James Powers v. Cottrell, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0237p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiffs-Appellees, -
JAMES POWERS, LINDA POWERS,
-
-
-
No. 12-5923
v.
,
>
-
Defendant-Appellant. -
COTTRELL, INC,
N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:11-cv-01209—Todd J. Campbell, Chief District Judge.
Decided and Filed: May 6, 2013*
Before: MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.

_________________

COUNSEL
ON BRIEF: Daniel J. Carpenter, St. Louis, Missouri, Paul M. Buchanan, ORTALE,
KELLEY, HERBERT & CRAWFORD, Nashville, Tennessee, for Appellant. Robert
P. Gritton, Murfreesboro, Tennessee, for Appellees.
_________________

OPINION
_________________

SUHRHEINRICH, Circuit Judge.

BACKGROUND

On September 18, 2006, Plaintiffs James and Linda Powers (collectively,
“Plaintiffs”) filed this product-liability case in the Circuit Court for Rutherford County,
Tennessee (the “state court”) against Cottrell, arising from a shoulder injury sustained

*
This decision was originally issued as an “unpublished decision” filed on May 6, 2013. The
court has designated the opinion as one recommended for full-text publication.

1
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 2

by James Powers (“Powers”). The injury occurred in the course and scope of Powers’
employment by Jack Cooper Transport Company, Inc. (“JCTC”),1 while he was tying
down a Nissan vehicle to an auto transport rig manufactured by Defendant Cottrell, Inc.
(“Cottrell”). Plaintiffs, citizens of Tennessee, sued (1) Cottrell, a citizen of Georgia,
(2) Nissan, a citizen of Tennessee, and (3) WWL Vehicle Services America, Inc. f/k/a
Distribution and Auto Service, Inc., a citizen of California and New Jersey. Powers
alleged state law claims for product-liability, negligence, and breach of warranty, and
Linda Powers alleged a claim for loss of consortium. The complaint asserted that the
chain and ratchet system2 of the auto transport rig was defectively designed and
manufactured, and that Cottrell was negligent in its failure to analyze injury data or warn
users. As part of their argument, Plaintiffs assert that Cottrell had a multitude of
different options besides the chain and ratchet system, including but not limited to straps
and non-manual securement systems.

On November 8, 2006, Cottrell removed the case to the United States District
Court for the Middle District of Tennessee (the “district court”) on the grounds that
Plaintiffs fraudulently joined non-diverse defendant Nissan. The district court
determined that Nissan was not fraudulently joined, and remanded the case back to the
state court on January 17, 2007. Powers v. Cottrell, No. 3:06-cv-01094 (M.D. Tenn.
2007). The state court later granted summary judgment in favor of the only non-diverse
defendant, Nissan.

On November 21, 2011, Cottrell apparently became aware of the argument3 that
removal was appropriate because resolution of Plaintiffs’ claims would require

1
Powers is the driver of a car-hauling truck. JCTC, Powers’ employer, is not a party in the case.
2
The auto transport rig was equipped with a mechanical system used to tie down vehicles during
the loading process by utilizing a ratchet and chain design. According to the complaint, Powers was using
the mechanical system by pulling a tie-down bar when the chain went slack and the ratchet reversed,
causing Powers to fall backwards. The ratchet then caught and violently jerked both of Powers’ arms and
shoulders.
3
Cottrell explains in its appellate brief that “on November 21, 2011, the plaintiffs’ counsel in
McNary v. Cottrell, [No. 3:11-cv-01106-JPG-PMF (S.D. Ill.), another case pending against Cottrell]
responded to Cottrell’s LMRA preemption argument . . . set[ting] forth certain admissions, which
confirmed the validity of Cottrell’s argument and showed the LMRA nature of their claims.”
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 3

interpretation of a collective bargaining agreement (“CBA”) made between Powers,
JCTC, and Powers’ union. This meant that the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 141, et seq. could potentially completely preempt Plaintiffs’
state law claims. Cottrell explained in its appellate brief that it did not raise the LMRA
argument sooner because “[a]s a non-union employer and non-party to the CBA at issue
here, Cottrell was unaware of the LMRA complete preemption grounds, the prior
grievance decisions on the issues in the lawsuits, or even that there was such a doctrine
as LMRA complete preemption.” As a response to this realization, Cottrell removed the
case to the district court again on December 20, 2011, after it had been in the state court
for more than four years.4 Cottrell’s specific argument was that although it was not
party to the collective bargaining agreement, resolution of Powers’ product-liability
claims would nonetheless require interpretation of the CBA, and any state law claim
“substantially dependent upon analysis of a [CBA]” is preempted by § 301 of the
LMRA. Alongi v. Ford Motor Co., 386 F.3d 716, 724 (6th Cir. 2004).

On April 23, 2012, the district court remanded the case for the second time.
Powers v. Cottrell, No. 3:11-cv-01209 (M.D. Tenn. 2012). The district court held that

Section 301 preempts state law claims that are substantially dependent
upon analysis of a CBA, but it does not reach claims that only
tangentially involve CBA provisions. By its very terms, this provision
confers federal subject-matter jurisdiction only over suits for violations
of contracts. Here, Plaintiffs’ claims are not dependent upon analysis of
a CBA. Defendant’s duties to Plaintiffs arise under state law (products
liability, negligence and breach of warranty), not under a CBA.
Plaintiffs’ rights are created by state law, not by a CBA. The proof
required to establish Plaintiffs’ state law claims does not involve a CBA,
and this is not an action for violation of a contract. Moreover, Defendant
Cottrell is not a party to the CBA at issue and, thus, is not bound or
restricted by it and has no rights or obligations thereunder. Its duties
exist independent of the CBA and are duties owed to members of the
public as a matter of state law.

4
On page 15 of its appellate brief, Cottrell explains that, around the same date, it also removed
18 other cases that were pending against it from different plaintiffs.
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 4

Id. (citations omitted). The district court did not rely on the timeliness of the removal
as a basis for remanding, but did note that the case “had been proceeding more than four
years in the state court” and also that this was Cottrell’s second attempt at removal.

On July 6, 2012, the district court awarded to Plaintiffs attorney fees incurred as
a result of the removal. 28 U.S.C. § 1447(c). In its order awarding attorney fees, the
district court explained that “the [district court], in its discretion, finds that Defendant’s
attempted removal was not objectively reasonable under the facts and circumstances.”

Defendants now appeal, alleging that the district court abused its discretion in
awarding attorney fees. Defendants do not appeal the order to remand.

STATEMENT OF FACTS

Powers was employed as an over-the-road truck driver with JCTC. As part of
his job requirements in the course of his employment, Plaintiff routinely loaded
automobiles, trucks, and sport utility vehicles onto his trailer for the purposes of
transporting them to destinations throughout the United States. JCTC did not
manufacture its own auto transport rigs, but ordered them from Cottrell. The head of
purchasing at JCTC, Gary Page, would provide the specifications for the rig to Cottrell.
Page’s purchasing decisions are governed by the CBA. Cottrell is not an union
employer, nor is it party to the CBA. It is undisputed that the specifications Page
provided to Cottrell did not reference the CBA, and also that Cottrell never consulted the
CBA when it designed the rigs for JCTC.

Cottrell now alleges that several provisions from the CBA are implicated by
Plaintiffs’ product liability claims. Specifically, Cottrell contends that the following
provisions are relevant.

A. Equipment Safety

With regard to highway equipment safety, a Joint Health and Safety Committee
(the “Committee”) is formed in Article 30 of the CBA. Article 30, Section 8 charges the
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 5

Committee with the task of ensuring that equipment safety is in compliance with SAE5
recommended practices for commercial vehicle equipment. Article 30, Section 8 also
assigns the Committee the task of reviewing tie-down mechanical devices, chain safety,
and other equipment issues.

B. Quick Release Ratchets

Article 30, Section 15 states that “[A]ll new equipment ordered on or after the
date of ratification will be provided with quick release ratchets.” A quick release ratchet
allows a driver to untie the rig with one move of the tie-down bar, as opposed to an old
style ratchet, which does not have this quick release mechanism.

C. Minimum Standards

The CBA also contains Article 6, titled “Maintenance and Standards.” It requires
all working conditions (including rigs) to be “not less than the minimum standards” in
effect at the time of the CBA’s ratification.

D. Grievance Procedure

Article 6 of the CBA states that “parties agree that the Local Unions, the
employees and the Employers signatory to this Agreement are obligated to file and
process all grievances or complaints involving alleged unsafe or unhealthful workplace
conditions pursuant to the grievance procedures of the Agreement.”

ANALYSIS

A. Standard of Review

The award of fees is reviewed under an abuse of discretion standard. “District
courts have considerable discretion to award or deny costs and attorney fees under
28 U.S.C. § 1447(c), and we will overrule whatever decision is reached only where such
discretion has been abused.” Warthman v. Genoa Twp Bd. of Tr., 549 F.3d 1055, 1059

5
SAE Recommended Practices are manuals published by SAE International, a global association
of engineers and related technical experts in the aerospace, automotive, and commercial-vehicle industries.
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 6

(6th Cir. 2008). An abuse of discretion occurs where “[a] district court . . . relies on
clearly erroneous findings of fact, or when it improperly applies the law or uses an
erroneous legal standard.” Christian Schmidt Brewing Co. v. G. Heileman Brewing Co.,
753 F.2d 1354, 1356 (6th Cir. 1985) (internal quotation omitted). However, the
Supreme Court has held that:

The fact that an award of fees under § 1447(c) is left to the district
court’s discretion, with no heavy congressional thumb on either side of
the scales, does not mean that no legal standard governs that discretion.
We have it on good authority that “a motion to [a court’s] discretion is
a motion, not to its inclination, but to its judgment; and its judgment is
to be guided by sound legal principles.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005) (citations omitted).

B. 28 U.S.C. § 1447 Award of Fees

The removal statute provides that “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal.” 28 U.S.C. § 1447(c). The Supreme Court has instructed that fee
awards are inappropriate unless “the removing party lacked an objectively reasonable
basis for seeking removal.” Martin, 546 U.S. at 141, see also Paul v. Kaiser Found.
Health Plan, 701 F.3d 514, 523 (6th Cir. 2012) (“Absent unusual circumstances, courts
may award attorney’s fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.”) (citations and internal quotations
omitted). The Supreme Court has held that the “appropriate test for awarding fees under
§ 1447(c) should recognize the desire to deter removals sought for the purpose of
prolonging litigation and imposing costs on the opposing party, while not undermining
Congress’ basic decision to afford defendants a right to remove as a general matter,
when the statutory criteria are satisfied.” Martin, 546 U.S. at 140.

District courts retain considerable discretion in awarding attorney fees. Id. at
141. And although the general rule is that courts may award attorney’s fees only where
the removing party lacked an objectively reasonable basis for seeking removal, “[i]n
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 7

applying this rule, district courts retain discretion to consider whether unusual
circumstances warrant a departure from the rule in a given case.” Martin, 546 U.S. at
141.

In order to prevail on this appeal, Cottrell has to show that the district court
abused its discretion by finding that Cottrell did not have an objectively reasonable basis
for believing that Plaintiffs’ state law claims were completely preempted by the LMRA.

C. Objectively Reasonable Basis for Complete Preemption

Ordinarily, under the well-pleaded complaint rule, if the plaintiff’s complaint
relies only on state law claims, the case may not be removed. Gentek Bldg. Prods., Inc.
v. Sherwin-Williams Co., 491 F.3d 320, 325 (6th Cir. 2007). This is true even if
“[f]ederal preemption is raised as a defense” to the allegations in a plaintiff’s complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (emphasis in original).

However, the “Supreme Court has developed a limited exception to the well-
pleaded complaint rule: the complete-preemption doctrine.” Gentek Bldg. Prods.,
491 F.3d at 325. “If Congress intends that a federal statute should completely preempt
an area of state law, any complaint alleging claims under that area of state law is
presumed to allege a claim arising under federal law.” Id. (citing Palkow v. CSX
Transp., Inc., 431 F.3d 543, 552 (6th Cir. 2005) (citing Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63-64 (1987))). Under the “complete preemption” doctrine, if a state law
has been completely preempted, any claim purportedly based on the preempted state law
is considered a federal claim, and therefore removable. Id; see also 28 U.S.C.
§ 1441(a). A state law is completely preempted if the force of the federal statute is so
“extraordinary” that it “converts an ordinary state common-law complaint into one
stating a federal claim.” Caterpillar, 482 U.S. at 393. Cottrell’s removal could only
have been proper if the LMRA completely preempted Plaintiffs’ claims.

Section 301 of the LMRA states: “Suits for violation of contracts between an
employer and a labor organization representing employees in an industry affecting
commerce . . . may be brought in any district court of the United States having
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 8

jurisdiction of the parties.” 29 U.S.C. § 185. The Supreme Court has ruled that “the pre-
emptive force of § 301 is so powerful as to displace entirely any state cause of action for
violation of contracts between an employer and a labor organization.” Beneficial Nat.
Bank v. Anderson, 539 U.S. 1, 7 (2003) (internal quotation omitted). However, § 301
reaches beyond the violation of contracts. “Since 1962, the Supreme Court has held that
section 301 preempts state law rules that substantially implicate the meaning of
collective bargaining agreement terms.” DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216
(6th Cir. 1994) (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985) (citing
Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962))). On the other hand,
“when the meaning of contract terms is not the subject of dispute, the bare fact that a
collective-bargaining agreement will be consulted in the course of state-law litigation
plainly does not require the claim to be extinguished.” Livadas v. Bradshaw, 512 U.S.
107, 124 (1994). Accordingly, the Sixth Circuit has created a two-step test for
determining whether a plaintiff’s state law claims are preempted by the LMRA:

First, courts must determine whether resolving the state-law claim would
require interpretation of the terms of the [labor contract]. If so, the claim
is preempted. Second, courts must ascertain whether the rights claimed
by the plaintiff were created by the [labor contract], or instead by state
law. If the rights were created by [the labor contract], the claim is
preempted. In short, if a state-law claim fails either of these two
requirements, it is preempted by § 301.

Paul, 701 F.3d at 519 (quoting Mattis v. Massman, 355 F.3d 902, 906 (6th Cir. 2004))
(emphasis and modification in original). Cottrell argues that it had an objectively
reasonable basis to believe in the existence of the first prong of the test.

In evaluating the first prong of the test, the preemption question “depends on
whether the essence of plaintiff’s claim implicates a dispute that is ‘inextricably
intertwined’ with interpretation of CBA terms or whether it is only ‘tangentially related’
to the CBA.” Paul, 701 F.3d at 522. Cottrell alleges that it did not lack an objectively
reasonable basis for believing that the dispute was “inextricably intertwined” with the
CBA.
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 9

Cottrell argues that four provisions from the CBA discussed in the Statement of
Facts are implicated by Plaintiffs’ claims: the provisions on equipment safety, quick
release ratchets, minimum standards, and the grievance procedure. We can immediately
dispose of the grievance procedure argument because the grievance procedure described
in the CBA specifically binds unions, employees, and employers, none of which
describes Cottrell. Section 6 of the CBA states that “parties agree that the Local Unions,
the employees and the Employers signatory to this Agreement are obligated to file and
process all grievances or complaints involving alleged unsafe or unhealthful workplace
conditions pursuant to the grievance procedures of the Agreement.” Furthermore,
Plaintiffs are not alleging a claim for unsafe workplace conditions. Furthermore, the text
of the CBA does not bar Plaintiffs from making other claims, because it contemplates
concurrent judicial proceedings: “the Local Union and Employer shall jointly prepare
a form which shall contain the following information. . . . Pending governmental agency
or judicial proceedings, if any, involving the same subject matter.” Therefore, Plaintiffs
were clearly not obligated to use the grievance procedure in lieu of a products liability
claim.

Next, we turn to the portions of the CBA that involve equipment safety, quick
release ratchets, and minimum standards. Cottrell claims that its removal could not
possibly have been objectively unreasonable, because LMRA preemption doctrine is a
“bewildering,” and “confusing” area of law.6 However, we hold that the Sixth Circuit
precedent available to Cottrell at the time of removal made it clear that Cottrell had no
reason to believe that removal would be proper.

In Paul v. Kaiser Foundation Health Plan, the plaintiff Dana Paul was hired by
Kaiser Foundation Health Plan of Ohio (“Kaiser”) as a CT/Radiology Technologist.
701 F.3d at 517. She underwent back surgeries and, believing that she could no longer
safely perform physically demanding duties, filed a “Request for Accommodation,”

6
As the only case law explanation for its confusion, Cottrell cites a Seventh Circuit case from
2001 that interpreted a 1985 Supreme Court case as declining to resolve a “circuit split” about LMRA
preemption. In re Benz Metal Prods. Co., 253 F.3d 283, 289 (7th Cir. 2001) (interpreting Livadas v.
Bradshaw, 512 U.S. 107, 124 n.18 (1994)). However, even if there is a circuit split, Sixth Circuit doctrine
is clear.
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 10

explaining that she could not work without assistance. She asked to be exempted from
assignments and shifts where she would be the only CT/Radiology Technologist on duty.
Id. Kaiser attempted to work with the employees’ union to temporarily change Paul’s
shifts and responsibilities, but could not attain approval from the union because
reportedly “the union was unwilling to infringe other employees’ seniority rights under
the collective bargaining agreement.” Id. After Paul brought state law claims for
disability discrimination and retaliation in state court, Kaiser removed the case, arguing
that the case would require interpretation of the CBA. Id. at 518. The Sixth Circuit
remanded, holding that LMRA preemption had not been triggered:

The CBA is not mentioned in the complaint. Though the CBA includes
assurance against handicap-based discrimination and provides that
discrimination claims arising from application of CBA provisions shall
be settled pursuant to the CBA grievance procedures, plaintiff’s
complaint does not invoke rights or procedures under the CBA. Plaintiff
. . . chose not to pursue CBA remedies in her complaint, which alleges
violations of state anti-discrimination law. Here, too, as in Smolarek,
terms of the CBA are invoked only by Kaiser as a defense of plaintiff’s
claims and as justification for its actions. Kaiser’s reliance on the CBA
as a defense is, in itself, insufficient to trigger preemption.

Id. at 521.

In the instant case, Cottrell’s claims of LMRA preemption are clearly at odds
with the holding in Paul because: (1) Cottrell is not even party to the CBA, whereas
Kaiser was an employer party, and the Sixth Circuit nonetheless found no preemption;
(2) there is no evidence that Cottrell consulted the CBA in manufacturing the device at
issue, whereas Kaiser made communications clearly pertaining to the CBA; and
(3) similar to the plaintiff’s complaint in Paul, Plaintiffs’ complaint does not invoke
rights or procedures under the CBA. See also Smolarek v. Chrysler Corp., 879 F.2d
1326, 1332 (6th Cir. 1989) (“That [the defendant] may defend . . . by reference to its
responsibilities under the collective bargaining agreement . . . is, in our view, no basis
to hold that § 301 preemption is mandated under these circumstances.”). Paul is not the
only case to reject the complete preemption argument on this basis. In Alongi v. Ford
Motor Co., the plaintiffs were former employees who brought a suit in state court against
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 11

their former employer, alleging, among other things, common law fraud during the
negotiation of the CBA.7 Alongi, 386 F.3d at 719. The Sixth Circuit noted that because
“plaintiffs did not allege that either party had violated the terms of the CBA,” § 301 did
not preempt the plaintiffs’ claim. Id. at 725.

1. Industry Standards

Defendants argue that evaluating Plaintiffs’ product liability claims requires
interpretation of the CBA. Under Tennessee law, when assessing whether a product is
defective, courts must consider “the customary designs, methods, standards and
techniques of manufacturing, inspecting and testing by other manufacturers or sellers of
similar products.” TENN. CODE ANN. § 29-28-105(b). Plaintiffs argue that the CBA
“sets forth ‘customary designs’ and ‘standards’ for rigs,” because Article 6 of the CBA
requires that the employer provide rigs “not less than the minimum standards.”
However, this claim is untenable. The case law clearly states that state law claims are
preempted only if “resolving the state-law claim would require interpretation of the
terms of the [labor contract].” Paul, 701 F.3d at 519 (citation omitted) (emphasis
added). In determining whether a product is unreasonably dangerous, the court
considers “the state of scientific and technological knowledge available to the
manufacturer or seller at the time the product was placed on the market.” TENN. CODE
ANN. § 29-28-102(8). However, an inquiry into the “state of scientific and technological
knowledge available” to Cottrell does not require interpretation of the CBA, especially
because Cottrell does not even claim that it referenced the CBA at the time it
manufactured the rig. Furthermore, the general evaluation of industry standards does not
require reference to the CBA; it can be provided by expert testimony, documents,
manuals, or other sources. A dispute is completely preempted only if resolution requires
interpretation of a CBA. Paul, 701 F.3d at 519.

7
This allegation was in the plaintiff’s original complaint, which was later amended. However,
the Sixth Circuit stated: “Mindful of our independent obligation to ensure our subject matter jurisdiction,
we conclude that none of the claims in the plaintiffs’ original complaint were completely preempted by
the Labor-Management Relations Act, either.” Alongi, 386 F.3d at 719 (emphasis in original).
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 12

2. Quick Release

Cottrell contends that the CBA must be interpreted because it requires quick-
release ratchets, and the court would need to consider whether this requirement would
be inconsistent with the devices that Plaintiffs set forth as reasonable alternatives to the
ratchet and chain device. However, the only portion of the CBA regarding quick-release
ratchets on record is the statement in Article 30 Section 15: “All new equipment ordered
on or after the date of ratification will be provided with quick release ratchets.” The
CBA does not define “quick release ratchets” or explain their usage in the industry.
Therefore, resolution of the product-liability claim will not involve interpretation of the
CBA beyond a mere reference. Indeed, although Cottrell cites the CBA for the
requirement of quick release ratchets, it turns to direct evidence (for example, the
testimony of Gary Page) in order to actually explain the nature of the device, and
whether they are standard in the industry.

3. Safety Guidelines

Cottrell also argues that the district court erred by confusing the standard of care
and duty. Cottrell argues that an analysis of the CBA is necessary to determine whether
duty was breached. But Cottrell’s argument is undermined by Stringer v. Nat’l Football
League, 474 F. Supp. 2d 894, 913 (S.D. Ohio 2007). In Stringer, the district court
considered the duty owed by the National Football League (“NFL”) and Riddell Sports
Group, Inc. (“Riddell”) to a football player in a wrongful death action. Id. at 898. The
NFL had published safety guidelines as part of its 2001 Game Operations Manual, and
the plaintiff argued that it owed a duty to exercise reasonable care in making sure the
guidelines were complete. Id. at 909. A collective bargaining agreement also imposed
safety guidelines on individual NFL clubs. Id. at 910. Because the completeness of the
NFL’s safety guidelines depended on existing guidelines established by the CBA, the
district court ruled that the wrongful death claim against NFL was preempted. Id.
However, the court ruled that while the CBA established a committee to address the
safety of equipment, Plaintiff’s “product liability and negligence claims against the
Riddell Defendants is not in any way dependent on an interpretation of the meaning of
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 13

this CBA provision.” Id. at 913. Furthermore, the fact that the football player “may
have been required, as a condition of his employment, to wear Riddell equipment is
simply irrelevant to the question of whether that equipment was negligently designed or
manufactured or unreasonably dangerous for its intended use.” Id. (emphasis added).
In the face of this text, from a case that Cottrell itself cited, Cottrell should have known
that its removal was unreasonable.8

4. Non-Signatories to the CBA

Lastly, Cottrell contends that the district court misstated the law in its opinion.
The district court held that: “Moreover, Defendant Cottrell is not a party to the CBA at
issue, and thus, is not bound or restricted by it and has no rights or obligations
thereunder. Its duties exist independent of the CBA and are duties owed to members of
the public as a matter of state law.” Powers v. Cottrell, Inc., No. 3-11-1209 (M.D. Tenn.
April 23, 2012). Cottrell argues that Cottrell’s nonparty status is not dispositive of the
issue. “Defendants' status as non-signatories to the CBA does not prevent them from
raising the preemption defense.” Stringer, 474 F. Supp. 2d at 902. However, the
Stringer court was addressing whether defendant could raise the preemption defense at
all. After determining that defendant could raise the defense, the court proceeded to
analyze whether “(1) [the case] arose from the CBA or (2) resolution of the claim is
substantially dependent on an analysis of the terms of the CBA, or is inextricably
intertwined with it.” Id. at 903. Similarly, here the district court did not treat Cottrell’s
non-signatory status as dispositive; it properly considered it alongside other factors,
including the fact that “proof required to establish Plaintiffs’ state law claims does not
involve a CBA” and that Cottrell’s “duties exist independent of the CBA and are duties
owed to members of the public as a matter of state law.”

8
Cottrell also cites Duerson v. NFL, Inc., 2012 WL 1658353 (N.D. Ill.), which, like Stringer,
involved a wrongful death action against the NFL and Riddell. Cottrell could not possibly have relied on
this case as an objectively reasonable basis for removal at the time they removed, because the case had not
yet been published on Cottrell’s date of removal. But even taking Duerson into consideration, the
court focused its preemption analysis on using the CBA to assess only the NFL’s duties, not Riddell’s.
Id. at *1-6. Furthermore, the Duerson court emphasized that preemption requires “case-by-case analysis,
in some situations preemption is found and in others it is not.” Duerson, 2012 WL 1658353 at *5 (citing
Benz Metal Prods., 253 F.3d at 286)).
No. 12-5923 Powers, et al. v. Cottrell, Inc. Page 14

It is noteworthy that in addition to the district court’s decision in this case,
Cottrell’s removals have been now rejected in 17 other federal cases.9 These decisions
were issued after Cottrell’s attempted removal in this case, so Cottrell could not have
taken them into account in its basis for removal. However, the fact that Cottrell’s
removals have been remanded in so many instances offers some insight into the
reasonableness of the removals.

In sum, there is an abundance of case law holding that § 301 does not preempt
state tort law claims. In light of clear case law, Cottrell had no objectively reasonable
basis for removal.

D. Timeliness

Plaintiffs also argue that Cottrell’s removal was untimely under 28 U.S.C.
§ 1446(b). However, because we affirm the district court’s order remanding the case,
the timeliness issue is moot.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s opinion.

9
McNary v. Cottrell, No. 3:11-cv-01106-JPG-PMF (S.D. Ill.); Belleville v. Cottrell, No.
11-cv-1114-JPG-PMF (S.D. Ill.); Davenport v. Toyota Motor Sales, USA, Inc., No. 11-cv-1108-JPG-DGW
(S.D. Ill.); Henderson v. Auto Handling Corp., No. 11-1118-GPM (S.D. Ill.); Smith v. Cottrell, No.
11-cv-1112-JPG-SCW (S.D. Ill.); Street v. Cottrell, Case No. 3:11-cv-1119-JPG-DGW (S.D. Ill.);
Thompson v. Cottrell, No. 11-1113-GPM (S.D. Ill.); Mandeville v. Cottrell, No. 11-1107-GPM (S.D. Ill.);
Johnson v. Auto Handling Corp., et al., 4:11-cv-02219-CDP (E.D. Mo.); Sullivan v. Cottrell, Inc. et al.,
No. 11CV1076S (W.D.N.Y.); Huff v. Cottrell, et al., No. l-01270-CV-WGAF (W.D. Mo.); Hale v.
Cottrell, Inc., et al., No.: 11-1273-CV-WSOW (W.D. Mo.); Longstreet v. Cottrell, Inc., 11-CV-1125 (S.D.
Ill. Apr. 23, 2012); Hernandez v. Cottrell, Inc., 2012 WL 4009696 (N.D. Ill.); Lewis v. Cottrell, Inc., 2012
WL 3144625 (D. Md.); Bailey v. Cottrell, Inc., No. 2:11-cv-00330-WCO, doc. 34 (N.D. Ga., Oct. 31,
2012); Spencer v. Cottrell, Inc., No. 2:11-cv-00331-WCO, doc. 33 (N.D. Ga., Oct. 31, 2012).