Cavallaro v. UMASS MEMORIAL HEALTHCARE, INC.

United States Court of Appeals
For the First Circuit

No. 11-1073

PATRICIA CAVALLARO, on behalf of herself and all other employees
similarly situated; MONIQUE HERMAN, on behalf of herself and all
other employees similarly situated,

Plaintiffs, Appellants,

v.

UMASS MEMORIAL HEALTHCARE, INC.; UMASS MEMORIAL HOSPITALS, INC.;
UMASS MEMORIAL MEDICAL CENTER, INC.; HEALTHALLIANCE HOSPITALS,
INC.; MARLBOROUGH HOSPITAL; THE CLINTON HOSPITAL ASSOCIATION;
WING MEMORIAL HOSPITAL CORPORATION; JOHN O'BRIEN; PATRICIA WEBB,

Defendants, Appellees.
____________________

No. 11-1793

PATRICIA CAVALLARO, on behalf of herself and all other employees
similarly situated; MONIQUE HERMAN, on behalf of herself and all
other employees similarly situated,

Plaintiffs, Appellants,

v.

UMASS MEMORIAL HEALTH CARE, INC.; UMASS MEMORIAL HOSPITALS, INC.;
UMASS MEMORIAL MEDICAL CENTER, INC.; HEALTHALLIANCE HOSPITALS,
INC.; MARLBOROUGH HOSPITAL; THE CLINTON HOSPITAL ASSOCIATION;
WING MEMORIAL HOSPITAL CORPORATION; JOHN O'BRIEN; PATRICIA WEBB;
UMASS MEMORIAL HEALTHCARE 401K,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]
 Before

Boudin, Lipez and Howard,

Circuit Judges.

Patrick J. Solomon with whom Guy A. Talia, Thomas & Solomon
LLP, Jody L. Newman and Collora LLP were on brief for appellants.
Lisa A. Schreter with whom Angelo Spinola, Bradley E. Strawn,
Anne M. Mellen, Gregory C. Keating and Littler Mendelson, P.C. were
on brief for appellees.

April 18, 2012
 BOUDIN, Circuit Judge. This appeal embraces two of the

many private lawsuits brought against healthcare providers

throughout the country by a single law firm. These two suits, like

others of the same pattern, allege that various hospital employees

who work for the particular hospital or hospital group have been

deprived of compensation for work performed during their meal

break, for work performed before and after shifts, and for time

spent attending training sessions.

The named plaintiffs, Patricia Cavallaro and Monique

Herman, brought the two lawsuits at issue here seeking to represent

a potential class of hospital employees--some covered by collective

bargaining agreements ("CBAs") and others not; the defendants were

eight named entities (primarily hospitals and health care

providers) in the UMass Memorial Healthcare network ("UMass") and

two officials of UMass (CEO John O'Brien and Human Resources VP

Patricia Webb). Ultimately, the district court dismissed all but

one claim on grounds of "complete preemption" and the remaining

claim on the merits.1

One case, denominated No. 11-1073 in this court, began as

an action in Massachusetts state court and asserted only state law

1
Cavallaro v. UMass Mem'l Healthcare, Inc., No. 09-40181 (D.
Mass. July 2, 2010) (order granting motion to dismiss), Cavallaro
v. UMass Mem'l Healthcare, Inc., No. 09-40181 (D. Mass. Dec. 20,
2010) (order granting motion for reconsideration). The court
originally dismissed only certain of the claims and remanded others
to state court, but then reconsidered and dismissed all claims.

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claims, reflecting the type of wage issues loosely described above,

based on contract, common law torts and regulatory statutes. The

case was removed by UMass on the ground--revealed not in the

complaint but in the motion to dismiss--that Cavallaro and Herman

are employees of one network hospital, UMass Memorial Medical

Center ("UMMC") and, as members of the Massachusetts Nursing

Association, the terms of their employment are governed by a CBA.

The second case, No. 11-1793 in this court, began as an

original action in the federal district court and, raising like

wage issues, asserted claims under federal law--specifically, the

Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206-207, and the

Employee Retirement Income Security Act ("ERISA"), id.

§§ 1059(a)(1), 1104(a)(1). The district court dismissed the claims

on the ground that the plaintiffs had failed adequately to allege

an employment relationship with any of the named defendants.2

The plaintiffs appeal in each of the two cases. The two

appeals, although addressed to the same or overlapping conduct,

present different questions and we address them separately. The

issues relating to the state law claims largely turn on legal

doctrine as to which our review is de novo. O'Donnell v. Boggs,

611 F.3d 50, 53 (1st Cir. 2010). The dismissal of the federal

2
Cavallaro v. UMass Mem'l Health Care Inc., No. 09-40152, 2011
WL 2295023 (D. Mass. June 8, 2011). Additional claims asserted
under the Racketeer Influenced and Corrupt Organizations Act
("RICO") were dismissed by the district court but are not pursued
by plaintiffs on this appeal.

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action rested on a judgment call as to which the standard of

review, given the circumstances, does not fit neatly into one

category.

No. 11-1073 (State Law Claims). The original state

complaint alleged thirteen counts that may be grouped as follows:

-violation of the Massachusetts Payment of
Wages Act, Mass. Gen. Laws ch. 149, § 148
(Count 1);

-violation of the overtime provision of the
Massachusetts Fair Minimum Wage Act, Mass.
Gen. Laws ch. 151, § 1A (Count 2);

-breach of contract or implied contract
(Counts 3, 4 and 5);

-money had and received; quantum meruit/unjust
enrichment (Counts 6 and 7);

-fraud and conversion (Counts 8 and 12);

-negligent misrepresentation (Count 9);

-equitable and promissory estoppel (Counts 10
and 11); and

-failure to keep accurate records (Count 13).

Counts 10 and 11 (resting on estoppel theories) were dismissed by

stipulation but, to avoid confusion, our discussion below retains

the original numbering.

In removing the case to federal court, UMass argued that

section 301 of the Labor Management Relations Act ("LMRA"), 29

U.S.C. § 185, "completely preempts" plaintiffs' state law claims,

thereby transmuting the state law claims into federal claims and

permitting removal under federal question doctrine, 28 U.S.C.

-5-
§§ 1331, 1441(b). UMass then moved to dismiss all claims with

prejudice on the ground that they implicated CBAs and plaintiffs

had failed to exhaust CBA remedies, while Cavallaro and Herman

moved to remand to state court.

The district court declined to remand and ultimately

dismissed all of the claims, save for Count 2, for failure to

exhaust CBA remedies required by the relevant CBA. As for Count 2,

the court did not determine whether the claim would be barred on

this basis because it found that no such claim existed here in

light of the statute's "hospital" exemption and, exercising

supplemental jurisdiction, it dismissed that claim on the merits.

This appeal followed.

Plaintiffs say that the claims were all based on state

law and that, in allowing removal, the district court misunderstood

the distinction between "complete preemption," which authorizes

removal, and "defensive preemption," which merely blocks, or

diverts to CBA remedies, a claim otherwise properly in federal

court. As we will see, the complete preemption concept has a core

meaning which suffices to establish jurisdiction over the case in

the district court, although the concept's full present contours

pose uncertainties that complicate the disposition of the claims

once in federal court.

Removal is authorized for "[a]ny civil action of which

the district courts have original jurisdiction founded on a claim

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

United States." 28 U.S.C. § 1441(b). Here, all of the claims set

forth in the state court complaint purport to arise under state

law; and this, under the well-pleaded complaint rule, would

ordinarily bar removal, Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1, 9–11 (1983), were it not for the

complete preemption exception. That concept, exemplified by Avco

Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S.

557, 560 (1968), is now firmly embedded. See note 4, below.

"Complete preemption," as distinct from the more familiar

concept of defensive preemption,3 applies where a purported state

claim either is re-characterized as a federal claim or--and here,

Supreme Court doctrine has become unstable--is otherwise so related

to federal law as to permit the removal. The Court refined the

concept primarily in labor cases, extending by analogy to a limited

number of other federal statutes.4 The most familiar example is a

3
Ordinary, or defensive, preemption is (like "jurisdiction")
a loose concept used variously by the courts to refer to certain
defenses to a claim, of which a classic example is a state claim
foreclosed because its assertion conflicts with a federal statute
or falls within a field preempted by federal law. Aetna Health
Inc. v. Davila, 542 U.S. 200, 207-09 (2004).
4
The principal cases in the labor context include, in addition
to Avco: Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985);
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987); Lingle v. Norge
Div. of Magic Chef, Inc., 486 U.S. 399 (1988); and Livadas v.
Bradshaw, 512 U.S. 107 (1994). The concept has also been put to
work in a few other instances. E.g., Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1 (2003) (National Bank Act); Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58 (1987) (ERISA).

-7-
claim brought under state contract law to enforce a CBA subject to

federal jurisdiction under section 301 of the LMRA. E.g., Local

174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 102-04 (1962); see

also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-13 (1985).

The complete preemption doctrine grew out of the Court's

holding that (1) section 301 required the federal courts to create

a body of federal common law for CBAs affecting interstate

commerce, Textile Workers Union v. Lincoln Mills, 353 U.S. 448,

456-57 (1957); (2) this body displaced state contract law, id.; and

(3) by this alchemy the purported state claim became a federal

contract claim allowing removal as one within the federal "arising

under" jurisdiction under section 1441(b), Avco, 390 U.S. at 560.

Partly to protect the use of arbitration and grievance

procedures common to CBAs, the Supreme Court declined to limit

complete preemption to contract claims eo nomine, Lueck, 471 U.S.

at 211, but explicitly extended complete preemption to state law

claims "founded directly on rights created by collective-bargaining

agreements" or "substantially dependent on analysis of a

collective-bargaining agreement." Caterpillar Inc. v. Williams,

482 U.S. 386, 394 (1987). But, as the Court has encountered new

variations, it has imposed limits that it has never fully

integrated into a single body of doctrine. Livadas, 512 U.S. at

124 n.18 (noting confusion in the lower courts).

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 Despite such confusion, plaintiffs' main attack on

removal in this case plainly fails, for it rests on the proposition

that none of the claims asserted in the complaint are labor-

contract claims. But the short answer is the Lueck decision

rejected this limitation, explicitly finding a state tort claim for

bad faith conduct in relation to a CBA preempted because it

depended for its substance at least in part upon interpretation of

a CBA; the tort was a distinct claim but its viability depended in

some measure on the substance of the CBA. Lueck, 471 U.S. at 219,

220-21.

Several of plaintiffs' claims under state common law

doctrines in this case similarly depend upon analysis of the terms

of the CBA. Claims for money had and received, quantum

meruit/unjust enrichment, and conversion all rest at bottom on the

notion that plaintiffs have not been paid the wages they are owed;

here, this depends importantly upon what the CBA provides, as we

discuss more fully below, even if these amounts were in turn

altered or enlarged by state statutory provisions that cannot be

overridden by the CBAs.

The interrelationship of the state claims and a CBA

cannot be avoided merely by refusing to identify the CBA in the

complaint and citing the well pleaded complaint rule. If a

plaintiff's refusal to identify a CBA controlled, removal under

section 301 could always be defeated by artful pleading. BIW

-9-
Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers

of Am., 132 F.3d 824, 831 (1st Cir. 1997). Here, the CBA has been

invoked by defendants and its existence is not disputed by

plaintiffs.

Thus, on a minimum reading of the complete preemption

cases, one or more of plaintiffs' claims are removable; any such

claim makes the case removable, 28 U.S.C. § 1441(c); Pueblo Int'l,

Inc. v. De Cardona, 725 F.2d 823 (1st Cir. 1984); and even the

claims not independently removable come within the supplemental

jurisdiction of the district court, 28 U.S.C. § 1367(a). A broader

reading of current complete preemption law would make more, perhaps

all, of the state claims independently removable because they

require for their resolution interpretation of the CBAs; but either

way the district court had jurisdiction of the entire case.

When one turns from removal of the case to disposition of

the claims, a different set of issues arise. Here, it is not the

CBA alone but the presence, at least in this case (as in many

others), of a broadly-phrased grievance and arbitration provision

in the CBA. In deference to the agreed-to remedies, courts

ordinarily dismiss claims falling within such provisions--namely,

those intertwined with interpretation and application of the

CBA--so long as relief can be provided within the CBA process.

This course, however denominated (e.g., preemption, deference,

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exhaustion), is also prescribed by Lueck and has been repeatedly

followed.5

We have already indicated that certain of the common law

claims--for money had and received, quantum meruit/unjust

enrichment, and conversion--necessarily depend upon analysis of the

CBA's terms; but that is also true of the other common law claims

that may look less like mere surrogates for a claim to enforce the

CBA itself. Those claims in this case include claims for

misstatement and claims purported to depend on contracts

independent of the CBA itself.

To succeed on their fraud and negligent misrepresentation

claims, plaintiffs would have to prove that their reliance on

defendants' alleged fraudulent statements was reasonable.6 But

plaintiffs, who say they were misled into thinking certain time was

uncompensated, could not have reasonably relied on such statements

without taking into account CBA provisions like those guaranteeing

payment for work performed during meals, and the practices such

5
Haggins v. Verizon New England, Inc., 648 F.3d 50, 54-57 (1st
Cir. 2011); O'Donnell v. Boggs, 611 F.3d 50, 54-56 (1st Cir. 2010);
Fant v. New England Power Serv. Co., 239 F.3d 8, 14-16 (1st Cir.
2001); Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21, 27-28 (1st
Cir. 1997), cert. denied, 523 U.S. 1123 (1998); Martin v. Shaw's
Supermarkets, Inc., 105 F.3d 40, 42-44 (1st Cir.), cert. denied,
522 U.S. 818 (1997); Jackson v. Liquid Carbonic Corp., 863 F.2d
111, 118-21 (1st Cir. 1988), cert. denied, 490 U.S. 1107 (1989).
6
Carroll v. Xerox Corp., 294 F.3d 231, 243 (1st Cir. 2002)
(fraud); Maffei v. Roman Catholic Archbishop of Boston, 867 N.E.2d
300, 318 (Mass. 2007), cert. denied, 552 U.S. 1099 (2008)
(negligent misrepresentation).

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provisions embody. See Haggins v. Verizon New England, Inc., 648

F.3d 50, 54-57 (1st Cir. 2011).

Similarly, claims relying on pre-CBA employment contracts

will be defended on the ground that, when the employees entered

their CBA-covered positions, their earlier employment arrangements

were superceded by the CBA. In such a case, a claim based solely

on the pre-CBA contract might not itself justify removal, compare

Berda v. CBS Inc., 881 F.2d 20, 25 (3d Cir. 1989), cert. denied,

493 U.S. 1062 (1990), with Young v. Anthony's Fish Grottos, Inc.,

830 F.2d 993, 997-98 (9th Cir. 1987), but would allow the CBA to be

asserted defensively once the claim is otherwise in federal court.

Caterpillar, 482 U.S. at 398-99 & n.13.

Because several other claims in this case unquestionably

invoke complete preemption and only one is needed for removal of

the entire case to federal court, only the latter question of

defensive preemption remains. And, given the need to interpret the

CBA's integration provisions to resolve UMass' inevitable defense

that the CBA is intended to supercede any such prior contract

claim, any claim of the latter type is ultimately sufficiently

intertwined with the CBA to require use of the CBA processes.

Lueck, 471 U.S. at 213, 220.

The remaining claims at issue in this case are private

claims based on state regulatory statutes. Although closely

related to wages, such claims--unlike those based solely on common

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law theories--may not be "waivable" or "negotiable"--that is,

capable of being superceded by the CBA. Livadas, 512 U.S. at 123

& n.17; Lingle, 486 U.S. at 407 n.7; see also Lueck, 471 U.S. at

212. Just which claims would be non-waivable under Supreme Court

precedent is less clear but we will assume that the statutory

claims asserted here would not be waivable.

But where a regulatory claim is non-waivable, the

question remains whether federal labor policy favoring the CBA

grievance and arbitration provision still requires resort to that

route, at least initially, if the claim's resolution requires

interpretation of the CBA. Lueck suggests that the answer is yes;

but, the most recent Supreme Court case directly addressing

statutory claims--albeit one addressing agency rather than private

action--found it unnecessary to decide the defensive preemption

issue because no dispute existed about the amount of wages owed--

only whether, contrary to state law, they had been paid too late.

Livadas, 512 U.S. at 124-25.

The law in this realm is still evolving and it is not

easy to tell in what direction the Supreme Court may go. Indeed,

such overlapping regulatory/CBA problems could be handled in a

variety of ways and some tensions exist in Supreme Court precedent.

Notably, several Supreme Court cases indicate that, at least where

federal statutory claims are concerned, an arbitration clause can

waive a judicial forum for a Fair Labor Standards Act claim, 29

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U.S.C. § 206 et seq., only if such waiver is "clear and

unmistakable."7 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 255

(2009); see also Barrentine v. Arkansas-Best Freight Sys., Inc.,

450 U.S. 728 (1981).

On the other hand, at least where there is no claim that

the CBA itself violates a state statute, O'Brien v. Town of Agawam,

350 F.3d 279, 285 n.12 (1st Cir. 2003), we have continued to treat

state regulatory claims in the economic area as preempted where

they were intertwined with the CBA and more than mere consultation

of the CBA is required. Adames v. Exec. Airlines, Inc., 258 F.3d

7, 12-16 (1st Cir. 2001); see also Vadino v. A. Valey Eng'rs, 903

F.2d 253, 266 (3d Cir. 1990). And the Supreme Court in Livadas

clearly indicated that this course has not been foreclosed by that

decision. Livadas, 512 U.S. at 124 & n.18.

Until the Supreme Court provides more guidance, the panel

is bound by existing circuit precedent. Two of the regulatory

claims at issue--plaintiffs' claim under the Massachusetts Weekly

Wage Act, Mass. Gen. Laws ch. 149, § 148, and the claim for failure

to keep accurate records--are under Adames preempted by

7
A broadly-worded arbitration clause such as one covering "any
dispute concerning or arising out of the terms and/or conditions of
[the CBA], or dispute involving the interpretation or application
of [the CBA]" will not suffice; rather, something closer to
specific enumeration of the statutory claims to be arbitrated is
required. Compare Wright v. Universal Maritime Serv. Corp., 525
U.S. 70 (1998), with 14 Penn Plaza LLC v. Pyett, 556 U.S. 247
(2009). See also O'Brien v. Town of Agawam, 350 F.3d 279 (1st Cir.
2003).

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entanglement with CBA interpretation. Whether those state claims

could be revived if the CBA grievance process were employed and

provided a predicate for further relief is an issue that has not

been briefed and on which we express no opinion.8

The Massachusetts Weekly Wage Act, Mass. Gen. Laws ch.

149, § 148, requires an employer to pay wages owed to an employee

within a fixed period; to succeed, an employee must, among other

things, prove there are wages owed. Stanton v. Lighthouse Fin.

Servs., Inc., 621 F. Supp. 2d 5, 10 (D. Mass. 2009). Accurate

records also depend on what the CBA provided as wages. At this

stage of the litigation, we cannot know the exact contours of the

wage dispute and the precise CBA terms likely to require

interpretation cannot be certain; but because lawsuits evolve that

will be true until someone decides the merits.

But this is a very different situation than Livadas,

where the wages had been paid, there was no dispute about the

amount, and the claim turned on whether the wages had been timely

paid under the terms of the state law. Livadas, 512 U.S. at

124-25. By contrast, determining what (if anything) is owed--an

inevitable issue here--depends at least arguably on interpretations

and applications of the CBA at issue and that approximation has to

be sufficient. Flibotte, 131 F.3d at 26 (state law claim preempted

8
Cf. Livadas, 512 U.S. at 124 n.18 (citing Collyer Insulated
Wire, Gulf & Western Sys. Co., 192 N.L.R.B. 837 (1971)); Vadino v.
A. Valey Eng'rs, 903 F.2d 253, 266 (3d Cir. 1990).

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by LMRA section 301 if it "plausibly can be said to depend upon the

meaning of" or "arguably hinges upon an interpretation of" the

CBA).

Plaintiffs insist that they are not raising any

interpretive dispute about the CBA or the method of calculating

wages, but only a factual dispute as to whether plaintiffs were

paid for time spent working through meal breaks, before and after

work, and during training sessions. Even so, some provisions of

the CBA governing the named plaintiffs' employment will likely need

to be interpreted: for example, whether certain training programs

are compensable depends on the employee having made a "timely"

request to attend; and compensable meal time depends upon whether

a nurse remained in the "patient care area."

But more importantly, resolving the factual dispute does

not resolve whether or how much wages are owed. UMass has argued

that additional compensation provided by the CBA--say, premium pay

above state mandatory rate, or differential pay for certain

shifts--may offset any deficiency created by other uncompensated

time for purposes of satisfying state minima.9 Determining whether

there are wages owed thus will require construing and applying the

various "peculiarities of industry-specific wage and benefit

9
Plaintiffs admit that Massachusetts wage and hour statutes
incorporate the standards of the Fair Labor Standards Act, which
contemplates such offsets. See 29 U.S.C. § 207(e)(5)-(7), (h); 29
C.F.R. § 778.200, 778.202; Mullaly v. Waste Mgmt. of Mass., 895
N.E.2d 1277, 1281 (Mass. 2008).

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structures" embodied in the CBA--a complicated task better-suited

for an arbitrator's expertise and, regardless, which Adames already

deemed a matter of interpretation requiring preemption. 258 F.3d

at 13. And, of course, any claim for compensation above the state

minima must be entirely dependent on the CBA.

That leaves only plaintiffs' claim under the

Massachusetts Fair Minimum Wage Act, Mass. Gen. Laws ch. 151, § 1A,

which mandates overtime pay for hours worked over 40 per week at

one and a half times the employee's regular rate of pay. Whether

CBA interpretation, or mere consultation, would be needed to

determine the "regular rate" might be uncertain, cf. Adames, 258

F.3d at 14-15; but the district court found this claim barred by

the statute's exception for employees who work "in a hospital."

Mass. Gen. Laws ch. 151, § 1A(16).

This exercise of supplemental jurisdiction was proper.

28 U.S.C. § 1367(a); Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168,

1177 (1st Cir. 1995) ("In an appropriate situation, a federal court

may retain jurisdiction over state-law claims notwithstanding the

early demise of all foundational federal claims."). The claim

arises from the same nucleus of facts as the rest of plaintiffs'

claims, the question is purely legal and, although perhaps novel,

it is by no means complex; plaintiffs, after all, have not

contested UMass' representation that they are hospital employees.

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 The district court also did not err in failing to remand

to state court any claims of putative plaintiffs not covered by

CBAs. The named plaintiffs in this case are current or former

hospital employees whose employment is governed by a CBA. Any

other potential class plaintiffs are not parties to the suit until

plaintiffs' status is established. See Pruell v. Caritas Christi,

645 F.3d 81, 84 (1st Cir. 2011). Putative plaintiffs not covered

by a CBA remain free to file a separate action.

11-1793 (Federal Claims). In No. 11-1793, plaintiffs

allege UMass violated the minimum wage and overtime provisions of

the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206-207, and

failed to keep accurate records and to credit all hours worked in

violation of the Employee Retirement Income Security Act ("ERISA"),

29 U.S.C. §§ 1059(a)(1), 1104(a)(1). Primarily in dispute is the

FLSA claim, for which the plaintiffs had to identify an employer,

show an interstate nexus, and establish under-compensation. Id.

§§ 206(a), 207(a)(1).

The district court dismissed the FLSA claim on the

pleadings, saying that the complaint did not identify any employer

for the named plaintiffs but merely the UMass umbrella organization

and specific named hospitals--none of which were identified as the

immediate employer for either plaintiff. Having already allowed

two other amended complaints, the district court refused to allow

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an amendment for the FLSA claim or the ERISA claim, which it viewed

as parallel or derivative.

Whether the complaint stated a claim without identifying

the direct employer is a question of law, Estate of Bennett v.

Wainwright, 548 F.3d 155, 162 (1st Cir. 2008), while the refusal to

allow an amendment is reviewed for abuse of discretion. Universal

Commc'n Sys., Inc., v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.

2007). As to the latter, plaintiffs' counsel appear to have been

omitting pertinent information from their complaints, possibly to

prevent removal or broaden the potential class. E.g., Pruell v.

Caritas Christi, No. 09-11466, 2010 WL 3789318 (D. Mass. Sept. 27,

2010), vacated in part, No. 11-1929 (1st Cir. 2012).

Here, plaintiffs say that their allegations were

nevertheless sufficient because all of the UMass-affiliated

entities operated as a "joint employer" or "integrated enterprise"-

-theories that might (or might not) extend liability beyond their

direct employer. Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d

193, 197-98 (2d Cir. 2005); see also Plumbers' Union Local No. 12

Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 770

(1st Cir. 2011). But, as the district court said, even on these

theories some direct employer needs to be identified before anyone

in the group could be liable on the theory that some or all were

responsible.

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 Plaintiffs do not suggest they were ignorant of which

hospital directly employed their two named plaintiffs, compare

Cordero-Hernández v. Hernández-Ballesteros, 449 F.3d 240, 244 (1st

Cir. 2006), cert. denied, 549 U.S. 1128 (2007), nor would

identifying an individual employer have waived a claim that

associated entities were also responsible. A number of courts have

made clear that they will not put up with game-playing omissions of

plainly relevant detail,10 and we are increasingly sympathetic to

this view.

But, in this instance, the defendants themselves removed

the parallel state case to federal court on the specific ground

that these two employees were directly employed under a CBA by a

named defendant identified by defendants themselves, and the

district court accepted this allegation in sustaining the removal.

Under these peculiar circumstances and with no indication of any

prior abuse of the amendment process (the prior amendments were

consented-to modifications reflecting developments in mediation),

we think that one last amendment should be permitted, if the

plaintiffs are so minded.

10
See Davis v. Abington Mem'l Hosp., No. 09-5520, 2011 WL
4018106, at *4 (E.D. Pa. Sept. 8, 2011); DeSilva v. North Shore-
Long Island Jewish Health Sys., Inc., 770 F. Supp. 2d 497, 508-10
(E.D.N.Y. Mar. 16, 2011); Manning v. Boston Med. Ctr. Corp., No.
09-11463, 2011 WL 796505, at *1-*2 (D. Mass. Feb. 28, 2011);
Nakahata v. New York-Presbyterian Healthcare Sys., Inc., No. 10
Civ. 2661, 2011 WL 321186, at *4 (S.D.N.Y. Jan. 28, 2011).

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 The judgment in No. 11-1073 is affirmed; the judgment in

No. 11-1793 is vacated and that case is remanded for further

proceedings consistent with this decision. Each side shall bear

its own costs on the appeals.

It is so ordered.

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