The district court awarded Bonanno Linen Service compensatory damages on a state law tort claim against Teamsters Union Local 25 and several individual Local members. The Local and the individual defendants appeal, raising several jurisdic *3 tional questions and also attacking the award on the merits. We agree with the jurisdictional argument of the individual defendants and vacate the judgment against them. As to all other matters, we affirm the judgment of the district court.
I
This case began in 1975 in the midst of a labor dispute between Bonanno, several other linen companies and the defendants. The companies brought suit in state court, alleging that the Local and some of its members had engaged in “numerous illegal acts of violence” and “threats of violence toward both Plaintiffs’ property and employees, and toward third parties trying to do business with Plaintiffs.” They sought an injunction and damages.
A few days after the suit was filed, all of the defendants petitioned for its removal to the Massachusetts federal district court. In their petition, the defendants stated that the plaintiffs’ complaint in part alleged a violation of a federal law, the Labor-Management Relations Act (LMRA, or Taft-Hartley Act) § 303, 29 U.S.C. § 187, which grants relief to those harmed by an illegal secondary boycott. See 29 U.S.C. § 158(b)(4).
The companies did not oppose the removal. Rather, they asked for a federal injunction. They obtained a temporary restraining order prohibiting further violence.
See Charles D. Bonanno Linen Serv., Inc. v. McCarthy,
In April 1980, the Local moved to remand the case to the state court, claiming lack of federal jurisdiction. The district court denied the motion in September. One year later, the individual defendants made a similar motion, which was quickly denied. Trial began on September 24,1981. It focused almost exclusively on the state claims. In fact, the district court found for defendants on the federal secondary boycott claim, but it found for the plaintiffs on the state tort claims against both the Local and three individual members. The court ordered the defendants, who were held jointly and severally liable, to reimburse Bonanno for its expenses in protecting its employees, to pay the medical expenses of an injured employee, and to pay the cost of certain other repairs. The court also awarded prejudgment interest from the date the original action was filed.
II
a. We turn first to a jurisdictional problem which this court itself raised at oral argument. We noted that this case was removed on the ground that Bonanno asserted a claim arising under federal law.
See
28 U.S.C. § 1441. We also pointed to the case law requiring that the elements of the federal claim appear on the face of the state court complaint, without reference to other documents, such as the removal petition or the answer.
E.g., Phillips Petroleum Co. v. Texaco, Inc.,
Given the factual likelihood that in most cases what affects the innocent target will affect the ultimate target, and given Congress’ intent in the Taft-Hartley Act to exercise its constitutionally-granted commerce power broadly,
Groneman v. International Bhd. of Elec. Workers,
We reach this result without holding, as some courts have done, that one may look outside the state complaint to the removal petition for matters related to parties’ “status” (such as this type of jurisdictional “commerce” nexus).
E.g., Hayes v. National Con-Serv, Inc.,
The state complaint alleges that the parties held “four meetings with the Federal Mediation and Conciliation Service.” This federal service is available by statute only “in any industry affecting [interstate] commerce” where the dispute “threatens to cause a substantial interruption of commerce.” 29 U.S.C. § 173(b). Thus, the necessary jurisdictional impact is ascertainable from the face of the complaint (without looking to the removal petition), even though the words “interstate commerce” do not themselves appear in the complaint.
See Hospital Building Co.
v.
Trustees of Rex Hospital,
b. The Local argues that the plaintiff’s assertion of a federal claim was inadequate for another reason, namely that the state complaint failed to set out the substantive elements of a Taft-Hartley § 303 violation. The district court disagreed with the Local, and so do we.
The issue is whether the state complaint set out a “substantial” Taft-Hartley claim. If so, the federal court had discretionary power to hear a pendent state claim linked to the federal claim by a “common nucleus of operative fact,”
United Mine Workers v. Gibbs,
The Taft-Hartley Act provides for a federal cause of action against labor organizations which engage in activity prohibited by § 8(b)(4), which makes it illegal
*5 to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where ... an object thereof is ...
(B) forcing or requiring any person to cease .. . doing business with any other person ... Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
Provided, that nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer ... if the employees of such employer are engaged in a strike ....
29 U.S.C. § 158(b)(4)(ii). In enacting this language, Congress sought to prevent all “labor efforts to draw in neutral employers through pressure calculated to induce them to cease doing business with the primary employer.”
National Woodwork Mfrs. Ass’n v. NLRB,
exercise coercive pressure upon [complainant’s] customers, ... in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it.
National Woodwork Mfrs. Ass’n v. NLRB,
The plaintiff’s state complaint, in relevant part, fits within the Act’s prohibitions. It alleges that
(f) The valve of an oil truck was cracked open while parked at the Roxbury place of business of the Plaintiff, Standard, thereby causing approximately eight hundred gallons of heavy fuel oil to spill onto said Plaintiff’s premises.
(h) Various third parties doing business with Plaintiffs have been threatened with physical violence by pickets identified as ... members of Local 25.
And the complaint concludes that
By reason of .. . the acts of violence and threats of violence directed toward Plaintiffs’ property and employees and against third parties doing business with Plaintiffs, Defendants have wilfully and intentionally attempted ... (b) to interfere with the shipment and/or receipt of goods by Plaintiffs. As a result of the foregoing . .. certain suppliers of the Plaintiffs have refused to deliver supplies.
These allegations amount to a claim that the defendants tried to “threaten, coerce or restrain” third parties, to induce them “to cease doing business with” the plaintiffs.
The Union points to the provisos in § 8(b)(4). The first states that § 8(b)(4) does not “make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” The second specifies that lawful picketing is not made unlawful when third persons choose to honor the picket lines. The mere existence of picketing, however, does not automatically render all union activity lawful.
See United Steelworkers v. NLRB,
The Local’s arguments are, for the most part, relevant not to the issue of judicial “power,” but to the question of district court “discretion.”
See United Mineworkers
v.
Gibbs,
For one thing, it was the Local itself that removed the action from state to federal court in the first place. As the Sixth Circuit remarked in a similar context,
Not only did the union not contest the jurisdiction of the District Court, the case was removed from the state court upon the union’s motion. Given the expenditure of judicial time and energy on this case, and given the common nucleus of operative fact, we cannot say that the exercise of pendent jurisdiction by the District Court was an abuse of its discretion.
Kayser-Roth Corp. v. Textile Workers Union of America,
Ill
We turn to a more difficult jurisdictional question raised by the individual defendants — the “pendent parties.” Bonanno does not assert any
federal
claim against these parties. Bonanno’s state claim against them was removed from the state court, along with the federal and state claims against the Local, on the theory that the state claim against the individuals was “pendent” to the federal claim against the Local.
See Aldinger v. Howard,
The jurisdictional defect is not one of constitutional power. The grant of judicial power contained in Article III, Section 2, is related to the nature of the case, not the nature of each individual claim (“The judicial Power shall extend to all Cases, .... ”).
[I]f, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily *7 be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
United Mine Workers v. Gibbs,
Nonetheless, Article III also provides that the judicial power “shall be vested ... in such inferior courts as the Congress may ... establish.” Thus, we must ask whether Congress has vested in the federal courts the power to hear Bonanno’s claims against the individual defendants. Aldinger v. Howard, supra. We find it has not.
In
Aldinger
the Supreme Court developed a rule of statutory construction aimed at deciding whether Congress, in a jurisdictional statute, intended to open the federal courts to particular state law claims against particular “pendent parties.” The Court held that we should look at the pendent parties, and ask, “Did Congress intend this type of party to be the subject of this type of federal action?” If not, it is likely that Congress “expressly or by implication negated” jurisdiction to hear closely related state law claims against that “pendent party” as well.
The
Aldinger
plaintiff brought a federal civil rights action under 42 U.S.C. § 1983 in federal court against county officials and the county. She asserted federal jurisdiction under 28 U.S.C. § 1343, a special statute giving federal district courts “original jurisdiction of any civil action authorized by law to be commenced ... to redress” a § 1983 violation. She also brought related state claims against all of the defendants. At that time (prior to
Monell v. Dept. of Social Services,
[p]arties such as counties, whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that “civil action” over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff’s claim of additional power over a “pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which the federal judicial power has been extended by Congress.
Aldinger would seem to require dismissal of the state claims against the individual pendent parties here, for the jurisdictional picture is very similar. The parties have relied upon § 303 of the Taft-Hartley Act, 29 U.S.C. § 187, which provides that
(a) It shall be unlawful ... for any labor organization to engage in any activity or conduct defined as an unfair labor practice in Section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States ..., or in any other court having jurisdiction of the parties ....
The district court noted that the language of the jurisdictional subsection (b), through its reference to subsection (a), applies only to suits against labor organizations, not to suits against individuals. But, it concluded that “nothing in the statute suggests that Congress intended otherwise to limit a federal district court’s power to decide closely *8 related claims by the same plaintiff against parties who are not labor organizations.”
The legislative history of § 303, however, reveals the contrary, namely a clear legislative intent to immunize individuals.
Cf. Complete Auto Transit, Inc. v. Reis,
There is thus more, not less, reason here than in Aldinger to find that Congress “by implication” has “negated” pendent party jurisdiction over this related state law claim. In Aldinger the language of the jurisdictional statute (§ 1343(3)) was broader than § 303(b); the “excluded” pendent claim was less clearly outside the language of the jurisdictional statute, cf. Monell v. Dept. of Social Services, supra, (holding that local governments are “persons” subject to § 1983 liability); and the legislative history less clearly showed an intent to exclude. In sum, given Aldinger, § 303(b) cannot be interpreted to allow federal court jurisdiction over claims against individuals who are parties only to a related state claim.
We are aware of no other basis for jurisdiction. The Local has not itself sued the individuals for reimbursement, so they are not third party defendants, and no issue of ancillary jurisdiction arises. (And, in light of
Owen Equipment & Erection Co. v. Kroger,
Aldinger is not quite sufficient to dispose of the matter, however, for unlike Aldinger, this case involves removal. Thus, we must ask whether the removal statute, 28 U.S.C. § 1441, provides a basis for jurisdiction which otherwise would be lacking. The relevant portions of that statute read as follows:
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties....
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
Subsection (b) allows removal only of a case which plaintiff might have brought in federal court directly; thus, it provides no additional basis for jurisdiction. Subsection (c), however, allows a federal court to take jurisdiction of “separate and independent” causes of action that it might not otherwise
*9
have statutory authority to hear.
See, e.g., American Fire & Casualty Co. v. Finn,
To understand this conclusion, we must begin with the commentators’ suggestions that § 1441(c) as a matter of logic ought to help Bonanno in a case like this one. Both Moore’s treatise, and that of Wright, Miller & Cooper, suggest that when a defendant removes an “arising under” case, any state claims involved are either sufficiently closely related to the federal claims to be considered “pendent” (and thus removable under § 1441(b)), or they are sufficiently unrelated to be considered “separate and independent” (and thus removable under § 1441(c)). 1A J. Moore, Federal Practice ¶ 0.163[4.5] at 271 (2d ed. 1982); Wright, Miller & Cooper, Federal Practice and Procedure § 3724 at 649 (1976). In either event, the federal court has the statutory power to hear them, though, of course, in its discretion it can remand them to state court. What sense does it make, after all, to have a tertium quid of certain state claims — those too distant to be pendent, too close to be “separate and independent”— that alone, in an “arising under” ease, the federal court would have no statutory power to hear? However, the history of § 1441(c), taken together with Aldinger, suggests that this middle category of cases does exist, and that this case falls within that category.
At first reading, § 1441(c) seems bizarre, at least as applied to “arising under” cases. It says that the more unrelated a state claim is to a federal claim, the more likely it is that removal is appropriate. But, this anomaly arises from history and, in particular, from the fact that § 1441(c) was written with
diversity
cases in mind. Before 1875, a plaintiff seeking to sue both an out-of-state defendant and an in-state defendant in federal court could not do so; there was no federal diversity jurisdiction because of a lack of
complete
diversity.
See Strawbridge v. Curtiss,
In 1875, Congress passed a statute which became the former 28 U.S.C. § 71. It read
And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district.
This statute applied only in diversity cases. As interpreted by the courts this statute allowed a defendant to remove a case — indeed the entire case with its several defendants — where there was a “separable controversy.” Barney v. Latham, supra. In other words, where there was a “separable controversy,” the out-of-state defendant could remove, and the in-state defendant could tag along. The courts also made other complicated distinctions, interpreting the statute liberally to allow removal in a wide variety of cases. See, e.g., Cohen, Problems in the Removal of a “Separate and Independent Claim or Cause of Action,” 46 Minn.L. Rev. 1 (1961).
*10 As part of the 1948 Revision of the Judicial Code, Congress replaced this statute with § 1441(c). The Revisers tried to simplify the test for removal. See Revisions of Titles 18 and 28 of the United States Code: Hearings on H.R. 2055 Before Subcommittee No. 1 of the House Judiciary Committee, 80th Cong., 1st Sess. 29 (1947) (statement of J. Moore). And, they intended to limit the range of cases that diversity defendants could remove. They did this, in part, by replacing the “separable controversy” test with the words “separate and independent claim or cause of action.” Insofar as diversity cases were concerned, this formula did make fewer cases removable. See 1A J. Moore, supra, ¶ 0.163[4.-1]; Cohen, supra, at 18-19. Because of the “complete diversity” requirement, if an out-of-state defendant (linked to an in-state defendant) could not satisfy the “separate and independent” test, the case could not be removed. American Fire & Casualty Co. v. Finn, supra.
The 1948 Revisers, however, also omitted the diversity language of § 1441(c)’s predecessors; the section thereby applied to “arising under” cases as well. And, as applied to those cases, the new stricter test did not stop cases from being removed. Since there is no equivalent in an “arising under” case to the “complete diversity” requirement, “arising under” actions can be removed from state court whether or not other state claims or defendants are attached. Thus, the only effect of § 1441(c) is sometimes to expand the scope of removal by allowing the “separate and independent” state claim defendant to tag along. There is no indication that the revisers foresaw this result, see Cohen, supra, at 31-32, and commentators have questioned its constitutionality, e.g., Lewin, The Federal Courts’ Hospitable Back Door, 66 Harv.L. Rev. 423 (1953); Cohen, supra, at 26; Ireland, Entire Case Removal Under 1441(c), 11 Indiana L.Rev. 555, 571 (1978).
By understanding § 1441(c)’s history — its focus on the diversity case and its goal of restricting removal — one can understand the Supreme Court’s decision in
American Fire & Casualty Co. v. Finn, supra. Finn
was a diversity case, and the Supreme Court there interpreted the words “separate and independent claim or cause of action” strictly, as the statute’s framers intended, to limit removal.
where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).
In the present case, the state claim against the individuals was based upon “an interlocked series of transactions,” some of which were used to infer the federal claim. Plaintiffs’ complaint alleged injuries arising out of a single, protracted strike, in which mass picketing and violence affected both Bonanno and third persons. Judging from the complaint, some of the individual instances of picketing and violence affected third parties within the scope of the Taft-Hartley Act. The “Taft-Hartley” instances comprise a portion of the “state law” instances; and all instances are connected and intertwined. The “claim or cause of action” against the individuals thus fails to meet the “separate and independent” test of
Finn, see
In sum, Aldinger closes the door to these “pendent party” claims, and § 1441(c) fails to reopen it. We have what the commentators consider an anomalous “middle” category of parties left behind in state court. But we see no serious harm arising out of this interpretation of the law. To interpret the words “separate and independent” more liberally here would depart from Finn, suggest a different interpretation of these same words in “arising under” cases, and *11 thereby proliferate standards in an area already too complex. Any anomaly arising out of the much-criticized § 1441(c) can be resolved through legislation. The American Law Institute has suggested statutory revisions, including one which would require the district court to remand all claims not within its pendent jurisdiction, effectively eliminating the use of § 1441(c) in federal question cases of this sort. See ALI Study of the Division of Jurisdiction Between State and Federal Courts, 29, 212-13 (1969).
Since this court lacks jurisdiction over the claims against the individual defendants, the district court’s decision on this point must be reversed. The proper statutory basis for removal of the claims against the Local is § 1441(b), which, given Aldinger, does not allow the pendent parties here to tag along.
We note one final, related jurisdictional matter in respect to § 1441(b). That section allows removal of “any
civil action”
of which the district courts have original jurisdiction. The previous version of the statute referred to “any
suit
of a civil nature,”
Alabama Great So. Ry. Co. v. American Cotton Co.,
The claims against the individual defendants must be remanded to the state court from which they came.
American Fire & Casualty Co. v. Finn,
IV
We can deal with the Local’s remaining contentions more briefly.
1. The Local attacks the district court’s decision as contrary to Norris-LaGuardia Act § 6, which forbids holding it responsible for the tortious acts of its “officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 29 U.S.C. § 106.
See United Mine Workers v. Gibbs,
There is sufficient evidence that the union’s representative, Salter, participated in the threats and acts of violence. When the plaintiffs first requested an injunction, Salter promised the court he would control the pickets, and no injunction was issued. He then failed to deliver on this promise, and the court entered a restraining order. The district court reasonably found that Salter’s failure was “deliberate.” He had the power and authority to control the violence, but he never removed any picket from the line, nor did he ask the Local to impose any fines. (Other evidence indicates *12 that the Local’s president knew of the allegations of violence as well.)
The Local argues that Section 6 of the Norris-LaGuardia Act requires a showing that
top
union officials approved the violence. But both the Supreme Court and other lower courts have based liability on the actions of officials comparable in rank to Salter.
United Mine Workers v. Gibbs,
In sum, on the facts present here the district court could reasonably find “knowing tolerance” by the union,
Gibbs,
2. The Local argues that Bonanno should not have been allowed to recover the costs of protective services for 1976. It claims, first, that Bonanno’s fear of violence in 1976 was unreasonable. The record, however, shows many instances of violence before 1976, and at least eight instances during that year; it provides adequate support for the award.
The Local adds that any danger was Bo-nanno’s fault, for Bonanno refused to ratify the bargaining agreement that all other linen companies accepted in April, 1976. Whether or not Bonanno was within its legal rights in refusing to ratify, however, striker violence is not justified.
NLRB v. Fansteel Metallurgical Corp.,
Finally, the Union claims that Bonanno cannot recover for the expense of putting armed guards on its delivery trucks, for Massachusetts law prohibits “licensees” from “furnishpng] armed guards upon the highways for persons involved in labor disputes.” Mass.Gen.Laws ch. 147, § 30(8). In Massachusetts, however, a “violation of law is a bar to recovery ... only in instances where it is a contributing cause to the injury.”
Janusis v. Long,
3. The Union claims that the district court erred in awarding prejudgment interest (under Mass.Gen.Laws ch. 231, § 6B) for damages which accrued after the action was filed, citing
Jet Spray Cooler, Inc. v. Crampton,
Subsequent Supreme Judicial Court cases, however, have made clear that the court is to “add interest on the entire amount of the verdict.”
Griffin v. General Motors Corp.,
The judgment of the district court against the defendant Teamsters Union is affirmed; the district court’s denial of the motion of defendants Forrest, Halloran, and Salter is reversed; and the court is instruct *13 ed to vacate the judgment against them and to remand the case to the Superior Court of Suffolk County, Massachusetts.