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 
2

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).
3

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. 
4

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, 
5

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 suboptimal, 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 
6

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, 
7

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 
8

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 
9

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 preemption, 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 
10

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).
11

(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 collectivebargaining 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). 
12

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, 
13

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 
14

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. 
15

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 
16

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-ofcontract 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 
17

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 employmentdiscrimination 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 
18

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. 
19

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. 
20

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, 
21

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

may therefore invoke defensive preemption to dismiss the statelaw 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. 
22

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 
23

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.