MEMORANDUM OPINION AND ORDER
THIS MATTER сomes before the Court on the Plaintiffs Application for Temporary Restraining Order and Preliminary Injunction, filed April 4, 2017 (Doc. 3)(“Motion”). The Court held a hearing on April 10, 2017. The primary issues are: (i) whether the Court has jurisdiction over this case given that Plaintiff Firebird Structures filed an amended complaint in federal court asserting a federal claim, see First Amended Verified Complaint for Damages and Injunctive Relief ¶¶ 17-26, 3-4, filed April 10, 2017 (Doc. 14)(“Verified Complaint”), after the Defendant Carpenters’ Union removed, on complete preemption grounds, Firebird Structures’ original complaint asserting state-law claims only, see Verified Complaint for Damages and Injunctive Relief, filed in state court on March 30, 2017, filed in federal court on March 31, 2017 (Doc, l-l)(“Original .Complaint”); (ii) -whether the Norris-LaGuar-dia Act, 29 U.S.C. §§ 101-115, applies to Firebird Structures’ Motion; and (iii) whether the Court should grant Firebird Structures a temporary restraining order (“TRO”) and thereby enjoin the Carpenters’ Union from conducting activity that Firebird Structures contends is unlawful. The Court concludes: (i) that it has jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a), because the Verified Complaint asserts a federal claim and Firebird Structures’ federal claim and state-law tort claims arise out of the samé set of factual assertions regarding the Carpenters’ Union’s alleged campaign against Firebird Structures; (ii) that the Norris-LaGuardia Act applies, because Firebird Structures and the Carpenters’ Union are involved in a “labor dispute” as the Norris-LaGuardia Act defines that term, 29 U.S.C. §§ 101 & 113(a)-(c); (iii) that Firebird Structures is not entitled to injunctive relief on its claim arising under § 303 of the Labor-Management Relations Act (“LMRA”),- 29 U.S.C. § 187, because that statutory provision awards only damages; (iv) that Firebird Structures is not likely to prevail on its two claims asserting tortious interference with contractual relations, because Fire-bird Structures’ LMRA .§ 303 claim, 29 U.S.C. § 187, preempts those claims; (v) that Firebird Structures is not likely to prevail on its claims for trespass, nuisance, harassment, and prima facie tort, because Firebird Structures has not- satisfied its burden, set forth by the-Norris-LaGuardia Act’s § 6, 29 U.S.C. § 106, to establish by “clear proof’ that the Carpenters’ Union authorized or was otherwise involved in the alleged tortious conduct; (vi) that the Norris-LaGuardia Act’s § 4, 29 U.S.C. § 104, deprives the Court of jurisdiction to enjoin the Carpenters’ Union from certain conduct that Firebird Structures asserts is tortious, including peacefully assembling, peacefully communicating with Firebird Structures’ employees and. prospective employees, and peacefully and non-fraudulently giving publicity to the labor dispute between Firebird Structures and the Carpenters’ Union; and (vii) that the four factors guiding the propriety of PI relief weigh against the Court’s issuance of a TRO to Firebird Structures, Accordingly,
FINDINGS OF FACT
“A temporary restraining order requires the Court to make predictions about the plaintiffs likelihood of success.” Herrera v. Santa Fe Pub. Sch.,
No restraining order or tеmporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided in this chapter.
29 U.S.C. § 109. Accordingly, the Court finds as follows:
1. Firebird Structures is a New Mexico limited liability company doing business in Bernalillo County, New Mexico. See Verified Complaint ¶ 1, at l.
2. Firebird Structures is “a metal framing, drywall, stucco contractor,” has eighty-seven employees, fifty-four of whom are carpenters, and has been in business for over six years. Draft Transcript of Motion Proceedings at 19:17-20:14, taken April 10, 2017 (Cannedy)(“Tr.”).
3. Trent Cannedy is Firebird Structures’ President. See Tr. at 19:12 (Canne-dy).
4. Keven Conboy is a Firebird Structures’ partner. See Tr. at 107:22-23 (Con-boy).
5. The Carpenters’ Union is a labor organization operating in Bernalillo County, New Mexico, with its principal place of business at 3900 Pan American Fwy. NE, Albuquerque, New Mexico 87107. See Verified Complaint ¶ 2, at 1.
7. No federal or state agency has required Firebird Structures to recognize the Carpenters’ Union as a representative of Firebird Structures’ employees for any purpose. See Verified Complaint ¶ 6, at 2.
8. The Carpenters’ Union is engaging in an organizing campaign against Firebird Structures. See Declaration of John Whi-tesitt ¶ 1, at 1, filed April 7, 2014 (Doc. 10-l)(“Whitesitt Decl.”). See also Verified Complaint ¶ 14, at 3 (alleging that the Carpenters’ Union sent letters to Firebird Structures’ current and prospective business partners to encourage and coerce those entities to cease current and prospective contracts vfith Firebird Structures).
9. Firebird Structures does not pay its carpenters union-scale wages. See Tr. at 53:5 (Cannedy).
10. Juan Gonzales worked at Firebird Structures as a superintendent. See Tr. at 121:13-19 (Gonzales).
11. Gonzales has been a Carpenters’ Union member since 2008. See Tr. at 130:20 (Gonzales).
12. On February 9, 2017, Cannedy planned to have lunch with Gonzales to discuss how “to move the company forward,” but when Cannedy saw that “the local union guy [Randy Thornhill from the Carpenters’ Union] was there,” Cannedy “walked out of the restaurant.” Tr. at 22:7-13 (Cannedy). Tr. at 121:23-122:14 (Gonzales).
13. Gonzales pursued Cannedy, and inquired about his sudden departure from the lunch meeting. See Tr. at 122:22-23 (Gonzales). Cannedy responded that “the union was just going to take money from his [Cannedy’s] pocket.” See Tr. at 123:3-4 (Gonzales).
14. Firebird Structures subsequently discharged Gonzales, within two or three days after the proposed February 9, 2017, meeting. See Tr. at 43:17 (Cannedy); id. at 44:5 (Cannedy); id. at 124:1 (Gonzales).
15. The parties dispute why Firebird Structures discharged Gonzales. Firebird Structures states that it “let go of Juan Gonzalez because of poor safety.” Tr. at 43:17-18 (Cannedy). Gonzalez states that, after his inquiry about the reason for his termination, Robert Petzel, the Firebird Structures’ employee who discharged Gonzales, did not say that Gonzales was being discharged for safety concerns, but only stated that “it’s something that [Gonzales] had to talk to Trent [Cannedy] about.” Tr. at 124:11-13 (Gonzales).
16. After Firebird Structures discharged him, Gonzales organized a meeting of Firebird Structure employees at the Carpenters’ Union. See Tr. at 134:10-14 (Gonzales).
17. On or about Friday, February 10, 2017, approximately twenty-eight of Fire-bird Structures’ employees went on strike to support the Carpenters’ Union campaign against Firebird Structures. See Whitesitt Decl. ¶ 7, at 2; United States of America National Labor Relations Board Charge Against Employer at 2, filed April 7, 2014 (Doc. 10-4)(“NLRB Charge Against Employer”).
18. On that day, those employees went to the Carpenters’ Union. See Tr. at 42:9-10 (Cannedy).
19. On that day, Robert Petzel, the Firebird Structures’ manager who discharged Gonzales, “pulled up on the frontage road of the union hall,” ostensibly to observe the carpenters who “were all getting ready to walk into the union hall.” Tr. at 127:18-22 (Gonzales).
20. On Friday, February 10, 2017, or the following Monday, February 13, 2017,
21. The Carpenters’ Union paid the former Firebird Structures’ employees. See Whitesitt Decl. ¶ 7, at 2.
22. The Carpenters’ Union has distributed fliers concerning their labor dispute with Firebird Structures, and these fliers represent that Firebird Structures fails to pay proper wages and that Firebird Structures unlawfully discharged its employees. See Whitesitt Decl. ¶ 6, at 1. See also “What Does Firebird Not Want Workers to Know,” filed April 7, 2014 (Doc. 10-4)(“Flyer 1”); “Shame on Faith Baptist Church,” filed April 7, 2014 (Doc. 10-4)(“Flyer 2”); “Shame on Presbyterian Hospital,” filed April 7, 2014 (Doc.- 10-4)(“Flyer 3”);
23. The Carpenters’ Union has also displayed banners in front of Firebird Structures’ clients. See Tr, at 57:8 (Canne-dy); id. at 58:1 (Cannedy).
24. The Carpenters’ Union employed fliers and banners regarding Firebird Structures’ economic relationship with Presbyterian Hospital, and those materials refer to Dr. Rosenschein who was allegedly arrested in connection with charges related to child pornography. See Tr. at 33:19-34:7 (Cannedy); Flyer- 3 at 1. The allegations of sex crimes are unrelated to the labor dispute between Firebird Structures and the Carpenters’ Union. See Tr. at 63:8 (Cannedy).
25. The Carpenters’ Union displayed a banner which displayed both “Labor Dispute” and “Community Alert Sex Crimes Against Children Alleged at Presbyterian.” Firebird Structures’ TRO Hearing Ex. 2.
26. The Carpenters’ Union has also distributed hardhat stickers stating “Anything But Firebird.” Tr. at 35:12-13 (Can-nedy). See Tr. at 58:5-6 (Cannedy).
27. After Firebird Structures’ employees quit, Carpenters’ Union representatives attended. Firebird Structures’ job sites and “parked across the street from” Firebird Structures’ main office to observe and to communicate with persons seeking employment with Firebird Structures; after speaking with Carpenters’ Union representatives, these persons “would never show back up” at Firebird Structures. Tr. at 24:16-23 (Cannedy). See Tr. at 88:2-4
28. On one occasion, when former Firebird Structures’ employees went to Firebird Structures’ office ■ to retrieve their final paychecks, Carpenters’ Union representatives also presented themselves at the Firebird Structures’ office.. See Tr. at 92:24-93:6 (Cannedy). Because Fire-bird Structures’ office is located on a cul-de-sac, the Carpenters’ Union representatives blocked access to' the Firebird Structures’ facility. See Tr. ‘at 93:9-12 (Cannedy). Firebird Structures called the police; the police instructed the Carpenters’ Union representatives that'' they were not allowed to block the road; 'the union complied; and the' police did not make any arrest. See Tr. at 102:6-21 (Cannedy).
29. At some point in February 2017, union representatives entered Firebird Structures’ main office, seeking to speak with Cannedy. See Tr. at 27:18-23 (Canne-dy). See also Verified Complaint ¶ 13, at 2-3 (alleging that the Carpenters’ Union entered Firebird Structures’ property without permission at' their principal' place of business and job sites).
30. After the union representatives left that day, screws were found behind the tires of Firebird Structures’ vehicles and the vehicles of Firebird Structures’ employees at a “separate parking area where the employees parked’to go to the job site.” Tr.- at 61:24-25 (Cannedy). See Tr. at 92:14-20 (Romero).
31. On February 22, 2017, a vehicle belonging to a Firebird Structures’ employee, which was parked near the main office while the employee was out of town, had its back windshield “bashed in.” Tr. at 27:25-28:3 (Cannedy). See id. at 69:9 (Erb). Numerous sheet metal screws were also discovered underneath' that vehicle. See Tr. at 69:8-11 (Erb). See' also Verified Complaint ¶ 9, at 2.
32. Screws were also discovered behind Firebird Structure vehicles’ tires at the Presbyterian Hospital job site on Central Avenue. See Tr. at 28:22-23 (Cannedy); id. at 50:11-12 (Cannedy); See also Verified-Complaint ¶ 9, at 2 (alleging vandalism and damage to the property at sites where Firebird Structures conducts business),
33. In every case, Firebird Structures does not know who placed the screws behind the vehicles’ tires. See .Tr. at 51:9 (Cannedy),
34. On or about February 15, 2017, at midnight, Cannedy saw a truck, which resembled the truck that had- parked across from the Firebird Structures’ main office, parked outside of his house; the truck contained four persons who appeared, at least to Cannedy at the midnight hour, to be taking photographs. See Tr. at 25:17-21 (Cannedy); id. at 46:14-16 (Cannedy).
35. Further, a few days after Firebird Structures no longer employed the twenty-eight employees, Conboy discovered a “a four- or five-pound dead catfish wrapped in bloody newspapers on [his] driveway in front of [his] gate.” Tr. at 108:15-17 (Con-boy)(alterations added). He reported this incident to the police. See Tr. at 69:20-22 "(Erb); id. at 78:20 (Erb).
36. A vehicle, which had parked across frоm Firebird Structures, followed Con-
37. One or two vehicles that were parked across from Firebird Structures’ main office drove past Conboy’s residence. See Tr. at 114:18-115:5 (Conboy). See also Verified Complaint ¶ 12, at 2 (alleging that the Carpenters’ Union surveilled and stalked Firebird Structures’ owners at their principal place of business, job sites, and homes).
38. The Carpenters’ Union placed a sign on a street near Conboy’s residence, stating that “Firebird Bad For America & Bad for New Mexico. New Mexico Beware!” Firebird Structures’ TRO Hearing Ex. 6. See Tr. at 110 2-12 (Conboy, Thomas);
39. Firebird Structures contacted the police to complain of the conduct and alleged harassment by Carpenters’ Union representatives or members. See Tr. at 106:8-9 (Romero); id. at 68:8 (Erb). Law enforcement did not make any arrest. See Tr. at 71:2-5 (Erb)(“Keep in mind that I did not have probable cause to make any arrests ... [regarding] ... harassment ... [or] the criminal damage to property.”). Law enforcement, however, suspected the Carpenters’ Union, and advised the Carpenters’ Union “to cease any and all criminal activity.” Tr. at 71:10-11 (Erb).
40. Firebird Structures’ employees have expressed fear regarding the labor dispute, and Firebird Structures has had “to reassure them every day that they’ll be fine.” Tr. at 36:23-24 (Cannedy).
PROCEDURAL HISTORY
41. On March 30, 2017, in state court, Firebird Structures filed its Original Complaint. In the Original Complaint, Firebird Structures alleged claims for: (i) tortious interference with existing contractual damages, see Original Complaint ¶¶ 15-20, at 3; (ii) intentional interference with prospective contractual relations, see Original Complaint ¶¶ 21-27, at 3-4; (iii) prima fa-cie tort, see Original Complaint ¶¶ 28-33, at 4; and (iv) injunctive relief, see Original Complaint ¶¶ 34-40, at 4-5.
42. The following day, the Carpenters’ Union petitioned for removal to federal court, asserting that the Court has federal question jurisdiction under 28 U.S.C. § 1441(b), because § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, preempts Firebird Structures’ state-law tort claims. See Petition for Removal at 2, filed March 31, 2017 (Doc. l)(“Removal Petition”).
43. Also, on March 31, 2017, the Southwest Regional Council of Carpenters, of which the Carpenters’ Union is a local affiliate, filed with the National Labor Relations Board (“NLRB”) a Charge Against Employer against Firebird Structures, alleging that Firebird Structures “interfered with, restrained and coerced its employees in the exercise of the rights guaranteed by the [National Labor Relations Act].” NLRB Charge Against Employer at 1.
44. On April 10, 2017, Firebird Structures filed the Verified Complaint, which amended the Original Complaint. See Verified Complaint ¶¶ 17-67, at 3-7. In its Verified Complaint, Firebird Structures asserted claims for: (i) violation of 29 U.S.C. § 187, see Verified Complaint ¶¶ 17-26, at 3-4; (ii) trespass, see Verified
1. Firebird Structures’ Motion.
44. On April 4, 2017, Firebird Structures filed an application for a temporary restraining order and preliminary injunction. See Motion at 1. First, in its Motion, Firebird Structures applies for a temporary restraining order and preliminary injunction, proscribing the Carpenters’ Union from: (i) “threatening, intimidating, coercing, following, or harassing” Firebird Structures’ owners and employees; (ii) damaging Firebird Structures’ property and that of its owners and employees; and (iii) interfering with Firebird Structures’ existing and future contractual relations. Motion at 1. See Motion at 4-5. Firebird Structures submits its Motion “pursuant to Rule 1-066 NMRA.” Motion at l.
45. Firebird Structures next addresses the Court’s jurisdiction, asserting that the Court “has jurisdiction pursuant to both 20 [sic] U.S.C. § 1331 and 28 U.S.C. § 1367.” Motion at 1. Firebird Structures argues that § 303 of the Labor Management Relations Act, 29 U.S.C. § 187, does not preempt its state-law tort claims. See Motion at 1-2 (citing Bldg. & Constr. Trades Council,
.46. Firebird Structures requests that the Court enjoin the Carpenters’ Union
from committing further intentional torts, whether they are violating state or federal law, against Firebird, its owners and employees, and those with whom Firebird does business; any property belonging to Firebird, its owners and employees, and those with whom Fire-bird does business; and from committing further intentional economic torts aimed at shutting down Firebird’s business.
Motion at 3-4. Firebird Structures avers that it has asked the Carpenters’ Union to “cease its tortious activities,” and asserts that the Carpenters’ Union’s conduct “will continue unless restrained by this Court.” Motion at 5. Finally, Firebird Structures alleges that it will suffer immediate and irreparable economic injury if the Court does not issue a TRO in its favor. See Motion at 5.
47. On April 7, 2017, the Carpenters’ Union filed an Opposition to Application for Temporary Restraining Order and Preliminary Injunction, filed April 7, 2017-(Doc. 10)(“Respo'nse”). The Carpenters’ Union argues that this case stems out of a labor dispute, and, therefore, the Court’s power to issue an injunction against the union deféndants must comply with the requirements of Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, in addition to satisfying the traditional four-part test for a preliminary injunction. See Response at 2, 4-5.
48. The Carpenters’ Union contends that Firebird Structures cannot meet the requirements for injunctive relief under the Norris-LaGuardia Act, for three reasons. First, the Carpenters’ Union argues that Firebird Structures “fails to tie the allegedly wrongful conduct to the Defendant labor union with the requisite ‘clear proof standard” and instead relies on bare allegations that the Carpenters’ Union is responsible for the alleged conduct. Response at 2 (quoting 29 U.S.C. § 106). See Response at 8-9 (citing 29 U.S.C, § 106; United Mine Workers of Am. v. Gibbs,
49. Second, the Carpenters’ Union argues that the.Court cannot grant Firebird Structures injunctive relief, because Fire-bird Structures comes to the Court with “unclean hands.” Response at 3 (citing 29 U.S.C. § 108). The Carpenters’ Union asserts that, under § 8 of the Norris-La-Guardia. Act, 29 U.S.C. .§ 108, Firebird Structures’ “unfair labor practices disqualify it from obtaining injunctive relief.” Response at 10. In support of this argument, the Carpenters’ Union alleges that Fire-bird, Structures committed “hallmark” NLRA violations through “threats and mass firings -in response to its employees going to the union’s hall to discuss , the union, and also paying workers to not support the union.” Response at 10 (citing NLRB v. Wilhow Corn.,
50. Third, the Carpenters’ Union presses that “some of the conduct that Plaintiff seeks to-prohibit is lawful concerted conduct protected by Section 7 of the NLRA and immune from injunctive relief under Section 4 of the NLA.” Response at 3 (citing 29 U.S.C. § 104(a), (c)-(f)). See Response at 11-13. The Carpenters’ Union
51. The Carpenters’ Union also asserts that its fliers constitute labor speech, which the First Amendment of the Constitution of the United States of America protects, see Response at 12 (citations omitted), and further argue that distributing handbills is also protected conduct under the NLRA, see Response at 12-13 (citations omitted). The Carpenters’ Union concludes that the Court may not issue a TRO, because: (i) Firebird Structures fails to comply with the evidentiary requirements that the Norris-LaGuardia Act imposes; (ii) the Court may not enjoin protected conduct; and (iii) Firebird Structures fails to satisfy the four-part equitable test regarding the issuances of preliminary injunctive relief. See Response at 13.
3. The Hearing.
52. On April 10, 2017, the Court held a hearing. See Tr. at 1:18 (Court). The Court confirmed that, in light of Firebird Structures’ amended Verified Complaint, which includes a claim for violation of 29 U.S.C. § 187, there is no dispute regarding the Court’s jurisdiction. See.Tr. at 6:21-7:12 (Court, Thomas); Tr. at 7:24-25 (Thomas).
53. Firebird' Strictures restated its request for an injunction:
We aré .asking for an injunction that says ... the union cannot damage our property, cannot harass, intimidate, threaten employees or owners or family members of the company; cannot stalk outside their house ... [a]nd really cannot be putting out salacious, completely false, misleading statements, implying that there are sex offenders working for [Firebird Structures].
Tr. at 139:4-12 (Thomas).
54. Firebird Structures also repeated its argument that the Court may issue a TRO on the state-law tort elaims. See Tr. at 140:25-143:11 (Thomas)(discussing Retail Prop. Trust,'
55. The Carpenters’ Union responded that “[t]his case is why -the Norris-La-Guardia Act was passed.” Tr. at 144:16-17 (Shanley). The Carpenters’ Union stressed that Firebird Structures adduced “no direct evidence or any indirect evidence that the union did anything.” Tr. at 144:19-20 (Shanley). The Carpenters’ Union then addressed “all the conduct upon which the Court cannot give injunctive relief,” under the Norris-LaGuardia Act, “but which' the Plaintiff seeks.” Tr. at 145:22-24 (Shanley).
You can’t give injunctive relief to having people go on strike, Subsection A. We can’t have people not be paid by the union; that’s Subsection C. We can’t prohibit the union from giving publicity for the facts of the labor dispute unless there is fraud or violence. There has been no violence.... There has been no threats. They say people were harassed and asked if they wanted to join the union. That’s neither harassment, nor is it a threat.
Tr. at 145:24-146:9 (Court). The Carpenters’ Union also repeated its argument that the Court cannot issue an injunction against its handbilling and bannering, because both the Norris-LaGuardia Act and the First Amendment protect that activity. See Tr. at 146:11-18 (Shanley); Tr. at 147:19-22 (Shanley). The Carpenters’ Union argued that “state law does not govern this injunction request,” Tr. at 147:2-3 (Shanley), and that Retail Property Trust v. United Bhd. of Carpenters and Joiners of Am.,
56.The Carpenters’ Union then summarized its view of what Firebird Structures had shown:
[Tjhere was one window that was broken .... They said there were screws one time. [Cannedy • said] there were screws on a second job, but nobody can testify to that ... [none] of their witnesses had any personal knowledge of that.... With respect to the union parking across the street, there is nothing unlawful about that. There is nothing unlawful about the union taking pictures.
Tr. at 148:3-9 (Shanley)(alterations added); id. at 148:20-23 (Shanley). The Carpenters’ Union then stated:
They want us to stop trespassing or parking vehicles on their property.... [W]e did it one time, and they were parked across the street.... They want us to stop interfering with their employees and their general contractors, everything else. That is so broad, it means the union couldn’t give out a flyer .... [T]hey want us to stop ... going to and from the construction site. Well, we’re not interfering. We have a right to ask people if they want to join the union.
Tr. at 150:19-151:16 (Shanley).
57. The Carpenters’ Union concluded that the Court is without jurisdiction to issue an injunction, because (i) Firebird Structures sought injunctive relief “with unclean hands,” Tr. at 149:9 (Shanley); and (ii) Firebird Structures has not compliеd with the Norris-LaGuardia Act’s § 8, see Tr. at 149:22-23 (Shanley); Tr. at 152:1-2 (Shanley). The Court then confirmed that “the date of the nail incident” was February 22, 2017. Tr. at 152:7-10 (Court, Mier).
58. Firebird Structures employed its rebuttal argument to address the purpose of the Norris-LaGuardia Act: “to keep courts from enjoining unions from picketing and bannering, and doing the things that unions are allowed to do ..., ” Fire-bird Structures argued that the Norris-LaGuardia Act “did not envision protecting against unlawful behavior.” Tr. at 152:18-22 (Thomas). Firebird Structures then asserted that “Norris-LaGuardia does not apply to state court tort actions[:] trespass, nuisance, [and] harassment.” Tr. at 152:18-22 (Thomas). The Court then inquired as to the number of times Firebird Structures called the police regarding the behavior they attribute to the Carpenters’ Union. See Tr. at 154:10-11 (Court). Fire-bird Structures represented that “it was more than four in the last month.” Tr. at 154:12-13 (Thomas). The Court also inquired how many times “the screws were there.” Tr. at 155:1 (Court). Firebird
[T]he union ... can’t damage property. It can’t throw screws under our tires. They can’t harass. They can’t intimidate. They can’t sit outside the owner’s house at midnight taking pictures, ... stalking, following people home, gong to workers’ houses at night consistently, after they’ve said to leave them alone.
Tr. at 155:24-156:5 (Thomas). Firebird Structures then repeated its request for an injunction “to observe the status quo, to not intimidate, not harass, not damage property, not trespass, not stalk, not follow home, for the duration of their dispute.” Tr. at 156:19-22 (Thomas). See Tr. at 157:3-4 (Thomas)(“[W]e would asked the Court to enter an order to that effect.”). . 59. The Court took the Motion under advisement. See Tr. at 159:7-8 (Court).
LAW REGARDING FEDERAL QUESTION JURISDICTION
1. Federal courts have limited jurisdiction, - and there is a presumption against the existence of federal jurisdiction. See Basso v. Utah Power & Light Co.,
1. The Well-Pleaded Complaint Rule.
2. Whether a case arises under a federal law is determined by the “well-pleaded ' complaint rule,” Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal.,
3. In addition to the requirement that the federal question appear on the face of the complaint, “plaintiffs cause
2. The Complete-Preemption Exception to the Well-Pleaded Complaint Rule.
4. “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson,
It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under- the Constitution and 'laws of the United States only when the plaintiffs statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit,: that is,'the plaintiffs original cause of action, arises under the Constitution.
Louisville & Nashville R. Co. v. Mottley,
5. The Supreme Court has recognized the “complete pre-emption doctrine” as an “independent corollary” and exception to the well-pleaded complaint rule. Caterpillar Inc. v. Williams,
6. The United States Court of Appeals for the Tenth Circuit, following the Supreme Court’s direction, has also recognized the “complete pre-emption doctrine” as a defense to the well-pleaded complaint rule. See, e.g., Felix v. Lucent Techs., Inc.,
“Complete preemption is really a jurisdictional rather than a preemption doctrine, as it confers exclusive federal jurisdiction in certain instances - where Congress intended the scope of federal law to be so broad as to entirely replace any state-law claim. Complete preemption is a limited' doctrine that applies only where a federal statutory scheme is so comprehensive that it entirely supplants state law causes of action.”
Retail Prop. Trust,
LAW REGARDING SUPPLEMENTAL JURISDICTION
7. The federal-question requirement does not prohibit the federal courts from ever hearing a state-law claim.
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...,” and the relationship 'between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.” The federal claim must have substance sufficient to confer subject matter jurisdiction on thecourt. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinаrily be expected to try them all in one judicial proceeding, then, assuming substan-tiality of the federal issues, there is power in federal courts to hear the whole.
Gibbs,
8. In considering supplemental state claims, the Tenth Circuit has followed the Supreme Court’s lead in classifying supplemental jurisdiction not as a party’s right, but as a matter of judicial discretion. See Estate of Harshman v. Jackson Hole Mountain Resort Corp.,
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4)in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). 28 U.S.C. § 1367(c) changed the district courts’ supplemental jurisdiction discretion analysis to prohibit courts from declining jurisdiction unless one of the conditions of 28 U.S.C. § 1367(c) exists. See Mirzai v. State of N.M. Gen. Servs. Dep’t,
9. Nevertheless, where state issues substantially predominate, those claims may be left for resolution by the state tribunal. See Gibbs,
LAW REGARDING REMOVAL TO FEDERAL COURT
10. “If a civil action filed in state court satisfies the requirements for original federal jurisdiction, the defendant may invoke 28 U.S.C. § 1441(a) to remove the action to the federal district court ‘em
1. The Presumption Against Removal.
11. Federal courts are courts of limited jurisdiction; thus, there is a presumption against removal jurisdiction which must be overcome by the defendant seeking removal. See Laughlin v. Kmart Corp.,
2. Procedural Requirements for Removal.
12. Section 1446 of Title 28 of the United States Code governs the procedure for removal. See 28 U.S.C. § 1446. “Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed.” Thompson v. Intel Corp.,
13. Section 1446(a) of Title 28 of the United States Code provides that a party seeking removal of a matter to federal court shall file a notice of removal in the
3. Amendment of the Notice of Removal.
14.In Caterpillar Inc. v. Lewis, the Supreme Court held that a defect in subject-matter jurisdiction cured before entry of judgment did not warrant reversal or remand to state court. See
15, The Tenth Circuit has allowed defendants to remedy defects in their petition or notice of removal. See Jenkins v. MTGLQ Investors,
16. The Tenth Circuit has further reasoned- that disallowing amendments to the notice of removal, even after the thirty-day removal window had expired, when the defendant made simple errors in its jurisdictional allegations, “would be too grudging with reference to the controlling statute, too prone to equate imperfect allegations of jurisdiction with the total absence of jurisdictional foundations, and would tend unduly to exalt form over substance and legal flaw-picking over the orderly disposition of cases properly committed to federal courts.”' Hendrix v. New Amsterdam Cas. Co.,
17. There are limits to the defects which an amended notice of removal may cure, as Professors Wright and Miller have explained:
[A]n amendment of the removal notice may seek to accomplish any of several objectives: It may correct an imperfect statement of citizenship, state the previously articulated grounds more fully, or clarify the jurisdictional amount.- In most circumstances, however, defendants may not add completely new grounds for removal or furnish missing allegations, even if the court rejects the first-proffered basis of removal, and the court will not, on- its own motion, retain jurisdiction on the basis' of a ground that is present but that defendants have not relied upon.
14 Federal Practice and Procedure, § 3733, at 651-659 (footnotes omitted). Professor Moore has similarly recognized: “[Ajmendment may be permitted after the 30-day period if the amendment corrects defective allegations of jurisdiction, but not to add a new basis for removal jurisdiction.” 16 James William Moore, Moore’s Federal Practice, § 107.30[2][a][iv], at 107-184 (3d ed. 2012). Thus, where diversity jurisdiction is asserted as a basis for removal of an action to federal court, the district court may permit the removing defendant to - amend its removal notice, if necessary, to fully allege facts which satisfy the requirements of diversity jurisdiction by a preponderance of the evidence. See Carrillo v. MCS Indus., Inc.,
4. Consideration of Post-Removal Evidence.
18. As the Court has previously explained, the Tenth Circuit looks to both evidence in, the complaint, and submitted after the complaint, in determining whether the criteria necessary for removal are met. See Thompson v. Intel Corp.,
LAW REGARDING REQUESTS FOR A TEMPORARY RESTRAINING ORDER
19. The requirements for the issuance of a TRO are essentially the same as those for the issuance of a preliminary injunction. See Herrera v. Santa Fe Pub. Sch.,
20. To establish its right to preliminary relief under rule 65(b), a moving party must demonstrate that “immediate and irreparable injury, loss, or damage will result” unless the order is issued. Fed. R. Civ. P. 65(b). A moving party must “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc.,
21. In other words, in determining whether to grant injunctive relief, the Court considers the following four factors:
(i) whether the moving party will suffer irreparable injury unless the injunction issues; (ii) whether there is a substantial likelihood jdiat the moving party will eventually prévail on the merits; (iii) whether the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party; and (iv) whether the injunction, if issued, would not be adverse to the public interest.
Herrera v. Santa Fe Pub. Sch.,
22. The likelihood-of-success and irreparable-harm factors are “the most critical” in the analysis. Nken v. Holder,
LAW REGARDING THE COURT’S JURISDICTION TO ISSUE INJUNC-TIVE RELIEF UNDER THE NORRIS-LAGUARDIA ACT
23. In 1932, Congress enacted the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115. The Norris-LaGuardia Act greatly restrains the federal courts’ jurisdiction to issue injunctive relief in labor disputes. See 29 U.S.C. § 101. Section 1 of the Norris-LaGuardia Act makes this restraint plain:
No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter.
29 U:S.C.. § 101.
24. The Supreme Court explained that the Norris-LaGuardia Act’s primary purpose “was to restrict the federal equity power in such matters within greatly narrower limits than it had come to occupy” in labor struggles before its enactment. Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W. R. R.,
“Because the Norris-LaGuardia Act operated solely to restrict federal judicial intervention in labor disputes, it has been said that the point of the Act ‘is not what it does for organized labor but is what it permits organized labor to do for itself without judicial interference.” ... Through the medium of eliminating judicial interference, the statute was designed to promote employer recognition of unions and thus foster the practice of collective bargaining as an institution in the conduct of labor relations.
1 The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act § l.III.D,' at 22 (John E. Higgins Jr. et al. eds., 6th ed. 2012)(“The Developing Labor Law”)(alteration added)(quoting Gregory & Katz, Labor and the Law (3d ed. 1979)).
25. The purpose of making an injunction the “last line of defense” of employers and owners of property in the effort to resolve a labor dispute “runs throughout the Act’s provisions.” Bhd. of R.R. Trainmen,
Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate'and other forms of ownership association, the individual unorganized worker is .commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of and limitations upon the jurisdiction and authority of the courts of the United States are enacted.
26. In furtherance of Congress’ ex
No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
(a) Ceasing or refusing to perform any work or to remain in any relation of employment;
(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in section 103 of this title;
(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
(d) By all lawful means aiding any person participating or interested in any labor dispute who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any State;
(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
(f) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
(h) Agreeing with other persons to do or not to do any of the acts heretofore specified; and
(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 103 of this title.
29 U.S.C. § 104.
27. The Norris-LaGuardia Act also limits the imposition of vicarious liability on a union, union officials, or union members for the unlawful acts of individual officers, members, or others. See 29 U.S.C. § 106; The Developing Labor Law § l.III.D, at 23. To this end, the Norris-LaGuardia Act’s § 6 provides:
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual 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.
28. Similarly, the Norris-LaGuardia Act’s § 7 states that “no injunction or tem
29. “Section 6 of the Norris-La-Guardia Act, 29 U.S.C. § 106, applies in federal court adjudications of state tort claims arising out of labor disputes.” Fry,
30. In applying the Norris-LaGuardia Act’s “clear proof’ standard, the Tenth Circuit has stated:
The terms “participation,” “authorization,” and “ratification” are fact based, so rules in this area must be general, allowing a case-by-case determination based on the unique facts of each case. In general, however, we adopt principles stated by this court in a related, but not controlling, context. Under those principles, union liability under § 6 for tor-tious acts cannot be established by an inference drawn solely from the fact that union members are committing unlawful acts, even in groups and even over a substantial period of time (“mass action” theory). Nor can liability be established by an inference, drawn solely from the fact that the union fails to take affirmative measures to stop such acts (“best efforts” theory). There must be something more. Thus, while proof of authorization or ratification can be based on circumstantial evidence, [i]n order to satisfy § 6 there must be evidence showing some definite and substantial connection between the [union] and [the unlawful act(s) ].
Fry,
31. To further ensure that an injunction is an employer’s “last line of defense” in the effort to resolve a labor dispute, Bhd. of R.R. Trainmen,
32. The Norris-LaGuardia Act broadly defines the meaning of “labor dispute,” as the Norris-LaGuardia Act uses that term. See The Developing Labor Law § 1.III.D, at 23 (“The length to which Congress went to promote union organization in the Norris-LaGuardia Act is perhaps most vividly evident in the scope given the Act by the definitional provisions in Section 30.”)(cit-ing 29 U.S.C. § 113), The Act’s definitions section, 29 U.S.C. § 113, provides: “When used in this chapter, and for the purposes of this chapter—
(a)A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft,’or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of еmployers; or (3) between one 'or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a “labor dispute” (as defined in this section) of “persons participating or interested” therein (as defined in this section).
(b) A person or association shall be held to be a person participating or interested in a labor dispute if re- . lief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct' or indirect interest therein, or is a membér, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.
(c) The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.
29 U.S.C. § 113(a)-(c). In light of this statutory language, “[t]he Act was made applicable to any case involving or growing out of a labor dispute,” The Developing Labor Law § 1.ÍII.D, at 23.
LAW REGARDING § 303 OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947 (THE TAFT-HART- " LE Y ACT) ' "
33. In 1947, Congress enacted the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. §§ 141-144, 167, 172-187, informally known as . “the Taft-Hartley Act.” The'Labor Management Relations Act amended the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169, informally known as .“the Wagner Act.” The Labor Management Relations Act “shifted the emphasis of federal
From an attitude of federal protection for the rights of employees to organize into unions and to engage in concerted economic activity and collective bargaining, the emphasis shifted to a.more balanced statutory scheme that added restrictions on unions and also guaranteed certain freedoms of speech and conduct to employers and individual employees.
The Developing Labor Law § 3.II.A, at 41.
34. In enacting the LMRA, Congress amended section 8 of the NLRA, 29 U.S.C. § 158, and added section 8(b) — which creates six union unfair labor practices — in its entirety. See Labor Management Relations Act of 1947, Pub. L. No. 80-101, ch. 120, sec. 101, § 8(b), 61 Stat. 136, 141-142 (1947). In 1959, Congress enacted the Labor Management Reporting and Disclosure Act of. 1959, 29 U.S.C. §§ 401-531, also known as “the Landrum-Griffin Act”, which further amended the .NLRA’s § 8(b) to extend the statute’s reach. See .Labor-Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, sec. 704, § 8(b)(4), 73 Stat. 519, .542-543 (1959). In its current form, the .NLRA’s § 8(b)(4) provides that “[i]t shall be an unfair labor practice for a labor organization or its agents[:]”
(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engáge in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, ■ materials, or commodities or to perfоrm any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is — .
(A) forcing or requiring- any employer or self-employed person to join any labor or employer organization • or to enter into any agreement which is prohibited by subsection (e) of this section;
(B). forcing or requiring any pdrson to cease using, selling, handling, transporting, or otherwise dealing in the products of any-other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
(C) fórcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title;
(D) forcing or requiring any employer to assign, particular work to employees in a particular labor organization or in a particular trade, , craft, or class rather than to employees-in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: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 (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution ....
29 U.S.C. § 158(b)(4)(alteration added).
35. While the NLRA protects or permits most primary union activity, the NLRA regulates secondary activity and, in certain instances, prohibits it. See 29 U.S.C. §§ 157-158; Burlington N. R. Co. v. Bhd. of Maint. of Way Employees,
Unions use handbills, pickets, and strikes to exert economic pressure upon employers. When the immediate target of such economic pressure is an employer with whom the union has a labor dispute, that employer is the “primary” employer and the handbilling, picketing, and striking are considered primary activity. However, when the handbilling, picketing, or striking is aimed at some other entity with which the primary employer has a business relationship, a “secondary” employer, the object of such pressure usually is to alter that business relationship to the detriment of the primary employer and thereby to raise the cost to the primary employer of continuing the labor dispute. Such handbilling, picketing, and striking is considered secondary activity.
The Developing Labor Law § 22.1 at 1843.
36. LMRA § 303, 29 U.S.C. § 187, creates a private right of action for violations of § 8(b)(4) of the NLRA, 29 U.S.C. § 158(b)(4). In its current form, LMRA § 303 provides:
(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, 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 orany ■violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.
29 U.S.C. § 187.
37. As 29 U.S.C. § 187’s language makes plain, there is no liability under that statutory provision unless the plaintiff can demonstrate a violation of the NLRA’s § 8(b)(4), 29 U.S.C. § 158(b)(4). See 29 U.S.C.' § 187. See also Collier v. Hoisting & Portable Engineers Local Union No. 101,
NEW MEXICO LAW REGARDING TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
38. Under New Mexico law, tor-tious interference with an existing contractual relationship and tortious interference with a prospective contractual relationship are separate claims. See Fikes v. Furst,
1. New Mexico Law Regarding Tor-tious Interference With Existing Contractual Relationships.
39. To properly plead a claim of tortious' interference with existing contractual relationships, a plaintiff must allege that: (i) the defendant had knowledge of existing contracts; (ii) the contracts were breached; (iii) the defendant played an active and substantial part in causing the plaintiff to lose the benefits of the contract; (iv) damages flowed from the breached contract; and (v) the defendant induced the breach without justification or privilege. See Wolf v. Perry,
40. A plaintiff must also allege that the defendant acted with either an improper motive or improper means, and that “the improper motive or improper means [was] used in persuading the person to breach the contract.” Martin v. Franklin Capital Corp.,
41. An ongoing business relationship, specifically a relationship in which a company fills orders for repeat purchasers who are not contractually obligated to purchase again in the future, does not, without more, constitute a contractual relation. See Guidance Endodontics, LLC v. Dentsply Int’l, Inc., Memorandum Opinion and Order at 15-16, No. 08-1101 JB/RLP, filed September 11, 2009 (D.N.M.)(Browning, J.)(Doc. 316)(“Guid-ance Memorandum -Opinion and Order”)(“[T]he Court believes that the Supreme Court of New Mexico would hold that the alleged ongoing business relationship between [the Plaintiff] and its customers does not, without more, constitute an existing contractual relation.”). New Mexico’s Uniform Commercial Cоde permits a contract for the sale of goods to be formed “in any manner sufficient to show agreement, including conduct, by both parties which recognizes the existence of such a contract.” NMSA 1978, § 55-22-4(1) (1961). Section 55-2-204(1) implies that there must be some showing of agreement. Even though one or more terms may be left open, a contract for sale will not fail for indefiniteness if “the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” NMSA 1978, § 5.5-2-204(3) (1961). It is not clear, however, that the courts could provide a remedy if a party in an ongoing business relationship attempted to enforce the “business relationship.” An ongoing business relationship therefore does not, without more, constitute an existing contractual relationship. See Guidance Memorandum Opinion and Order at 16.
2. New Mexico Law Regarding Tor-tious interference With Prospective Contractual Relationships.
42. New Mexico has adopted the tort of interference with prospective contractual relations, as stated in. Restatement (Second) of Torts § 766B, See M & M Rental Tools, Inc. v. Milchem, Inc.,
One who intentionally and improperly interferes with another’s prospective contractual relation ... is subject to liability to the -other for the pecuniaryharm resulting from loss of the benefits of the relation, whether the interference consists of:
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation.
M & M Rental Tools, Inc. v. Milcheim, Inc.,
43. A plaintiff must also allege that the defendant committed the tort with either improper motive or through improper means. See Zarr v. Washington Tru Solutions, LLC,
44. The commentary to the Restatement (Second) of Torts § 766B describes the relationships that will support an interference with prospective contractual relations tort:
The relations protected against intentional interference by the rule stated in this Section include any prospective contractual relations, except those’leading to contracts to marry, if the potential contract would be of pecuniary value to the plaintiff. Included are interferences with the prospect of obtaining employment or employees, the opportunity of selling or buying land or chattels or services, and any other relations leading to potentially profitable contracts. Interference with the exercise by a third party of an option to renew or extend a contract with the plaintiff is also included. Also included is interference with a continuing business or other customary relationship not amounting to a formal contract. In many respects, a contract terminable at will is closely analogous to the relationship covered by this Section.
The expression, prospective contractual relations, is not used in this Section in a strict, technical sense. It is not necessary that the prospective relation be expected to be reduced to a formal, binding contract. It may include prospective quasi-contractual or other restitutionary rights or even the voluntary .conferring of commercial benefits in recognition of a moral obligation.
Restatement (Second) of Torts § 766B cmt. c. See also Mountain Highlands, LLC v. Hendricks, No. CIV 08-0239,
45. In Los Alamos National Bank v. Martinez Surveying Services, LLC,
46. The Court concludes that comment c and its broad definition of contractual relations applies only to prospective contractual relations and not to existing contractual relations. The broader definition of prospective contractual relationships is consistent with New Mexico case law that analyzes the two claims separately, because existing contractual relationships merit more protection than prospective contractual relationships. See Fikes v. Furst,
NEW MEXICO LAW REGARDING PRIMA-FACIE TORT
47. In Schmitz v. Smentowski,
48. The elements of a cause of action for prima facie tort are: (i) commission of an intentional, lawful act; (n) an intent to injure the plaintiff; (iii) injury to the plaintiff as a result of the intentional act; and (iv) the absence of sufficient justification for the injurious act. See Lexington Ins. Co. v. Rummel,
49. Because not every intentionally caused harm gives rise to an actionable tort, once a plaintiff establishes intent to injure, the trial court must balance the defendant’s act or acts against the justification for the act or acts and the severity of the injury, weighing: (i) the injury, (ii) the culpable character of the conduct, and (iii) whether the conduct is unjustifiable under the circumstances. See Portales Nat. Bank v. Ribble,
50. If the court concludes that there is sufficient evidence to support all four elements in UJI 13-1631, it must then give the jury the balancing factors in UJI 13-1631A, if the Court determines that, a reasonable jury could balance the factors and find for the plaintiff. “The trial court must initiаlly balance these factors and, if it finds that a jury could reasonably find in the plaintiffs favor, the trial court must submit the claim to the jury for its own balancing of the factors.” Portales Nat. Bank v. Ribble,
51. In Martinez v. Northern Rio Arriba Electric Co-op., Inc.,
ANALYSIS
52. The Court first ascertains its jurisdiction over this matter, concluding that it has jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1367(a). The Court then considers whether the Norris-LaGuardia Act’s' provisions, 29 U.S.C. §§ 101-115, apply to Firebird Structures’ TRO application. The Court concludes that the Norris-LaGuar-dia Act applies, because Firebird Structure's and the Carpenters’ Union are'involved in a “labor dispute” as the Norris-LaGuardia Act defines that term. 29 U.S.C. §§ 101 & 113(a)-(c). The Court then concludes that Firebird Structures is not entitled to injunctive relief on its LMRA § 303 claim, 29 U.S.C. § 187, because that statutory provision only awards damages.
53. Next, the Court assesses the likelihood of success of Firebird Structures’ state tort claims. The Court concludes that Firebird Structures is not likely to prevail on its two claims asserting tortious interference with contractual relations, because Firebird Structures’ LMRA § 303 claim, 29 U.S.C. § 187, preempts those claims. The Court also concludes that Firebird Structures is not likely to prevail on its claims for trespass, nuisance, harassment, and prima' facie tort, because Firebird Structures has not satisfied its burden, which the Norris-LaGuardia Act’s § 6, 29 U.S.C. § 106, requires, to establish" by “clear proof’ that the Carpenters’ Union authorized or was otherwise involved in Firebird Structures’ assertions of tortious conduct.' Moreover, the Court concludes that the Norris-LaGuardia Act’s § 4, 29 U.S.C. § 104, deprives the Court of jurisdiction to enjoin the Carpenters’ Union from certain conduct that Firebird Structures asserts is tortious. Last, -the Court concludes that, on the limited record before the Court, the four factors guiding the propriety of PI relief weighs against the Court’s issuance of a TRO to Firebird Structures. Accordingly, the Court will deny Firebird Structures’ Motion.
I. THE COURT HAS JURISDICTION OYER THIS CASE UNDER 28 U.S.C. §§ 1331 & 1367(A).
54.The Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 & 1367(a). In its amended complaint, Fire-bird'Structures asserts a claim for damages under 29 U.S.C. § 187. See Verified Complaint ¶¶ 17-26, at 3-4. Whether 29 U.S.C. § 187 entitles Firebird Structures to damages based on. Firebird Structures’ claim that the Carpenters’ Union violated NLRA § 8(b)(4), 29 U.S.C. § 158(b)(4), is a question of federal law and, therefore, establishes the Court’s original jurisdic-. tion. Seе 28 U.S.C. § 1331. Firebird Structures’ state-law tort claims are so related to its federal claim for damages under 29 U.S.C. § 187 as to form part of the same case ór controversy, because each state tort claim arises out of the same set of factual allegations regarding the Carpenters’ Union alleged campaign against Fire-bird Structures. See Verified Complaint ¶¶ 1-17, 27, 32, 37, 42, 48, 55, 61, at 2-7. Firebird Structures’ state-law .tort claims seek relief based on alleged tortious activity of the Carpenters’ Union in their alleged campaign against Firebird Structures, see Verified Complaint ¶¶ 27-67, at 4-7, and the tortious activity that Firebird Structures attributes to the Carpenters’ Union, including tortious interference with existing and prospective contractual relations, nuisance, harassment, and prima fa-cie tort, see Verified Complaint ¶¶ 32-60, at 4-7, forms part of the same controversy as Firebird Structures’ claim that the Carpenters’ Union- is engaged in an unlawful
55. The Court notes that this case arrived in the Court by way of the Carpenters’ Union’s Removal Petition. See Removal Petition at 1-6. After the Carpenters’ Union filed its Removal Petition, Firebird Structures filed an amended complaint, in which Firebird Structures pled a claim under the LMRA’s § 303, 29 U.S.C. § 187| as a basis for the Court’s jurisdiction. See Verified Complaint ¶¶ 17-26, at 3-4. As the Court concludes supra, in light of Firebird Structures’ federal claim, it has jurisdiction over this case under' 28 U.S.C: §§ 1331 and supplemental jurisdiction over Fire-bird Structures’ state-law claims under 28 U.S.C. § 1367(a). Firebird Structures’ amended complaint, adding the claim under the LMRA’s § 303, 29 U.S.C. § 187, cures any jurisdictional defect that the Carpenters’ Union potentially improper removal may have caused and concomitantly moots the question whether removal was proper. See Retail Prop. Trust,
56. The general rule is that federal courts assess subject-matter jurisdiction when a complaint is filed, or at the time of removal to federal court when a case is originally filed in state court. See, e.g., Pullman Co. v. Jenkins,
57. For example, after a defendant improperly removes a complaint from
58. The rule that an amended complaints—filed after an improper removal and adding a claim arising under federal law—is sufficient to confer subject matter jurisdiction on the district court is sound, because it aligns with the law of civil procedure regarding an amended complaint’s relation back. It is well-established that “an amended complaint ‘supersedes an original complaint and renders the original complaint without legal effect ....’” Mink v. Suthers,
59. . Accordingly, Firebird Structures’ amended complaint, which added a claim under the LMRA’s § 303, 29 U.S.C. § 187, establishes the Court’s jurisdiction over this case and cures any jurisdictional defect that the Carpenters’ Union’s potentially improper removal may have caused. See Retail Prop. Trust,
H. THE NORRIS-LAGUARDIA ACT APPLIES TO FIREBIRD STRUCTURES’ APPLICATION FOR A TRO.
60. Traditionally, a party may obtain a TRO or a PI under rule 65(b) by demonstrating “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter,
(c) Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance, or other moneys or things of value;
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(d) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence;
(e) Assembling peaceably to act or to organize to act in promotion of their interests in a labor dispute;
(f) Advising or notifying any person of an intention to "do any of the acts heretofore specified;
(g) Agreeing with other persons to do or not to do any of the acts heretofore specified; and ■ •
(h) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 103 of this title.
29 U.S.C. § 104 (alterations added)(emphasis added).
61. The Norris-LaGuardia Act applies to Firebird Structures’ application for a TRO in this case, because Firebird Structures’ suit against the Carpenters’ Union involves or grows out of a labor dispute. See 29 U.S.C. § 113(a)-(c)(explaining when a case “shall be held to involve or grow out óf a labor dispute”). Firebird Structures alleges that the Carpenters’- Union' is engaged in an unlawful secondary boycott against Firebird Structures’ clients, and Firebird Structures seeks relief from this alleged unlawful secondary boycott as well as from related torts that Firebird Structures alleges the Carpenters’ Union has commissioned. See Verified Complaint ¶¶ 17-67, at 3-7. In turn, the Southwest Regional Council of Carpenters — of which the Carpenters’ Union is a local member— filed the NLRB Charge Against Employer, alleging that Firebird Structures discharged twenty-eight employees on ,or about February 10, 2017, “because they supported and assisted the Union and engaged in protected concerted activities ....” NLRB Charge Against Employer at 2. Accordingly, this case involves or grows out of a labor dispute. See 29 U.S.C. §§ 101, 113(a)-(c). See also San Antonio Cmty. Hosp. v. S. California Dist. Council of Carpenters,
62. .Firebird Structures’ argument that the Norris-LaGuardia Act does not apply, because Firebird Structures alleges state tort claims, does not convince the Court. See Tr. at ■ 152:18-22 (Thomas)(arguing that the “Norris-LaGuardia does not apply to state court tort actions[:] trespass, nuisance, [and] harassment’’); id. at 143:15-16
63. The Norris-LaGuardia Act applies to this case and consequently imposes a significant burden on Firebird Structures. In addition to satisfying the traditional requirements for a TRO, see, e.g., Winter,
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual 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 The Developing Labor Law § 1.III.D, at 23 (explaining that the Norris-LaGuardia Acts also limits the imposition of vicarious liability on a union, union officials, or union members for the unlawful acts of individual officers, members, or others).
65. Under § 6, “[cjlear proof means proof which is clear, unequivocal, and convincing.” Fry,
III. FIREBIRD STRUCTURES IS NOT ENTITLED TO INJUNC-TIVE RELIEF ON ITS 29 U.S.C. § 187 CLAIM.
66. Although the Norris-LaGuardia Act’s application imposes a burden on Fir-ebird Structures, the Court may not issue injunctive relief on three of Firebird Structures’ claims — namely, Firebird Structures’ LMRA § 303 claim and its tortious interference claims — for statutory and preemption reasons, respectively, which are wholly unrelated to the Norris-LaGuardia Act’s application to this case.
67. In its Verified Complaint, Firebird Structures asserts a claim under the LMRA’s § 303, 29 U.S.C. § 187. See Verified Complaint ¶¶ 17-26, at 3-4. Firebird Structures alleges that the Carpenters’ Union “has engaged in a campaign to pressure or coerce Firebird’s clients to cease doing business with Firebird,” by sending letters stating that the Carpenters’ Union “will protest and picket any site where Firebird does business.” Verified Complaint ¶¶ 18, 22 at 3. Firebird Structures states that this alleged activity constitutes
68. The Court lacks jurisdiction to issue an injunction against the Carpenters’ Union for violations of the NLRA’s § 8(b)(4); only the NLRB has that power. See Burlington N. R. Co. v. Bhd. of Maint. of Way Emps.,
IV. FIREBIRD STRUCTURES IS NOT ENTITLED TO INJUNC-TIVE RELIEF ON ITS CLAIMS FOR TORTIOUS INTERFERENCE WITH EXISTING CONTRACTUAL RELATIONS AND INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS.
69. In addition to satisfying the Norris-LaGuardia Act’s requirements regarding the issuance of an injunction in a labor dispute, Firebird Structures must demonstrate a strong likelihood of success on the merits of one of its substantive claims. In addition to its claim under the LMRA’s § 303, 29 U.S.C. § 187, Firebird Structures asserts state tort claims for trespass, nuisance, harassment, prima facie tort, tor-tious interference with existing contractual relations, and intentional interference with prospective contractual relations. Firebird Structures cannot demonstrate a chance of success on its two tortious interference claims, because the LMRA’s § 303 preempts those claims. Accordingly, Fire-bird Structures is not entitled to injunctive relief on its claims for tortious interference with existing contractual relations and intentional interference with prospective contractual relations.
70. The' LMRA’s § 303, 29 U.S.C. § 187, confers a right of action to recover damages on any person who is injured in business or property by secondary activity prohibited under the NLRA’s § 8(b)(4), 29 U.S.C. § 158(b)(4). In Local 20, Teamsters, Chauffeurs and Helpers Union v. Morton,
In selecting which, forms of economic, pressure should be prohibited by [section] 303, Congress struck the “balance .., between the uncontrolled power, of. management and labor to further their respeсtive interests,” by “preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and [by] shielding unoffending employers and others from pressures in controversies not their own.”
Morton,
If the Ohio law of secondary boycott can be applied to proscribe the same type of conduct which Congress focused upon but did not proscribe when it enacted § 303, the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy, “For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare'picketing free for purposes or by methods which the federal Act prohibits.”
Morton,
71. In Morton, the Supreme'Court held that “the provisions of [the LMRA] § 303 mark the limits beyond which a court, state or federal, may hot go in awarding damages for a union’s secondary activities..."
“[W]e have allowed the. States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order..., State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of domestic peace is not overridden in the absence of clearly expressed congressional direction .... In the present case there is no such compelling state interest.”
Morton,
73. Firebird Structures asserts two tortious interference claims against the Carpenters’ Union — a claim for tor-tious interference' with existing contractual relations and a claim for intentional interference with prospective contractual rights. See Verified Complaint ¶¶ 42-54, at 5-6. When asserting these two claims, Fir-ebird Structures alleges that the Carpenters’ Union (i) encouraged at least two of Firebird Structures’ clients “to terminate their relationships with Firebird for their own economic benefit or in an effort to harm Firebird’s economic; position,” Verified Complaint ¶ 44,- at 5; (ii) “directly corresponded with Firebird’s clients, and encouraged them not to engage in future business relationships with- Firebird,” Verified Complaint ¶ 49, at 6; and thereby (iii) “caused several clients not to enter into business relationships with Firebird and/or prevented, them from continuing the prospective relationships,” Verified Complaint ¶ 52, at 6. ’
74. Firebird Structures’tortious interference claims are predicated on allegations that agents of the Carpenters’ Union “began' circulating flyers that included false information regarding relations between Firebird’s management and employees,” Verified Complaint ¶ 10, at 2, and that the Carpenters’ Union “began sending letters to Firebird’s current and future business relations with the improper purpose of encouraging and coercing those businesses to cease current and future contracts with Firebird,” Verified Gom-plaint ¶ 14, at 3. These allegations do not include references to violent acts or threats. See Verified Complaint ¶¶ 10, 14 at 2, 3.
75. Firebird Structures’ Verified Complaint contains certain allegations of property damage. See Verified Complaint ¶ 9, at 2. Firebird Structures offered testimony that screws were found behind the tires of Firebird Structures’ vehicles and the vehicles of Firebird Structures’ employees at a “separate parking area where the employees parked to go to the job site.” Tr. at
76. Firebird Structures is not entitled to injunctive relief on its claims against the Carpenters’ Union for trespass, nuisance, harassment, or prima facie tort. Unlike Firebird Structures’ tortious interference claims, these claims are not predicated on allegations concerning the secondary activity of the Carpenters’ Union. See Verified Complaint ¶¶ 27-41, 55-60, at 4-7. Consequently, ' the LMRA’s § 308 ' does not preempt them. See Morton,
77. The Norris-LaGuardia Act applies to Firebird Structures’ application for a temporary restraining order in this case, because Firebird Structures’ state tort claims against the Carpenters’ Union involves or grows out of a labor dispute. See 29 U.S.C. §§ 101, 113(a)-(c). Under the Norris-LaGuardia Act’s § 6, a union shall not “be held responsible or liablе ... for the unlawful acts of individual 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. This section “applies in federal court adjudications of state tort claims arising out of labor disputes.” Fry,
78. New Mexico recognizes “an action of trespass to real property ... for the alleged injury to the right of possession.” McNeill v. Rice Eng’g & Operating, Inc.,
79. Record testimony reveals, however, that Firebird Structures does not know who placed the screws behind the vehicles’ tires. See Tr. at 51:9 (Cannedy). Firebird Structures also did not adduce record evidence establishing which persons, who they allege are affiliated with and authorized by the Carpenters’ Union, entered Firebird Structures’ property without permission. See Verified Complaint ¶¶ 1-16, 27-31, at 1-4. Whitesitt, the avowed representative of the Carpenters’ Union’s organizing campaign, against Fire-bird Structures declares that neither the Carpenters Union, nor its -agents, vandalized the property of Firebird Structures’ owners or employees. - See Whitesitt Deck ¶ 5, at 1. Whitesitt further denies that the Carpenters’ Union trespassed on Firebird Structures’ property. See Whitesitt Deck ¶ 13, at 2. Considering the Whitesitt Deck and the hearing testimony, Firebird Structures’ has not adduced sufficient evidence, on this limited record, to establish “clear proof’ that the Carpenters’ Union authorized, ratified, or had any other involvement in the alleged unauthorized entry of Fire-bird Structures’ property, or in the alleged property damage to the vehicle of a Fire-bird Structures’ employee. As a result, under the Norris-LaGuardia Act’s § 6 and on this record, Firebird Structures does not prevail on the’ merits of its trespass claim against the Carpenters’ Union.
80. With respect to its nuisance claim, Firebird Structures alleges that the Carpenters’ Union obstructed Firebird Structures’ use of its property and interfered with its normal business operations and that the Carpenters’ Union refused to leave Firebird Structures’ property. See Verified Complaint ¶¶ 33-34, at 4. In State
81. On the record before the Court, Firebird Structures has not offered evidence of any conduct of the, Carpenters’ Union that both amounts to a private nuisance and also escapes the Norris-La-Guardia Act’s straightforward anti-injunction provisions. See 29 U.S.C. § 104. The Norris-LaGuardia Act’s § 4 prohibits the Court from enjoining the conduct that Fir-ebird Structures attributes to the Carpenters’ Union. The Norris-LaGuardia Act’s § 4(f) provides:
No court of the United States shall have jurisdiction .to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute from ... [assembling peacefully to act or to organize to act in promotion of their interests in a labor dispute.
29 U.S.C. § 104(f). To the extent that Fire-bird Structures’ nuisance claim is grounded on allegations that the Carpenters’ Union peacefully assembled near to Firebird Structures’ office — but not on Firebird Structures’ property — to act in promotion of their interests in a labor dispute, the Norris-LaGuardia Act Court § 4(f) denies the Court jurisdiction to issue an injunction based on that claim.
82. Firebird Structures also asserts-a harassment claim and a prima facie tort claim against the Carpenters Union. See Verified Complaint ¶¶ 37-41, at 5. In its papers, Firebird Structures did not direct the Court to a New Mexico appellate opinion recognizing a specific tort of harassment. See Verified Complaint ¶¶ 37-41, at 5; Motion at 1-5. In the Court’s review of New Mexico appellate opinions, the Court is unable to locate an opinion recognizing a specific and distinct tort that travels under that heading. To be sure, the Supreme Court of New Mexico recognizes several intentional torts,, including the in
In addressing this tort, our courts have adopted the approach used in the Restatement (Second) of Torts § 46 (1965). The following elements must be proven to establish a claim of intentional infliction of emotional distress: (1) the conduct in question was extreme and outrageous; (2) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (3) the plaintiffs mental distress was extreme and severe; and (4) there is a causal connection between the defendant’s conduct and the claimant’s mental distress.... [E]xfreme and outrageous conduct [is] that which is so outrageous in character, and so extreme in degree,, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Trujillo v. N. Rio Arriba Elec. Co-op, Inc.,
83. In support of its “harassment” claim, and ostensibly in support of its pri-ma facie tort claim, Firebird Structures offered testimony showing that, after Fire-bird Structures’ employees quit, Carpenters’ Union representatives attended Fire-bird Structures’ job sites and “parked across the street from” Firebird Structures’ main office to observe and to communicate with persons seeking employment with Firebird Structures; after speaking with the Carpenters’ Union representatives, these persons “would never show back up” at Firebird Structures. Tr. at 24:16-23 (Cannedy). See Tr. at 88:2-4 (Romero)(“They would just sit there taking pictures or video of people walking in and out of our building.”); id. at 89:25-90:1 (Romero)(“[U]nion reps have gone to the job sites, to multiple job sites, offering cash for our employees to leave .... ”); id. at 104:11-13 (Romero)(stating that union representatives are “continuing to show up at job sites and asking employees to join the union, offering the money after being told ‘No’ ”); id. at 105:6-16 (Romero)(“I’ve watched them surveil our company and sit there and take pictures of people, and stop them as they walk out of our building ... to get [employees] to join the union.”).
84. The Norris-LaGuardia Act’s § 4, however, prohibits the Court from enjoining the conduct that Firebird Structures attributes to the Carpenters’ Union in support of Firebird Structures’ harassment claim — Le., observing and communicating with Firebird Structures’ employees and persons seeking employment at Firebird Structures. See 29 U.S.C. § 104(e). The Norris-LaGuardia Act’s § 4(e) provides:
No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute from ... [g]iving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, orby any other method not involving fraud or violence.
29 U.S.C. § 104(e). To the extent, therefore, that Firebird Structures attempts to build an intentional tort claim — -whether pled as prima facie tort or harassment— upon allegations that the Carpenters’ Union patrolled and attempted to speak with Firebird Structures’ employees and prospective employees to give publicity of a labor dispute between Firebird Structures and the Carpenters’ Union, the Norris-LaGuardia Act’s § 104(e) prevents the Court from enjoining such conduct.
85. Also with respect to its harassment and prima facie tort claims, Firebird Structures alleges that the Carpenters’ Union “pursued a pattern of conduct intended to annoy, seriously alarm or terrorize” Firebird Structures’ owners and employees. Verified Complaint ¶ 38, at 5. In support of this claim, Firebird Structures alleges that the Carpenters’ Union surveilled and stalked Firebird Structures’ owners at their principal place of business, job sites, and homes. See also Verified Complaint ¶ 12, at 2. Firebird Structures also introduced testimony showing that: (i) on or about February 15, 2017, at midnight, Cannedy saw a truck parked, which resembled the truck that had parked across from the Firebird Structures’ main office, outside of his house; the truck contained four persons who appeared, at least to Cannedy at the midnight hour, to be taking photographs, see Tr. at 25:17-21 (Cаnnedy); Tr. at 46:14-16 (Cannedy); (ii) Conboy discovered a “a four- or five-pound dead catfish wrapped in bloody newspapers on [his] driveway in front of [his] gate,” Tr. at 108:15-17 (Conboy); (iii) a vehicle, which had parked across from Fir-ebird Structures, followed Conboy’s vehicle after Conboy departed from his office at Firebird Structures, at least once or twice, and at least until Conboy arrived to “a busy intersection,” Tr. at 109:1-3 (Con-boy); see Tr. at 116:22-117:2 (Conboy); and (iv) one or two vehicles that were parked across from Firebird Structures’ main office drove past Conboy’s residence, see Tr. at 114:18-115:5 (Conboy).
86. On this record, the testimony that Firebird Structures adduced regarding midnight photographs, a dead catfish, and of a vehicle driving past the residences of Firebird Structures’ principals, while con-. cerning, does not amount to “clear proof’ that the Carpenters’ Union authorized, ratified, or otherwise participated in the alleged conduct. The clear proof standard is more exacting than a preponderance of the evidence. See Fry,
87. On this limited record, therefore, the Court cannot soundly conclude that Firebird Structures is likely to succeed on •the merits of any intentional tort claim predicated on its allegations that the Car--penters Union harassed Firebird Structures’ principals and employees.
88. On this limited record, the Norris-LaGuardia Act’s application creates a dilemma for Firebird Structures. On the one hand, the activity that Firebird Structures can ascribe to the Carpenters’ Union by. clear proof — he., peacefully assembling, giving publicity to the labor dispute, patrolling and communicating with Firebird Structures’ employees — is protected from injunctive .relief by the Norris-LaGuardia Act’s § 4, 29 U.S.C. § 104. On the other hand, Firebird Structures cannot by clear proof demonstrate that the Carpenters’ Union authorized or was otherwise involved in certain alleged activity that the Norris-LaGuardia Act does not protect— he,, the breaking of a windshield, the placement of screws underneath company vehicles, and the unauthorized entry onto Firebird, Structures’ property.
VI. ON THIS RECORD, THE FOUR FACTORS GUIDING THE PROPRIETY OF PRELIMINARY IN-JUNCTIVE RELIEF WEIGH AGAINST THE ISSUANCE OF A TRO IN FIREBIRD. STRUCTURES’ FAVOR.
89. On the limited record before the Court, the four factors güiding the propriety of PI relief weighs against the Court’s issuance of a TRO to Firebird Structures. The' applicant for PI relief must “establish that he is likely-to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter,
90. On this record, Firebird Structures has not demonstrated that it is likely to succeed on the merits .of its state-law claims,
[Ujnion liability under [the Norris-La-Guardia Act’s § 6] for tortious acts cannot be' established by an inference drawn solely from the fact that union members are committing unlawful acts, even in groups and even over a substantial period of time (“mass action” theory). Nor can liability be established by an inference drawn- solely from the fact that the union fails to take affirmative measures to stop such acts (“best efforts” theory).
Fry,
91. Nor has Firebird Structures demonstrated that, it is likely to suffer irreparable harm in the absence of a TRO, See Winter,
92. Firebird Structures has not established that, absent a TRO, it is likely to suffer “harm that cannot be compensated after the fact by monetary damages.” RoDa Drilling Co. v. Siegal,
93. Last, the Court considers the equities and whether “an injunction is in the public interest.” Winter,
94. Moreover, the Court emphasizes that the Norris-LaGuardia Act deprives the Court of jurisdiction to enjoin the Carpenters’ Union from certain activities that Firebird Structures alleges are tortious. See 29 U.S.C. § 104. For example, the Court is without jurisdiction to enjoin the Carpenters’ Union from (i) peacefully assembling near to Firebird Structures’ office — but not on Firebird Structures’ property — to act in promotion of their interests in a labor dispute, see 29 U.S.C. § 104(f); (ii) attempting to speak with Firebird
IT IS ORDERED that Firebird Structure’s Application for Temporary Restraining Order and Preliminary Injunction, filed April 4, 2017 (Doc. 3), is denied.
Notes
.In making its findings of fact, the Court may rely on allegations in a verified complaint. The Court
may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if ... specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard ....
Fed. R. Civ. P. 65(b)(1)(A)(alterations added). Cf. Lantec, Inc. v. Novell, Inc.,
. The Court's citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. Although Conboy testified that he is a Fire-bird Structures’ partner, see Tr. at 107:22-23, Firebird Structures is an LLC; accordingly, Conboy is most likely a Firebird Structures’ member or manager. See NMSA 1978, § 53-19-2(L)-(M).
.The Carpenters' Union maintains that, "[i]n response to [these employees’] concerted and protected actions, Firebird conducted an unlawful mass firing.” Whitesitt Decl. ¶ 7, at 2. The Southwest Regional Council.of Carpenters filed the NLRB Charge Against Employer, alleging that Firebird Structures discharged twenty-eight employees on or about February 10, 2017, "because they supported and assisted the Union and engaged in protected concerted activities." NLRB Charge Against Employer at 2. Firebird Structures maintains that these employees quit their jobs. See Tr. at 24:2-3 (Cannedy). The Carpenters’ Union is a local union of the Southwest Regional Council of Carpenters. See Southwest Carpenters "Local Unions,” https://www.swcarpenters.org/local-unions.
. The parties dispute why the Carpenters’ Union paid the former Firebird Structures’ employees. Compare Verified Complaint ¶ 11, at 2 (alleging that the Carpenters’ Union offered Firebird Structures’ employees up to $3,500.00 to quit employment at Firebird Structures), with Whitesitt Decl. ¶'7, at 2 ("The money paid is in mitigation of the damages the workers are pursuing with the National Labor Relations Board, and is paid while the workers - have 'attended training classes at the union hall.”). -
. Firebird Structures states that-these fliers are false. See Tr. at 30:16 — 17 (Cannedy); Tr. at 31:16-24 (Cannedy). The Carpenters’ Union denies that the fliers are false. See Whites-itt Decl. ¶ 6, at 1.
. Firebird Structures also sought a TRO in state court, which the state court denied. See Notice of TRO Denial, filed in state court April 3, 2017, filed in federal court April 7, 2017 (Doc. 10-2)("The TRO is Denied. You may submit a request for an injunction hearing.”).
. When exercising either diversity or supplemental jurisdiction over state-law claims; the federal courts apply the Federal Rules of Civil Procedure. See Hanna v. Plumer,
. The Carpenters’ Union further asserts that Firebird Structures' allegations do not even satisfy the requirements for pleading under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Response at 7 (citing Ashcroft v. Iqbal,
. It is basic that Congress has "the power to define and limit the jurisdiction of the inferior courts of the United States.” Lauf v. E.G. Shinner & Co.,
. The Norris-LaGuardia Act’s purpose reflects the statute’s role in the history of the fraught interaction between the''federal labor and antitrust laws. See The Developing Labor Law § 19.I.C.1, at 1678. The Clayton Antitrust Act, 29 U.S.C, § 52, "first extended federal protection to strikes'by providing that the federal courts may not prohibit ‘any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor.’ ” The Developing Labor Law ~§ 19.I.C.1, at 1678 (quoting 29 U.S.C, § 52). The Supreme Court narrowly interpreted the Clayton Act, thwarting Congress’ purpose, reflected in the Clayton Act, to constrain significantly injunctions of union boycott activity, whether it be primary or secondary boycott activity. See Duplex Printing Press Co. v. Deering,
No court of the United States shall have jurisdiction to issue a restraining order or temporary or permanent injunction on the ground that any of the persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated in section 104 of this title [e.g. conducting a labor strike or slowdown].
29 U.S.C. § 105.
Since Duplex Printing, the Supreme Court has recognized this history. See, e.g., Brown v. Pro Football, Inc.,
As a matter of history, Congress intended the labor statutes (from which the Court has implied the exemption) in part to adopt the views of dissenting Justices in Duplex Printing Press Co. v. Deering, which Justices had urged the Court to interpret broadly a different explicit "statutory” labor exemption that Congress earlier (in 1914) had written directly into the antitrust laws. In the 1930’s, when it subsequently enacted the labor statutes, Congress, as in 1914, hoped to prevent judicial use of antitrust law to resolve labor disputes — a kind of dispute normally inappropriate for antitrust law resolution.
Brown v. Pro Football, Inc.,
Before Congress enacted the headline federal labor laws, however, it first resurrected its purpose to constrain the power of the federal courts to issue injunctions against labor unions during labor disputes by passing the Norris-LaGuardia Act 'in 1932. Indeed, sections 6 and 20 of the Clayton Act and the Norris-LaGuardia Act are “[t]he basic sources of organized labor's exemption from federal antitrust laws .... ” Brown v. Pro Football, Inc.,
. Firebird Structures, in asserting claims for nuisance and harassment against the Carpenters’ Union, also alleges (i) that the Carpenters’ Union "interfered with Firebird’s and its clients’ and customers’ normal business operations,” Verified Complaint ¶ 33, at 4; and (ii) “pursued a pattern of conduct intended to annoy, seriously alarm or terrorize Firebird's ... clients/customers without a lawful purpose,” Verified Complaint ¶ 38, at 5. Firebird Structures has not bottomed these claims on any concrete allegations of violence or threats of viоlence on the part of the Carpenters' Union. Therefore, to the extent that Firebird Structures’ nuisance and harassment tort claims are predicated on the Carpenters’ Union secondary activity, the LMRA’s § 303 also preempts those state tort claims, See Gibbs,
. This result holds notwithstanding the Court’s exercise of supplemental jurisdiction over Firebird Structures’ state-law tortious interference claims.
Pendent jurisdiction permits a federal court under some circumstances to determine a state cause of action which otherwise would have to be heard in the state court. But if the state court would be without authority to award damages under state law, then the doctrine of pendent jurisdiction can give "the District Court ... no greater power to do so.”
. The Court concludes the following hearing colloquy between counsel for the Carpenters’ Union and Cannedy, Firebird = Structures’ president, to be particularly salient: "Q. Okay. You’re trying to get an injunction to stop the union from telling people not to hire you? A. Yeah, pretty much.” Tr. at 58:7 — 10 (Shanley, Cannedy). ■ - .
. Firebird Structures also proffered testimony and evidence that the Carpenters’ Union placed a sign on a street near to Conboy’s residence, stating that "Firebird Bad For America & Bad for New Mexico. New Mexico Beware!” Firebird Structures' TRO Hearing Ex. 6. See Tr. at 110 2-12 (Conboy, Thomas). The Norris-LaGuardia Act’s § 104(e), however, prevents the Court from enjoining that protected activity. See 29 U.S.C. § 104(e).
, For the reasons discussed supra, Firebird Structures is not entitled to injunctive relief on its only federal claim for violation of the LMRA’s § 303, 29 U.S,C.'§ 187. See San Antonio Cmty. Hosp. v. S. California Dist. Council of Carpenters,
. Rule 65 of the Federal Rules of Civil Procedure states: "The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R, Civ. P. 65(c). Moreover, § 7 of the Norris-La Guardia Act § 7, 29 U.S.C. § 107, in part provides:
No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney's fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
29 U.S.C. § 107. The Carpenters' Union did not request a security. If, however, the Court had granted a TRO, the Court would have ordered Firebird Structures to post a security of $500.00 at this time and on this record, and allowed the Carpenters’ Union to request that the Plaintiffs post a different security at a later time.