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Firebird Structures, LLC v. United Brotherhood of Carpenters and Joiners of America

United States District Court, D. New Mexico

May 5, 2017

FIREBIRD STRUCTURES, LCC, Plaintiff,
v.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION No. 1505, Defendant.

          Benjamin E. Thomas Keith C. Mier Sutin Thayer & Browne Attorneys for the Plaintiff

          Shane C. Youtz James A. Montalbano Stephen Curtice Daniel M. Shanley Yuliya Mirzoyan DeCarlos & Shanley Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Application for Temporary Restraining Order and Preliminary Injunction, filed April 4, 2017 (Doc. 3)(“Motion”). The Court held a hearing on April 10, 2017. The primary issues are: (i) whether the Court has jurisdiction over this case given that Plaintiff Firebird Structures filed an amended complaint in federal court asserting a federal claim, see First Amended Verified Complaint for Damages and Injunctive Relief ¶¶ 17-26, 3-4, filed April 10, 2017 (Doc. 14)(“Verified Complaint”), after the Defendant Carpenters' Union removed, on complete preemption grounds, Firebird Structures' original complaint asserting state-law claims only, see Verified Complaint for Damages and Injunctive Relief, filed in state court on March 30, 2017, filed in federal court on March 31, 2017 (Doc. 1-1)(“Original Complaint”); (ii) whether the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, applies to Firebird Structures' Motion; and (iii) whether the Court should grant Firebird Structures a temporary restraining order (“TRO”) and thereby enjoin the Carpenters' Union from conducting activity that Firebird Structures contends is unlawful. The Court concludes: (i) that it has jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a), because the Verified Complaint asserts a federal claim and Firebird Structures' federal claim and state-law tort claims arise out of the same set of factual assertions regarding the Carpenters' Union's alleged campaign against Firebird Structures; (ii) that the Norris-LaGuardia Act applies, because Firebird Structures and the Carpenters' Union are involved in a “labor dispute” as the Norris-LaGuardia Act defines that term, 29 U.S.C. §§ 101 & 113(a)-(c); (iii) that Firebird Structures is not entitled to injunctive relief on its claim arising under § 303 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 187, because that statutory provision awards only damages; (iv) that Firebird Structures is not likely to prevail on its two claims asserting tortious interference with contractual relations, because Firebird Structures' LMRA § 303 claim, 29 U.S.C. § 187, preempts those claims; (v) that Firebird Structures is not likely to prevail on its claims for trespass, nuisance, harassment, and prima facie tort, because Firebird Structures has not satisfied its burden, set forth by the Norris-LaGuardia Act's § 6, 29 U.S.C. § 106, to establish by “clear proof” that the Carpenters' Union authorized or was otherwise involved in the alleged tortious conduct; (vi) that the Norris-LaGuardia Act's § 4, 29 U.S.C. § 104, deprives the Court of jurisdiction to enjoin the Carpenters' Union from certain conduct that Firebird Structures asserts is tortious, including peacefully assembling, peacefully communicating with Firebird Structures' employees and prospective employees, and peacefully and non-fraudulently giving publicity to the labor dispute between Firebird Structures and the Carpenters' Union; and (vii) that the four factors guiding the propriety of PI relief weigh against the Court's issuance of a TRO to Firebird Structures. Accordingly, the Court denies Firebird Structures' Motion.

         FINDINGS OF FACT

         “A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success.” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1179 (D.N.M. 2011)(Browning, J.)(“‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.'”)(alteration in original)(quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)). “The Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Furthermore, as applicable in this case, the Norris-La Guardia Act § 9, 29 U.S.C. § 109, provides:

No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided in this chapter.

29 U.S.C. § 109. Accordingly, the Court finds as follows:

         1. Firebird Structures is a New Mexico limited liability company doing business in Bernalillo County, New Mexico. See Verified Complaint ¶ 1, at 1.[1]

         2. Firebird Structures is “a metal framing, drywall, stucco contractor, ” has eighty-seven employees, fifty-four of whom are carpenters, and has been in business for over six years. Draft Transcript of Motion Proceedings at 19:17-20:14, taken April 10, 2017 (Cannedy)(“Tr.”).[2]

         3. Trent Cannedy is Firebird Structures' President. See Tr. at 19:12 (Cannedy).

         4. Keven Conboy is a Firebird Structures' partner. See Tr. at 107:22-23 (Conboy).[3]

         5. The Carpenters' Union is a labor organization operating in Bernalillo County, New Mexico, with its principal place of business at 3900 Pan American Fwy. NE, Albuquerque, New Mexico 87107. See Verified Complaint ¶ 2, at 1.

         6. Firebird Structures does not recognize the Carpenters' Union as its employees' representative. See Verified Complaint ¶ 5, at 1.

         7. No federal or state agency has required Firebird Structures to recognize the Carpenters' Union as a representative of Firebird Structures' employees for any purpose. See Verified Complaint ¶ 6, at 2.

         8. The Carpenters' Union is engaging in an organizing campaign against Firebird Structures. See Declaration of John Whitesitt ¶ 1, at 1, filed April 7, 2014 (Doc. 10-1)(“Whitesitt Decl.”). See also Verified Complaint ¶ 14, at 3 (alleging that the Carpenters' Union sent letters to Firebird Structures' current and prospective business partners to encourage and coerce those entities to cease current and prospective contracts with Firebird Structures).

         9. Firebird Structures does not pay its carpenters union-scale wages. See Tr. at 53:5 (Cannedy).

         10. Juan Gonzales worked at Firebird Structures as a superintendent. See Tr. at 121:13-19 (Gonzales).

         11. Gonzales has been a Carpenters' Union member since 2008. See Tr. at 130:20 (Gonzales).

         12. On February 9, 2017, Cannedy planned to have lunch with Gonzales to discuss how “to move the company forward, ” but when Cannedy saw that “the local union guy [Randy Thornhill from the Carpenters' Union] was there, ” Cannedy “walked out of the restaurant.” Tr. at 22:7-13 (Cannedy). Tr. at 121:23-122:14 (Gonzales).

         13. Gonzales pursued Cannedy, and inquired about his sudden departure from the lunch meeting. See Tr. at 122:22-23 (Gonzales). Cannedy responded that “the union was just going to take money from his [Cannedy's] pocket.” See Tr. at 123:3-4 (Gonzales).

         14. Firebird Structures subsequently discharged Gonzales, within two or three days after the proposed February 9, 2017, meeting. See Tr. at 43:17 (Cannedy); id. at 44:5 (Cannedy); id. at 124:1 (Gonzales).

         15. The parties dispute why Firebird Structures discharged Gonzales. Firebird Structures states that it “let go of Juan Gonzalez because of poor safety.” Tr. at 43:17-18 (Cannedy). Gonzalez states that, after his inquiry about the reason for his termination, Robert Petzel, the Firebird Structures' employee who discharged Gonzales, did not say that Gonzales was being discharged for safety concerns, but only stated that “it's something that [Gonzales] had to talk to Trent [Cannedy] about.” Tr. at 124:11-13 (Gonzales).

         16. After Firebird Structures discharged him, Gonzales organized a meeting of Firebird Structure employees at the Carpenters' Union. See Tr. at 134:10-14 (Gonzales).

         17. On or about Friday, February 10, 2017, approximately twenty-eight of Firebird Structures' employees went on strike to support the Carpenters' Union campaign against Firebird Structures. See Whitesitt Decl. ¶ 7, at 2; United States of America National Labor Relations Board Charge Against Employer at 2, filed April 7, 2014 (Doc. 10-4)(“NLRB Charge Against Employer”).

         18. On that day, those employees went to the Carpenters' Union. See Tr. at 42:9-10 (Cannedy).

         19. On that day, Robert Petzel, the Firebird Structures' manager who discharged Gonzales, “pulled up on the frontage road of the union hall, ” ostensibly to observe the carpenters who “were all getting ready to walk into the union hall.” Tr. at 127:18-22 (Gonzales).

         20. On Friday, February 10, 2017, or the following Monday, February 13, 2017, Firebird Structures no longer employed the employees who attended the meeting at the Carpenters' Union. See Whitesitt Decl. ¶ 7, at 2; Tr. at 24:2-3 (Cannedy).[4]

         21. The Carpenters' Union paid the former Firebird Structures' employees. See Whitesitt Decl. ¶ 7, at 2.[5]

         22. The Carpenters' Union has distributed fliers concerning their labor dispute with Firebird Structures, and these fliers represent that Firebird Structures fails to pay proper wages and that Firebird Structures unlawfully discharged its employees. See Whitesitt Decl. ¶ 6, at 1. See also “What Does Firebird Not Want Workers to Know, ” filed April 7, 2014 (Doc. 10-4)(“Flyer 1”); “Shame on Faith Baptist Church, ” filed April 7, 2014 (Doc. 10-4)(“Flyer 2”); “Shame on Presbyterian Hospital, ” filed April 7, 2014 (Doc. 10-4)(“Flyer 3”);[6] Verified Complaint ¶ 10, at 2 (alleging that the Carpenters' Union circulated flyers containing information regarding relations between Firebird Structures' management and employees).

         23. The Carpenters' Union has also displayed banners in front of Firebird Structures' clients. See Tr. at 57:8 (Cannedy); id. at 58:1 (Cannedy).

         24. The Carpenters' Union employed fliers and banners regarding Firebird Structures' economic relationship with Presbyterian Hospital, and those materials refer to Dr. Rosenschein who was allegedly arrested in connection with charges related to child pornography. See Tr. at 33:19-34:7 (Cannedy); Flyer 3 at 1. The allegations of sex crimes are unrelated to the labor dispute between Firebird Structures and the Carpenters' Union. See Tr. at 63:8 (Cannedy).

         25. The Carpenters' Union displayed a banner which displayed both “Labor Dispute” and “Community Alert Sex Crimes Against Children Alleged at Presbyterian.” Firebird Structures' TRO Hearing Ex. 2.

         26. The Carpenters' Union has also distributed hardhat stickers stating “Anything But Firebird.” Tr. at 35:12-13 (Cannedy). See Tr. at 58:5-6 (Cannedy).

         27. After Firebird Structures' employees quit, Carpenters' Union representatives attended Firebird Structures' job sites and “parked across the street from” Firebird Structures' main office to observe and to communicate with persons seeking employment with Firebird Structures; after speaking with Carpenters' Union representatives, these persons “would never show back up” at Firebird Structures. Tr. at 24:16-23 (Cannedy). See Tr. at 88:2-4 (Romero)(“They would just sit there taking pictures or video of people walking in and out of our building.”); id. at 89:25-90:1 (Romero)(“[U]nion reps have gone to the job sites, to multiple job sites, offering cash for our employees to leave . . . .”); id. at 104:11-13 (Romero)(stating that union representatives are “continuing to show up at job sites and asking employees to join the union, offering the money after being told ‘No'”); id. at 105:6-16 (Romero)(“I've watched them surveil our company and sit there and take pictures of people, and stop them as they walk out of our building . . . to get [employees] to join the union.”).

         28. On one occasion, when former Firebird Structures' employees went to Firebird Structures' office to retrieve their final paychecks, Carpenters' Union representatives also presented themselves at the Firebird Structures' office. See Tr. at 92:24-93:6 (Cannedy). Because Firebird Structures' office is located on a cul-de-sac, the Carpenters' Union representatives blocked access to the Firebird Structures' facility. See Tr. at 93:9-12 (Cannedy). Firebird Structures called the police; the police instructed the Carpenters' Union representatives that they were not allowed to block the road; the union complied; and the police did not make any arrest. See Tr. at 102:6-21 (Cannedy).

         29. At some point in February 2017, union representatives entered Firebird Structures' main office, seeking to speak with Cannedy. See Tr. at 27:18-23 (Cannedy). See also Verified Complaint ¶ 13, at 2-3 (alleging that the Carpenters' Union entered Firebird Structures' property without permission at their principal place of business and job sites).

         30. After the union representatives left that day, screws were found behind the tires of Firebird Structures' vehicles and the vehicles of Firebird Structures' employees at a “separate parking area where the employees parked to go to the job site.” Tr. at 61:24-25 (Cannedy). See Tr. at 92:14-20 (Romero).

         31. On February 22, 2017, a vehicle belonging to a Firebird Structures' employee, which was parked near the main office while the employee was out of town, had its back windshield “bashed in.” Tr. at 27:25-28:3 (Cannedy). See id. at 69:9 (Erb). Numerous sheet metal screws were also discovered underneath that vehicle. See Tr. at 69:8-11 (Erb). See also Verified Complaint ¶ 9, at 2.

         32. Screws were also discovered behind Firebird Structure vehicles' tires at the Presbyterian Hospital job site on Central Avenue. See Tr. at 28:22-23 (Cannedy); id. at 50:11-12 (Cannedy). See also Verified Complaint ¶ 9, at 2 (alleging vandalism and damage to the property at sites where Firebird Structures conducts business).

         33. In every case, Firebird Structures does not know who placed the screws behind the vehicles' tires. See Tr. at 51:9 (Cannedy).

         34. On or about February 15, 2017, at midnight, Cannedy saw a truck, which resembled the truck that had parked across from the Firebird Structures' main office, parked outside of his house; the truck contained four persons who appeared, at least to Cannedy at the midnight hour, to be taking photographs. See Tr. at 25:17-21 (Cannedy); id. at 46:14-16 (Cannedy).

         35. Further, a few days after Firebird Structures no longer employed the twenty-eight employees, Conboy discovered a “a four- or five-pound dead catfish wrapped in bloody newspapers on [his] driveway in front of [his] gate.” Tr. at 108:15-17 (Conboy)(alterations added). He reported this incident to the police. See Tr. at 69:20-22 (Erb); id. at 78:20 (Erb).

         36. A vehicle, which had parked across from Firebird Structures, followed Conboy's vehicle after Conboy departed from his office at Firebird Structures, at least once or twice, and at least until Conboy arrived at “a busy intersection.” Tr. at 109:1-3 (Conboy). See id. at 116:22-117:2 (Conboy).

         37. One or two vehicles that were parked across from Firebird Structures' main office drove past Conboy's residence. See Tr. at 114:18-115:5 (Conboy). See also Verified Complaint ¶ 12, at 2 (alleging that the Carpenters' Union surveilled and stalked Firebird Structures' owners at their principal place of business, job sites, and homes).

         38. The Carpenters' Union placed a sign on a street near Conboy's residence, stating that “Firebird Bad For America & Bad for New Mexico. New Mexico Beware!” Firebird Structures' TRO Hearing Ex. 6. See Tr. at 110 2-12 (Conboy, Thomas); 39. Firebird Structures contacted the police to complain of the conduct and alleged harassment by Carpenters' Union representatives or members. See Tr. at 106:8-9 (Romero); id. at 68:8 (Erb). Law enforcement did not make any arrest. See Tr. at 71:2-5 (Erb)(“Keep in mind that I did not have probable cause to make any arrests . . . [regarding] . . . harassment . . . [or] the criminal damage to property.”). Law enforcement, however, suspected the Carpenters' Union, and advised the Carpenters' Union “to cease any and all criminal activity.” Tr. at 71:10-11 (Erb).

         40. Firebird Structures' employees have expressed fear regarding the labor dispute, and Firebird Structures has had “to reassure them every day that they'll be fine.” Tr. at 36:23-24 (Cannedy).

         PROCEDURAL HISTORY

         41. On March 30, 2017, in state court, Firebird Structures filed its Original Complaint. In the Original Complaint, Firebird Structures alleged claims for: (i) tortious interference with existing contractual damages, see Original Complaint ¶¶ 15-20, at 3; (ii) intentional interference with prospective contractual relations, see Original Complaint ¶¶ 21-27, at 3-4; (iii) prima facie tort, see Original Complaint ¶¶ 28-33, at 4; and (iv) injunctive relief, see Original Complaint ¶¶ 34-40, at 4-5.[7]

         42. The following day, the Carpenters' Union petitioned for removal to federal court, asserting that the Court has federal question jurisdiction under 28 U.S.C. § 1441(b), because § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, preempts Firebird Structures' state-law tort claims. See Petition for Removal at 2, filed March 31, 2017 (Doc. 1)(“Removal Petition”).

         43. Also, on March 31, 2017, the Southwest Regional Council of Carpenters, of which the Carpenters' Union is a local affiliate, filed with the National Labor Relations Board (“NLRB”) a Charge Against Employer against Firebird Structures, alleging that Firebird Structures “interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by the [National Labor Relations Act].” NLRB Charge Against Employer at 1.

         44. On April 10, 2017, Firebird Structures filed the Verified Complaint, which amended the Original Complaint. See Verified Complaint ¶¶ 17-67, at 3-7. In its Verified Complaint, Firebird Structures asserted claims for: (i) violation of 29 U.S.C. § 187, see Verified Complaint ¶¶ 17-26, at 3-4; (ii) trespass, see Verified Complaint ¶¶ 27-31, at 4; (iii) nuisance, see Verified Complaint ¶¶ 32-36, at 4-5; (iv) harassment, see Verified Complaint ¶¶ 37-41, at 5; (v) tortious interference with existing contractual relations, see Verified Complaint ¶¶ 42-46, at 5-6; (vi) intentional interference with prospective contractual relations, see Verified Complaint ¶¶ 48-54, at 6; (vii) prima facie tort, see Verified Complaint ¶¶ 55-60, at 6-7; and (viii) injunctive relief, see Verified Complaint ¶¶ 61-67.

         1. Firebird Structures' Motion.

         44. On April 4, 2017, Firebird Structures filed an application for a temporary restraining order and preliminary injunction. See Motion at 1. First, in its Motion, Firebird Structures applies for a temporary restraining order and preliminary injunction, proscribing the Carpenters' Union from: (i) “threatening, intimidating, coercing, following, or harassing” Firebird Structures' owners and employees; (ii) damaging Firebird Structures' property and that of its owners and employees; and (iii) interfering with Firebird Structures' existing and future contractual relations. Motion at 1. See Motion at 4-5. Firebird Structures submits its Motion “pursuant to Rule 1-066 NMRA.” Motion at 1.[8]

         45. Firebird Structures next addresses the Court's jurisdiction, asserting that the Court “has jurisdiction pursuant to both 20 [sic] U.S.C. § 1331 and 28 U.S.C. § 1367.” Motion at 1. Firebird Structures argues that § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, does not preempt its state-law tort claims. See Motion at 1-2 (citing Bldg. & Constr. Trades Council, 507 U.S. 218, 225 (1993); Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 958-59 (9th Cir. 2014)(“Retail Prop. Trust”). Firebird Structures contends that Congress did not intend the Carpenters' Union's “intentional tortious acts to be protected activity under the NLRA, ” and Firebird Structures emphasizes that “granting an injunction in this instance does not affect the rights of Defendants, or more importantly, the rights of Firebird's employees, under the [NLRA.]” Motion at 3.

46. Firebird Structures requests that the Court enjoin the Carpenters' Union from committing further intentional torts, whether they are violating state or federal law, against Firebird, its owners and employees, and those with whom Firebird does business; any property belonging to Firebird, its owners and employees, and those with whom Firebird does business; and from committing further intentional economic torts aimed at shutting down Firebird's business.

         Motion at 3-4. Firebird Structures avers that it has asked the Carpenters' Union to “cease its tortious activities, ” and asserts that the Carpenters' Union's conduct “will continue unless restrained by this Court.” Motion at 5. Finally, Firebird Structures alleges that it will suffer immediate and irreparable economic injury if the Court does not issue a TRO in its favor. See Motion at 5.

         2. The Carpenters' Union's Response.

         47. On April 7, 2017, the Carpenters' Union filed an Opposition to Application for Temporary Restraining Order and Preliminary Injunction, filed April 7, 2017 (Doc. 10)(“Response”). The Carpenters' Union argues that this case stems out of a labor dispute, and, therefore, the Court's power to issue an injunction against the union defendants must comply with the requirements of Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, in addition to satisfying the traditional four-part test for a preliminary injunction. See Response at 2, 4-5.

         48. The Carpenters' Union contends that Firebird Structures cannot meet the requirements for injunctive relief under the Norris-LaGuardia Act, for three reasons. First, the Carpenters' Union argues that Firebird Structures “fails to tie the allegedly wrongful conduct to the Defendant labor union with the requisite ‘clear proof' standard” and instead relies on bare allegations that the Carpenters' Union is responsible for the alleged conduct. Response at 2 (quoting 29 U.S.C. § 106). See Response at 8-9 (citing 29 U.S.C. § 106; United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 736 (1966)(“Gibbs”); Fry v. Airline Pilots Assoc., 88 F.3d 831, 842 (10th Cir. 1996)(“Fry”)). The Carpenters' Union asserts that “there is no evidence, let alone ‘clear proof' that any of the alleged wrongful acts . . . were authorized or ratified by the Defendant labor union, or that the alleged acts were committed by the Defendant, as opposed to individuals not acting per any instruction from the Defendant union.” Response at 9. The Carpenters' Union contends that Firebird Structures “merely alleges” that the union “engaged in certain conduct, with no facts tying the unidentified individuals allegedly engaging in the unlawful conduct to the Defendant labor union.” Response at 9-10. The Carpenters' Union reasons that, under 29 U.S.C. §§ 101 & 106, Firebird Structures' allegations are insufficient for the Court to issue an injunction against the union. See Response at 10 (citing Fry, 88 F.3d at 842; Richie v. United Mine Workers, 410 F.2d 827, 834-35 (6th Cir. 1969)).[9]

         49. Second, the Carpenters' Union argues that the Court cannot grant Firebird Structures injunctive relief, because Firebird Structures comes to the Court with “unclean hands.” Response at 3 (citing 29 U.S.C. § 108). The Carpenters' Union asserts that, under § 8 of the Norris-LaGuardia Act, 29 U.S.C. § 108, Firebird Structures' “unfair labor practices disqualify it from obtaining injunctive relief.” Response at 10. In support of this argument, the Carpenters' Union alleges that Firebird Structures committed “hallmark” NLRA violations through “threats and mass firings in response to its employees going to the union's hall to discuss the union, and also paying workers to not support the union.” Response at 10 (citing NLRB v. Wilhow Corp., 666 F.2d 1294, 1305 (10th Cir. 1981); NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 & n.3 (2d Cir. 1980)).

         50. Third, the Carpenters' Union presses that “some of the conduct that Plaintiff seeks to prohibit is lawful concerted conduct protected by Section 7 of the NLRA and immune from injunctive relief under Section 4 of the NLA.” Response at 3 (citing 29 U.S.C. § 104(a), (c)-(f)). See Response at 11-13. The Carpenters' Union states that “the non-violent picketing, following workers to jobsites, labor speech, handing out handbills and sending letters is protected, ” and consequently cannot ground state-law tort claims. Response at 3 (citations omitted). The Carpenters' Union denies picketing, stalking, or harassing Firebird Structures; however, the Carpenters' Union maintains that, even had it conducted the alleged activity, “picketing and following workers to jobsites to talk about the union or to picket is protected conduct.” Response at 11 (citing Steelworkers (Carrier Corp.) v. NLRB, 376 U.S. 492, 499 (1964)). The Carpenters' Union asserts that it has the right “to follow the primary employer's trucks and employees to the jobsite.” Response at 12 (citing Local No. 12, Int'l Union of Operating Eng'rs (Cal Tram Rebuilders), 267 N.L.R.B. 272, 274 (1983)).

         51. The Carpenters' Union also asserts that its fliers constitute labor speech, which the First Amendment of the Constitution of the United States of America protects, see Response at 12 (citations omitted), and further argue that distributing handbills is also protected conduct under the NLRA, see Response at 12-13 (citations omitted). The Carpenters' Union concludes that the Court may not issue a TRO, because: (i) Firebird Structures fails to comply with the evidentiary requirements that the Norris-LaGuardia Act imposes; (ii) the Court may not enjoin protected conduct; and (iii) Firebird Structures fails to satisfy the four-part equitable test regarding the issuances of preliminary injunctive relief. See Response at 13.

         3. The Hearing.

         52. On April 10, 2017, the Court held a hearing. See Tr. at 1:13 (Court). The Court confirmed that, in light of Firebird Structures' amended Verified Complaint, which includes a claim for violation of 29 U.S.C. § 187, there is no dispute regarding the Court's jurisdiction. See Tr. at 6:21-7:12 (Court, Thomas); Tr. at 7:24-25 (Thomas).

         53. Firebird Structures restated its request for an injunction:

We are asking for an injunction that says . . . the union cannot damage our property, cannot harass, intimidate, threaten employees or owners or family members of the company; cannot stalk outside their house . . . [a]nd really cannot be putting out salacious, completely false, misleading statements, implying that there are sex offenders working for [Firebird Structures].

Tr. at 139:4-12 (Thomas).

         54. Firebird Structures also repeated its argument that the Court may issue a TRO on the state-law tort claims. See Tr. at 140:25-143:11 (Thomas)(discussing Retail Prop. Trust, 768 F.3d 938). Firebird Structures argued that the Court should not review its claims under any federal act, but rather under New Mexico law and “the standard for issuing an injunction that the Court is well aware of.” Tr. at 143:15-16 (Thomas). Firebird Structures emphasized that “[t]here is damage to property” and “consistent harassment” of Firebird Structures' employees and principals. Tr. at 143:22-144:1 (Thomas). Firebird Structures alleged that this conduct would not stop unless the Court issues injunctive relief. See Tr. at 144:5-6 (Thomas).

         55. The Carpenters' Union responded that “[t]his case is why the Norris-LaGuardia Act was passed.” Tr. at 144:16-17 (Shanley). The Carpenters' Union stressed that Firebird Structures adduced “no direct evidence or any indirect evidence that the union did anything.” Tr. at 144:19-20 (Shanley). The Carpenters' Union then addressed “all the conduct upon which the Court cannot give injunctive relief, ” under the Norris-LaGuardia Act, “but which the Plaintiff seeks.” Tr. at 145:22-24 (Shanley).

You can't give injunctive relief to having people go on strike, Subsection A. We can't have people not be paid by the union; that's Subsection C. We can't prohibit the union from giving publicity for the facts of the labor dispute unless there is fraud or violence. There has been no violence. . . . There has been no threats. They say people were harassed and asked if they wanted to join the union. That's neither harassment, nor is it a threat.

         Tr. at 145:24-146:9 (Court). The Carpenters' Union also repeated its argument that the Court cannot issue an injunction against its handbilling and bannering, because both the Norris-LaGuardia Act and the First Amendment protect that activity. See Tr. at 146:11-18 (Shanley); Tr. at 147:19-22 (Shanley). The Carpenters' Union argued that “state law does not govern this injunction request, ” Tr. at 147:2-3 (Shanley), and that Retail Property Trust v. United Bhd. of Carpenters and Joiners of Am., 768 F.3d 938, on which Firebird Structures relies, is inapposite, “because Retail Properties is not an injunction case, ” Tr. at 147:3-4 (Shanley).

         56. The Carpenters' Union then summarized its view of what Firebird Structures had shown:

[T]here was one window that was broken. . . . They said there were screws one time. [Cannedy said] there were screws on a second job, but nobody can testify to that . . . [none] of their witnesses had any personal knowledge of that. . . . With respect to the union parking across the street, there is nothing unlawful about that. There is nothing unlawful about the union taking pictures.

         Tr. at 148:3-9 (Shanley)(alterations added); id. at 148:20-23 (Shanley). The Carpenters' Union then stated:

They want us to stop trespassing or parking vehicles on their property. . . . [W]e did it one time, and they were parked across the street. . . . They want us to stop interfering with their employees and their general contractors, everything else. That is so broad, it means the union couldn't give out a flyer . . . . [T]hey want us to stop . . . going to and from the construction site. Well, we're not interfering. We have a right to ask people if they want to join the union.

Tr. at 150:19-151:16 (Shanley).

         57. The Carpenters' Union concluded that the Court is without jurisdiction to issue an injunction, because (i) Firebird Structures sought injunctive relief “with unclean hands, ” Tr. at 149:9 (Shanley); and (ii) Firebird Structures has not complied with the Norris-LaGuardia Act's § 8, see Tr. at 149:22-23 (Shanley); Tr. at 152:1-2 (Shanley). The Court then confirmed that “the date of the nail incident” was February 22, 2017. Tr. at 152:7-10 (Court, Mier).

         58. Firebird Structures employed its rebuttal argument to address the purpose of the Norris-LaGuardia Act: “to keep courts from enjoining unions from picketing and bannering, and doing the things that unions are allowed to do . . . .” Firebird Structures argued that the Norris-LaGuardia Act “did not envision protecting against unlawful behavior.” Tr. at 152:18-22 (Thomas). Firebird Structures then asserted that “Norris-LaGuardia does not apply to state court tort actions[:] trespass, nuisance, [and] harassment.” Tr. at 152:18-22 (Thomas). The Court then inquired as to the number of times Firebird Structures called the police regarding the behavior they attribute to the Carpenters' Union. See Tr. at 154:10-11 (Court). Firebird Structures represented that “it was more than four in the last month.” Tr. at 154:12-13 (Thomas). The Court also inquired how many times “the screws were there.” Tr. at 155:1 (Court). Firebird Structures represented twice. See Tr. at 155:2 (Thomas). Firebird Structures then repeated the essence of its application:

[T]he union . . . can't damage property. It can't throw screws under our tires. They can't harass. They can't intimidate. They can't sit outside the owner's house at midnight taking pictures, . . . stalking, following people home, gong to workers' houses at night consistently, after they've said to leave them alone.

         Tr. at 155:24-156:5 (Thomas). Firebird Structures then repeated its request for an injunction “to observe the status quo, to not intimidate, not harass, not damage property, not trespass, not stalk, not follow home, for the duration of their dispute.” Tr. at 156:19-22 (Thomas). See Tr. at 157:3-4 (Thomas)(“[W]e would asked the Court to enter an order to that effect.”).

         59. The Court took the Motion under advisement. See Tr. at 159:7-8 (Court).

         LAW REGARDING FEDERAL QUESTION JURISDICTION

         1. Federal courts have limited jurisdiction, and there is a presumption against the existence of federal jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A federal district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. There is a federal question if the case arises under the Constitution, laws, or treatises of the United States. See 28 U.S.C. § 1331.

         1. The Well-Pleaded Complaint Rule.

         2. Whether a case arises under a federal law is determined by the “well-pleaded complaint rule, ” Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9 (1983)(“Franchise Tax Bd.”), specifically, when “a federal question is presented on the face of the plaintiff's properly pleaded complaint, ” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)(citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-113 (1936)). This determination is made by examining the plaintiff's complaint, “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Franchise Tax Bd., 463 U.S. at 10 (citing Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)). The Supreme Court of the United States has further limited subject-matter jurisdiction by requiring that the federal law relied on in the plaintiff's complaint creates a private cause of action. See Franchise Tax Bd., 463 U.S. at 25-26. The Supreme Court has emphasized that “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986). See Sandoval v. New Mexico Technology Group, L.L.C., 174 F.Supp.2d 1224, 1232 n.5 (D.N.M. 2001)(Smith, M.J.)(“Merrell Dow is the controlling law when invoking subject matter jurisdiction” and when a right under state law turns on construing federal law). District courts must exercise “prudence and restraint” when determining whether a state cause of action presents a federal question, because “determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. at 810.

         3. In addition to the requirement that the federal question appear on the face of the complaint, “plaintiff's cause of action must either be (1) created by federal law, or (2) if it is a state-created cause of action, ‘its resolution must necessarily turn on a substantial question of federal law.'” Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003)(quoting Rice v. Office of Servicemembers' Group Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001)). If the resolution turns on a substantial question of federal law, the federal question must also be “contested.” Grable & Sons Metal Products Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 313 (2005)(“Grable & Sons”). Finally, the exercise of federal-question jurisdiction must also be “consistent with congressional judgment about the sound division of labor between state and federal courts governing § 1331's application.” Grable & Sons, 545 U.S. at 313. Particularly, the Court must determine whether recognition of federal-question jurisdiction will federalize a “garden variety” state-law claim that will result in the judiciary being bombarded with cases traditionally heard in state courts. Grable & Sons, 545 U.S. at 318. See Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *7-9 (D.N.M. Apr. 30, 2009)(Browning, J.).

         2. The Complete-Preemption Exception to the Well-Pleaded Complaint Rule.

         4. “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). As the Supreme Court has explained, the well-pleaded complaint rule means that “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 Inc. v. Williams, 482 U.S. at 393 (emphasis in original). The Supreme Court has long held:

It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution.

Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908).

         5. The Supreme Court has recognized the “complete pre-emption doctrine” as an “independent corollary” and exception to the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. at 393. See generally 14B, Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and Procedure, § 3722.2, at 399-583 (4th ed. 2009)(discussing “removal based on complete preemption”). “That doctrine posits that there are some federal statutes that have such ‘extraordinary pre-emptive power' that they ‘convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'” Retail Prop. Trust, 768 F.3d at 947-48 (alterations original)(quoting Metro. Life Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Once an area of state law has been completely pre-empted, any 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. v. Williams, 482 U.S. at 393. Consequently, “[w]hen a plaintiff raises such a completely preempted state-law claim in his complaint, a court is obligated to construe the complaint as raising a federal claim and therefore ‘arising under' federal law.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005)(alteration added).

         6. The United States Court of Appeals for the Tenth Circuit, following the Supreme Court's direction, has also recognized the “complete pre-emption doctrine” as a defense to the well-pleaded complaint rule. See, e.g., Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1154-56

         (10th Cir. 2004)(discussing Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), and citing Caterpillar Inc. v. Williams, 482 U.S. at 393)). Additionally, the United States Court of Appeals for the Ninth Circuit has explained:

“Complete preemption is really a jurisdictional rather than a preemption doctrine, as it confers exclusive federal jurisdiction in certain instances where Congress intended the scope of federal law to be so broad as to entirely replace any state-law claim. Complete preemption is a limited doctrine that applies only where a federal statutory scheme is so comprehensive that it entirely supplants state law causes of action.”

         Retail Prop. Trust, 768 F.3d at 947 (alteration added)(quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013). The Ninth Circuit has also noted that the occurrence of complete preemption is “rare, ” ARCO Envtl. Remediation, LLC v. Mont. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000), and “the Supreme Court has recognized only three instances of ‘complete jurisdiction, '” Retail Prop. Trust, 768 F.3d at 956 (citing Beneficial Nat'lBank v. Anderson, 539 U.S. at 7-11 (recognizing §§ 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86, as a basis for complete preemption); Metro. Life Co. v. Taylor, 481 U.S. at 65-67 (recognizing § 502(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a), as a basis for complete preemption); Avco Corp. v. Aero LodgeNo. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 558-62 (1968)(recognizing § 301 of the LMRA, 29 U.S.C. § 187, as a basis for complete preemption)). See Carroll v. City of Albuquerque, 749 F.Supp.2d 1216, 1223 (D.N.M. 2010)(Browning, J.)(“The ...


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