 Now, aliens are another form of jurisdiction. It's not hard. Everyone thinks it's hard. It's not hard. It's really easy. I'm going to tell you how easy it is. There are four pieces of algebra here. They're easy to figure out. Let's get them up there to see what kind of situation we're looking at. A, very intelligently is alien, P and D, you know, are plaintiff and defendant. Let's start with a simple one. Alien versus alien. No federal diversity or alien is jurisdiction. Under the Verlinden case in the Supreme Court, there is simply no federal jurisdiction. An alien cannot sue an alien if that's the parties we're talking about under our equation. Let's talk about number two. An alien suing an alien and a citizen. No federal jurisdiction. There's no alienage. And the reason is because there's an alien on both sides and there's only one citizen on one side. But just follow the math here. Alien versus alien and citizen, no federal jurisdiction. It takes a mild parsing of 1332 to get here, but no jurisdiction caveat, of course, if we have a foreign state. But we'll get to that headache in a moment. So there we go. Those are the two examples of no jurisdiction. Alien suing alien and alien suing alien and citizen. Now let's go to alien. And let's blot out our friend from Italy. We have alien suing citizen, or vice versa, citizen suing alien. Federal jurisdiction exists. Alienage jurisdiction. Aliens, when sued by a citizen, have accord, or suing a citizen, have access to federal court. So that's our third piece of algebra. Fourth piece of algebra. Alien and plaintiff of California suing alien and defendant of New York. And let me make a caveat right now. In the old days, there made a difference between France and Italy in different nations. Now forget which nation they're from. An alien is an alien, whatever nation they're from. So now what we've got is we've got this situation. There is federal jurisdiction. Under 1332, this is a diversity suit with aliens as additional parties. This is not alien as jurisdiction. It's diversity jurisdiction. It's a diversity suit between P&D with aliens as additional parties. It wouldn't matter if we had this. It wouldn't matter if we had this. We have a diversity suit with aliens as different parties. That's diversity jurisdiction. That's not, it's no more complicated than that. Those four pieces of algebra. What do you do with foreign states? You know what I mean. Foreign states can sue in federal court or if sued can remove. So if it is a foreign state or those entities like my old client, Qantas, that are the equivalent of foreign states, there's state owned and I forget what the test is, that creates federal jurisdiction under the Foreign Sovereign Immunities Act. But that's really not alien as jurisdiction. Let's ask ourselves one other question. What happens if you have a dual citizen? A dual citizen. Well, at least in the Ninth Circuit under the Mutuali's case, a dual citizen, the court has held that in the circumstance of a dual citizen, only the American nationality of the dual citizen applies. I don't know why that conclusion is the way it is. I think there's a split in authority. So if you have a feeling that this is the crazy ninth, read the Mutuali's case in its size, there's one other circuit that sort of goes a little bit sideways on that. But any event in the Ninth Circuit at least and in a couple other circuits, only the American nationality of a dual citizen counts. And this was really a significant one. This is a great jurisdiction question where it was a dual citizen, where the citizen, where it was a partnership. And there were some partners who lived in France and some who lived in California, but there was, if you knocked out the France part of the partnership, there was diversity. Otherwise, as you saw from our algebra, there wouldn't have been. Didn't matter, didn't matter in this circumstance. So take a look at Mutuali's or find a way around it, depending upon where you're coming from. All right, we got some last quick questions before we take our break on diversity. Equally fascinating, but we can do them quickly. What about fictitious defendants? Fictitious defendants are treated differently whether it's, in my opinion, whether it's a removal case or an original jurisdiction case. Let's get removal done right away. Under the removal statute, the fictitious defendant is not considered when you're doing your algebra, so that's simple. When the case is being removed, as of three years ago, case is being removed, you do not consider the citizenship of any doe defendants if your state has that practice. All right, you just blot them out. It's also significant when they say, well, judge, we couldn't remove until that doe defendant was removed, wrong. They have, that doe defendant is blotted out at the very beginning, they've got 30 days to remove. Now you might ask, well, what happens then if the doe gets added later? Since they were blotted out, remember, for removal purposes you need diversity to exist both the time the actions commenced in state court and the time of removal. But there's nothing that says you need it later. What if the doe gets added later? Well, I'll leave that to you to decide. There's no circuit authority on that, but you could argue that since jurisdiction, the case is proper, the plaintiff ought to be allowed to add a doe later because it doesn't defeat your jurisdiction. If you will, it's a congressional mandate of minimal diversity. You could argue the other direction. If you argue the other direction, you'd look at 1447D and you'd say, this is just a join during our rule 19. Forget the doze, they're being joined. If the joiner disputes diversity, I can remand. But we'll get there. What about an original case? The dangerous practice, some courts say. I mean, you gotta search a long way to find a doe practice dangerous, but the dangerous practice of doe defendants and diversity cases. Well, the pretty longstanding rule is that doe defendants defeat diversity. They defeat diversity. Therefore, your normal rule would be since a doe defendant possibly could defeat diversity since their citizenship isn't alleged, then you don't have original federal jurisdiction. Here's one where you ought to consider using rule 21. If it's really a pro forma doe and they didn't do it right, dismiss the case for jurisdiction, you're just gonna get a refile, they're gonna kill them on the statute of limitations if they don't get relation back, don't do it. One other complexity, here's the other complexity. Rule 15 was amended two years ago, which is news to some of us, and rule 15 is the relation back rule. It says that when you're looking at the relation back rule, you look at the, if the state rule of relation back is more liberal than the federal rule, which is hard to imagine it's not, when adding a new party, you use, i.e. borrow, the state statute of limitations if it's a state statute of limitations that's governing the action. So that would be diversity cases almost always. It would also be federal question cases that borrow the state statute, all right? Well, in that circumstance, you might say, well, the doe practice in many states is treated as a relation back rule. Therefore, we're bound to follow the doe practice, it's therefore a substantive right, and therefore, I can't deprive the plaintiff of the opportunity, even in a diversity case. So you're gonna have to struggle with that. I think it is genuinely a struggle. I mean, I wrote an article on it a few years ago and I don't think it's been widely read, but it discusses the subject. In any event, I mean, that was an interesting article, but not widely read. Doe defendants, who knows what that happens? Let me give you one last point and fix this defense. There is no reason in the world not to allow them in a federal question case. They don't defeat anything. If the state statute of limitations applies, you ought to not be striking doe defendants in federal question cases. There's a lot of that is, there's no reason not to have them there. It's a proper technique to use with the amendment to rule 15. The only reason not to have them is if it defeats diversity. Okay, the last couple of ones quickly, representative parties. If you're following the book, it's 2, 290.1. New statute, different than what we learned in law school. If you've got a typical representative action, there can be no manufacturer of diversity by having that representative have a citizenship that's diverse. Now if it's an executor, an administrator, a guardian, a conservator, they take on the citizenship only of their represented party. So you look at the beneficiary, you look at, et cetera. But let's distinguish something. A trust suit is different. The real party and interest in a suit brought by trustee is the trustee, not the trust. And therefore in a trustee suit under the Navarro case, you look at the citizenship of the trustee. The federal statute which says you look at the citizenship of the represented party only does not apply to trustee situations. There you look at the citizenship of the trustee because it's the real party and interest. It is the proper plaintiff. It's not representing anybody. How about an insurance company? If you're one of those unfortunate jurisdictions that has a direct action, if you were in that circumstance, I think there are only two of you. The insurance company also, the insurance company named as a defendant. When they are named as a defendant, they take on the citizenship in addition to their insured. They don't, unlike the other situation where they only take on the represented party, here they get their own citizenship and the insured. So when you're doing a little charts, they'll only be on the defendant's side here. When you're doing a little chart, ask yourself put down their citizenship and the insured's citizenship if you have a direct action statute. By the way, a bad faith suit is not a direct action suit. It's not. It's not a direct action in the meaning of the statute. That is simply a suit against an insurance company. It's not that weird statutory creation of when you really mean to sue the insured, you can sue the insurer. Lastly, our last two and a half minutes for the break. Don't look happy about this break. What happens if citizenship changes in the fluidity of federal cases and in the length of some of them? I have just finished a trial of a case that was filed in 1984. It went to the Supreme Court and back. I represent a magazine, been a very complicated trial, but it's been 10 years of litigation. A lot of people have moved, but the rule is clear. You look at snapshot the time the actions commenced and if it's removal, also at the time it's removed. Does jurisdiction exist? The normal rule is if a party changes their citizenship, it makes no difference on your jurisdiction. Freeport McMull ran in a two-page purcuring decision of the court that many people ignored, but you are not going to paragraph two colon 373 and this citation is 111 Supreme Court, 858. It emphasizes that rule. However, let's leave you with this caveat. That rule applies when the party themselves moves or that party is substituted in for somebody else so that although there's a change in their name, distinguish that from when a new party comes into the case. Brand new party. They're not coming in by assignment or movement. They're a brand new party. Now you've got to have diversity in my opinion with the possible exception of dough defense only because of that statute. All right, now every study that's ever been done says that the average attention span of the adult is about seven minutes. We've been going a lot longer than that. We've got a 15 minute break and we're coming back to the glory and inglory of federal removal. We were making that great transition to removal jurisdiction. The back door of federal jurisdiction. Generally, if an action could have been brought originally in federal court, removal is available. The general rule is that the action could have been brought originally in federal court, the action is removable. There are, of course, some exceptions to this rule if some claims are statutory non-removable, such as an FALA case, that would not be removable. Because the statute says the plaintiff gets their original choice of forum. So that would be federal officer removal would be an example where a statute allows removal even though the case may or may not have been bringable originally in federal court. There may be no federal jurisdiction. Let's, however, weave into where we left off of diversity and talk about removal premised on diversity. There are some procedural rules that I want to leave for a little bit later discussion about timing of removal and when the 30 days runs. But I do want to talk about this. The same general rules for analyzing diversity apply on removal. Remembering the only principle difference is there has to be diversity both in the time of commencement and the time of removal, which may be different more than 30 days in some circumstances. But as a general rule, you use your same algebraic equation. There's one rule which is applied more frequently, however, in the removal context and diversity than original. And that is what's known as the fraudulent jointer doctrine. Now, this isn't what it sounds like. It doesn't mean that the plaintiff named a defendant with fraudulent intent. It means that when doing your algebra for removal purposes, you can blot out and not consider the citizenship of defendants who are named against whom there is no possible bona fide claim. And I mean just that. There is no possible claim. And the absence of that claim appears on the face of the complaint. In other words, let me give you an example. I represent a newspaper. Let's suppose it's, which is principal place of business in Nevada. Let's assume for the moment that it's also incorporated in Nevada, but it does some business in California. They get sued in California. It turns out, being on the border, that their printing company is incorporated, the company that prints the newspaper is incorporated in California. Wagstaff of California suing Nevada newspaper and California, and I add as a defendant the California printing company. On the theory that they printed it, they're responsible for it. The law is absolutely clear. There is no question whatsoever in California and Nevada that that is an improperly named defendant. They are not properly named in a libel suit just because they printed it. Absence, some allegation of awareness or participation. Therefore, the Nevada company can remove that to federal court even though the algebraic equation doesn't seem right because you blot out the defendant who was fraudulently joined. You blot them out. All right, now remember, in this process, it does not mean a weak claim. It does not mean a not very good claim. It means a claim that has no possible bona fides on the face of the complaint. So if they remove and they say, hey, this isn't a very good claim, even if it's subject to 12B6, that's probably not enough. It's gotta be that it fails the smell test on initial odor, meaning under clear cut law, there is no possible claim. If you love baseball and jurisdiction, as I do, then you must read the Pete Rose versus Bart Giamatti case because it is a remarkable case because it combines two of the most important things in life, removal, jurisdiction, and baseball. Well, some of us. In that case, Pete Rose, Seuss, you might remember Pete Rose. He's a mildly historic figure out of Cincinnati who was the Major League Baseball Commissioner was suspending him, even though he's the manager of the Cincinnati Red Leg Ball Club because he was allegedly gambling. And he sued in Ohio State Court, this was no dumb person or lawyer, sued in a local Ohio State Court and in that Ohio State Court, he added his, Giamatti was a resident domiciliary of New York. He added his defendants, the Cincinnati Reds Ball Club and Major League Baseball. So let's do our algebra before we get to fraudulent jointer. The algebra's simple, Rose of Ohio, Seuss Giamatti of New York, complete diversity, but additional defendants, Cincinnati Red Legs, Unincorporated Association, every member, Ohio, Ohio, Ohio. In addition, Major League Baseball, Unincorporated Association, there are a couple of teams in Ohio, not the best teams, but they're in Ohio. We now have Ohio on both sides. We have no complete diversity, the algebraic equation fails. However, I must say, not quite right away, Pete Rose seeks a TRO, it's granted, the defendants seek, all within the 30 day period, seek to have it reviewed by extraordinary rip denied, still within the 30 day, they removed a federal court and argue that Major League Baseball and Cincinnati Red Legs are fraudulently joined. First argument, did they waive their right of removal? By opposing a TRO? No, no waiver the right to remove. The waiver of the right to remove has to be affirmative, you have to affirmatively seek some relief in the state court, merely defending against a TRO, and according to this court at least, seeking an extraordinary rip is not enough. That's one thing. By the way, make a note to yourself, when you're thinking about ways that there can be remand, think about waiver. Contractual waivers of the right to remove are a very common ground for remand. So we'll look at that in a moment. So here's where all the money's at, is Major League Baseball and the Cincinnati Red Legs, are they fraudulently joined? The district court in a published opinion held yes. His real beef, his only beef, the real collision of interest according to court was only between Gia Matti and Pete Rose. The theory at that time, I think may not hold up anymore, is that the commissioner has all inclusive powers. I think maybe we get a different decision today, given subsequent developments, but at any event, all inclusive powers, Major League Baseball couldn't control it, Cincinnati Red Legs couldn't control it, they're fraudulently joined as a matter of law, we have complete diversity, case stays in federal court, and then settles quickly. So that's our fraudulent joiner concept, and keep that in mind. One other concept, the $50,000 amount of controversy. We know what that means in original action, it means that there's any possible claim, if there's any possible claim that could exceed $50,000, even if it doesn't ultimately exceed $50,000, that's enough for federal jurisdiction. The burden of proving jurisdictions and the party asserting it, therefore in an original action, the plaintiff has the burden of proof. In a removed action, the defendant has the burden of proof. I must tell you, having been in this situation a few times in a very odd situation, we're on removal, when I'm representing the defendant, I'm arguing to the court that the claim has a value in excess of $50,000, and the plaintiff is arguing, no, no, no, it's less than $50,000. It's an odd sort of shifting of burdens, but that's exactly what has to happen. If the plaintiff, you look, the snapshot is a time of removal, is there $50,000 possible in controversy? Possible, and you give all, I think you give all intentions in favor of there being a possibility of $50,000, unless you can say, as a matter of law, there's no way they can score more than $50,000, all right? So, you might say, well, what happens if the plaintiff then says voluntarily, well, okay, I'm only seeking $49,000, not enough. That is wonderful 1938 case from St. Paul versus Mercury Insurance, which says you cannot unilaterally strip the court of jurisdiction by saying less than the jurisdictional amount, all right? So, that's diversity. Let's get to where some more of the action's at before procedure, and that is federal question removal. What's our general rule again? A case may not be removed on the basis of a federal defense. Federal jurisdiction exists only if, here's the bad penny, if federal jurisdiction appears on the face of a well-plated complaint. You know what that means? What that means is, just as in the Meryl Dow case, you ask yourself, looking at the four corners of the complaint, is there a federal claim in there? Is it asserted? Not could it be asserted, is it asserted? Which brings us to a very important and often overlooked rule, which is that the plaintiff is the master of their claim. If they wanna pitch their state court complaint on state law grounds, they're free to do so. The defendant ordinarily cannot recast the complaint on federal grounds and say they could have had a federal civil rights claim, and these facts give rise to a federal civil rights claim, and therefore it's a federal civil rights claim. We don't have the quack like a duck rule. The plaintiff is the master of their complaint in state court, and in fact, frequently, deliberately ignore the federal claims to stay out of your courtrooms. And therefore, they're free to do that, generally speaking. The defendant cannot recast it. However, there's one large and difficult exception to this rule, and you know where I'm going, I hope. This is known as the Artful Pleading Doctrine. What Judge Tashima refers to as the Artless Pleading Doctrine. Let's make sure we understand it, and keep in mind, in your back of your mind, the Defensive Preemption Rule. All right, just put that aside and we're gonna get to it. The plaintiff cannot defeat federal removal, jurisdiction of a federal claim, by disguising, or artfully pleading, it has a state law claim, and here's the kicker. If the only claim is a federal one, the only federal, the only claim that can be stated on these facts is necessarily a federal claim. The court recharacterizes that artfully pledged state law complaint, and puts the correct label on it, which is, it is necessarily a federal claim. Remember, that means that there is no state law claim available here, under those facts, or that the claim, which they're labeling as a state law claim, is necessarily federal, giving rise to removal of the whole action. All right, so, if the claim is necessarily federal, there can be removal, and you know what it is? This is known as the complete preemption doctrine. I think an easier term to remember it by is the displacing preemption doctrine. Federal law displaces state law. So far, we're exactly on par with defensive preemption, aren't we? Like the cigarette labeling law. That's, in fact, that's requirement number one. Here's the distinction, and if you get this distinction, you will be light years ahead of most people who understand, or think they do, federal jurisdiction. There is displacement of state law claims, fair enough. And it is replaced with a federal claim, or the possibility of a federal claim. In other words, there is a private right of action under the displacing federal statute. The cigarette labeling law is defensive, you know why? Because while it blots out, to use the seven circuits language, it blots out the state law claims, there is no replacement federal claim. There's no federal claim for violation of the federal warning on a cigarette, Cardin. So there will be no, that will be defensive preemption, no federal claim, no removal jurisdiction. So what happens? What do you do in that circumstance? What some judges say is, well, you know, I've got the case of removal, and I know I don't have any jurisdiction, but this is preemption, so I ordered dismissed. Wrong. You don't dismiss that claim, even though that's really what has to happen. You remand to the state court with whatever lingo you want to convince them to dismiss it. You have no jurisdiction to dismiss it. You have no federal jurisdiction, you don't dismiss it, even though that may be required under federal law, there's no federal claim giving you the base of the tree. That's hard to swallow, but that's exactly what you're supposed to do. If on the other hand, we have displacing preemption plus the claim, we now have federal removal jurisdiction. So let's figure out the two principal areas where this comes up. And there are a couple others, but we're not gonna talk about them. These are the principal ones. The overwhelming percentage of displacing preemption cases involve the LMRA labor cases, section 301 cases under collective bargaining agreements, and ARISA claims. These are the, here are the two red flags you look for. Is there a union employee, particularly as a plaintiff? It's a good indication it might be a 301 case. It really is connected in some way to the collective bargaining agreement. For our initials, we'll call it the CBA, collective bargaining agreement. Second, is there some employee benefit plan somehow involved or affected by this case? If that's the case, you might then have preemption in one of our situations. Now, if we do have that, then the federal court recharacterizes the claim as a federal claim and allows removal. And all the normal rules of removal apply. There's no exception to that doctrine. I wanna emphasize two points though before we look at labor law and ARISA law. First, there is no requirement that the federal remedy be as effective or as broad as the state remedy. In fact, that's probably why the defendant's removing because labor law has a shorter statute of limitations for example, six months under 301. ARISA doesn't have as broad remedies as the state wrongful discharge claim, for example. And in those circumstances, it doesn't have to be the same. In fact, there's some case law that says you don't even have to have a good federal claim at all. As one court said, the defendant is free to tow the ship into the federal harbor only to sink it once it's there. They're free to do that because there is federal jurisdiction, but there's no right to go forward with that case for whatever reasons. And second of all, again remember if federal law does not create the claim for relief, they're generally speaking as no preemption, complete preemption for purposes of removal. We simply have a state court case that's preempted. All right, now, let's take a look at these. But before we get looking at them, let me say this. And I've used this example in other areas, but this is as good an area as there is. Someone said to me last time I got done with ARISA and labor law preemption that this is like having a root canal learning about these two areas of preemption. So for the next few minutes, think of me as the novocaine of your life and understanding these doctrines because I recognize one important thing that as Elliot said, at this time of day it's easy to be like a patient etherized upon a table. I understand that. So try and bear with this Prufrockian experience. Recognizing that distinguishing between what is preempted and what is not preempted is often like guessing which bird will jump off the fence first. It's not always easy to do, but let's see if we can do it together right now. Let's start with labor law preemption. Labor law preemption, an LMRA suit under section 301. If it was brought in the proper cast, the plaintiff and union employee is suing in some way under the collective bargaining agreement related to it and says I've got a federal claim here. You violated the collective bargaining agreement employer and therefore I'm suing proper federal jurisdiction. In fact, not only is there complete preemption, displacement of state law, blotting out all state law claims that arise here under this test, but in addition replaces it with a 301 claim. May not be a good one, might be barred by the statute of limitations, might not have very good remedies or any, but it's there. So how do we figure it out? Well, the Supreme Court has told us. Does the resolution of the claim require construction or reference to the collective bargaining agreement? In order to decide this, remember how it's phrased, plaintiff goes into state court and sues for breach of contract. Well, that's a state law claim. Doesn't mention the labor agreement anywhere. It's a state law claim. However, if it's a union employee and in order to decide this case, which we're clearly gonna have to if it's a wrongful discharge case, we've gotta look at the terms and conditions of employment as set forth in the CBA. It's going to require some resolution or construction of a CBA term. Therefore, you blot out that state law claim and replace it with a federal 301 claim. Removal is appropriate. Now let me give you one important thing. This is concurrent jurisdiction. So if they don't, if they don't remove within the procedures, don't feel badly, remand it to state court and let the 301 case go forward in state court. Nothing wrong with that. It's concurrent jurisdiction and by and large, most Orissa cases, except the breach of fiduciary duty cases are concurrent jurisdiction. So don't feel badly if you send this back to state court. The plaintiff, excuse me, the defendant must still comply with the removal procedure rules. No, just because it's preemption doesn't mean it has to be in federal court here. It means that the federal claim can be decided by a state court judge. It's like a civil rights claim, for goodness sake. You can have removal of a federal civil rights claim but a state court judge can decide that. Nothing exclusive jurisdiction about that. So we ask ourselves, how do you apply this? Let's just take ourselves through some of them. I'll go up a little bit here. Breach of contract. If it's a breach of contract, pretty good idea that that contractual remedy derives in some way from the collective bargaining agreement or even if it's not under the collective bargaining agreement, in order to decide that so-called contract that they're alleging, they might have led to a separate agreement. In order to decide that, you may well need, if it's someone who's covered by the CBA, you probably will need to look at the CBA to determine. Let me give you a good rule of thumb. Like all rules of thumb, it should be taken as such. Someone once said, never walk across a river simply because the average depth is four feet. I feel the same way about rules of thumb. However, let's look at this rule of thumb. Here's a good rule of thumb as to whether it's related. If it was gonna be a jury trial, which they're not gonna be, but if it was gonna be a jury trial, perhaps, would there be a jury instruction where at the bottom where they list their cases, that they might be able to cite the CBA as giving some support to it? You know what I mean? They submit proposed jury instructions, the bottom they give their authority for it, is the CBA gonna be authority for any law on the case? That's one good rule of thumb. Another good rule of thumb, in addition to it, is ask yourself in making any rules on rulings on admissibility of evidence, will you be looking at the CBA in any way? Is the CBA in any way relevant to any determination you're gonna have to make as a judge? You get that gut feeling in a breach of contract suit and in a wrongful discharge suit. If it's a union employee, almost always, there's gonna be preemption. Now you may say, was that preempt the whole case? It preempts every claim for relief that is necessarily federal. There may be some other claims that are supplemental, which are not preempted. But that does not mean the case can't be removed. It can be, because you've got a single federal claim and supplemental claims, but you have a federal claim. How about defamation? Here's a case that I had just a few years ago. I represented the plaintiff in a sexual harassment case, good sexual harassment case. We're at deposition. I had an instruction with my client. We're in state court, no removal, it's just sexual harassment, we're gonna get down here in a moment, nothing about that, just salt and battery, just good old independent state law claim. I said to her, at deposition, you know, if I say I need to go to the bathroom, that means I want to talk to you about the question that's pending. So that's pretty good rule. I mean, some of us have had this rule. I think it's proper, you can rule 11 me if you like, rule 37 if you like, but I did it, that was my rule. Question. A question that almost no plaintiff can resist. Do you contend? The question's asked. Deposition, about 430 like now. Do you contend that you were defamed during the grievance process? I am kicking, first thing I say is, I need to go to the bathroom. She says I'll answer the question first. It's not the rule. Now I'm kicking her to the table. I need to go to the bathroom. She says I'm answering the question first. The answer is yes, they defame me at every step of the grievance process. Within about an hour, we got a notice of removal to federal court. Because they claimed, we didn't know from the pleadings this was a federal preemption, labor law case, but it was a defamation case that arose in connection with the grievance process. Therefore, blots out the state law claim, therefore it is a federal claim, therefore removal, you know, I'm in federal court. Motionary man denied, my foot hurts still, but the point is that that is. Because the defamation arose in connection with the grievance process. The other kind of defamation claim that would probably be preempted is if the defamation is part of a communication required by the CBA, some sort of termination letter, something like that. Because then in order to understand the context of the defamation, what is reasonable, unreasonable, and malice or whatever it is, you may have to turn to the collective bargaining agreement. On the other hand, put this defamation down here under claims not preempted, if it's really an independent libel that's not connected with the grievance process or part of a communication. However, since this is usually a parasitic tort to other claims, there will probably be something that's preempted and it'll be the federal court. Infliction of emotional stress, probably preempted. Because in order to determine what is outrageous or sufficiently unreasonable conduct, you look at the terms and conditions of employment set forth in the CBA. Case law's pretty clear there. Fraud claim, probably preempted, it depends, you've got circuit sort of flow in different directions here, like a bad river, but the fact is that probably, in my opinion, generally preempted because the fraud is gonna, I think, have certain similar incidents to inflict some emotional stress. In order to determine the nature of the communication, how you're defrauded, it probably, you may have to look at the CBA. It might be on the other side of the line. Let's go the other side of the line. It's more fun. Assault and battery. Assault and battery. Assault and battery, according to the Supreme Court, is very clearly an independent right. You don't have to make reference to the CBA to know that you are free from assault and battery on the job. The Ninth Circuit in Galvez versus Coon and Materials had a great case in which, kind of a weird case, but that's the Ninth Circuit, in which an employee in her collective party agreement was working the conveyor belt late at night, a woman employee. The male employee supervisor, who doesn't like her, the allegation goes, deliberately speeds up the conveyor belt in sort of what I think Judge Nelson at Foothnose said, reminiscent of Charlie Chaplin in modern times, I am not nearly so eclectic, I think of it more like Lucy and Ethel with a candy going down the conveyor belt. In any event, the box hits her. Plainest lawyer is smart and alleged assault and battery. Nothing else. Assault and battery. They pitched their claim properly. That is independent of the collective party agreement. That claim the court held was not preempted. Just an assault and battery claim. Good plaintiffs lawyers get clever. Discrimination suits. Discrimination suits in almost all circuits are not gonna be preempted because that's a right independent of the collective party agreement. To put it a different way, and I like this terminology, although the Supreme Court and Caterpillar, excuse me, and Lingle suggested it's not the only terminology, ask yourself this. Remember what happens to the union employee? They are being bargained for collectively on their own, on their be halves. Could the union bargain away the right to be free from discrimination? The answer is no. It's a non-negotiable right. Whistle-blowing statutes under state law. The Lingle cases, your right to not be fired for reporting workers' compensation abuses. Those are independent of the collective bargaining agreement. And note this, this is important. Simply because the collective bargaining agreement might have a parallel provision that parallel state law, our employees will not discriminate, does not mean that it's preempted. In fact, that parallel provision is unnecessary to resolve the state law claim. It's unnecessary, so merely because it's parallel does not mean it changes your act of non-preemption. You remand that case. So independent public policy. Lastly, if the case involves non-management employee, look at the Caterpillar case, a non-management employee who's not covered by the CBA, we don't have any trouble with that. That's not gonna be, you don't have to make reference to CBA, they're not covered by the CBA, there won't be preemption, okay? So that takes us through labor law, preemption. Now let's go, if you will, with me and do ERISA preemption. Now ERISA preemption has another little chart that I'm gonna make reference to. And they told me I was doing an afternoon speech, I said more vigilets. Now this happens a lot. ERISA preemption is the largest growing field of cases removed to federal court in the last five years. So there's a reason to know this as I see it. Here's the basic rule. I'm going to the overhead projector now. ERISA preemption, here's the test. Does the state law, which is at issue, or the claim, the state law claim, relate to an employee benefit plan? Does it relate to an employee benefit plan? That's our principal question we ask ourselves. This test is even broader than the labor law preemption, meaning, because relate to is interpreted not just as sort of connected with and requires construction, but does it relate in any way to? Which you can see is broader than requires some construction or reference to. There's three questions you ask yourself. Three basic questions. If you like to think of this as a vegematic, with each crank of the vegematic, each of these elements is a requirement. All three have to be satisfied or answered in the proper way before that case is properly removable on preemption grounds. Remember, preemption blots out the state law claims, some cleverly, artfully pledged state law claim for wrongful discharge or for more commonly, someone's being, assuming their employer or their insurance company for not paying benefits. And by the way, there's no amount of controversy here. It could be a $500 failure to pay. And that $500 could drag the whole case to federal court. You might be able to remand some of it in a moment, but it gets it all there properly. You don't remove parts of cases. You can remand parts of cases, but you don't remove parts of cases. Question number one, is there an employee benefit plan covered by the statute? Now, if this is the question in your case, listen to me for the next few minutes, but trust me, this is as close to a productive idea for a migraine headache as any of the areas under Orissa. Because whether there's a plan or not, if there's a question on this, it means it's a complicated issue. Let's figure out what it means generally. According to one court, they said this field, particularly this question, luxuriates in riotous uncertainty. That's a way of describing that it's hard. I don't think it has to be that hard. I don't think it has to be that hard. Only state law claims or laws that relate to an employee benefit plan covered by the statute are preemptive. So there has to be a plan. There has to either be a welfare plan, health, disability, life insurance, severance, et cetera. Or there has to be a pension plan. Some plan that somehow involves retirement income or deferment of income. So there's either a welfare plan or a pension plan. Now, Orissa gives a very broad definition to the word plan. It doesn't mean that there's anything in writing. It doesn't mean that they've sat down an Orissa lawyer and figured it out. There has to be more than one person in the plan, but originally, eventually you can get down to one, but there has to be more than one person. The plan is not one, but beyond that, it's pretty much any company benefit grouping is gonna be pretty close to a plan. Most private sector plans, even if they're administered by insurance companies, will be Orissa plans. Sometimes they'll be administered by themselves, but there will be Orissa plans. Well, what kind of things are not gonna be plans and what will be? Well, I keep an eye on this one. The United States Supreme Court in Fort Halifax versus Coyne says that law, they had a one-time, a state statute required a one-time payment of a severance to discharge employees. So that was mandated by state law. The Supreme Court held that one-time only, non-administered, non-controlled kind of situation is not a plan, is not a plan. And therefore, the Supreme Court held Orissa doesn't really kick in here. When would there not be a plan? There would not be a plan if the employer doesn't make premium contributions. And the participation is completely voluntary. These are all ands, by the way. Completely voluntary. In other words, you go there, you don't have to be part of it. They don't contribute, you don't have to be part of it. The employer doesn't endorse the plan. The employer simply allows the insurer to come in and use their facilities, and they may get paid a small fee for dealing with payroll deductions, but the employer's completely out of it, and there's no employer profit. We add all those things together, which is a pretty rare situation. You may have no plan. Take a look at two, seven, two, point two. Point two. A plan, however, usually is gonna have not all of those elements together. The employer usually will be involved in some fashion. But that brings us really to question number two. Question number one, you need more help than we can give you in these few minutes. But let's go to question number two, because that's where all the action's at. Does the state law or the claim relate to a covered plan? And remember what the effect of preemption is here, by the way, in Orissa. May be limited damages. May be no emotional stress, no punitive damages. The judicial review, as you know, from a case that escapes me now, but the judicial review may be a de novo or abuse of discretion, depending upon the circumstances. There may be not only limited damages, but there may be certain circumstances where there's no damage at all. And there may be circumstances where, although Orissa preempts, Orissa provides no remedy, such as a stop-all. Orissa, it may be a stop-all, may require there be Orissa preemption. We'll look at it in a moment, but there may be no ability to sue successfully under Orissa on an stop-all theory, which is, you know, you told me, when I told you my wife had a difficult pregnancy, that I was not gonna be, that I would be covered in the plan. And then it turns out the plan's terms don't cover you. Well, you'd say, well, that's a stop-all. Classic state law doctrine. That claim, probably, although some circles say, no, probably gets removed to federal court. Because if it's anything, it's an Orissa claim. The Cooley relates to plan. On the other hand, there's no real serious Orissa remedy and there are circumstances. That's a tough situation, isn't it? But that appears to be where the case law's going on that area. Some circuits are more open to those kind of claims. What does it mean to relate to? Connection to or reference to? Either one. Let me give you some sort of guidelines in your own mind to answer here. These are not, these are independent sort of factors to consider. Ask yourself, does the suit or the claim negate a specific Orissa provision? Does it negate an Orissa provision? In other words, let's suppose you've got an anti-subrogation state statute, but you've got a subrogation provision or an or, let's suppose you've got a mandatory subrogation provision and you've got an anti-subrogation provision in the Orissa plan. Well, that would be negating a precise provision. The whole point of allowing preemption is we want uniform law in this important area. Ironically, it was designed, I think, to expand the rights of employees, but many employers now love the Orissa statute for the limitations we've indicated. Second, does it in any way affect the administration of the plan? That's another thing to consider. Is there a negative economic impact on the plan to say it a different way? Or is there any impact at all on the plan? If the answer to those questions are yes, you're getting real close to relates too. Let's come up with a simple example. That's Metropolitan Life Insurance versus Taylor, also in the materials. Plaintiff sues the insurer and state court for bad faith handling of claims under what would be an Orissa covered plan. State law claim. Since Orissa provides a federal claim here for claims handling, complete preemption, Metropolitan Life says removal is proper. No question about it. Any claim that the employer wrongfully denied employment benefits is gonna be covered. Now here's one the Supreme Court entered in two a few years ago. The Ingersoll ran case. It seems like Justice O'Connor gets assigned every Orissa claim. I don't think that's a good assignment. I mean, can you imagine when the Orissa case gets search granted they say you're gonna write this one? I mean, you talk about headaches. That's the Kaopectate assignment, it's an awful assignment. So you know what happens is, but she writes them beautifully and clearly I really believe this. Ingersoll ran versus McClendon. You have in that case a plaintiff who sues the employer, there's a plan, so we're gonna pass step number one, sues the employer and says you know what? You wrongfully terminated me at the nine year, 10 month because I was gonna get vested in my benefits at that point. Plaintiff who doesn't wanna be in federal court in Texas says forget it and says I don't want any remedies for my lost pension. I just want my emotional stress and other things for wrongful discharge. But the public policy that was violated to give me my state wrongful discharge claim is the being fired because of the Orissa plan. The Texas Supreme Court held no preemption. I published an article a few years ago in the legal newspaper, Judge Caulfield probably read it and it said the following to my wife's great chagrin and fear. I will buy Supreme Court granted cert. After it was granted I wrote an article that said I will buy dinner for any reader of this article if the Supreme Court does not reverse. That's a pretty grandiose situation. Mercifully the Supreme Court reversed nine to nothing and held of course that relates to the plan. The whole premise of the lawsuit involves the vesting provisions of the plan. You can't get around it by not seeking quote plan remedies or everybody could get around an Orissa plan. The court said that it had, it not only makes reference, it has a connection. The court added in a beautiful opinion by Justice O'Connor, fortunately, added that in addition this is expressly preempted because there is a federal Orissa claim for being fired for being denied your benefits. So you may say yourself that seems like number two is real broad. Seems like almost everything would be involved. And the answer is no. Don't catch preemption fever. In other words, there are situations in which there will be no Orissa preemption. If the relationship to Orissa is tenuous, quote in the cases, a wrongful discharge case in which the plaintiff is not saying I was discharged because of my pension benefits. But when asked the question, in addition to the damages that you're suffering, are you also claiming that your pension, which would have grown if it stayed here, is now smaller? Well, yeah, of course, that's logic. If I'd stayed here longer, my pension would have grown bigger. The Ninth Circuit and most other circuits have held that that is not gonna relate to the Orissa plan because the relation to Orissa there is tenuous. It's just a parasitic damage. You need to go to the Orissa plan to calculate the damage, but it has no impact on the Orissa plan. It's a tenuous relationship. It's not enough. And I think that makes sense. How about a non-Orissa entity suing the Orissa plan fiduciary for run-in-the-mill state law towards? I'll give you an example. The accountant sues the plan. You're not paying me or the plan sues the accountant and says you committed malpractice or the lawyer. The courts have held that's, quote, a run-of-the-mill state law tort and it does not relate in the way required to the covered plan. So you're not gonna have that kind of situation. So I wouldn't necessarily assume that just because there's a plan involved that you automatically have Orissa preemption and I would take a look at some of the cases that are set forth. Let's go to question number three. This is, fortune doesn't come up that much, but when it does, it's like question number one. Okay, we've got a plan. The Vegematic Crank is cranking. We've got a plan. It relates to the plan. Now the third question is for preemption. Does the state law nevertheless fall within the savings clause? The savings clause. Now this seems complicated, but just bear with me for a minute and a half. Orissa does not preempt state laws or claims that regulating insurance, banking, or security. It saves those laws, but don't jump to any conclusions here. If the law is specifically directed to the insurance industry, such as a requirement that the company keep reserves, then that law might be subject to the savings clause. That is no preemption because it's saved from preemption. The state law can continue to enforce those state laws. And essentially you ask yourself, is this really a law of general applicability? Or is it a law that's aimed directly at that industry? If it's a law of general applicability, a rule that interprets and contracts against the party who drafted them. I happen to believe, although there's some cases of contrary, that that is a law of general applicability. That's not subject to the savings law. You will use Orissa law there, not a state law. But there is some dispute as to that.