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In Glisson v. Occupational Health Centers of Arkansas, 2005 WL 1922574 (E.D.Ark. Aug. 10, 2005), the court was faced with considering a motion to remand the drug testing litigation to state court.
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4:05CV00640JMM.
August 9, 2005
ORDER GRANTING MOTION TO REMAND
Pending are the Motions to Ddismiss of Defendant Occupational Health Centers of Arkansas d/b/a Concentra Medical Centers ("Concentra") and J.B. Hunt Transport, Inc. ("J.B. Hunt") and the Motion to Remand of the Plaintiff. For the reasons set forth below, the Motion to Remand is GRANTED and the Motions to Dismiss are, therefore, MOOT.
In his Complaint, Plaintiff makes state common law claims against the Defendants for tortuous interference with a business relationship, libel/slander/defamation, fraud and constructive fraud for actions taken by Defendants while Plaintiff was reporting for drug testing required by his employer, Defendant J.B. Hunt. Plaintiff alleges that Concentra, acting as an agent for J.B. Hunt, fabricated a report regarding a urine sample allegedly provided by Plaintiff. Plaintiff filed his Complaint in Pulaski County Circuit Court. Defendants removed the case to federal court pursuant to 28 U.S.C. § 1441 on preemption grounds.
Defendants allege that this Court has original jurisdiction over Plaintiff's claims because the Federal Omnibus Transportation Employee Testing Act of 1991 ("FOTETA") and the underlying federal regulations completely preempt state common law with regard to drug testing of commercial motor vehicle operators. Further, Defendants argue that the federal regulations do not create a private right of action through the courts and, therefore, Plaintiff's Complaint should be dismissed. Defendants cite Rector v. Lab One, Inc., 208 F. Supp. 2d 987 (E.D. Ar. 2002) in support of these contentions. Plaintiff argues that his claims are not completely preempted by FOTETA and, therefore, his case should be remanded back to state court in accordance with Chapman v. Lab One, Inc., 390 F.3d 620 (8th Cir. 2004).
The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction. See 28 U.S.C. § 1441(b). A claim may be removed only if it could have been brought in federal court originally. See id.; Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986). Because Plaintiff cannot establish diversity jurisdiction, see 28 U.S.C. § 1332(a), removal is proper only if Plaintiff's claims raise a federal question. See 28 U.S.C. § 1441. A federal question is raised in "those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).
A plaintiff's characterization of a claim as based solely on state law is not dispositive of whether federal question jurisdiction exists. In certain instances, the preemptive force of a federal statute is so complete that it transforms complaints styled as ordinary common-law claims into ones stating a federal claim. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). Once an area of state law has been "completely preempted," any claim based on that preempted state law claim is considered, from its inception, to raise a federal claim and therefore arises under federal law. Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1242 (8th Cir. 1995). "As such, "complete preemption" of a state-law cause of action provides a basis for removal of an action to federal court." Chapman v. Lab One, Inc., 390 F.3d 620, 624-25 (8th Cir. 2003).
The doctrine of preemption arises from the Supremacy Clause of the Constitution, which requires that state law must give way when it conflicts with or frustrates federal law. State law is preempted when Congress expressly prohibits state regulation, when Congress implicitly leaves no room for state involvement by pervasively occupying a field of regulation, and when state law directly conflicts with federal law.
In 1991, Congress amended the Federal Commercial Motor Vehicle Safety Act of 1986 by passing the Federal Omnibus Transportation Employee Testing Act. FOTETA provides that "the Secretary of Transportation shall prescribe regulations that establish a program requiring motor vehicle carriers to conduct preemployment, reasonable suspicion, random and post-accident testing of operators of commercial motor vehicles for the use of a controlled substance and to conduct reasonable suspicion, random, and post-accident testing of such operators for the use of alcohol in violation of law or United States Government regulation. . . ." 49 U.S.C. § 31306(b)(1)(A). Pursuant to this directive, the Secretary of Transportation promulgated the Controlled Substances and Alcohol Use and Testing regulations. 49 C.F.R. § 382.101 et seq. FOTETA and the regulations include preemptive language. 49 U.S.C. § 31306(g); 49 C.F.R. § 382.109. The statute provides:
A state or local government may not prescribe or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this section. However, a regulation prescribed under this section may not be construed to preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property.49 U.S.C. § 31306(g). The regulations include a similar provision.
(a) Except as provided in paragraph (b) of this section, this part preempts any State or local law, rule, regulation, or order to the extent that:
(1) Compliance with both the State or local requirement in this part is not possible; or
(2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part.
(b) This part shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees, employers, or the general public.49 C.F.R. § 382.109.
The Eighth Circuit Court of Appeals in Chapman considered the issue of whether a railroad employee's common law claims against a laboratory that performed random drug testing are preempted by FOTETA and/or the Federal Railroad Safety Act ("FRSA"). The Court concluded that the Secretary's Controlled Substance and Alcohol Use and Testing regulations do not pre-empt common-law negligence claims involving drug testing. The Court distinguished the FRSA and FOTETA from other statutory schemes, such as ERISA and the LMRA, in which complete preemption has been found. Id. at 629. This distinction was based upon the fact that ERISA and the LMRA include "a specific jurisdictional provision stating that the district courts of the United States shall have jurisdiction to grant relief based on the private right of action created elsewhere in the statutes." Id. Neither the FRSA nor FOTETA provide a private right of action for a person aggrieved by negligence in the analysis of a drug test. "[T]he absence of an alternative cause of action militates against a finding of complete preemption." Id.
Moreover, the Court expressly agreed with the Ninth Circuit's opinion in Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1133 (9th Cir. 2003). In Ishikawa, the plaintiff was terminated from her job as a flight attendant based upon the results of a random drug-detecting urinalysis. The plaintiff sued her employer and the laboratory which conducted the urinalysis for negligence. As in the instant case, the defendants argued that Ms. Ishikawa's claim was preempted by FOTETA. The Ishikawa court cited the Secretary of Transportation's regulation governing drug and alcohol testing which provides, "The employee may not be required to waive liability with respect to negligence on the part of any person participating in the collection, handling, or analysis of the specimen." Id. (citing 49 C.F.R. Pt. 40 and 49 C.F.R. Subtitle A § 40.25(f)(22)(ii)(1998)). The Ninth Circuit reasoned, "Negligence is a state common law tort, and it would make no sense for the regulation to prohibit requiring the employee to waive negligence claims if those claims were preempted and could not be made. This regulation prohibiting required waivers of negligence claims implies that such claims exist and are not preempted." Id. Although the Chapman case involved railroad employees covered under the FRSA as well as FOTETA, the Eighth Circuit's analysis in Chapman persuades this Court that the Plaintiff's common-law claims in this case are not completely preempted by FOTETA. Therefore, Plaintiff's Complaint does not raise a federal question and this Court does not have original jurisdiction. The Court has carefully considered Rector v. Lab One, Inc., 208 F.Supp.2d 987 (E.D. Ar. 2002). However, the Court finds the Chapman case to be a better indicator of the law in this circuit today.
For these reasons, the Plaintiff's Motion to Remand (Docket # 12) is GRANTED. The Clerk is directed to remand this case to the Pulaski County Circuit Court forthwith. Defendants' Motions to Dismiss (Docket # 6 and # 8) are, therefore, MOOT.
IT IS SO ORDERED.