Cefarrati v. Jbg Properties, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
RAYMOND CEFARRATI, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-408 (EGS)
)
JBG PROPERTIES, INC., and )
POTOMAC CREEK ASSOCIATES, LLC, )
)
Defendants. )
________________________________)

MEMORANDUM OPINION

Raymond Cefarrati brings this lawsuit alleging that defendants

JBG Properties, Inc. (“JBG”) and Potomac Creek Associates, LLC

(“Potomac Creek”) were unjustly enriched when he performed work

beyond the scope of his job duties as Chief Engineer on a

property-development project. Pending before the Court is

plaintiff’s motion to remand the case to the Superior Court of

the District of Columbia and the defendants’ motion to dismiss.

Upon consideration of the motions, the responses and replies

thereto, the applicable law, and the entire record, the Court

DENIES plaintiff’s motion to remand and GRANTS defendants’

motion to dismiss.

I. Background

A. Factual Background

Mr. Cefarrati was employed by JBG as the Chief Engineer on a

project to redevelop property in the Southwest quadrant of the
District of Columbia until his resignation on July 5, 2013.

Compl. ¶¶ 2, 3, 5. The property—to be redeveloped as the

L’Enfant Plaza Complex—was owned by Potomac Creek, a wholly

owned subsidiary of JBG. Id. ¶ 3. A collective-bargaining

agreement (“the CBA”) between JBG and the International Union of

Operating Engineers Local 99-99A, AFL-CIO was in force during

the duration of Mr. Cefarrati’s employment. Id. ¶ 6; see CBA,

ECF No. 4-1.

1. The Collective Bargaining Agreement.1

Section 1.5 of the CBA sets the scope of employment for the

Union’s members:

The jurisdiction of the Union shall extend over and
include the operation, maintenance and repair of the
following whenever such operation, maintenance or
repair comes under the Employer’s property management
responsibility: (a) All boilers, their accessories
and appurtenances. (b) All fired or unfired pressure
vessels and vacuum systems. (c) All refrigeration and
air-conditioning machinery and their associated
equipment including maintenance and repair of cold
storage spaces. (d) All plumbing and piping including
water, gas, heating, steam and sanitation systems.
(e) All electrical appliances and fixtures including

1
Although Mr. Cefarrati did not attach a copy of the CBA to his
Complaint, he refers to it throughout his Complaint, Compl. ¶¶
6–8, and the defendants attached a copy to their motion to
dismiss. See CBA, ECF No. 4-1. The Court considers the CBA in
adjudicating the pending motions because: (1) the Court “may . .
. consider material outside of the pleadings in its effort to
determine whether it has jurisdiction,” Buaiz v. United States,
471 F. Supp. 2d 129, 134 (D.D.C. 2007) (quotation marks and
alteration omitted), and (2) the Complaint “necessarily relies”
on the CBA by “quot[ing] from and discuss[ing] it extensively.”
W. Wood Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C.
2013).

2
 lamping. (f) All emergency power equipment. (g) All
electric motors, generators, circuits and switchgear.
(h) All machinery and equipment used in the
production and for the health and comfort of the
Employer’s business and personnel. (i) Any and all
equipment under the supervision of the Chief
Engineer.

CBA, ECF No. 4-1 § 1.5.

The Chief Engineer has “complete charge of all employees at a

given location covered under this collective bargaining unit.”

Id. § 1.6(a); see also id. § 4.2 (the “Chief Engineer shall have

charge of and be responsible directly to his/her Employer or

designated assistant only for the proper installation,

operation, care, maintenance, and repairs to the plant and all

additions thereto”). The Chief Engineer is also responsible for

issuing “orders and instructions for engine room, boiler room,

mechanical repairs and maintenance work” and for “hir[ing] and

discharg[ing] all other help covered by [the CBA].” Id. § 4.1.

The CBA also contains provisions regarding its own scope. It

provides that “[t]he Employer shall not enter into any agreement

with any employee covered by this Agreement, the terms of which

conflict with the terms of this Agreement.” Id. § 4.5. The CBA

also “embodies the entire Agreement between the Employer and the

Union . . . . No provision shall be construed in any manner so

as to restrict the Employer from the complete operation and

management of his/her business and plants or in the direction of

the working forces.” Id. § 4.15.

3
 Finally, the Agreement specifies the procedures for addressing

any grievances that may arise. See id. §§ 6.2, 6.3. First,

“[a]ll grievances shall be presented in writing to Human

Resources as soon as practical after the occurrence.” Id. § 6.2.

Step 1 of the grievance process entails a “meeting . . . between

the Employer’s Representative(s) and the Shop Steward.” Id. A

“written reply to the grievance” is then produced by the

Employer. Id. “If this reply is unsatisfactory, the Shop Steward

may appeal the decision to Step 2.” Id. Step 2 consists of “[a]

meeting . . . between the Employer’s Representative(s) and the

Business Representative or a designated representative of the

Union.” Id. Afterwards, “[t]he Employer shall make a reply to

the Union in writing.” Id. If these steps are unsuccessful,

“either party may . . . refer the matter to binding

arbitration.” Id. § 6.3.

2. Mr. Cefarrati’s Allegations.

Mr. Cefarrati alleges that he engaged in “activities [that]

were beyond the scope of [his] job as Chief Operating Engineer

and constituted a de facto new job.” Compl. ¶ 10; see also id. ¶

15 (“Plaintiff’s activities were in excess of, and different in

kind from, his job as Chief Operating Engineer and required

hundreds of hours of work in addition to his service as Chief

Operating Engineer.”). Such activities included “attend[ing]

numerous meetings with parties involved in the demolition,

4
redevelopment and renovation work”; “escort[ing] interested

parties through the existing Complex to help them understand the

‘as built’ condition of the premises”; “inspect[ing] finished

work”; and “undert[aking] numerous other activities to ensure

that the redevelopment and renovation of the Complex went

smoothly.” Id. Mr. Cefarrati further alleges that these

activities substantially benefited the defendants. See id. ¶¶

11–14. In sum, Mr. Cefarrati claims, “[d]efendants saved many

thousands of dollars they would have spent in attempting sub-

optimal, and upon occasion, infeasible approaches to the

redevelopment and renovation.” Id. ¶ 16.

In light of this work allegedly performed beyond the scope of

his employment, Mr. Cefarrati “informed Defendants that he

believed he was being required to perform work that was in

excess of, and different in kind from, his duties as Chief

Operating Engineer and that fairness required that he receive

appropriate compensation” for this additional work. Id. ¶ 17.

The defendants “failed to provide such compensation,” id., and

Mr. Cefarrati did not press the complaint any further.

B. Procedural Background

Mr. Cefarrati filed suit for unjust enrichment in the Superior

Court of the District of Columbia on February 25, 2014.

Defendants removed the case to this Court on March 14, 2014. See

Notice of Removal, ECF No. 1. That same day, they moved to

5
dismiss the case, arguing that plaintiff’s claims for unjust

enrichment are preempted by Section 301 of the Labor-Management

Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a). See Mot. to

Dismiss, ECF No. 4 at 8. Defendants further argue that

plaintiff’s claims should be dismissed because Mr. Cefarrati

failed to exhaust the CBA-mandated grievance and arbitration

procedures and, alternatively, because the claims are barred by

the statute of limitations. See id. at 14, 16.

Mr. Cefarrati moved to remand the case to the Superior Court

on March 21, 2014, arguing that there is no federal-question

jurisdiction over his claims. See Mot. to Remand, ECF No. 5 at

3. Plaintiff filed his opposition to the Motion to Dismiss on

April 16, 2014. See Opp. to Mot. to Dismiss, ECF No. 10. The

defendants filed their combined opposition to the motion to

remand and reply in support of their motion to dismiss on April

30, 2014. See Opp. to Mot. to Remand, ECF No. 11. Mr. Cefarrati

filed his reply in support of his motion to remand on May 11,

2014. See Reply in Supp. of Mot. to Remand, ECF No. 13. The

motions are now ripe for adjudication.

II. Standard of Review

A. Motion to Remand

The right to remove cases from state to federal court is

derived from 28 U.S.C. § 1441. Int’l Union of Bricklayers &

Allied Craftworkers v. Ins. Co. of the W., 366 F. Supp. 2d 33,

6
36 (D.D.C. 2005). “The party opposing a motion to remand bears

the burden of establishing that subject matter jurisdiction

exists in federal court.” Id. Further, “‘the removal statute is

to be strictly construed.’” Id. (quoting Kopff v. World Research

Grp., LLC, 298 F. Supp. 2d 50, 54 (D.D.C. 2003)). Consequently,

“the court must resolve any ambiguities concerning the propriety

of removal in favor of remand.” Johnson-Brown v. 2200 M St. LLC,

257 F. Supp. 2d 175, 177 (D.D.C. 2003).

Defendants may only remove state-court actions that originally

could have been filed in federal court. 28 U.S.C. § 1441(a);

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Absent

diversity of citizenship, federal-question jurisdiction is

required to establish that the case could have originally been

filed in federal court. Caterpillar, 482 U.S. at 392.

B. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quotation marks and alteration omitted). While detailed

factual allegations are not necessary, a plaintiff must plead

7
enough facts “to raise a right to relief above the speculative

level.” Id.

When ruling on a Rule 12(b)(6) motion, the court may consider

“the facts alleged in the complaint, documents attached as

exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court must not

accept inferences that are “unsupported by the facts set out in

the complaint.” Id. “Nor must the court accept legal conclusions

cast in the form of factual allegations.” Id. “[O]nly a

complaint that states a plausible claim for relief survives a

motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. Analysis

A. Motion to Remand

1. Complete Preemption and the Well-Pleaded Complaint
Rule.

Federal-question jurisdiction exists over “all civil actions

arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. In deciding whether an action arises

under federal law, the “well-pleaded complaint rule” dictates

8
that a case is removable only if the plaintiff’s cause of action

raises a federal question on its face. Franchise Tax Bd. v.

Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983). “It is

now settled law 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, 482

U.S. at 393.

There is a limited exception to this rule, however. When the

preemptive force of a federal statute is strong enough, “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.” Bricklayers, 366 F. Supp. 2d at 37 (quoting Beneficial

Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)); see also

Caterpillar, 482 U.S. at 393 (quoting Metro. Life, 481 U.S. at

65) (Sometimes, “the pre-emptive force of a statute is so

‘extraordinary’ that it ‘converts an ordinary state common-law

complaint into one stating a federal claim for purposes of the

well-pleaded complaint rule.’”). “Complete preemption,” as this

doctrine is known, “is a misleadingly named doctrine that

applies to subjects over which federal law is so pervasive that

it is impossible to make out a state-law claim, no matter how

careful the pleading.” Hughes v. United Air Lines, Inc., 634

9
F.3d 391, 393 (7th Cir. 2011)). “The doctrine of complete

preemption that gives rise to federal subject-matter

jurisdiction is separate and distinct from ordinary preemption .

. . which can be raised as a defense to state law claims,” the

idea being that “[s]tate courts are competent to determine

whether state law has been preempted by federal law and they

must be permitted to perform that function in cases brought

before them, absent a Congressional intent to the contrary.”

U.S. Airways Master Exec. Council v. Am. W. Master Exec.

Council, 525 F. Supp. 2d 127, 133 (D.D.C. 2007) (quotation marks

omitted).

Congress has expressed such an intent in Section 301 of the

LMRA. See Bricklayers, 366 F. Supp. 2d at 37 (citing Metro.

Life, 481 U.S. at 63-64).2 Section 301 embodies a “congressional

mandate to the federal courts to fashion a body of federal

common law to be used to address disputes arising out of labor

contracts.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209

2
Section 301 provides:

Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this
chapter, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties.

29 U.S.C. § 185(a).

10
(1985); see also Local 174, Teamsters v. Lucas Flour Co., 369

U.S. 95, 103-04 (1962). Providing a uniform federal forum for

such claims helps “ensure uniform interpretation of collective-

bargaining agreements, and thus to promote the peaceable,

consistent resolution of labor-management disputes.” Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 404 (1988).

Section 301, therefore, “not only preempts state law but also

authorizes removal of claims that purported to seek relief only

under state law.” Bush v. Clark Const. & Concrete Corp., 267 F.

Supp. 2d 43, 46 (D.D.C. 2003); see also Cephas v. MVM, Inc., 520

F.3d 480, 484 (D.C. Cir. 2008).

Complete preemption under Section 301 arises when resolution

of a state-law claim hinges on the interpretation of a CBA. See

Caterpillar, 482 U.S. at 394. This is not to say that any claim

that touches on a CBA is preempted, only that preemption will

arise “when resolution of a state-law claim is substantially

dependent upon analysis of the terms of an agreement made

between the parties in a labor contract.” Lueck, 471 U.S. at 220

(emphasis added). When this is the case, a state-law claim is

completely preempted, regardless of how it is pleaded. “[A]

plaintiff may not defeat removal by omitting to plead necessary

federal questions in a complaint.” Int’l B’hood of Teamsters v.

Ass’n of Flight Attendants, 663 F. Supp. 847, 851 (D.D.C. 1987).

11
 2. Plaintiff’s Claim Against JBG is Completely Preempted.

Mr. Cefarrati brings a claim for unjust enrichment against

JBG, alleging that JBG failed to compensate him for performing

work “beyond the scope of [his] job as Chief Operating

Engineer.” Compl. ¶ 10. An unjust-enrichment claim is “a species

of quasi contract that imposes, ‘in the absence of an actual

contract,’ ‘a duty upon one party to requite another in order to

avoid the former’s unjust enrichment, to permit recovery by

contractual remedy in cases where, in fact, there is no

contract.’” Vila v. Inter-American Inv., Corp., 570 F.3d 274,

279–80 (D.C. Cir. 2009) (quoting 4934, Inc. v. D.C. Dep’t of

Emp. Servs., 605 A.2d 50, 55 (D.C. 1992)) (alterations omitted).

To prove his unjust-enrichment claim under D.C. law, Mr.

Cefarrati will have to establish three elements: (1) his

conferral of a benefit on JBG; (2) JBG’s retention of that

benefit; and (3) the injustice of JBG’s retention of that

benefit. See, e.g., JSC Transmashholding v. Miller, No. 13-1836,

2014 WL 4960993, at *4 (D.D.C. Oct. 6, 2014); Haines v. Gen.

Pension Plan of Int’l Union of Operating Eng’rs, 965 F. Supp. 2d

119, 126 (D.D.C. 2013). Mr. Cefarrati seeks to establish these

elements by asserting that he performed work for JBG that was

outside the scope of his existing employment responsibilities.

To show this, Mr. Cefarrati would have to establish the scope

of his preexisting employment responsibilities. On this point,

12
Mr. Cefarrati makes much of the fact that a claim for unjust

enrichment presupposes the absence of an enforceable contract.

See Mot. to Remand at 4. He is not wrong: “Unjust enrichment

presuppose[s] that an express, enforceable contract is absent,

therefore courts generally prohibit litigants from asserting

these claims when there is an express contract that governs the

parties’ conduct.” Cannon v. Wells Fargo Bank, N.A., 926 F.

Supp. 2d 152, 170 (D.D.C. 2013) (quotation marks omitted).

According to Mr. Cefarrati, the fact that unjust-enrichment

claims cannot stand when a relevant contract exists means that

the Court must ignore the CBA in this case. This is incorrect.

The CBA is vital: It provides the baseline scope of employment

for which Mr. Cefarrati admittedly was compensated. Establishing

that baseline is a necessary precondition to deciding whether,

and to what extent, Mr. Cefarrati performed work beyond the

scope of his employment and thereby conferred a benefit on JBG

that was unjustly retained.

Mr. Cefarrati appears to recognize the importance of the CBA

because his Complaint relies solely on the CBA’s terms to

establish the baseline scope of his employment. See Compl. ¶¶ 6-

8.3 Mr. Cefarrati refers to Section 1.5, which describes the

3
Mr. Cefarrati argues that his exclusive reliance on the CBA to
describe the scope of his employment responsibilities was only
the result of the CBA being a convenient point of reference. See
Mot. to Remand at 6. He asserts that “job descriptions,” “proof

13
general scope of jurisdiction for the Union. Id. ¶ 6. He also

notes that the Chief Operating Engineer position is described in

Section 4.2. Id. ¶ 7. As defendants note, additional portions of

the CBA may also be relevant. For example, Sections 1.6(a) and

4.1 provide further detail about the duties of the Chief

Engineer. See CBA, ECF No. 4-1 §§ 1.6(a), 4.1. Accordingly,

defining the scope of Mr. Cefarrati’s employment requires the

interpretation of various provisions of the CBA.4 This need to

interpret provisions of the CBA provides federal jurisdiction

because “the resolution of [the] state-law claim depends upon

of custom and practice between the parties or in the industry,”
and “many other sources” could also establish his employment
responsibilities. Opp. to Mot. to Dismiss at 4. Even if these
extrinsic sources existed and had been mentioned in the
Complaint, that would not render the terms of the CBA
irrelevant. Interpreting the CBA’s terms would still be required
to assess Mr. Cefarrati’s preexisting employment
responsibilities, especially because the CBA purports to
“embod[y] the entire Agreement between the Employer and the
Union,” CBA § 4.15, and to prevent the employer from entering
into agreements contrary to its terms. Id. § 4.5.
4
The Court, for example, would need to decide whether the
provisions of the CBA placing the Chief Engineer “in complete
charge of all employees at a given location covered under this
collective bargaining unit,” CBA, ECF No. 4-1 § 1.6(a), and
mandating that the “Chief Engineer shall have charge of and be
responsible directly to his/her Employer . . . only for the
proper installation, operation, care, maintenance, and repairs
to the plant and all additions thereto,” id. § 4.2, contemplate
responsibilities for “attend[ing] numerous meetings with parties
involved in the demolition, redevelopment and renovation work”;
“inspect[ing] finished work”; and “undert[aking] numerous other
activities to ensure that the redevelopment and renovation of
the Complex went smoothly.” Compl. ¶ 10.

14
the meaning of a collective-bargaining agreement.” Lingle, 486

U.S. at 405-06.

Unjust-enrichment claims are often completely preempted.

Indeed, they “rest at bottom on the notion that plaintiffs have

not been paid the wages they are owed.” Cavallaro v. UMass Mem’l

Healthcare, Inc., 678 F.3d 1, 5 (1st Cir. 2012). This may

“depend[] importantly upon what the CBA provides.” Id.

(interpretation of a CBA was necessary to resolve a claim that

an employer unlawfully failed to pay wages for work performed

during certain times of day because the court would need to

interpret the CBA to decide whether it provided for such

payments); see also Shearon v. Comfort Tech Mech. Co., 936 F.

Supp. 2d 143, 154 (E.D.N.Y. 2013) (claim that the plaintiff

should have been paid union wages required the interpretation of

a CBA where the CBA defined what duties warranted the payment of

such wages). For example, in a lawsuit by a union that

represented airline employees against the employees’ prior

union, an unjust-enrichment claim based upon the prior union’s

failure to process certain employee grievances was completely

preempted because resolving the claim required the Court to

“define the scope of [the predecessor union’s] obligations by

reviewing the applicable collective bargaining agreements.”

Ass’n of Flight Attendants, 663 F. Supp. at 849, 852. Mr.

Cefarrati’s claim that JBG retained the benefit of his work

15
beyond the scope of his employment without compensating him is

similarly dependent upon an analysis of the CBA: namely, what

the scope of his existing employment was.

Nor is this a case where the Court need only reference the

CBA. See, e.g., Livadas v. Bradshaw, 512 U.S. 107, 125 (1994)

(“The mere need to ‘look to’ the collective-bargaining agreement

. . . is no reason to hold the state-law claim defeated by §

301.”); Lingle, 486 U.S. at 410 (“As long as the state-law claim

can be resolved without interpreting the [CBA] itself, the claim

is ‘independent’ of the agreement for § 301 pre-emption

purposes.”). A court need not interpret a CBA when it is merely

adjudicating an independent claim that is not based in the CBA

at all. The Supreme Court in Caterpillar, for instance, found

that there was no Section 301 jurisdiction over breach-of-

contract claims that were based on separate, individual

employment contracts. See 482 U.S. at 394–95; see also Lingle,

486 U.S. at 401, 407 (claim for retaliatory discharge under

state law was not preempted, even though the relevant CBA

provided its own remedy for retaliatory discharge, because

neither the elements of the state-law claim nor any potential

defenses “require[d] a court to interpret any term of a

collective-bargaining agreement”).

Plaintiff relies largely on the decision of another Judge of

this Court in Bricklayers, 366 F. Supp. 2d 33. See Mot. to

16
Remand at 4–5. In that case, the court was unwilling to find

Section 301 jurisdiction in a suit to enforce the payment of a

bond that was executed pursuant to an employer’s CBA-based

obligation. Bricklayers, 366 F. Supp. 2d at 34. The bond was

subsequently guaranteed by an insurance company and the union

ultimately sued the insurance company to enforce the terms of

the bond. Id. at 34–35. Because the dispute concerned a duty

imposed by the terms of the bond, not the CBA, no interpretation

of the CBA was required. See id. at 40-41. Mr. Cefarrati’s

claim, by contrast, requires the analysis of the scope of

employment established by the CBA, so his claim is dependent

upon the interpretation of the CBA and is completely preempted.5

5
The other cases cited by Mr. Cefarrati are also readily
distinguished. In Cruse v. St. Vincent Hosp., 729 F. Supp. 2d
1269, 1276 (D.N.M. 2010), the court did not find Section 301
preemption of state-law claims—that failure to pay the plaintiff
during a lunch break was illegal—which did not require the
interpretation of a CBA because “[p]laintiffs need not refer to
or rely on any provision in the Agreements to prevail.” LaRosa
v. United Parcel Serv., 23 F. Supp. 2d 136, 146–47 (D. Mass.
1998) similarly involved a state-law claim that provided a right
entirely independent of a CBA: a state antidiscrimination law
which provided an independent cause of action for employment-
discrimination and required only reference to job qualifications
listed in a CBA. Finally, Hernandez v. Harvard University, No.
12-cv-11978, 2013 WL 1330842, at *3 (D. Mass. Mar. 28, 2013),
involved a claim that an employer’s failure to remit to
employees the proceeds from a service charge imposed on patrons
violated a state law. Although the defendant asserted that
adjudicating the dispute would require the interpretation of the
CBA applicable to the workers who sought compensation, the court
disagreed because “[t]he dispute . . . concerns amounts
allegedly owed in the form of gratuities . . . a form of
compensation wholly extraneous to the CBA.” Id. at *2. Unlike

17
 3. The Court Has Jurisdiction Over Plaintiff’s Claim
Against Potomac Creek.

The parties dispute whether plaintiff’s unjust-enrichment

claim against Potomac Creek is similarly subject to complete

preemption. Plaintiff argues that the Court lacks jurisdiction

over that claim “because Potomac Creek is not a party to the

CBA.” Mot. to Remand at 4. This argument implicates a split

among the Circuits over the applicability of Section 301’s

complete preemption to claims against non-signatories. See Int’l

Union, United Mine Workers of Am. v. Covenant Coal Corp., 977

F.2d 895, 897 (4th Cir. 1992) (cataloguing the Circuit split).

One Judge of this Court has indicated that complete preemption

should not apply to such claims. See Bricklayers, 366 F. Supp.

2d at 42 (relying on the fact that the defendant was “not a

party to” a CBA to find that the claim against it was not

completely preempted by Section 301).

The Court need not address this split, however, because

plaintiff’s claim against JBG was properly removed. As the First

Circuit held, when at least one claim is independently removable

as a Section 301 claim, “even the claims not independently

removable come within the supplemental jurisdiction of the

the claims in these cases, Mr. Cefarrati’s unjust-enrichment
claim may succeed only upon first establishing the baseline
scope of employment for which he has already been compensated,
which must be established by interpreting various provisions of
the CBA.

18
district court.” Cavallaro, 678 F.3d at 5. A decision between

the “minimum reading” and the “broader reading” of complete

preemption is therefore unnecessary: “either way the district

court [has] jurisdiction of the entire case.” Id. at 5-6.

Plaintiff’s claim against Potomac Creek is based on the exact

same case or controversy as his claim against JBG—Plaintiff,

after all, has not alleged any material difference between

Potomac Creek and JBG. Accordingly, the claim against Potomac

Creek is properly before this Court pursuant to the Court’s

supplemental jurisdiction. 28 U.S.C. § 1367(a).

B. Motion to Dismiss

Having found that the case was properly removed, the Court

must also resolve defendants’ motion to dismiss. Defendants

argue that plaintiff’s claims are subject to dismissal in two

distinct ways. First, they rely on the doctrine of defensive

preemption. Second, they assert that even if the Court recasts

the claims as Section 301 claims, those claims were not properly

exhausted and are barred by the statute of limitations.

1. Plaintiff’s Claims Must Be Dismissed Under the
Doctrine of Defensive Preemption.

Complete preemption under Section 301 functions to permit

removal to federal court, while defensive preemption may also

arise to bar the litigation of state-law claims when the claim

“requires interpreting the terms of a labor contract.” Gray v.

19
Grove Mfg. Co., 971 F. Supp. 78, 84 (E.D.N.Y. 1997); see also

Covenant Coal, 977 F.2d at 899 (Section 301 provides for

defensive preemption when the “state cause of action would

require a court to interpret the collective bargaining

agreements.”). These concepts, while related, are distinct:

“[C]omplete preemption does not represent merely a difference in

the scope of the preemption of a state cause of action by

federal law; rather, it is a difference in kind.” Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure §

3722.2 (4th ed. 2014); see also Gray, 971 F. Supp. at 81 (“While

LMRA pre-emption and jurisdiction are often subject to similar

analysis, lack of jurisdiction does not preclude pre-emption,

and pre-emption does not necessarily imply a federal claim.”).

The test for defensive preemption under Section 301 is largely

identical to that for complete preemption. See, e.g. Lueck, 471

U.S. at 220 (a state-law claim that is dependent upon the

interpretation of a CBA “must either be treated as a § 301 claim

. . . or dismissed as pre-empted by federal labor-contract

law”). The difference is that although many courts have held

that Section 301 jurisdiction does not exist over state-law

claims against non-signatories to a CBA, courts have

acknowledged that Section 301 defensive preemption may still be

raised to dismiss such claims. See Covenant Coal, 977 F.2d at

899; Stringer v. Nat’l Football League, 474 F. Supp. 2d 894,

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901-02 (S.D. Ohio 2007); Gray, 971 F. Supp. at 83. Defendants

may therefore invoke defensive preemption to dismiss the state-

law unjust-enrichment claims because resolution of plaintiff’s

claims would necessarily require interpretation of the CBA for

the same reasons that the claim against JBG is completely

preempted. See supra Part III.A.2.

2. If Plaintiff’s Claims are Recast as Section 301
Claims, they Must Be Dismissed for Failure to Exhaust.

Even if the Court were to rely on the complete-preemption

doctrine to recast plaintiff’s claims as Section 301 claims,

those claims would still be subject to dismissal because Mr.

Cefarrati failed to exhaust the grievance procedures provided by

the CBA before coming to court. “Section 301 has been broadly

interpreted to embody a ‘national labor policy’ that encourages

‘private rather than judicial resolution of disputes arising

over collective bargaining agreements.’” Bush, 267 F. Supp. 2d

at 46 (quoting Majewski v. B’Nai B’Rith Int’l, 721 F.2d 823, 826

(D.C. Cir. 1983)). In view of this policy, “where the contract

provides grievance and arbitration procedures, those procedures

must first be exhausted.” United Paperworkers Int’l Union v.

Misco, Inc., 484 U.S. 29, 37 (1987); see also Commc’ns Workers

of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 434 (D.C. Cir.

1994). Failure to do so will result in dismissal of the claim.

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See, e.g., Chester v. Wash. Metro. Area Transit Auth., 335 F.

Supp. 2d 57, 63 (D.D.C. 2004).

The CBA provides a three-step grievance and arbitration

procedure. See supra at 4. Mr. Cefarrati’s Complaint fails to

allege any compliance with this process; rather, it alleges only

that he informally mentioned “that he believed he was being

required to perform work that was in excess of . . . his duties

as Chief Operating Engineer.” Compl. ¶ 17. The government

asserted that Mr. Cefarrati did not allege compliance with the

CBA’s grievance procedures, Mot. to Dismiss at 12, and Mr.

Cefarrati’s failure to oppose that assertion concedes the issue.

See Inst. for Pol’y Studies v. U.S. Cent. Intelligence Agency,

246 F.R.D. 380, 386 n.5 (D.D.C. 2007) (“[W]here a party files an

opposition to a motion and addresses only certain arguments

raised by the movant, this court routinely treats the

unaddressed arguments as conceded.”). Accordingly, Mr.

Cefarrati’s claim must be dismissed for failure to exhaust the

CBA’s grievance procedures.

Mr. Cefarrati’s sole arguments as to why his failure to

exhaust should not bar his claims are simply restatements of

arguments raised in his motion to remand. He claims that he “is

not asserting any right conferred by the CBA. Unjust enrichment

claims exist entirely separate and apart from—and are inimical

to—a written contract.” Opp. to Mot. to Dismiss at 6. As this

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Court noted, supra at 13, the fact that unjust-enrichment claims

may exist only in the absence of a relevant contract does not

permit this Court to ignore a relevant CBA. Plaintiff’s related

argument, that he is not raising a claim based upon the

interpretation of a CBA and therefore is not subject to its

grievance provisions, Opp. to Mot. to Dismiss at 6–7, has

similarly been rejected in connection with his motion to remand.

See supra Part III.A.2. Ultimately, the CBA’s grievance

procedures were available to Mr. Cefarrati and his failure to

utilize them means that if his claims are recast as Section 301

claims, they must be dismissed.6

IV. Conclusion

For the foregoing reasons, the Court DENIES plaintiff’s motion

to remand and GRANTS defendants’ motion to dismiss. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
November 6, 2014

6
Because the Court finds that plaintiff’s claims are subject to
dismissal for failure to exhaust, the Court need not address
whether Mr. Cefarrati complied with the applicable statute of
limitations.

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