           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2     Loftis v. United Parcel Service, et al.      No. 01-6194
        ELECTRONIC CITATION: 2003 FED App. 0306P (6th Cir.)
                    File Name: 03a0306p.06                                                 _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                                                                       ARGUED: Larry W. Bridgesmith, WALLER, LANSDEN,
                  FOR THE SIXTH CIRCUIT                                DORTCH & DAVIS, Nashville, Tennessee, for Appellants.
                    _________________                                  Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville,
                                                                       Tennessee, for Appellee.  ON BRIEF:        Larry W.
 THOMAS P. LOFTIS,                X                                    Bridgesmith, Mark W. Peters, WALLER, LANSDEN,
             Plaintiff-Appellee, -                                     DORTCH & DAVIS, Nashville, Tennessee, for Appellants.
                                   -                                   Richard Baker, BAKER, GULLEY & OLDHAM, Knoxville,
                                   -   No. 01-6194                     Tennessee, for Appellee.
            v.                     -
                                    >                                                      _________________
                                   ,
 UNITED PARCEL SERVICE,            -                                                           OPINION
 INC.; DAVID COLE ,                -                                                       _________________
        Defendants-Appellants, -
                                   -                                      DAVID M. LAWSON, District Judge. The question
 KENNETH ADKINS,                   -                                   presented by the parties in this appeal is whether the lower
           Defendant-Appellee. -                                       court abused its discretion when, after some of the defendants
                                   -                                   had removed the case to federal court under 28 U.S.C. § 1441,
                                  N                                    the district court allowed the plaintiff to amend his complaint
        Appeal from the United States District Court                   to delete the allegations that made the case removable, and
    for the Eastern District of Tennessee at Knoxville.                then remanded the case to state court. We do not reach that
      No. 01-00267—James H. Jarvis, District Judge.                    issue, because we find that there is a more fundamental defect
                                                                       in the removal procedure. Because we find that the removal
                    Argued: March 11, 2003                             was defective due to the failure of all defendants to join in the
                                                                       removal petition, we affirm the district court’s order of
             Decided and Filed: August 26, 2003                        remand.

 Before: MOORE and CLAY, Circuit Judges; LAWSON,                                                      I.
                 District Judge.*                                        The events giving rise to this case occurred on April 29,
                                                                       1999 at the United Parcel Service facility on Callahan Road


    *
     The Honorable David M. Lawson, United States District Judge for
the Eastern D istrict of M ichigan, sitting by de signation.

                                 1
No. 01-6194          Loftis v. United Parcel Service, et al.           3    4     Loftis v. United Parcel Service, et al.      No. 01-6194

in Knoxville, Tennessee.1 Two UPS employees, Thomas                         plaintiff then amended his complaint on May 3, 2001 in state
Loftis, the plaintiff-appellee, and Kenneth Adkins, the                     court to include allegations that all of the actions taken by the
defendant-appellee, became involved in a “heated” argument                  defendants against the plaintiff were “to gain advantage in an
involving job start times. Adkins reported the incident to the              employment dispute” and “to discharge plaintiff Tom Loftis
police, and later met with defendant-appellant Cole, a security             since he fully and actively exercised his rights as a union
supervisor for defendant-appellant UPS. Thereafter, Adkins                  member,” and that “[s]uch conduct is outrageous in the
contended that the plaintiff had physically assaulted him.                  extreme and could serve to undermine the current peace
Cole then terminated the plaintiff without further warning, as              between labor and management throughout the United
permitted by the terms of a collective bargaining agreement                 States.” First Am. Compl. ¶ 26.
that listed fighting as a cardinal violation that warranted
immediate discharge.                                                           Within thirty days of receiving the amended complaint,
                                                                            defendants UPS and Cole filed their removal petition in
  Criminal proceedings were initiated against the plaintiff on              federal court pursuant to 28 U.S.C. § 1441(b), contending that
the basis of Adkins’ complaint. UPS filed a civil complaint                 the new allegations asserted, in effect, an unfair labor practice
seeking a temporary restraining order and permanent                         claim under 29 U.S.C. § 158(a) over which federal courts
injunction against the plaintiff based on the alleged physical              have original federal question jurisdiction under the doctrine
assault. The criminal proceedings and the application for the               of complete preemption. See Metro. Life Ins. Co. v. Taylor,
injunction were eventually dismissed.                                       481 U.S. 58, 63-64 (1987) (citing Avco Corp. v. Machinists,
                                                                            390 U.S. 557 (1968)); San Diego Building Trades Council,
  On April 27, 2000, the plaintiff filed a complaint in the                 Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236
Circuit Court for Knox County, Tennessee, alleging that UPS,                (1959). Adkins did not join in the removal petition, and in
Cole, and Adkins engaged in behavior that constituted the                   fact filed a timely motion to remand based on lack of
torts of outrageous conduct, malicious prosecution, and abuse               jurisdiction. The plaintiff likewise filed a motion to remand.
of process under Tennessee law. Thereafter, Adkins signed                   UPS and Cole opposed these motions. Soon thereafter, the
an affidavit dated May 2, 2001 in which he recanted                         plaintiff filed a motion to further amend his complaint along
testimony he had given previously in the injunction                         with a proposed second amended complaint, followed a day
proceedings and at an arbitration hearing that the plaintiff had            later by a second motion to remand. The proposed second
physically assaulted him. In the affidavit, Adkins stated that              amended complaint deleted the language added by the first
the April 29, 1999 incident never involved any physical                     amended complaint, upon which UPS based its removal. The
contact, and that UPS security supervisor Cole threatened and               defendants filed responses in opposition to these motions as
coerced Adkins to fabricate his story that the plaintiff had                well.
physically assaulted him so that Cole would have cause to fire
the plaintiff from his union-protected job at UPS. The                        In a memorandum opinion and order dated August 23,
                                                                            2001, the district court denied Adkins’ motion to remand,
                                                                            denied the plaintiff’s original motion to remand, granted the
    1
                                                                            plaintiff’s motion to amend, directed the clerk to file the
      The facts of this case are essentially the same as those in           amended complaint, granted the plaintiff’s second motion to
International Brotherhood of Teamsters, Local 519 v. United Parcel          remand, and remanded the case to the Circuit Court for Knox
Service, Inc., 335 F.3d 4 97 (6th Cir. 2003), which concerned a grievance
arbitration brough t on the p laintiff’s behalf by his unio n local.
                                                                            County, Tennessee. The court reasoned that the plaintiff’s
No. 01-6194        Loftis v. United Parcel Service, et al.       5    6     Loftis v. United Parcel Service, et al.      No. 01-6194

amended complaint alleged an unfair labor practice within the         Inc., 201 F.3d 754, 759 (6th Cir. 2000), it is the lower court’s
meaning of Section 8(a) of the Labor Management Relations             exercise of discretion to remand the plaintiff’s pendent state
Act (LMRA), 29 U.S.C. § 158(a), thereby stating a cause of            law claims that is called into question by defendants UPS and
action “arising under” the laws of the United States, and was         Cole in this appeal. See Carnegie-Mellon University v.
properly removed under 28 U.S.C. § 1441(b). Because the               Cohill, 484 U.S. 343, 348 (1988) (holding that “a district
district court concluded it had removal jurisdiction, it felt         court has discretion to remand a removed case to state court
compelled to deny Adkins’ motion and the plaintiff’s first            when all federal-law claims have dropped out of the action
motion to remand. However, after permitting the plaintiff to          and only pendent state-law claims remain.”). Were we to
file his second amended complaint, the lower court observed           reach that issue, we would review for abuse of discretion the
that no federal cause of action remained. Although the court          district court’s decision to refuse to exercise jurisdiction over
believed that the amendment to the complaint did not divest           pendent state claims, Landefeld v. Marion Gen. Hosp. Inc.,
it of subject matter jurisdiction over the remaining state law        994 F.2d 1178, 1182 (6th Cir. 1993), as we would employ a
claims, the district court, in its discretion, declined to exercise   deferential standard of review of a district court’s decision to
supplemental jurisdiction over those claims and remanded              grant a motion to amend a complaint pursuant to Federal Rule
them to the state court. See 28 U.S.C. § 1367(c).                     of Civil Procedure 15(a). See Head v. Jellico Housing
                                                                      Authority, 870 F.2d 1117, 1123 (6th Cir. 1989) (“The
  Defendants UPS and Cole filed a motion to stay the order            decision as to when ‘justice requires’ an amendment is within
of remand and a motion for reconsideration, both of which             the discretion of the trial judge, and we review the decision
were denied by the district court. The defendants then filed          under an abuse of discretion standard.”); Hodges v. Rose, 570
a notice of appeal and a motion for stay pending appeal. The          F.2d 643, 649 (6th Cir. 1978) (“The grant or denial of a
motion for stay was denied by the district court. This appeal         motion for leave to amend under Rule 15 is within the sound
followed.                                                             discretion of the District Court, and will be reversed only for
                                                                      an abuse of discretion.”).
                                II.
                                                                         However, we do not reach the question of the district
  The plaintiff previously filed a motion to dismiss this             court’s exercise of discretion because we find that there was
appeal, contending that this Court lacked jurisdiction to             a more basic defect in the removal procedure, as explained
review an order of remand because of the prohibition stated           below, that normally would be insulated from appellate
in 28 U.S.C. § 1447(d) (“An order remanding a case to the             review by 28 U.S.C. § 1447(d), but which is presented to us
State court from which it was removed is not reviewable on            for decision by the unique procedural posture of the case.
appeal or otherwise . . . .”). Another panel denied the               Compare Baldridge v. Kentucky-Ohio Transp., Inc., 983 F.2d
plaintiff’s motion, finding that we have jurisdiction over an         1341 (6th Cir. 1993). Although the case is before this court
appeal from a district court’s discretionary decisions to             on a challenge to the district court’s exercise of discretion in
remand that are not based on lack of subject matter                   refusing to retain jurisdiction over pendent state law claims
jurisdiction or defects in the removal procedure. See                 under 28 U.S.C. § 1367(c), we believe that the record plainly
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12                demonstrates that the removal petition was defective because
(1996); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456,            all defendants did not join in the petition or consent to
460 (6th Cir. 2002). Although questions of subject matter             removal. See Brierly v. Alusuisse Flexible Packaging, Inc.,
jurisdiction are reviewed de novo, Long v. Bando Mfg. of Am.,         184 F.3d 527, 533 n.3 (6th Cir. 1999), cert. denied, 528 U.S.
No. 01-6194       Loftis v. United Parcel Service, et al.      7    8     Loftis v. United Parcel Service, et al.     No. 01-6194

1076 (2000). Defendant Adkins not only failed to consent to         labor practice, and that claims of that nature are preempted by
the removal, but affirmatively opposed it and filed a timely        the LMRA.
motion to remand. Adkins did not assert the rule of
unanimity in support of his motion to remand. However, in             Federal courts use the “well-pleaded complaint” rule to
reviewing a lower court decision, we may affirm for any             determine “arising under” jurisdiction. Long, 201 F.3d at
reason presented in the record, even if the reason was not          758. That rule provides that “‘federal jurisdiction exists only
raised below. U.S. Postal Serv. v. Nat’l Ass’n of Letter            when a federal question is presented on the face of the
Carrier, AFL-CIO, 330 F.3d 747, 750 (6th Cir. 2003) (“We            plaintiff’s properly pleaded complaint.’” Id. (quoting
may affirm a decision of the district court if correct for any      Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).
reason, including one not considered below.”); City Mgmt.           “[T]he party who brings the suit is master to decide what law
Corp. v. U.S. Chem. Co. Inc., 43 F.3d 244, 251 (6th Cir.            he will rely upon.” The Fair v. Kohler Die & Specialty Co.,
1994) (explaining that court of appeals may affirm a decision       228 U.S. 22, 25 (1913). “The well-pleaded complaint rule
of the district court “on any grounds supported by the              generally provides that the plaintiff is the master of his
record”).                                                           complaint, and the fact that the wrong asserted could be
                                                                    addressed under either state or federal law does not ordinarily
  The question of whether there is a defect in the removal          diminish the plaintiff’s right to choose a state law cause of
procedure is a purely legal one, which we review de novo.           action.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943
We turn first, however, to the plaintiff’s challenge to the         (6th Cir. 1994).
district court’s subject matter jurisdiction.
                                                                       Generally, a state law claim cannot be “recharacterized” as
                               A.                                   a federal claim for the purpose of removal. Taylor, 481 U.S.
                                                                    at 63. Similarly, “a case may not be removed to federal court
  Among the arguments advanced by the plaintiff in support          on the basis of a federal defense, including the defense of
of the order of remand is the contention that the federal court     pre-emption, even if the defense is anticipated in the
had no subject matter jurisdiction to begin with, since the first   plaintiff's complaint, and even if both parties concede that the
amended complaint did not state a claim under Section 8 of          federal defense is the only question truly at issue.”
the LMRA, and therefore contained no cause of action                Caterpillar, 482 U.S. at 393 (citing Franchise Tax Bd. v.
“arising under” the laws of the United States. See 28 U.S.C.        Constr. Laborers Vacation Trust, 463 U.S. 1, 12 (1983)).
§§ 1331, 1441(b). The plaintiff reasons that want of federal        However, if an area of the law is “completely preempted,”
question jurisdiction required a remand.                            then the state law claim is displaced by the federal cause of
                                                                    action, and the action is subject to removal. Taylor, 481 U.S.
  Defendants UPS and Cole argue that the first amended              at 63-64; Warner v. Ford Motor Co., 46 F.3d 531, 534 (6th
complaint’s added language, stating that Cole and UPS               Cir. 1995) (en banc). The rationale undergirding this
effectively suborned perjury in order to “gain advantage in an      exception is that where federal preemption is so complete that
employment dispute” and fabricate a reason to discharge the         conflicting state law not only must yield but is effectively
plaintiff in retaliation for exercising his rights as a union       extinguished, the only theory of recovery remaining is the
member, made out a claim “arising under” federal law,               federal claim, which takes the place of the state law claim
regardless of the plaintiff’s lack of intent to plead such a        recited in the complaint. See Beneficial Nat. Bank v.
claim. They contend that the allegations describe an unfair         Anderson, 123 S. Ct. 2058, 2063 (2003) (“When the federal
No. 01-6194       Loftis v. United Parcel Service, et al.      9    10    Loftis v. United Parcel Service, et al.      No. 01-6194

statute completely pre-empts the state-law cause of action, a       States.” Ibid. Whether or not he intended to plead it, the
claim which comes within the scope of that cause of action,         plaintiff defined an unfair labor practice. As the district court
even if pleaded in terms of state law, is in reality based on       correctly observed, the allegations describe acts that could
federal law.”); Warner, 46 F.3d at 534. The complaint itself        undermine the “industrial peace” that the NLRA was
is therefore deemed to state a federal cause of action.             designed to preserve. See Brooks v. NLRB, 248 U.S. 96, 103
                                                                    (1954). See also NLRB v. Burns Int’l Sec. Services, Inc., 406
   Complete preemption occurs in cases that fall within the         U.S. 272, 287 (1972). The district court correctly concluded
scope of the LMRA. Miller v. Norfolk and Western Ry. Co.,           that the first amended complaint contained a claim “arising
834 F.2d 556, 564 (6th Cir. 1987) (“The complete                    under” federal law.
pre-emption corollary to the well-pleaded complaint rule is
applied primarily in cases raising claims pre-empted by                                            B.
section 301 of the LMRA.”) (citing Avco Corp. v. Machinists,
390 U.S. 557 (1968)). Section 7 of the Act secures a worker’s          As noted earlier, there is a rule of unanimity that has been
right to chose to join a labor union, and Section 8(a) provides,    derived from the statutory language prescribing the procedure
among other things, that an employer who interferes with an         for removing a state action to federal court, 28 U.S.C. § 1446.
employee’s exercise of that right, or discriminates or retaliates   This rule of unanimity demands that all defendants must join
against an employee because of membership in a labor union          in a petition to remove a state case to federal court. See
or participation in union activities, commits an unfair labor       Brierly, 184 F.3d at 533 n.3 (“The rule of unanimity requires
practice. 29 U.S.C. § 158(a); Goldtex, Inc. v. NLRB, 14 F.3d        that in order for a notice of removal to be properly before the
1008, 1014 (4th Cir. 1994) (holding that “Section 8(a)(3) of        court, all defendants who have been served or otherwise
the Act ensures that no employee may be discharged because          properly joined in the action must either join in the removal,
of participation in union activities.”); Cumberland Farms,          or file a written consent to the removal.”). Section 1446
Inc. v. NLRB, 984 F.2d 556, 560 (1st Cir. 1993) (“When an           states that “[a] defendant or defendants desiring to remove
employer discharges an employee for supporting a union, he          any civil action . . . shall file . . . a notice of removal.” 28
violates the Act, 29 U.S.C. § 158(a)(3), unless he proves that      U.S.C. § 1446(a) (emphasis added). In Chicago, R. I. & P.
he would have taken the same action in the absence of the           Ry. Co. v. Martin, 178 U.S. 245, 248 (1900), this statute’s
employee’s union activities.”). The essence of an unfair labor      precursor containing similar language was interpreted to mean
practice under Section 8(a) is an employer’s unfair treatment       that all the defendants must unite in a petition for removal to
of an employee because of the employer’s anti-union animus.         federal court. Although in Brierly we mentioned this rule in
                                                                    the context of determining the time within which an earlier-
                                                                    served defendant must consent to a later-served defendant’s
   The plaintiff’s first amended complaint filed in state court     removal effort, see Brierly, 184 F.3d at 533 n.3, no case
specifically alleged that UPS’s outrageous conduct was              decided in this Circuit has made explicit the rule requiring
perpetrated upon the plaintiff “in an attempt to discharge          unanimous consent to removal. However, the rule is
[him] since he fully and actively exercised his rights as a         universally accepted in the other circuits to consider the
union member.” First Am. Compl. ¶ 26. The plaintiff also            question. See Marano Enters. of Kan. v. Z-Teca Rests., L.P.,
alleged that the defendants’ conduct might result in far-           254 F.3d 753, 754 (8th Cir. 2001); Balazik v. County of
reaching consequences that could “undermine the current             Dauphin, 44 F.3d 209, 213 (3d Cir. 1995); Doe v. Kerwood,
peace between labor and management throughout the United            969 F.2d 165, 167 (5th Cir. 1992); Hewitt v. City of Stanton,
No. 01-6194      Loftis v. United Parcel Service, et al.   11    12    Loftis v. United Parcel Service, et al.     No. 01-6194

798 F.2d 1230, 1232 (9th Cir. 1986); N. Ill. Gas Co. v. Airco    § 1367(c). However, we find that the district court should
Indus. Gases, 676 F.2d 270, 272-73 (7th Cir.1982); Cornwall      have granted the plaintiff’s initial motion, and defendant
v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981).                 Adkins’ motion, to remand because defendants UPS and Cole
                                                                 failed to satisfy the rule of unanimity. Because the lower
   Consistent with the prevailing view, we hold that all         court arrived at the correct result, albeit by means of mistaken
defendants in the action must join in the removal petition or    reasoning, the order remanding the case to state court is
file their consent to removal in writing within thirty days of   AFFIRMED.
receipt of (1) a summons when the initial pleading
demonstrates that the case is one that may be removed, or (2)
other paper in the case from which it can be ascertained that
a previously unremovable case has become removable. See
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. 526 U.S.
344, 354 (1999). Failure to obtain unanimous consent
forecloses the opportunity for removal under Section 1446.
  In the present case, only defendants UPS and Cole joined
in the removal notice. Defendant Adkins did not consent to
the removal; in fact, he opposed it, and registered his
opposition by filing a motion to remand. It is true that
technical defects in the removal procedure, such as a breach
of the rule of unanimity, may not be raised sua sponte, and
must be raised by a party within thirty days of removal or
they are waived. See 28 U.S.C. § 1447(c); Page v. City of
Southfield, 45 F.3d 128, 133 (6th Cir. 1995). However, we
believe that frank opposition to removal by a codefendant
who affirmatively seeks a remand within the thirty-day period
satisfies the prerequisite of a motion, and empowers the
district court to enforce the unanimity requirement. Because
the defendants were expressly divided in their desire to
remove, the district court should have granted the initial
motions to remand.
                             III.
  We express no view on the district court’s decision to
permit the plaintiff to amend his complaint to eliminate
language that transformed his state law causes of action into
an unfair labor practice claim, or the decision to remand the
state law claims to the Tennessee state court under 28 U.S.C.
