OH

44130,

Plaintiff

John M. Brigadier

6002 Bradley Avenue

Parma, OH 44129

Sue M. Brigadier

6002 Bradley Avenue

Parma, OH 44129

David L. Brigadier

6002 Bradley Avenue

Parma, OH 44129

1533 Spring Garden

Avenue Lakewood, OH

44107

Riser Foods Company

d/b/a Giant Eagle, Inc.

5300 Richmond Road

No.: CV04536338

JUDGE:

Jose’ A. Villanueva

)

) FIRST AMENDED

) COMPLAINT WITH

) JURY DEMAND

) ENDORSED HEREON

)

Appendix - 13

Bedford Heights, OH

44146

John Doe

** Address To Be

Provided By

Amendment

Once True Name Is

**)

i i i ee a

Known

Defendants.

STATEMENT OF JURISDICTION

1. Plaintiff Matthew A. Craig, at all times stated

herein, has been and continues to be a resident of

Cuyahoga County, Ohio.

_ s Defendant John M. Brigadier, at all times

stated herein, has been and continuesto be a

resident of and employed in Cuyahoga County, Ohio.

3. Defendant Sue M. Brigadier, at all times

stated herein, has been and continues to be a

resident of Cuyahoga County, Ohio.

4. Defendant David L. Brigadier, at all times

stated herein, has been and continues t» be a

resident of Cuyahoga County, Ohio.

5. Defendant Jacquelyn F. Lenson (hereinafter

"Lenson”), at all times stated herein, has been and

continues to be a resident of and employed in

Cuyahoga County, Ohio.

6. Defendant Riser Foods Company, doing

Appendix - 14

business as Giant Eagle, Inc. (hereinafter “GE”), is a

for-profit corporation registered to conduct business

in the state of Ohio and operates multiple retail

stores throughout Cuyahoga County, Ohio.

7. Defendant John Doe, at all times stated

herein, has been and continues to be a resident of and

employed in Cuyahoga County, Ohio.

8, The causes of action, damages sustained, and

the events that occurred, originate in Cuyahoga

County, Ohio. This is a civil action for damages in

excess of $25,000.

9. None of the causes of action being alleged

hereunder are covered by or subject to the collective

bargaining agreement by and between Defendant GE

and United Food & Commercial Workers Union Local

No. 880, to which Plaintiff is a party.

FACTS COMMON TO ALL COUNTS

10. Plaintiff was hired by Defendant GE as a Part-

Time Grocery Clerk for its retail store #0185, located

at 6925 Southland Drive, Middleburg Heights, Ohio

(hereinafter “0185”), and began work on July 27,

20038.

11. Plaintiff was regularly employed by Defendant

GE at 0185 until his discharge on July 1, 2004.

12. Up until the time of his demotion on June 25,

2004, and subsequent discharge on July 1, 2004,

Plaintiff had never been subjected to disciplinary

action by Defendant GE.

13. During the term of his employ, Plaintiff

received several awards and pay increases for service

Appendix - 15

to Defendant GE beyond that which was required.

14. During the latter part of March, 2004, Plaintiff

was promoted to the “Manager in Charge” position

and regularly served as closing manager for 0185

until his demotion on June 25, 2004.

15. Plaintiff received a pay increase soon after and

corresponding to being promoted to the “Manager in

Charge” position.

16. Plaintiff is currently appealing his discharge

and other contractual violations which are subject to

the collective bargaining agreement by and between

Defendant GE and United Food & Commercial

Workers Union Local No. 880 pursuant to an

alternative dispute resolution process set forth in the

agreement.

COUNT 1

(Slander - John Brigadier)

17. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 16 as if fully rewritten herein.

18. Sometime after Plaintiff was hired by

Defendant GE, Defendant John Brigadier was hired

by Defendant GE to work at 0185.

19. Upon Plaintiff's promotion to “Manager in

Charge”, Defendant John Brigadier began working

under the direct supervision of Plaintiff on the days

of the week when both Plaintiff and Defendant John

Brigadier worked during the evening hours.

20. Plaintiff's authority over Defendant John

Brigadier and the other employees of 0185 was

limited to directing their work activities while

Appendix - 16

Plaintiff was actively serving as “Manager in

Charge”. The extent of Plaintiff's authority to

discipline employees was to send them home for the

remainder of their shift for insubordination. At no

time was Plaintiff given the authority to discharge,

change pay rates, or otherwise alter conditions of

employment for any of the employees at 0185.

21. Sometime before June 25, 2004, without any

provocation or notice to Plaintiff, Defendant John

Brigadier falsely and maliciously alleged to others

that Plaintiff had committed sexual harassment

against him, imputing moral turpitude and the

commission of a criminal offense in violation of

federal and state laws, including 42 U.S.C.A. § 2000e-

2(m) (West 2003) and section 4112.02 of the Ohio

Revised Code Annotated (West 2004), by Plaintiff.

22. The false and unprovoked allegations made by

Defendant John Brigadier, which were calculated to

injure Plaintiff's contractual relationship with

Defendant GE, have subjected Plaintiff to ridicule

and have caused Plaintiff to suffer personal

humiliation, mental anguish, and degradation of his

reputation.

23. Asa direct and proximate result of the

slanderous accusations made against Plaintiff by

Defendant John Brigadier, Plaintiff has suffered and

will continue to suffer personal, professional. and

financial injury.

Appendix - 17

COUNT 2

(Libel - Sue Brigadier and David Brigadier)

24. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 23 as if fully rewritten herein.

25. Among those to whom John Brigadier

published his defamatory remarks were his parents,

Defendants Sue Brigadier and David Brigadier.

26. Thereafter, without just cause or occasion,

Defendants Sue Brigadier and David Brigadier

jointly and severally perpetuated the slanderous

sexual harassment allegations made against Plaintiff

by Defendant John Brigadier by maliciously

publicizing the false allegations to others in written

form. Among those to whom Defendants Sue

Brigadier and David Brigadier published said

allegations were other employees of Defendant GE,

whereby Defendants Sue Brigadier and David

Brigadier also indicated their propensity to take legal

action against Defendant GE based on the

allegations.

27. At no previous time has Defendant Sue

Brigadier discussed amy matter with Plaintiff other

than to notify Plaintiff on a few occasions via

telephone that Defendant John Brigadier would not

be reporting to work as scheduled.

28. At no previous time has Defendant David

Brigadier communicated with Plaintiff in any form.

29. The false allegations made by Defendants Sue

Brigadier and David Brigadier. which have been

made in bad faith and which were calculated to

injure Plaintiff's contractual relationship with

Appendix - 18

Defendant GE, have subjected Plaintiff to ridicule

and have caused Plaintiff to suffer personal

humiliation, mental anguish, and degradation of his

reputation.

30. Asa direct and proximate result of the hbelous

accusations jointly and severally made against

Plaintiff by Defendants Sue Brigadier and David

Brigadier, Plaintiff has suffered and will continue to

suffer personal, professional, and financial injury.

COUNT 3

(Slander - Sue Brigadier and David Brigadier)

31. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 30 as if fully rewritten herein.

32. Without just cause or occasion, Defendants

Sue Brigadier and David Brigadier jointly and

severally perpetuated the false sexual harassment

allegations made against Plaintiff by Defendant John

Brigadier by maliciously continuing to publicize the

false allegations to others through verbal

communications.

33. The false allegations made by Defendants Sue

Brigadier and David Brigadier, which have been

made in bad faith and which were calculated to

injure Plaintiff's contractual relationship with

Defendant GE, have subjected Plaintiff to ridicule

and have caused Plaintiff to sffer personal

humiliation, mental anguish, and degradation of his

reputation.

34. Asa direct and proximate result of the

Appendix - 19

slanderous accusations made against Plaintiff by

Defendants Sue Brigadier and David Brigadier,

Plaintiff has suffered and will continue to suffer

personal, professional, and financial injury.

COUNT 4

(Libel - Lenson)

35. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 34 as if fully rewritten herein.

36. Of those to whom the defamatory sexual

harassment allegations made against Plaintiff by

Defendants John Brigadier, Sue Brigadier, and David

Brigadier were communicated, either directly or

indirectly, is Defendant Lenson.

37. Defendant Lenson is employed by Defendant

GE and at all times relevant herein has served as

Human Resources Manager for 0185.

38. Upon learning of the unsubstantiated

allegations made against Plaintiff by Defendants

John Brigadier, Sue Brigadier, and David Brigadier,

Defendant Lenson, while acting within the scope of

her employment, perpetuated the defamatory

allegations against Plaintiff by publicizing the false

allegations to others in written form.

39. Defendant Lenson maliciously perpetuated the

allegations made against Plaintiff by Defendants

John Brigadier, Sue Brigadier, and David Brigadier,

even though she knew or should have known that the

sexual harassment allegations were without merit.

40. The false allegations made and perpetuated by

Appendix - 20

Defendant Lenson, which she has caused to be widely

distributed and which were calculated by Defendant

Lenson to injure Plaintiff's contractual relationship

with Defendant GE, have subjected Plaintiff to

ridicule and have caused Plaintiff to suffer personal

humiliation, mental anguish, and degradation of his

reputation.

41. Asa direct and proximate result of the libelous

accusations made against Plaintiff by Defendant

Lenson, Plaintiff has suffered and will continue to

suffer personal, professional, and financial injury.

COUNT 5

(Slander - Lenson)

42. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 41 as if fully rewritten herein.

43. Upon learning of the unsubstantiated

allegations made against Plaintiff by Defendants

John Brigadier, Sue Brigadier, and David Agadier,

Defendant Lenson, while acting within the scope of

her employment, perpetuated the defamatory

allegations against Plaintiff by publicizing the false

allegations to others through verbal communications.

Publication by Defendant Lenson included directly

accusing Plaintiff of the crime of sexual harassment

in the presence of others.

44. Defendant Lenson maliciously perpetuated the

allegations made against Plaintiff by Defendants

John Brigadier, Sue Brigadier, and David Brigadier,

even though she knew or should have known that the

Appendix - 21

sexual harassment allegations were without merit.

45. The false allegations made and perpetuated by

Defendant Lenson, which she has caused to be widely

distributed and which were calculated by Defendant

Lenson to injure Plaintiffs contractual relationship

with Defendant GE, have subjected Plaintiff to

ridicule and have caused Plaintiff to suffer personal

humiliation, mental anguish, and degradation of his

reputation.

46. Asa direct and proximate result of the

slanderous accusations made against Plaintiff by

Defendant Lenson, Plaintiff has suffered and will

continue to suffer personal, professional, and

financial injury.

COUN7 6

(Slander - Lenson)

47. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 46 as if fully rewritten herein.

48. At or about the same time as making and

perpetuating the allegations set forth in Counts 4

and 5, Defendant Lenson falsely and maliciously

accused Plaintiff, in the presence of others, of having

committed criminal voyeurism, an act imputing

moral turpitude and the commission of a criminal]

offense in violation of section 2907.08 of the Ohio

Revised Code Annotated (West 2003) by Plaintiff.

49. The allegations of criminal voyeurism made by

Defendant Lenson., which were calculated to injure

Plaintiffs contractual relationship with Defendant

Appendix - 22

GE, have since been widely publicized and have

subjected Plaintiff to ridicule and have caused

Plaintiff to suffer personal humiliation, mental

anguish, and degradation of his reputation.

50. Asa direct and proximate result of the

slanderous accusations of criminal voyeurism made

against Plaintiff by Defendant Lenson, Plaintiff has

suffered and will continue to suffer personal,

professional, and financial injury.

COUNT 7

(Defamation - GE)

51. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 50 as if fully rewritten herein.

52. The libelous and slanderous allegations made

by Defendant Lenson, at all times herein stated, were

condoned and ratified by Defendant GE both

implicitly and expressly through the supportive

actions taken by other managerial employees of

Defendant GE.

53. The aforesaid allegations made by Defendant

Lenson, who serves in a managerial capacity, were

calculated to facilitate the business interests of her

employer, Defendant GE, by reducing the risk of a

lawsuit being brought against Defendant GE by

Defendants Sue Brigadier and David Brigadier.

54. Asa direct and proximate result of the false

accusations of moral and criminal misconduct made

and perpetuated by Defendant Lenson as set forth in

Counts 4 through 6, for which Defendant GE has

Appendix - 23

directly benefited, Plaintiff has suffered and will

continue to suffer personal, professional, and

financial injury for which Defendant GE is jointly

and severally responsible therefore.

COUNT 8

(Libel - John Doe)

55. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 54 as if fully rewritten herein.

56. Sometime before June 25, 2004, without any

provocation or notice to Plaintiff, Defendant John

Doe, an employee of Defendant GE whose true name

was not discoverable as of the time of pleading,

falsely and maliciously alleged to others in writing

that Plaintiff had ordered an employee under

eighteen years of age to operate hazardous machinery

in violation of federal and state laws including 29

C.F.R. § 570.63 (2004), section 4109.05 of the Ohio

Revised Code Annotated (West 2004), and section

4101:9-2-10 of the Ohio Administrative Code (2004).

57. The allegations of criminal misconduct made

by Defendant John Doe against Plaintiff, which were

calculated to injure Plaintiff's contractual

relationship with Defendant GE, have subjected

Plaintiff to ridicule and have caused Plaintiff to

suffer personal humiliation, mental anguish, and

degradation of his reputation.

58. Asa direct and proximate result of the libelous

accusations made against Plaintiff by Defendant

John Doe, Piaintiff has suffered and will continue to

Appendix - 24

suffer personal, professional, and financial injury.

COUNT 9

(Slander - John Doe)

59. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 58 as if fully rewritten herein.

60. Sometime before June 25, 2004, without any

provocation or notice to Plaintiff, Defendant John

Doe falsely and maliciously alleged to others through

verbal communications that Plaintiff had ordered an

employee under eighteen years of age to operate

hazardous machinery in violation of federal and state

laws including 29 C.F.R. § 570.63 (2004), section

4109.05 of the Ohio Revised Code Annotated (West

2004), and section 4101:9-2-10 of the Ohio

Administrative Code (2004).

61. The allegations of criminal misconduct made

by Defendant John Doe against Plaintiff, which were

calculated to injure Plaintiffs contractual

relationship with Defendant GE, have subjected

Plaintiff to ridicule and have caused Plaintiff to

suffer personal humiliation, mental anguish, and

degradation of his reputation.

62. Asa direct and proximate result of the

slanderous accusations made against Plaintiff by

Defendant John Doe, Plaintiff has suffered and will

continue to suffer personal, professional, and

financial injury.

Appendix - 25

COUNT 10

(Tortious Interference with Employment/Contractual

Relationship - John Brigadier)

63. Plarviiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 62 as if fully rewritten herein.

64. Phe falge allegations of sexual harassment

maliciously made against Plaintiff by Defendant

John Brigadier were not within the scope of his

duties as an employee of Defendant GE and were

made solely within his individual capacity and for his

personal benefit by attempting to secure a more lax

working environment under the supervision of a

more lenient supervisor.

65. Asa direct and proximate result of Defendant

John Brigadier’s tortious interference with the

employment/contractual rele tionship between

Plaintiff and Defendant GE, for which Plaintiff's

demotion and subsequent discharge by Defendant GE

is directly attributed, Plaintiff has suffered and will

continue to suffer personal, professional, and

financial injury.

COUNT 11

(Tortious Interference - Sue Brigadier and David

Brigadier)

66. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 65 as if fully rewritten herein.

67. The libelous and slanderous allegations of

sexual harassment jointly and severally made

Appendix - 26

against Plaintiff by Defendants Sue Brigadier and

David Brigadier were made with malicious intent

and were made for their joint and several benefit by

attempting to vicariously obtain damages from

Defendant GE and by attempting to obtain a more

lax working environment for their son, Defendant

John Brigadier.

68. At all times herein stated, neither Defendant

Sue Brigadier nor Defendant David Brigadier had

any form of employment, business, or contractual

relationship with either Plaintiff or Defendant GE.

69. Asa direct and proximate reslt of the tortious

interference with the employment/contractual

relationship between Plaintiff and Defendant GE by

Defendants Sue Brigadier and David Brigadier, for

which Plaintiff's demotion and subsequent discharge

by Defendant GE is directly attributed, Plaintiff has

suffered and will continue to suffer personal,

professional, and financial injury.

COUNT 12

(Tortious Interference with Employment/Contractual

Relationship - John Doe)

70. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 69 as if fully rewritten herein.

71. As a non-supervisory employee of Defendant

GE, the allegations made by Defendant John Doe

that Plaintiff had ordered an employee under

eighteem vuews of age to operate hazardous machinery

in violatiom ef federal and state laws, including 29

Appendix - 27

C.F.R. § 570.63 (2004), section 4109.05 of the Ohio

Revised Code Annotated (West 2004), and section

4101:9-2-10 of the Ohio Administrative Code (2004),

were not within the scope of his duties and were

made solely within his individual capacity.

72. Defendant John Doe made the aforesaid

allegations against Plaintiff with knowledge that

they were false and with the justifiable expectation

and desire that others, including Defendant Lenson,

would accept them as true.

73. The allegations made to others against

Plaintiff by Defendant JoAn Doe were made with an

underlying malicious intent and were made for his

personal benefit by attempting to secure a more lax

working environment under the supervision of a

more lenient supervisor. _

74. Asa direct and proximate result of Defendant

John Doe's fraud upon others, which has tortiously

interfered with the employment/contractual

relationship between Plaintiff and Defendant GE and

has caused Plaintiffs demotion and subsequent

discharge by Defendant GE, Plaintiff has suffered

and will continue to suffer personal, professional, and

financial injury.

COUNT 13

(Civil Conspiracy to Defame)

75. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 74 as if fully rewritten herein.

76. The defamatory allegations made by

Appendix - 28

Defendants John Brigadier, Sue Brigadier, David

Brigadier, Lenson, GE by and through its employees,

John Doe, and other employees of Defendant GE not

yet named as defendants, were made with malicious

intent and in concert among the Defendants for the

purpose of injuring Plaintiff in his person.

77. The concerted actions undertaken by

Defendants as set forth in paragraph 76, above, have

caused injury to Plaintiff in the form of ridicule and

degradation of his reputation which has, in turn,

resulted in his demotion, loss of his employment, and

impairment of his future earning capacity.

COUNT 14

(Civil Conspiracy to Tortiously Interfere with

Employment/Contractual Relationship)

78. Plaintiff repeats and incorporates by reference

all material allegations set forth in paragraphs 1

through 77 as if fully rewritten herein.

79. The actions undertaken by Defendants John

Brigadier, Sue Brigadier, David Brigadier, Lenson,

John Doe, and other employees of Defendant GE not

yet named as defendants, to tortiously interfere with

the employment/contractual relationship between

Plaintiff and Defendant GE were done so in concert

among the Defendants and were carried out with

malicious intent to injure Plaintiff.

80. The concerted actions undertaken by

Defendants as set forth in paragraph 79, above, have

caused personal, professional, and financial injury to

Appendix - 29

Plaintiff including his demotion and subsequent

discharge by Defendant GE.

WHEREFORE, Plaintiff demands judgment

jointly and severally against all Defendants as

follows:

a. Court order enjoining Defendants from

continued publication of the defamatory allegations

made against Plaintiff as set forth above.

b. Compensatory and punitive damages in excess

of $25,000.

c. Cost of suit.

d. Such other relief as the court deems just.

Respectfully submitted,

Dated: August 5, 2004 Is

Matthew A. Craig

11325 Cheyenne Trail

Suite 302

Parma Heights, OH 44130

440-888-2280

Appendix - 30

Private Party Civil Cases Denied Oral Argument

Pursuant to Sixth Circuit Rule 34())

(April 1, 2005 - March 31, 2006)

* = cases not involving a pro se party.

04-1048 04-5946 05-3474

04-1460 04-5964 05-3504

04-1498 *04-6120 05-3550

04-1609 04-6212 05-3553

04-1617 04-6231 05-3612

04-1698 04-6256 05-3807

04-1701 04-6366 05-3837

04-1795 04-6423 05-3878

04-1905 04-6492 05-3977

04-2155 05-1003 05-5015

04-2261 05-1141 05-5071

04-2265 05-1370 05-5083

04-2290 05-1406 05-5099

04-2316 05-1464 05-5129

04-2336 05-1554 05-5164

04-2352 05-1614 05-5441

04-2399 05-1648 05-5443

04-3161 05-1725 05-5495

04-3162 05-1794 05-5519

04-3270 05-1957 05-5542

*04-3304 05-3021 05-5608

04-3995 05-3070 05-5627

04-4194 05-3115 05-5882

04-4244 05-3194

04-4248 05-3206

04-4256 05-3209

Appendix - 31

04-4279

04-4302

04-4360

04-4412

04-5889

05-3220

05-3222

05-3225

05-3415

05-3463

Appendix - 32

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.