                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0185p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                              Plaintiffs-Appellants, -
 JULIE BRITTINGHAM and DAVID BRITTINGHAM,
                                                      -
                                                      -
                                                      -
                                                           No. 06-3114
           v.
                                                      ,
                                                       >
 GENERAL MOTORS CORPORATION and VIRGINIA              -
                                                      -
                             Defendants-Appellees. -
 STULL,

                                                      -
                                                     N
                       Appeal from the United States District Court
                       for the Southern District of Ohio at Dayton.
                     No. 02-00283—Thomas M. Rose, District Judge.
                                    Argued: January 30, 2008
                                Decided and Filed: May 16, 2008
               Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Thomas J. Intili, SKILKEN, LOWE & DANKOF, Dayton, Ohio, for Appellants. John
M. Kunst, Jr., DINSMORE & SHOHL, Cincinnati, Ohio, for Appellees. ON BRIEF: Thomas J.
Intili, SKILKEN, LOWE & DANKOF, Dayton, Ohio, P. Richard Meyer, MEYER & WILLIAMS,
Jackson, Wyoming, for Appellants. John M. Kunst, Jr., Melissa L. Korfhage, DINSMORE &
SHOHL, Cincinnati, Ohio, for Appellees.
                                       _________________
                                           OPINION
                                       _________________
        MERRITT, Circuit Judge. The plaintiffs, Julie and David Brittingham, appeal the district
court’s denial of their motions to remand the case to state court and its grant of summary judgment
in favor of both defendants, Dr. Virginia Stull (“Dr. Stull”) and General Motors Corporation
(“GM”). The plaintiffs’ claims arose from a pre-employment physical examination conducted by
one of GM’s physicians, Dr. Stull. That examination produced two abnormal lung function tests,
the results of which were never discussed with Ms. Brittingham. When she was later diagnosed with
a lung disease, the plaintiffs sued GM, Dr. Stull, and several others for negligence, intentional
misconduct, breach of fiduciary duty, and fraudulent concealment. The case was originally filed in
state court, but was removed by the defendants to federal district court under 28 U.S.C. § 1441 on
the basis of complete preemption. Because we find that the district court did not have subject matter


                                                 1
No. 06-3114                 Brittingham, et al. v. General Motors Corp., et al.                Page 2


jurisdiction at the time of removal, we VACATE the district court’s judgment and REMAND with
instructions to remand the matter to the state court from which it came.
                            I.   Factual and Procedural Background
         Ms. Brittingham applied for employment at GM in July 1997. On August 1, 1997, she
underwent a pre-employment physical examination that included a pulmonary function test. After
the first test showed Ms. Brittingham’s lung function to be 57% of predicted value, the test was
repeated and again it showed diminished lung function, this time at 55% of predicted value. In her
deposition, Ms. Brittingham testified that no one explained to her why the test had to be repeated.
Joint Appendix (“JA”) at V. III, p. 493-94. After reviewing two abnormal pulmonary function tests,
Dr. Stull did not discuss the results and their significance with Ms. Brittingham. Instead, Dr. Stull
had Ms. Brittingham sign a printout of the results and then approved her for employment in a GM
plant. Subsequently, Ms. Brittingham worked full-time for GM from September 11, 1997, until
August 11, 1999, when she became physically unable to continue working. In September 1999, Ms.
Brittingham was diagnosed with Alpha-1 Antitrypsin Deficiency Syndrome (“AAD”), also known
as “acquired emphysema.” AAD is an inherited condition resulting from the liver’s failure to
produce a sufficient amount of the protein alpha-1 antritrypsin. To extend her shortening life
expectancy, Ms. Brittingham, as of September 24, 2007, was awaiting a double lung transplant
which carries a fifty percent, five-year death rate. Ms. Brittingham maintains that if Dr. Stull had
informed her of the abnormal test results and referred her to a physician, she would have stopped
smoking and sought immediate treatment.
        On February 9, 2001, the Brittinghams filed a complaint against GM, Dr. Stull, and others
in Ohio state court. J.A. at Vol. II, p.197. The defendants removed the case to federal court on the
grounds that some of the claims were subject to complete preemption under section 301 of the Labor
Management Relations Act (LMRA). They argued that the state law tort claims were actually based
on alleged breaches of the collective bargaining agreement (“CBA”) that Ms. Brittingham was
subject to during the course of her employment. The plaintiffs moved to remand arguing that the
complaint (1) only stated state law claims, (2) did not rely on any provision in the CBA, and (3) did
not contain a federal claim. J.A. at Vol. I, p. 70. The district court disagreed, reasoning that it had
subject matter jurisdiction over at least one of the plaintiffs’ claims – the allegation that Ms.
Brittingham was coerced to return to work – because it fell within the scope of the CBA and was
necessarily preempted. Id. at 74. The court noted that the CBA specifically addressed sick leave
and returning to work and that there was no basis in state tort law for a claim based on being coerced
to return to work. Id. After denying the motion to remand, the district court granted the plaintiffs’
motion to file an amended complaint – one that would be limited to state law claims – recognizing
that the plaintiffs’ express purpose was to eliminate any claim which would be subject to
preemption. Id. at 76-77.
        The plaintiffs’ first amended complaint, in addition to other changes, omitted the previous
allegations that GM (1) placed Ms. Brittingham in an environmentally hazardous work environment
and (2) coerced her to return to work when she was ill. Id. at 130 - 46. Those two claims were
dismissed with prejudice. Id. at 77. The district court then reached the issue of whether it had
original jurisdiction over any of the remaining claims in the amended complaint – essentially asking
whether there were any remaining claims that were preempted by the LMRA. The defendants
argued that several of the plaintiffs’ claims were preempted – all of which were omitted in the
amended complaint except one – “that GM and Delphi failed to disclose the results of her physical
examination both before and after her employment.” Id. at 77-78. The defendants contended that
the claim would require reference to a provision in the CBA that provides: “A report of physical
examination and any laboratory test made by physicians acting for the Corporation will be given
[sic] the personal physician of the individual employee involved upon the written request of the
employee.” Id. at 78, 168 ¶ 105. The district court found that Ms. Brittingham was not subject to
No. 06-3114                  Brittingham, et al. v. General Motors Corp., et al.                   Page 3


the CBA at the time of the examination (pre-employment) and consequently was not subject to any
particular procedure for receiving results – a finding reinforced by the complaint’s language limiting
the claim to the time period “before and after” employment. Since the plaintiffs’ claims would not
require interpretation of the CBA and were rooted in state law, none of the remaining claims were
preempted. Id. at 80. Finding it no longer had original jurisdiction, the district court then declined
to exercise supplemental jurisdiction over the plaintiffs’ state law claims, some of which might raise
“potentially complicated issues of state law.” Id. at 81. The case was remanded to state court.
        Upon returning to state court, the plaintiffs again amended their complaint and again it was
removed to federal court by the defendants. The significant difference between the first amended
complaint – in which the district court found that none of the claims were preempted – and the
amended complaint filed in state court was that the former limited the negligence claim to the time
“before and after” employment while the latter did not. Compare Pl. 1st Am. Compl. (federal court),
J.A. at V. I, p. 138 (“They failed to disclose to plaintiff Julie Brittingham the results . . . both before
and after her employment . . . ), with Pl. 1st Am. Compl. (state court), J.A. at V. I, p. 91 (“Said
Defendants failed to disclose to Plaintiff Julie Brittingham the results of her pre-employment
physical examination and testing with General Motors”). The plaintiffs filed a motion to remand
arguing that none of the claims were preempted. The district court concluded that the complaint,
“taken on its face, presents factual allegations of actions that allegedly occurred while Brittingham
was employed at GM or Delphi” and since “those actions may have taken place during the time
when Brittingham was governed by the CBA,” adjudication of the claims may require interpretation
of the CBA. J.A. at VII, p. 308. Consequently, the district court denied the plaintiffs’ motion to
remand.
         In April 2003, the district court granted the plaintiffs’ motion to file a second amended
complaint. In the second amended complaint, the plaintiffs limited each of the claims discussed
above to the time period “before and after employment.” The district court, dismissing numerous
arguments by the defendants that some of the claims were still preempted, concluded that the
plaintiffs’ second amended complaint was not subject to preemption. However, instead of
remanding the case back to state court, the court exercised supplemental jurisdiction over the state
law claims. The court attributed the volleying of the case between federal and state court to the
plaintiffs’ tactics which it found were “clearly ‘manipulative,” regardless of whether they were
intentional. Id. at 403. The court noted that significant litigation in the case had already taken place
and it found that the principles of judicial economy and fairness outweighed the principle of comity
in the instant case. Id. at 403-04.
        In November 2003, the district court granted Dr. Stull’s motion for summary judgment after
it found that the plaintiffs’ complaint was for medical malpractice, which is subject to a one-year
statute of limitations that the plaintiffs had not met. Id. at 546. In June 2004, the district court
granted GM’s motion for summary judgment because it found that, under Ohio law, a potential
employer does not have a duty to disclose an applicant’s medical condition to her and refer her to
a qualified physician. J.A. at V. IX, p.1343. Without a duty, the plaintiffs’ other claims, including
intentional misconduct, breach of fiduciary duty, fraudulent concealment, and loss of consortium
were dismissed. Id.
No. 06-3114                        Brittingham, et al. v. General Motors Corp., et al.                                Page 4


                                                     II.    Analysis1
        We review a district court’s decision regarding subject matter jurisdiction de novo. Long v.
Bando Mfg. of Am., Inc., 201 F.3d 754, 759 (6th Cir. 2000). “In order to invoke the district court’s
removal jurisdiction, a defendant must show that the district court has original jurisdiction over the
action.” Id. at 757. Further, “[t]he burden of showing that the district court has original jurisdiction
is on the party seeking removal.” Id.
        When the defendants removed the case to federal court for the second time, the district court
declined to remand it to state court. The court reasoned that it had subject matter jurisdiction because
“at least two” of the plaintiffs’ claims were preempted because they implicated facts that may have
occurred while Ms. Brittingham was an employee and governed by the CBA. On review, we find
that none of the claims in the plaintiffs’ amended complaint in state court were preempted because
none of them required an interpretation of the CBA; rather, each claim was based solely on state law
rights.
        Section 301 of the Labor Management Relations Act provides:
        Suits for violation of contracts between an employer and a labor organization
        representing employees in an industry affecting commerce . . . may be brought in any
        district court of the United States having jurisdiction of the parties, without respect
        to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). Causes of action within the scope of section 301 are removable to federal court
under the doctrine of complete preemption. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987).
“Questions relating to what the parties to a labor agreement agreed, and what legal consequences
were intended to flow from breaches of that agreement, must be resolved by reference to uniform
federal law, whether such questions arise in the context of a suit for breach of contract or in a suit
alleging liability in tort.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). In Lingle v.
Norge Division of Magic Chef, Inc., 486 U.S. 399, 404 (1988), the Supreme Court emphasized that
the policy underlying the preemption doctrine is to “ensure uniform interpretation of collective-
bargaining agreements . . . to promote the peaceable, consistent resolution of labor-management
disputes.” These policies are not implicated in every labor law case. As the Court has stated, “not
every dispute concerning employment, or tangentially involving a provision of a collective-
bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Allis-
Chalmers Corp., 471 U.S. at 211. It is only “when resolution of a state-law claim is substantially
dependent upon analysis of the terms of an agreement made between the parties in a labor contract,


         1
            Before reaching the merits, we must address the defendants’ argument that the plaintiffs are precluded from
appealing the district court’s orders denying their motions to remand because the plaintiffs did not list these orders in
their notice of appeal. In Caldwell v. Moore, 968 F.2d 595, 598 (6th Cir. 1992), the plaintiff’s notice of appeal listed
the district court’s order granting the defendants’ motion for summary judgment, but failed to list an earlier order denying
the plaintiff leave to amend his complaint. In that case, we rejected the defendants’ argument that the court could not
consider whether the district court erroneously denied the plaintiff’s leave to amend. Central to our holding was the fact
that the “denial of a request for leave to file amended complaint is not appealable;” rather, “such an order is appealable
after the entry of a final judgment because the final judgment calls into question the propriety of all the nonfinal rulings
of the district court.” Id. Since the plaintiff could not have appealed the district court’s order until after the entry of
summary judgment and the defendants failed to identify any “prejudice as a result of this omission,” we found that the
“notice of appeal was adequate to put the opposing parties on notice of the issues [the plaintiff] was appealing.” Id.
          We find the present facts indistinguishable from Caldwell. The district court’s order denying the plaintiffs’
motion to remand was not final and appealable. See Chicago, Rock Island & Pac. R.R. Co. v. Stude, 346 U.S. 574, 577
(1954). While the plaintiffs did not list all of the orders preceding final judgment, they did list the orders granting
summary judgment in favor of the defendants. Further, the plaintiffs’ brief was sufficient to put the defendants on notice
that the plaintiffs were appealing the district court’s order denying the plaintiffs’ motion to remand the case to state court.
The defendants have not shown any prejudice as a result of the plaintiffs’ omission.
No. 06-3114                  Brittingham, et al. v. General Motors Corp., et al.                 Page 5


that [the] claim must either be treated as a § 301 claim . . . or dismissed as pre-empted by federal
labor-contract law.” Id. at 220 (emphasis added). “[I]t would be inconsistent with congressional
intent under [section 301] to pre-empt state rules that proscribe conduct, or establish rights and
obligations, independent of a labor contract.” Id. at 212.
        In Lingle, the Supreme Court delineated the guiding principle for courts to use when
discerning whether the state law claim is preempted:
       [I]f the resolution of a state-law claim depends upon the meaning of a collective-
       bargaining agreement, the application of state law (which might lead to inconsistent
       results since there could be as many state-law principles as there are States) is pre-
       empted and federal labor-law principles — necessarily uniform throughout the Nation
       — must be employed to resolve the dispute.
486 U.S. at 405-06. Further, in Caterpillar, the Supreme Court clarified that “[s]ection 301 governs
claims founded directly on rights created by collective-bargaining agreements, and also claims
‘substantially dependent on analysis of a collective-bargaining agreement.’” 482 U.S. at 394 (citing
Electrical Workers v. Hechler, 481 U.S. 851, 859 n.3 (1987)). Based on the Supreme Court’s
directives, this Circuit developed a two-step approach for determining whether a state law claim is
preempted by section 301. “First, the district court must examine whether proof of the state law
claim requires interpretation of collective bargaining agreement terms.” DeCoe v. General Motors
Corp., 32 F.3d 212, 216 (6th Cir. 1994). The question informing the first step’s analysis is whether
the plaintiff can prove all the elements of her claim without contract interpretation. Id. Looking to
the essence of a plaintiff’s claim, a court must “determine whether the plaintiff is attempting to
disguise what is essentially a contract claim as a tort.” Id. The second step requires a court to
“ascertain whether the right claimed by the plaintiff is created by the collective bargaining agreement
or by state law.” Id.
        The plaintiffs’ claim for negligence and intentional misconduct was based upon two factual
allegations: (1) that “[s]aid Defendants failed to disclose to Plaintiff Julie Brittingham the results of
her pre-employment physical examination and testing with General Motors;” and (2) that “[s]aid
Defendants failed to disclose to Plaintiff Julie Brittingham facts about her medical condition that said
Defendants knew, but of which Julie Brittingham was unaware.” J.A. at V. II, p. 291. To determine
whether the claim is preempted, we inquire whether proving this claim would require the
interpretation of any provision in the CBA. We must also “ascertain whether the right claimed by
the plaintiff is created by the collective bargaining agreement or by state law.” DeCoe, 32 F.3d at
216. To succeed on a negligence claim under Ohio law, a plaintiff must establish the existence of a
duty, a breach of that duty, and causation of an injury. See Menifee, Adm’x v. Ohio Welding Prods.,
Inc. 472 N.E.2d 707, 710 (Ohio 1984). There are three CBA provisions that the defendants argue
would be relevant to a court’s inquiry. First, there is a provision that reads “[w]hen physicals are
conducted on Area Hire or Extended Area Hire Applicants, the criteria used is the same as that used
for a Fit for Duty Exam when an employee of that plant is undergoing a reinstatement to return to
work from sick leave.” J.A. at V. I, p. 169. The second provision requires the employer to provide
physical exams to employees who are exposed to certain substances and provides that each employee
may request a written report of the results of such examinations “which are related to occupational
exposure.” J.A. at V. I, p. 171. These provisions are easily dismissed as inapplicable to Ms.
Brittingham’s factual situation. The first is irrelevant because Ms. Brittingham was not an Area Hire
or Extended Area Hire Applicant. The second provision only governs examinations taken while the
individual is an employee and its procedure for the report of such results is limited to tests “related
to occupational exposure;” it would not cover pre-employment physical examinations.
      The third provision presents the more difficult question. It reads: “A report of physical
examination and any laboratory test made by physicians acting for the Corporation will be given [sic]
No. 06-3114                      Brittingham, et al. v. General Motors Corp., et al.                           Page 6


the personal physician of the individual employee involved upon the request of the employee.” J.A.
at V. I, p. 168, ¶ 105. On its face, the provision only governs employees and would not apply or
govern the disclosure of results either before or after Ms. Brittingham’s employment with GM. We
agree with the district court that if the claim is limited to the time “before and after employment,” it
is clearly not preempted. J.A. at V. I, p. 80. What makes the issue more complicated is that the
plaintiffs’ amended complaint in state court did not limit the time period to “before and after
employment.” Consequently, the defendants argue that any alleged duty to disclose that arose during
the course of Ms. Brittingham’s employment would require an interpretation of the CBA’s provision
covering the disclosure of test results to an employee. We find this argument unpersuasive.
        First, the CBA provision is best interpreted as governing individuals who were employees at
the time of the examination. The provision twice refers to an “employee,” as opposed to job
applicants. That Ms. Brittingham later became an employee does not alter our view that the provision
appears to apply solely to those individuals who were employees when the exam took place. This
reasoning comports with the district court’s interpretation of the provision when it was deciding
whether the plaintiffs’ second amended complaint was preempted. Although the second amended
complaint was limited to the time “before and after employment,” the district court’s analysis is
accurate and instructive: “the section cited presumably applies to employees who are members of
the collective bargaining unit and does not refer to physical examinations made prior to when
Brittingham was employed and was not a member of the collective bargaining unit.” J.A. at V. III,
p. 400. Second, the provision makes little sense when applied to Ms. Brittingham’s case. The
plaintiffs’ argument is based on the defendants’ failure to comply with its duty to act to disclose the
important medical information, not its failure to turn over requested information. Even if the
provision mandated that GM turn over the results of physical examinations taken while the employee
was a job applicant, that situation is clearly distinct from one where the applicant or employee is
wholly unaware that there is anything abnormal within the results such that she would want a copy
of them. The provision is triggered, based on its own language, “upon the request of the employee.”
Here, there was no reason for Ms. Brittingham to request the information – in fact, her entire
argument is premised on the fact that she did not request the files or seek medical treatment because
she was not told that her pulmonary tests were abnormal. We decline to construe the negligence
claim as relying on a CBA provision that requires the plaintiff-employee to act first when the basis
of the claim is the defendants’ failure to act.
        Further, the plaintiffs’ negligence claim is based on an alleged duty under Ohio law to
disclose test results to job applicants.2 The plaintiffs do not rely on the CBA to create the right to
have results disclosed to them. The fact that the issue has not been squarely addressed by Ohio courts
does not uniformly prohibit plaintiffs from asserting complaints based on this right in state court. We
find no CBA provision that would create a duty on employers to disclose to applicants the results of
pre-employment physical examinations. If this right and attendant duty to disclose exist, they arise
solely under state law. The defendants have not pointed, either in their briefs or at oral argument, to
any other CBA provisions which would require a court’s interpretation or would create the right the
plaintiffs now want to exercise. Consequently, we find that the plaintiffs could prove all the elements
of the negligence and intentional misconduct claim without reference to any provision in the CBA.
        Our conclusion is supported by the case law. In International Brotherhood of Electrical
Workers v. Hechler, 481 U.S. 851 (1987), the Supreme Court held that an employee’s state law tort
suit against her union for breach of the union’s duty to provide a safe workplace was preempted
because the duty arose from the collective bargaining agreement. The CBA contained provisions on

         2
           This theory of liability falls under the general negligence theory based on an affirmative duty to act. See
RESTATEMENT (SECOND) OF TORTS § 314, 314(A), 314(B), 322-25 (1979) (describing the general rule regarding one’s
duty to act and explaining what special relationships create a duty to act). The plaintiffs’ theory has been embraced by
the Ohio courts, albeit on different facts. See Meinze v. Holmes, 532 N.E.2d 170 (Ohio Ct. App. 1987).
No. 06-3114                  Brittingham, et al. v. General Motors Corp., et al.               Page 7


safety and working requirements for electrical apprentices. The Court found that the plaintiff would
have to use these provisions to argue that the Union had assumed an implied duty of care. Id. at 861-
62. This would require a court to ascertain whether the agreement in fact created an implied duty and
the nature and scope of that duty. Id. Consequently, the claim was preempted because it involved
questions of contract interpretation. In United Steelworkers of America v. Rawson, 495 U.S. 362
(1987), the Supreme Court again addressed the duty element. In Rawson, survivors of miners who
were killed in a mining fire sued the labor union for the negligent inspection of the mine. The Idaho
Supreme Court held that the plaintiffs’ claims were not preempted. It reasoned that the union was
liable under state tort law because its duty to perform the inspection reasonably arose from the
inspection itself, rather than from the collective bargaining agreement provision that required the
union’s participation in mine inspections. Id. at 370-71. The Supreme Court disagreed, finding that
the “tort claim cannot be described as independent of the collective-bargaining agreement.” Id. at
371. Significantly, the Court found that “[t]his is not a situation where the Union’s delegates are
accused of acting in a way that might violate the duty of reasonable care owed to every person in
society.” Id. Rather, because the duty “[arose] out of the collective-bargaining agreement . . . .the
enforcement of that agreement and the remedies for its breach are matters governed by federal law.”
Id. at 371.
        In the present case, the CBA did not impose a duty on GM to conduct pre-employment
physical examinations. If it did, there would be no distinction between this case and Rawson. The
plaintiffs would essentially be arguing that GM had a derivative duty to disclose the results arising
from its agreement-imposed duty to conduct the tests. Instead, the plaintiffs’ argument is that Ohio
law imposes a duty on potential employers to disclose the results of a pre-employment physical
examination. That issue is not free from doubt, but whether a duty exists under Ohio law does not
change the basic fact that the CBA does not require GM to conduct the pre-employment examinations
and it says nothing about the disclosure of results from them. The sole provision put forth by the
defendants relates to the disclosure of results to an employee upon request. This has no bearing on
whether a potential employee has a right to receive negative results of which she was wholly
unaware. Based upon the above analysis, we hold that the plaintiffs’ negligence claim is not
preempted.
          In addition to the negligence and intentional misconduct claim, the plaintiffs’ amended state
court complaint contained claims alleging the following: (1) breach of fiduciary duty by GM and
Delphi, (2) fraudulent concealment, (3) medical negligence, and (4) loss of consortium by Mr.
Brittingham. The district court referred to both the breach of fiduciary duty claim and the medical
negligence claim when it determined that “at least two” of the plaintiffs’ claims were preempted. The
court reasoned that the claims were preempted because they “present[] factual allegations of actions
that allegedly occurred while Brittingham was employed at GM and Delphi. Further, those actions
may have taken place during the time when Brittingham was governed by the CBA. Therefore,
adjudication of the claims that arise from those actions may require interpretation of the CBA.” J.A.
at V. II, p. 308. We are unpersuaded by the argument that because the claims may implicate the time
period during which Ms. Brittingham was employed, they are necessarily preempted. If that were
the case, then every time an employee who was governed by a CBA sued her employer, the claims
would be preempted. This is an illogical result and one that has been rejected by the Supreme Court.
In Lingle, the Supreme Court addressed “whether an employee covered by a collective-bargaining
agreement that provides her with a contractual remedy for discharge . . . may enforce her state-law
remedy for retaliatory discharge.” 486 U.S. at 401. The Court held that the state tort remedy was
not preempted. In reaching its conclusion, the Court set forth the elements of a retaliatory discharge
claim. Id. at 407. While the Court acknowledged that the plaintiff would have to address “purely
factual questions [pertaining] to the conduct of the employee and the motivation of the employer,”
it stressed that “[n]either of the elements requires a court to interpret any term of a collective-
bargaining agreement.” Id. For these reasons, the state law remedy was “independent” of the CBA
meaning “resolution of the state-law claim does not require construing the collective-bargaining
No. 06-3114                  Brittingham, et al. v. General Motors Corp., et al.                Page 8


agreement.” Id. Similarly, the Brittinghams’ state law claims are not preempted unless they require
a court to interpret a provision in the CBA, although the claims may rely on factual questions
pertaining to conduct that occurred while Ms. Brittingham was an employee. The only CBA
provision arguably on point sets forth a “comprehensive process for handling employee grievances.”
Defendants-Appellees Brief, p. 19. Yet the grievance procedure specifically states that it is
addressing “[grievances] in connection with [employees’] work.” J.A. at V. I, p. 157. This provision
is inapplicable because Ms. Brittingham does not have a grievance in connection with her “work”
at the GM plant. The defendants fail to point to any CBA provisions that govern an employee’s
breach of fiduciary duty claims or medical negligence claims.
        Resolving the plaintiffs’ state law claims will not “substantially” depend upon analysis of any
provision in the CBA because there is only one CBA provision that has, at best, a tangential
relationship to the state law claims. See Allis-Chalmers Corp., 471 U.S. at 211, 220. Since all of the
plaintiffs’ claims are rooted in state law and do not require a court to interpret the CBA, we hold that
none of the claims in the plaintiffs’ amended complaint in state court were preempted. Accordingly,
the district court did not have subject matter jurisdiction when the case was removed to federal court
for the second time.
                                         III.   Conclusion
        For the foregoing reasons, we VACATE the district court’s judgment and REMAND with
instructions to remand the matter to the state court.
