Thomas P. Loftis v. United Parcel Service, Inc.; David Cole

*The Honorable David M. Lawson, United States District Judge for
the Eastern D istrict of M ichigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0306P (6th Cir.)
File Name: 03a0306p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
THOMAS P. LOFTIS,
Plaintiff-Appellee,
v.
UNITED PARCEL SERVICE,
INC.; DAVID COLE,
Defendants-Appellants,
KENNETH ADKINS,
Defendant-Appellee.
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No. 01-6194
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 01-00267—James H. Jarvis, District Judge.
Argued: March 11, 2003
Decided and Filed: August 26, 2003
Before: MOORE and CLAY, Circuit Judges; LAWSON,
District Judge.*
2 Loftis v. United Parcel Service, et al. No. 01-6194
_________________
COUNSEL
ARGUED: Larry W. Bridgesmith, WALLER, LANSDEN,
DORTCH & DAVIS, Nashville, Tennessee, for Appellants.
Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville,
Tennessee, for Appellee. ON BRIEF: Larry W.
Bridgesmith, Mark W. Peters, WALLER, LANSDEN,
DORTCH & DAVIS, Nashville, Tennessee, for Appellants.
Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville,
Tennessee, for Appellee.
_________________
OPINION
_________________
DAVID M. LAWSON, District Judge. The question
presented by the parties in this appeal is whether the lower
court abused its discretion when, after some of the defendants
had removed the case to federal court under 28 U.S.C. § 1441,
the district court allowed the plaintiff to amend his complaint
to delete the allegations that made the case removable, and
then remanded the case to state court. We do not reach that
issue, because we find that there is a more fundamental defect
in the removal procedure. Because we find that the removal
was defective due to the failure of all defendants to join in the
removal petition, we affirm the district court’s order of
remand.
I.
The events giving rise to this case occurred on April 29,
1999 at the United Parcel Service facility on Callahan Road

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No. 01-6194 Loftis v. United Parcel Service, et al. 3
1The facts of this case are essentially the same as those in
International Brotherhood of Teamsters, Local 519 v. United Parcel
Service, Inc., 335 F.3d 4 97 (6th Cir. 2003), which concerned a grievance
arbitration brought on the p laintiff’s behalf by his union local.
in Knoxville, Tennessee.1 Two UPS employees, Thomas
Loftis, the plaintiff-appellee, and Kenneth Adkins, the
defendant-appellee, became involved in a “heated” argument
involving job start times. Adkins reported the incident to the
police, and later met with defendant-appellant Cole, a security
supervisor for defendant-appellant UPS. Thereafter, Adkins
contended that the plaintiff had physically assaulted him.
Cole then terminated the plaintiff without further warning, as
permitted by the terms of a collective bargaining agreement
that listed fighting as a cardinal violation that warranted
immediate discharge.
Criminal proceedings were initiated against the plaintiff on
the basis of Adkins’ complaint. UPS filed a civil complaint
seeking a temporary restraining order and permanent
injunction against the plaintiff based on the alleged physical
assault. The criminal proceedings and the application for the
injunction were eventually dismissed.
On April 27, 2000, the plaintiff filed a complaint in the
Circuit Court for Knox County, Tennessee, alleging that UPS,
Cole, and Adkins engaged in behavior that constituted the
torts of outrageous conduct, malicious prosecution, and abuse
of process under Tennessee law. Thereafter, Adkins signed
an affidavit dated May 2, 2001 in which he recanted
testimony he had given previously in the injunction
proceedings and at an arbitration hearing that the plaintiff had
physically assaulted him. In the affidavit, Adkins stated that
the April 29, 1999 incident never involved any physical
contact, and that UPS security supervisor Cole threatened and
coerced Adkins to fabricate his story that the plaintiff had
physically assaulted him so that Cole would have cause to fire
the plaintiff from his union-protected job at UPS. The
4 Loftis v. United Parcel Service, et al. No. 01-6194
plaintiff then amended his complaint on May 3, 2001 in state
court to include allegations that all of the actions taken by the
defendants against the plaintiff were “to gain advantage in an
employment dispute” and “to discharge plaintiff Tom Loftis
since he fully and actively exercised his rights as a union
member,” and that “[s]uch conduct is outrageous in the
extreme and could serve to undermine the current peace
between labor and management throughout the United
States.” First Am. Compl. ¶ 26.
Within thirty days of receiving the amended complaint,
defendants UPS and Cole filed their removal petition in
federal court pursuant to 28 U.S.C. § 1441(b), contending that
the new allegations asserted, in effect, an unfair labor practice
claim under 29 U.S.C. § 158(a) over which federal courts
have original federal question jurisdiction under the doctrine
of complete preemption. See Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63-64 (1987) (citing Avco Corp. v. Machinists,
390 U.S. 557 (1968)); San Diego Building Trades Council,
Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236
(1959). Adkins did not join in the removal petition, and in
fact filed a timely motion to remand based on lack of
jurisdiction. The plaintiff likewise filed a motion to remand.
UPS and Cole opposed these motions. Soon thereafter, the
plaintiff filed a motion to further amend his complaint along
with a proposed second amended complaint, followed a day
later by a second motion to remand. The proposed second
amended complaint deleted the language added by the first
amended complaint, upon which UPS based its removal. The
defendants filed responses in opposition to these motions as
well.
In a memorandum opinion and order dated August 23,
2001, the district court denied Adkins’ motion to remand,
denied the plaintiff’s original motion to remand, granted the
plaintiff’s motion to amend, directed the clerk to file the
amended complaint, granted the plaintiff’s second motion to
remand, and remanded the case to the Circuit Court for Knox
County, Tennessee. The court reasoned that the plaintiff’s

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No. 01-6194 Loftis v. United Parcel Service, et al. 5
amended complaint alleged an unfair labor practice within the
meaning of Section 8(a) of the Labor Management Relations
Act (LMRA), 29 U.S.C. § 158(a), thereby stating a cause of
action “arising under” the laws of the United States, and was
properly removed under 28 U.S.C. § 1441(b). Because the
district court concluded it had removal jurisdiction, it felt
compelled to deny Adkins’ motion and the plaintiff’s first
motion to remand. However, after permitting the plaintiff to
file his second amended complaint, the lower court observed
that no federal cause of action remained. Although the court
believed that the amendment to the complaint did not divest
it of subject matter jurisdiction over the remaining state law
claims, the district court, in its discretion, declined to exercise
supplemental jurisdiction over those claims and remanded
them to the state court. See 28 U.S.C. § 1367(c).
Defendants UPS and Cole filed a motion to stay the order
of remand and a motion for reconsideration, both of which
were denied by the district court. The defendants then filed
a notice of appeal and a motion for stay pending appeal. The
motion for stay was denied by the district court. This appeal
followed.
II.
The plaintiff previously filed a motion to dismiss this
appeal, contending that this Court lacked jurisdiction to
review an order of remand because of the prohibition stated
in 28 U.S.C. § 1447(d) (“An order remanding a case to the
State court from which it was removed is not reviewable on
appeal or otherwise . . . .”). Another panel denied the
plaintiff’s motion, finding that we have jurisdiction over an
appeal from a district court’s discretionary decisions to
remand that are not based on lack of subject matter
jurisdiction or defects in the removal procedure. See
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12
(1996); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456,
460 (6th Cir. 2002). Although questions of subject matter
jurisdiction are reviewed de novo, Long v. Bando Mfg. of Am.,
6 Loftis v. United Parcel Service, et al. No. 01-6194
Inc., 201 F.3d 754, 759 (6th Cir. 2000), it is the lower court’s
exercise of discretion to remand the plaintiff’s pendent state
law claims that is called into question by defendants UPS and
Cole in this appeal. See Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 348 (1988) (holding that “a district
court has discretion to remand a removed case to state court
when all federal-law claims have dropped out of the action
and only pendent state-law claims remain.”). Were we to
reach that issue, we would review for abuse of discretion the
district court’s decision to refuse to exercise jurisdiction over
pendent state claims, Landefeld v. Marion Gen. Hosp. Inc.,
994 F.2d 1178, 1182 (6th Cir. 1993), as we would employ a
deferential standard of review of a district court’s decision to
grant a motion to amend a complaint pursuant to Federal Rule
of Civil Procedure 15(a). See Head v. Jellico Housing
Authority, 870 F.2d 1117, 1123 (6th Cir. 1989) (“The
decision as to when ‘justice requires’ an amendment is within
the discretion of the trial judge, and we review the decision
under an abuse of discretion standard.”); Hodges v. Rose, 570
F.2d 643, 649 (6th Cir. 1978) (“The grant or denial of a
motion for leave to amend under Rule 15 is within the sound
discretion of the District Court, and will be reversed only for
an abuse of discretion.”).
However, we do not reach the question of the district
court’s exercise of discretion because we find that there was
a more basic defect in the removal procedure, as explained
below, that normally would be insulated from appellate
review by 28 U.S.C. § 1447(d), but which is presented to us
for decision by the unique procedural posture of the case.
Compare Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d
1341 (6th Cir. 1993). Although the case is before this court
on a challenge to the district court’s exercise of discretion in
refusing to retain jurisdiction over pendent state law claims
under 28 U.S.C. § 1367(c), we believe that the record plainly
demonstrates that the removal petition was defective because
all defendants did not join in the petition or consent to
removal. See Brierly v. Alusuisse Flexible Packaging, Inc.,
184 F.3d 527, 533 n.3 (6th Cir. 1999), cert. denied, 528 U.S.

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No. 01-6194 Loftis v. United Parcel Service, et al. 7
1076 (2000). Defendant Adkins not only failed to consent to
the removal, but affirmatively opposed it and filed a timely
motion to remand. Adkins did not assert the rule of
unanimity in support of his motion to remand. However, in
reviewing a lower court decision, we may affirm for any
reason presented in the record, even if the reason was not
raised below. U.S. Postal Serv. v. Nat’l Ass’n of Letter
Carrier, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003) (“We
may affirm a decision of the district court if correct for any
reason, including one not considered below.”); City Mgmt.
Corp. v. U.S. Chem. Co. Inc., 43 F.3d 244, 251 (6th Cir.
1994) (explaining that court of appeals may affirm a decision
of the district court “on any grounds supported by the
record”).
The question of whether there is a defect in the removal
procedure is a purely legal one, which we review de novo.
We turn first, however, to the plaintiff’s challenge to the
district court’s subject matter jurisdiction.
A.
Among the arguments advanced by the plaintiff in support
of the order of remand is the contention that the federal court
had no subject matter jurisdiction to begin with, since the first
amended complaint did not state a claim under Section 8 of
the LMRA, and therefore contained no cause of action
“arising under” the laws of the United States. See 28 U.S.C.
§§ 1331, 1441(b). The plaintiff reasons that want of federal
question jurisdiction required a remand.
Defendants UPS and Cole argue that the first amended
complaint’s added language, stating that Cole and UPS
effectively suborned perjury in order to “gain advantage in an
employment dispute” and fabricate a reason to discharge the
plaintiff in retaliation for exercising his rights as a union
member, made out a claim “arising under” federal law,
regardless of the plaintiff’s lack of intent to plead such a
claim. They contend that the allegations describe an unfair
8 Loftis v. United Parcel Service, et al. No. 01-6194
labor practice, and that claims of that nature are preempted by
the LMRA.
Federal courts use the “well-pleaded complaint” rule to
determine “arising under” jurisdiction. Long, 201 F.3d at
758. That rule provides that “‘federal jurisdiction exists only
when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.’” Id. (quoting
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
“[T]he party who brings the suit is master to decide what law
he will rely upon.” The Fair v. Kohler Die & Specialty Co.,
228 U.S. 22, 25 (1913). “The well-pleaded complaint rule
generally provides that the plaintiff is the master of his
complaint, and the fact that the wrong asserted could be
addressed under either state or federal law does not ordinarily
diminish the plaintiff’s right to choose a state law cause of
action.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943
(6th Cir. 1994).
Generally, a state law claim cannot be “recharacterized” as
a federal claim for the purpose of removal. Taylor, 481 U.S.
at 63. Similarly, “a case may not be removed to federal court
on the basis of a federal defense, 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, 482 U.S. at 393 (citing Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 12 (1983)).
However, if an area of the law is “completely preempted,”
then the state law claim is displaced by the federal cause of
action, and the action is subject to removal. Taylor, 481 U.S.
at 63-64; Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th
Cir. 1995) (en banc). The rationale undergirding this
exception is that where federal preemption is so complete that
conflicting state law not only must yield but is effectively
extinguished, the only theory of recovery remaining is the
federal claim, which takes the place of the state law claim
recited in the complaint. See Beneficial Nat. Bank v.
Anderson, 123 S. Ct. 2058, 2063 (2003) (“When the federal

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No. 01-6194 Loftis v. United Parcel Service, et al. 9
statute completely pre-empts the state-law cause of action, a
claim which comes within the scope of that cause of action,
even if pleaded in terms of state law, is in reality based on
federal law.”); Warner, 46 F.3d at 534. The complaint itself
is therefore deemed to state a federal cause of action.
Complete preemption occurs in cases that fall within the
scope of the LMRA. Miller v. Norfolk and Western Ry. Co.,
834 F.2d 556, 564 (6th Cir. 1987) (“The complete
pre-emption corollary to the well-pleaded complaint rule is
applied primarily in cases raising claims pre-empted by
section 301 of the LMRA.”) (citing Avco Corp. v. Machinists,
390 U.S. 557 (1968)). Section 7 of the Act secures a worker’s
right to chose to join a labor union, and Section 8(a) provides,
among other things, that an employer who interferes with an
employee’s exercise of that right, or discriminates or retaliates
against an employee because of membership in a labor union
or participation in union activities, commits an unfair labor
practice. 29 U.S.C. § 158(a); Goldtex, Inc. v. NLRB, 14 F.3d
1008, 1014 (4th Cir. 1994) (holding that “Section 8(a)(3) of
the Act ensures that no employee may be discharged because
of participation in union activities.”); Cumberland Farms,
Inc. v. NLRB, 984 F.2d 556, 560 (1st Cir. 1993) (“When an
employer discharges an employee for supporting a union, he
violates the Act, 29 U.S.C. § 158(a)(3), unless he proves that
he would have taken the same action in the absence of the
employee’s union activities.”). The essence of an unfair labor
practice under Section 8(a) is an employer’s unfair treatment
of an employee because of the employer’s anti-union animus.
The plaintiff’s first amended complaint filed in state court
specifically alleged that UPS’s outrageous conduct was
perpetrated upon the plaintiff “in an attempt to discharge
[him] since he fully and actively exercised his rights as a
union member.” First Am. Compl. ¶ 26. The plaintiff also
alleged that the defendants’ conduct might result in far-
reaching consequences that could “undermine the current
peace between labor and management throughout the United
10 Loftis v. United Parcel Service, et al. No. 01-6194
States.” Ibid. Whether or not he intended to plead it, the
plaintiff defined an unfair labor practice. As the district court
correctly observed, the allegations describe acts that could
undermine the “industrial peace” that the NLRA was
designed to preserve. See Brooks v. NLRB, 248 U.S. 96, 103
(1954). See also NLRB v. Burns Int’l Sec. Services, Inc., 406
U.S. 272, 287 (1972). The district court correctly concluded
that the first amended complaint contained a claim “arising
under” federal law.
B.
As noted earlier, there is a rule of unanimity that has been
derived from the statutory language prescribing the procedure
for removing a state action to federal court, 28 U.S.C. § 1446.
This rule of unanimity demands that all defendants must join
in a petition to remove a state case to federal court. See
Brierly, 184 F.3d at 533 n.3 (“The rule of unanimity requires
that in order for a notice of removal to be properly before the
court, all defendants who have been served or otherwise
properly joined in the action must either join in the removal,
or file a written consent to the removal.”). Section 1446
states that “[a] defendant or defendants desiring to remove
any civil action . . . shall file . . . a notice of removal.” 28
U.S.C. § 1446(a) (emphasis added). In Chicago, R. I. & P.
Ry. Co. v. Martin, 178 U.S. 245, 248 (1900), this statute’s
precursor containing similar language was interpreted to mean
that all the defendants must unite in a petition for removal to
federal court. Although in Brierly we mentioned this rule in
the context of determining the time within which an earlier-
served defendant must consent to a later-served defendant’s
removal effort, see Brierly, 184 F.3d at 533 n.3, no case
decided in this Circuit has made explicit the rule requiring
unanimous consent to removal. However, the rule is
universally accepted in the other circuits to consider the
question. See Marano Enters. of Kan. v. Z-Teca Rests., L.P.,
254 F.3d 753, 754 (8th Cir. 2001); Balazik v. County of
Dauphin, 44 F.3d 209, 213 (3d Cir. 1995); Doe v. Kerwood,
969 F.2d 165, 167 (5th Cir. 1992); Hewitt v. City of Stanton,

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No. 01-6194 Loftis v. United Parcel Service, et al. 11
798 F.2d 1230, 1232 (9th Cir. 1986); N. Ill. Gas Co. v. Airco
Indus. Gases, 676 F.2d 270, 272-73 (7th Cir.1982); Cornwall
v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981).
Consistent with the prevailing view, we hold that all
defendants in the action must join in the removal petition or
file their consent to removal in writing within thirty days of
receipt of (1) a summons when the initial pleading
demonstrates that the case is one that may be removed, or (2)
other paper in the case from which it can be ascertained that
a previously unremovable case has become removable. See
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. 526 U.S.
344, 354 (1999). Failure to obtain unanimous consent
forecloses the opportunity for removal under Section 1446.
In the present case, only defendants UPS and Cole joined
in the removal notice. Defendant Adkins did not consent to
the removal; in fact, he opposed it, and registered his
opposition by filing a motion to remand. It is true that
technical defects in the removal procedure, such as a breach
of the rule of unanimity, may not be raised sua sponte, and
must be raised by a party within thirty days of removal or
they are waived. See 28 U.S.C. § 1447(c); Page v. City of
Southfield, 45 F.3d 128, 133 (6th Cir. 1995). However, we
believe that frank opposition to removal by a codefendant
who affirmatively seeks a remand within the thirty-day period
satisfies the prerequisite of a motion, and empowers the
district court to enforce the unanimity requirement. Because
the defendants were expressly divided in their desire to
remove, the district court should have granted the initial
motions to remand.
III.
We express no view on the district court’s decision to
permit the plaintiff to amend his complaint to eliminate
language that transformed his state law causes of action into
an unfair labor practice claim, or the decision to remand the
state law claims to the Tennessee state court under 28 U.S.C.
12 Loftis v. United Parcel Service, et al. No. 01-6194
§ 1367(c). However, we find that the district court should
have granted the plaintiff’s initial motion, and defendant
Adkins’ motion, to remand because defendants UPS and Cole
failed to satisfy the rule of unanimity. Because the lower
court arrived at the correct result, albeit by means of mistaken
reasoning, the order remanding the case to state court is
AFFIRMED.

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