ORDER REMANDING CASE TO STATE COURT
Plaintiff, Jackie Glen Tyree, brings this action against his employer, Burlington Northern and Santa Fe Railway Company (“BNSF”), and Raymond S. Stimart, a superintendent at BNSF, for libel, malicious prosecution, and intentional and/or negligent infliction of emotional distress. Before the Court is defendants’ motion for summary judgment, filed April 30, 1997. Although the parties have not raised any questions regarding this Court’s jurisdiction, the Court is obliged to raise the issue sua sponte whenever it appears that the Court may not have jurisdiction.
Philbrook v. Glodgett,
BACKGROUND
BNSF operates a transportation system by rail with operations in over thirty (30) states and maintains a train terminal in Memphis, Shelby County, Tennessee. BNSF is a carrier as that term is defined in the Railway Labor Act (“RLA”), 45 U.S.C. § 151-188. As part of its operations, BNSF has various collective bargaining agreements with its union represented employees, including a 1980 agreement, commonly referred to as the “Blue Book”, with the Brotherhood of Railway and Airline Clerks (“BRAC”), the predecessor to the Transportation Communications Union (“TCU”). Plaintiff is a clerical employee of BNSF and is represented by TCU. The terms and conditions of plaintiffs employment are governed by the Blue Book.
■ This action grows out of a train derailment that occurred in Memphis, Tennessee, on November 5,1995. At the time of the derailment, plaintiff was working as the train director. On November 10, 1995, because BNSF was concerned that Tyree’s acts or omissions could have played a part in the derailment, Terminal Superintendent Stimart served a Notice of Investigation on plaintiff. A Notice of Investigation is required by the *788 collective bargaining agreement before any discipline can be assessed.
The investigation into plaintiffs conduct was held on December 19, 1995. Subsequently, on December 29, 1995, plaintiff received a ninety (90) day suspension as discipline for his involvement in the derailment. On February 16,1996, plaintiffs union representative, D.G. Howell, appealed the ninety day suspension, alleging various violations of the collective bargaining agreement. On March 25, 1996, plaintiffs appeal was denied by BNSF. On April 30, 1996, TCU’s General Chairman, R.A. Arndt, once again appealed the discipline against plaintiff. On June 14, 1996, BNSF Director of Labor Relations, L.L. Broxterman, denied plaintiffs claim and appeal.
Subsequently, however, plaintiffs claims were settled by removing the ninety day suspension from his personnel record and by compensating him for sixty-eight (68) days lost wages. Specifically, the settlement provided:
In conference it was agreed this claim would be settled on a compromise basis by removing the 90 day suspension from Mr. Tyree’s personal [sic] record and by compensating him for 68 days lost wages (including 20 minute penalty lunch for each day) totaling $9,766.50; it being understood that such settlement is made without prejudice to either party’s contentions concerning the application of schedule rules, and that the proposal or acceptance thereof will not be referred to as a precedent by either party in any other case under any circumstance.
In addition to its duties under the collective bargaining agreement, BNSF is required by federal law to make certain reports to the Federal Railroad Administration (“FRA”), including reports for accidents or incidents involving rail equipment or rail employees. 49 U.S.C. §§ 20901-20903: Pursuant to 49 C.F.R. § 225.12, BNSF is also required to file an Employee Human Factor Attachment if it attributes any human factor in the accident or incident. The November 5, 1995 derailment at Memphis caused sufficient damage to railroad property that the incident was required to be reported to the FRA. Consequently, in December 1995, as part of BNSF’s monthly report of rail aceidents/ineidents, the Memphis derailment was reported to the FRA. In addition, because it believed that plaintiff was a contributing factor to the derailment, BNSF filed a report pursuant to 49 C.F.R. § 225.12, identifying plaintiff as a contributing factor in the derailment.
Pursuant to the federal regulations, 49 C.F.R. § 225.12, plaintiff was provided with notice of this filing with the FRA and given an opportunity to supplement the record.Apparently, plaintiff never submitted any documents to the FRA.
On February 10, 1997, plaintiff filed this action in state court, alleging causes of action for libel, malicious prosecution, and intentional/negligent infliction of emotional distress. On February 25, 1997, defendants removed this case to this Court on the basis of diversity and federal question jurisdiction.
On April 30, 1997, defendants filed a motion for summary judgment, arguing that plaintiffs claims arise out of either the grievance processes of the RLA or the mandatory system for reporting rail accidents and incidents administered by the FRA, 49 U.S.C. §§. 20901-20903, and are therefore preempted by federal law. On May 28,1997, plaintiff filed a response, arguing that, pursuant to
Hawaiian Airlines v. Norris,
REMOVAL JURISDICTION
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original’jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” In their notice of removal, defendants assert that removal is proper because this Court has original jurisdiction on two grounds. First, defendants argue that *789 this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) (diversity jurisdiction) because the matter in controversy allegedly exceeds the sum of $75,000, exclusive of interest and cost, and is between citizens of different states. Alternatively, defendants argue that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) because this cause of action is governed by both the RLA, 45 U.S.C. §§ 151-188, and the mandatory reporting procedures of 49 U.S.C. §§ 20901-20903.
Defendants’ reliance on diversity jurisdiction as a basis for removal is misplaced. Although the language of § 1441(a) appears to make removal jurisdiction coextensive with the original jurisdiction of the federal courts, it is well settled that removal jurisdiction is not as extensive as original jurisdiction. For example, a case cannot be removed on the basis of diversity jurisdiction if any one of the defendants in the action is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b); see also 28 U.S.C. § 1445 (setting forth nonremovable actions). In their notice of removal, defendants assert that defendant Stimart is a citizen of the State of Tennessee. Accordingly, by the plain language of § 1441(b), defendants are precluded from relying on 28 U.S.C. § 1332(a) as a basis for removal.
The ability of a defendant to remove an action is further limited by the well-pleaded complaint rule. Under this rule, in order to base removal jurisdiction on § 1331, the federal claim(s) must appear on the face of the complaint.
Gully v. First Nat’l Bank,
In this case, plaintiff seeks to assert claims that are entirely the product of state law — i.e., libel, malicious prosecution, and intentional/negligent infliction of emotional distress. Thus, no federal cause of action appears on the face of the complaint, and defendants are presumptively precluded from removing this action to federal court. *790 Accordingly, the sole question before the Court is whether plaintiffs claims are “nec-essarily federal in character” so as to support removal jurisdiction.
In determining whether plaintiffs claims are necessarily federal in character so as to support removal jurisdiction, the threshold question is one of congressional intent.
Taylor,
Although the Supreme Court has not yet addressed this issue,
2
the Sixth Circuit has implicitly found that the complete preemption doctrine can apply when a defendant asserts a preemption defense under the RLA.
E.g., Beard v. Carrollton R.R.,
Although these cases have not been formally overruled, this Court concludes that they are no longer good law. Specifically, the Court finds that in
Warner v. Ford Motor Co.,
In
Strong v. Telectronics Pacing Systems, Inc.,
*792
Applying these standards to the present ease, it is clear that the RLA does not satisfy the complete preemption doctrine because it does not create a parallel federal cause of action. Instead, the RLA requires that all minor disputes — Le., “ ‘controversies over the meaning of an existing collective bargaining agreement in a particular fact situation,’ ”
Hawaiian Airlines, Inc. v. Norris,
Likewise, the Court finds that defendants cannot base removal jurisdiction on the grounds that 49 U.S.C. § 20903 satisfies the complete preemption doctrine. Section 20903 provides:
No part of an accident or incident report filed by a railroad carrier under section 20901 of this title or made by the Secretary of Transportation under section 20902 of this title may be used in a civil action for damages resulting from a matter mentioned in the report.
49 U.S.C. § 20903. By its plain language, therefore, § 20903 does not create a federal cause of action; instead, it merely provides a defense in any civil action, state or federal, in which a party seeks to rely on matters mentioned in the report. As noted above, however, “[t]he mere fact that a defendant may ultimately prove that a plaintiffs claims are preempted does not establish that they are
*793
removable to federal court;
Caterpillar,
In sum, for the reasons set forth above, the Court finds that “the case was removed improvidently and without jurisdiction.” 28 U.S.C. § 1447(c). Accordingly, this case is REMANDED 5 to the Circuit Court of Tennessee, Thirtieth Judicial District at Memphis, Shelby County, Tennessee. 6
Notes
. A number of courts, following the Supreme Court in
Caterpillar,
. To date, the Supreme Court has found "complete preemption” in only two circumstances: (1) in actions brought to enforce a collective bargaining agreement under § -301 of the Labor Management Relations Act ("LMRA”), 29 U.S.C. § 185; and (2) in actions brought to collect benefits under or to enforce rights provided by a plan covered by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).
E.g., Avco Corp.,
Although the Supreme Court has recently addressed the scope of federal preemption under the RLA,
Hawaiian Airlines v. Norris,
Furthermore, although the Supreme Court in
Hawaiian Airlines
held that preemption analysis under the RLA should be governed by the same standard governing preemption under the LMRA,
id.
at 263,
. The Court does note the apparent tension between the Sixth Circuit's position in
Warner
and language from the Supreme Court's opinion in
Caterpillar.
In
Caterpillar,
the Ninth Circuit stated that "[a] state law cause of action has been 'completely preempted’ when federal law both displaces and supplants the state law — that is, when federal law provides both a superseding remedy replacing the state law cause of action and preempts that state law cause of action.”
Williams v. Caterpillar Tractor Co.,
The nature of the relief available after jurisdiction attaches is, of course, different from the question of whether there is jurisdiction to adjudicate the controversy.... [T]he breadth or narrowness of the relief which may be granted under federal law in § 301 cases is a distinct question from whether the court has jurisdiction over the parties and the subject matter.
Id.
(quoting
Avco,
Although this Court agrees that "breadth or narrowness of the relief which may be granted under federal law” is irrelevant to the threshold question of whether the Court has removal jurisdiction over a plaintiff's claims, whether the federal statute creates a federal cause of action, irrespective of the remedies available in that action, is a necessary, although perhaps not sufficient, prerequisite to removal jurisdiction.
Schmeling,
. The fact that the state courts lack jurisdiction to hear claims involving minor disputes provides an additional argument against removal jurisdiction on the basis of RLA preemption. It is well settled that an action is removable to federal court only if it is also within the subject matter jurisdiction of the state court from which it was removed. As Justice Brandeis stated in
Lambert Run Coal Co. v. Baltimore & Ohio R.R.,
As the state court was without jurisdiction over either the subject matter or the United States, the District Court could not acquire jurisdiction over them by removal. The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.
Id.
at 382,
. Because this case is being remanded on the grounds that "the case was removed improvidently and without jurisdiction,” 28 U.S.C. § 1447(c), the Court notes that this Order may not be appealed, 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise .... ”);
see Zuniga v. Blue Cross & Blue Shield of Mich.,
. Although the Court has not addressed the merits of defendant's motion for summary judgment, the Court is nonetheless compelled to address briefly defendants' arguments in support of its motion for summary judgment. In particular, the Court is troubled by defendants' complete failure to address the impact of
Hawaiian Airlines
in its motion for summary judgment. Prior to the Supreme Court’s decision in
Hawaiian Airlines,
a number of courts, including the Sixth Circuit, had held that preemption under the RLA was more pervasive than preemption under the LMRA.
E.g., Henegar v. Banta,
Defendants’ reliance on the Sixth Circuit’s opinion in
Henegar v. Banta,