1 – OPINION & ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

LANE TOENSMEIER, 

an individual, 

 No. 3:15-CV-01998-HZ 

 Plaintiff, 

 OPINION & ORDER 

 v. 

AMALGAMATED TRANSIT UNION, 

DIVISION 757, a labor organization, 

et al., 

 Defendants. 

Scott N. Hunt 

Kirsten Rush 

Busse & Hunt 

621 SW Morrison Street, Suite 521 

Portland, OR 97205 

 Attorneys for Plaintiff 

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2 – OPINION & ORDER 

Gene Mechanic 

Whitney Stark 

Mechanic Law Firm 

6420 SW Macadam Avenue, Suite 208 

Portland, OR 97239 

 Attorneys for Defendants 

HERNÁNDEZ, District Judge: 

 Plaintiff Lane Toensmeier filed a complaint against Defendants for defamation, false 

light invasion of privacy, and breach of contract, in the Multnomah County Circuit Court. 

Defendant Amalgamated Transit Union, Division 757 (“ATU 757”) removed the case to this 

Court on the basis of federal question jurisdiction, asserting that Plaintiff’s state law claims are 

completely preempted by the Labor Management Reporting and Disclosure Act (“LMRDA” or 

“Act”). Plaintiff now moves to remand back to state court and requests attorney fees for 

improper removal. Plaintiff’s motion to remand is granted because Defendants failed to show 

that the Act completely preempted Plaintiff’s state law claims. However, Plaintiff’s request for 

attorney fees is denied. 

BACKGROUND 

 Plaintiff is a resident and citizen of Oregon who began working at ATU 757 as general 

counsel in January, 2015. Compl. ¶¶ 1, 3, ECF No. 1-1. Bruce Hansen was president of ATU 

757 at the time and signed Plaintiff’s employment contract. Notice of Removal ¶ 10, ECF No. 1. 

Defendant Shirley Block challenged Hansen during the 2015 election for union president, and 

ran a hard-fought campaign. Her running partners were the incumbent vice president Jonathan 

Hunt and treasurer Mary Longoria (both are named Defendants). Id. at ¶¶ 11, 12. During the 

election campaign, Block filed an unfair labor practice complaint against then president Hansen. 

Plaintiff represented Hansen and ATU 757 in this matter. Id. at ¶ 13. Plaintiff alleges that 

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shortly before the election Block, Hunt, and Longoria published and distributed defamatory 

statements about his conduct as an attorney. Compl. ¶¶ 4, 9. Union members elected Block 

president in June. Notice of Removal ¶ 11. When she took office, Block placed Plaintiff on 

administrative leave, and shortly thereafter, he was notified that his position was to be 

eliminated. He received a two-week notice and the required severance package. Id. at ¶¶ 15, 16. 

Plaintiff contends that the elimination of the general counsel position was a breach of his 

employment contract. Compl., ¶ 15. 

 Plaintiff filed suit in the Multnomah County Circuit Court, alleging defamation, false 

light invasion of privacy, and breach of contract. Compl. ¶¶ 5, 9, 15. Defendants removed the 

case here, asserting that this Court had jurisdiction over Plaintiff’s state law claims under the 

complete preemption doctrine. Notice of Removal ¶ 1. Plaintiff then moved to remand the case 

back to state court because, Plaintiff argues, the LMRDA does not completely preempt his state 

law claims, and therefore this Court does not have jurisdiction. Pl. Mot. to Remand 2, ECF No. 

10. 

STANDARDS 

Generally, “any civil action brought in a State court of which the district courts of the 

United States have original jurisdiction, may be removed by the defendant or the defendants, to 

the district court of the United States for the district and division embracing the place where such 

action is pending.” 28 U.S.C. § 1441(a); Matheson v. Progressive Speciality Ins. Co., 319 F.3d 

1089, 1090 (9th Cir. 2003) (“Any civil action may be removed to federal district court so long as 

original jurisdiction would lie in the court to which the case is removed”). Furthermore, “[a]ny 

civil action of which the district courts have [federal question jurisdiction] shall be removable 

without regard to the citizenship or residence of the parties.” 28 U.S.C. § 1441(b). The party 

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seeking removal has the burden to establish that removal is proper, and the burden of 

establishing federal jurisdiction is on the removing party. Hunter v. Philip Morris USA, 582 

F.3d 1039, 1042 (9th Cir. 2009); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 685 (9th 

Cir. 2006). The removal statute is strictly construed against removal jurisdiction. Id.; Hunter, 

582 F.3d at 1042. 

 Remand is governed by 28 U.S.C. § 1447(c), which provides in pertinent part that “[a] 

motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction 

must be made within 30 days after the filing of the notice of removal under section 1446(a).” 

The statute further provides that “[i]f at any time before final judgment it appears that the district 

court lacks subject matter jurisdiction, the case shall be remanded.” Id. 

Under § 1447(c), “[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.” Id. However, 

“[a]bsent unusual circumstances, courts may award attorney 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.” Martin v. Franklin Capital Corp., 

546 U.S. 132, 141 (2005). Removal is not objectively unreasonable solely because the removing 

parties’ arguments lack merit and the removal is ultimately unsuccessful. Lussier v. Dollar Tree 

Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008); see also Patel v. Del Taco, Inc., 446 F.3d 996, 

999–1000 (9th Cir. 2006) (suggesting that a frivolous basis for removal justifies an award of 

attorney fees). 

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DISCUSSION 

 A. Complete Preemption 

Plaintiff moves to remand the case to state court, arguing that this Court lacks jurisdiction 

over his state law claims for defamation, false light invasion of privacy, and breach of contract. 

Defendants oppose the motion, asserting that the LMRDA completely preempts Plaintiff’s state 

law causes of action. If this were so, this Court would have jurisdiction because a federal law 

which completely preempts state law supplants state law claims and confers original jurisdiction 

over those claims to a federal district court. See, e.g., Franchise Tax Bd. v. Constr. Laborers 

Vacation Trust, 463 U.S. 1, 23–24 (1983). 

 In general, a case is not removable, absent diversity jurisdiction, unless the complaint 

affirmatively alleges a federal claim. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). 

The court generally ignores possible defenses, including preemption, in determining whether it 

has removal jurisdiction, but there are two exceptions to this rule. Id. First, Congress can 

expressly provide for the removal of actions brought in state court that assert state law claims. 

Id. at 8; see, e.g., 42 U.S.C. § 2014(hh). Second, there are a few instances where the preemptive 

force of a federal statute is “so powerful as to displace entirely any state cause of action[.]” 

Beneficial Nat’l Bank, 539 U.S. at 7 (quotation omitted) (providing § 301 of the Labor 

Management Relations Act as an example). In such a case, “a federal cause of action completely 

preempts a state cause of action [and] any complaint that comes within the scope of the federal 

cause of action necessarily ‘arises under’ federal law.” Franchise Tax Bd., 463 U.S. at 23–24. 

 Here, Defendants argue that the LMRDA completely preempts all of Plaintiff’s state law 

claims. The Act contains no express removal provision, so the question is whether the 

preemptive force of the LMRDA is “so powerful as to displace entirely any state law cause of 

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action[.]” Beneficial Nat’l Bank, 539 U.S. at 7 (quotation omitted). A review of the statute and 

relevant case law indicates that the LMRDA does not completely preempt Plaintiff’s state law 

claims, and therefore, this case is remanded. 

 Labor statutes are largely silent as to which aspects of state law Congress meant them to 

preempt. Bloom v. Truck Drivers, Office, Food, and Warehouse Union, 783 F.2d 1356, 1360 

(9th Cir. 1986) (citing Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1473 (9th 

Cir. 1984)). Therefore, courts examining the preemptive effect of labor statutes like the 

LMRDA must rely upon “legislative history and judicial conceptions of what federal labor 

policy requires.” Id. In other words, to establish that the LMRDA completely preempts 

Plaintiff’s state law claims, Defendants must “show that Congress intended this portion of the 

LMRDA ‘to provide the exclusive cause of action for the claims at issue.’” Sowell v. Int’l Bhd. 

of Teamsters, No. H-09-1739, 2009 WL 4255556, at *4 (S.D. Texas Nov. 24, 2009) (citing 

Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 553 (5th Cir. 2008)). 

 Defendants offer no argument based on the statutory language or Congressional intent. 

Instead, they rely on Finnegan v. Leu and a Sixth Circuit case, neither of which establishes that 

the LMRDA completely preempts state law claims. In Finnegan, the Supreme Court held that an 

incoming union president’s termination of incumbent administrators did not violate the Act. 456 

U.S. 431, 439–442 (1982). The Court reasoned that “the ability of an elected union president to 

select his own administrators is an integral part of ensuring a union administration’s 

responsiveness to the mandate of the union election.” Id. Here, Defendants contend that the 

termination of Plaintiff’s general counsel position upon election of a new president was lawful. 

Under Finnegan, that may be true, but that is not the question presented by Defendants’ removal 

and Plaintiff’s motion to remand. The question is whether the LMRDA completely preempts all 

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7 – OPINION & ORDER 

of Plaintiff’s state law claims, such that this Court has federal question jurisdiction over 

Plaintiff’s case. Finnegan does not address that question, and thus, it does not control. 

 In a Sixth Circuit case, the plaintiff won an election for union president. Thereafter, his 

opponents successfully pushed to dissolve his region. He brought state law claims of age 

discrimination, conspiracy to discriminate on the basis of age, wrongful discharge, retaliation, 

libel, and slander. Davis v. Int’l Union, United Auto., Aerospace & Agricultural Implement 

Workers of America (UAW), 392 F.3d 834, 836 (6th Cir. 2005). While the plaintiff brought no 

claims directly under the LMRDA, the court held that the Act completely preempted these state 

law claims because they were brought in an attempt to receive post-election relief and to 

challenge union election results, which are strictly federal questions governed by the LMRDA. 

Id. at 839–840. 

Davis does not apply here because Plaintiff does not request post-election relief or 

challenge the results of a union election. He brings state claims for relief under Oregon law, not 

under the LMRDA. Plaintiff’s case is very similar to district court cases where the courts found 

the LMRDA did not completely preempt state law claims. For instance, in Gerow v. 

Kleinerman, the plaintiff was an incumbent union president running for re-election. The 

defendants circulated an allegedly tortious campaign leaflet, and the plaintiff filed a three count 

state claim against them for defamation, invasion of privacy, and conspiracy to defame. No. 01-

cv-138, 2002 WL 1625417, at *1 (D.N.J. July 2, 2002). Defendants removed to federal court on 

the basis of complete preemption, and plaintiff opposed the motion because he had filed only 

state law claims. Id. The court held that the LMRDA did not completely preempt plaintiff’s 

state law claims because he did not seek relief under the Act, such as a review of the results of 

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the union election or post-election relief. Rather, he alleged state law violations and sought relief 

under state law. Id. at *5. 

 In another case, the plaintiff brought state law claims for breach of contract, tortious 

interference with contract, defamation, and libel, after he was removed from his position as local 

president by the president of the International Brotherhood of Teamsters. Sowell, 2009 WL 

4255556, at *1. Defendants removed the case to federal court on the basis of complete 

preemption. Id. at *2. The court granted the plaintiff’s motion to remand because he did not 

seek post-election relief under the Act. Instead, he sought relief on four state law claims. The 

Sowell court found the LMRDA did not completely preempt the plaintiff’s state law claims 

because, in part, his claims did not require the court to interpret the union’s constitution. Thus, 

the court lacked jurisdiction over the plaintiff’s purely state law causes of action. Id. at *8. 

 In Hahn v. Rausch, the court remanded the plaintiff’s case for very similar reasons. 602 

F. Supp. 2d 895, 911 (N.D. Ohio 2008). The plaintiff brought state law claims for slander, libel, 

and tortious interference with a business relationship. The court, noting the limited scope of the 

complete preemption doctrine, and indicating that hearing the plaintiff’s claims would not 

require interpreting the union’s constitution, remanded the case. Id. 

Similarly, here, Plaintiff was removed from his position as general counsel for the local 

union. As a result, he brought defamation, false light invasion of privacy, and breach of contract 

claims in state court. Defendants removed to this Court, asserting that the LMRDA completely 

preempts Plaintiff’s state causes of action. Like the plaintiffs in Gerow, Sowell, and Hahn, 

Plaintiff seeks relief under state law, not under the LMRDA. And, like the courts in these three 

cases, this Court declines to apply the limited doctrine of complete preemption to the LMRDA. 

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9 – OPINION & ORDER 

Finally, the Supreme Court has never held that the LMRDA completely preempts state 

law claims. Hahn, 602 F. Supp. 2d at 910. This is not surprising because the Court has found 

only a select handful of federal statutes have a complete preemptive effect. Sowell, 2009 WL 

4255556, at *4 (citation omitted). See also Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013) 

(describing the complete preemption doctrine as “limited” and noting its narrow scope). 

In sum, Defendants have not shown that Congress intended the LMRDA to be “so 

powerful as to displace entirely any state cause of action[.]” Beneficial Nat’l Bank, 539 U.S. at 

7. Defendants offer no argument based on the text of the statute or Congressional intent, instead 

citing two cases that do not control the present case. The Court agrees with other district courts 

that have refused to find the LMRDA completely preempts state law claims in cases very similar 

to this one. Therefore, the Court remands Plaintiff’s case to state court. 

B. Attorney Fees 

Plaintiff requests attorney fees because he contends that removal was improper. The 

relevant 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). When there is an objectively reasonable basis for removal, a request for attorney fees 

should be denied. Martin, 546 U.S. at 141. Removal is not objectively unreasonable simply 

because removal was ultimately unsuccessful. Lussier, 518 F.3d at 1065. The court should 

decide “whether the relevant case law clearly foreclosed the defendant's basis of removal” by 

examining the “clarity of the law at the time of removal.” Id. at 1066. 

The preemptive effect of federal labor statutes is a complex and challenging area of law. 

See, e.g., Bloom, 783 F.2d at 1360 (pointing out that Congress was frequently silent on what 

labor statutes were meant to preempt). Difficult law presents a situation that militates against 

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granting attorney fees to Plaintiff. There is no indication that Defendants’ removal of this case to 

the District Court was objectively unreasonable or frivolous. Thus, Plaintiff’s request for 

attorney fees is denied. 

CONCLUSION 

 Plaintiff’s motion to remand [10] is granted, and this case is remanded to the Multnomah 

County Circuit Court to consider the merits of Plaintiff’s claims. 

 IT IS SO ORDERED. 

 Dated this ______ day of March, 2016. 

 

 

MARCO A. HERNÁNDEZ 

United States District Judge 

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