United States District Court, D. New Mexico
Benjamin E. Thomas Keith C. Mier Sutin Thayer & Browne
Attorneys for the Plaintiff
C. Youtz James A. Montalbano Stephen Curtice Daniel M.
Shanley Yuliya Mirzoyan DeCarlos & Shanley Attorneys for
MEMORANDUM OPINION AND ORDER
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'
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
29 U.S.C. § 109. Accordingly, the Court finds as
Firebird Structures is a New Mexico limited liability company
doing business in Bernalillo County, New Mexico. See
Verified Complaint ¶ 1, at 1.
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
Trent Cannedy is Firebird Structures' President.
See Tr. at 19:12 (Cannedy).
Keven Conboy is a Firebird Structures' partner.
See Tr. at 107:22-23 (Conboy).
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.
Firebird Structures does not recognize the Carpenters'
Union as its employees' representative. See
Verified Complaint ¶ 5, at 1.
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.
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).
Firebird Structures does not pay its carpenters union-scale
wages. See Tr. at 53:5 (Cannedy).
Juan Gonzales worked at Firebird Structures as a
superintendent. See Tr. at 121:13-19 (Gonzales).
Gonzales has been a Carpenters' Union member since 2008.
See Tr. at 130:20 (Gonzales).
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).
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).
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).
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
After Firebird Structures discharged him, Gonzales organized
a meeting of Firebird Structure employees at the
Carpenters' Union. See Tr. at 134:10-14
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”).
that day, those employees went to the Carpenters' Union.
See Tr. at 42:9-10 (Cannedy).
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).
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
Carpenters' Union paid the former Firebird
Structures' employees. See Whitesitt Decl.
¶ 7, at 2.
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”); Verified
Complaint ¶ 10, at 2 (alleging that the Carpenters'
Union circulated flyers containing information regarding
relations between Firebird Structures' management and
Carpenters' Union has also displayed banners in front of
Firebird Structures' clients. See Tr. at 57:8
(Cannedy); id. at 58:1 (Cannedy).
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
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.
Carpenters' Union has also distributed hardhat stickers
stating “Anything But Firebird.” Tr. at 35:12-13
(Cannedy). See Tr. at 58:5-6 (Cannedy).
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
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).
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).
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).
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.
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
every case, Firebird Structures does not know who placed the
screws behind the vehicles' tires. See Tr. at
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).
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).
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).
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).
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
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).
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.
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
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
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.
Firebird Structures' Motion.
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.
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
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.
The Carpenters' Union's Response.
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.
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.
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
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)).
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.
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).
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
Tr. at 139:4-12 (Thomas).
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).
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
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.
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).
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.
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).
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).
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
[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
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.”).
Court took the Motion under advisement. See Tr. at
REGARDING FEDERAL QUESTION JURISDICTION
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. §
The Well-Pleaded Complaint Rule.
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.
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.).
The Complete-Preemption Exception to the Well-Pleaded
“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).
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).
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
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.”
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 ...