Citations
- 252 F. Supp. 3d 1132
Full opinion text
MEMORANDUM OPINION AND ORDER
James 0. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes 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, the Court denies Firebird Structures’ Motion.
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., 792 F.Supp.2d 1174, 1179 (D.N.M. 2011)(Browning, J.)(“‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ ”)(alteration in original)(quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)). “The Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Furthermore, as applicable in this case, the Norris-La Guardia Act § 9, 29 U.S.C. § 109, provides:
No restraining order or temporary 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.
6. Firebird Structures does not recognize the Carpenters’ Union as its employees’ representative. See Verified Complaint ¶ 5, 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, Firebird Structures no longer employed the employees who attended the meeting at the Carpenters’ Union. See Whitesitt Decl. ¶ 7, at 2; Tr. at 24:2-3 (Cannedy).
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”); Verified Complaint ¶' 10, at 2 (alleging that the Carpenters’ Union circulated flyers containing information regarding relations between Firebird Structures’ management and employees).
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 (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)(‘Tve 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.”).
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 from Firebird Structures, followed Con-boy’s vehicle- after Conboy departed from his office at Firebird Structures, at least once or twice, and at least until Conboy arrived at “a busy intersection.” Tr. at 109:1-3 (Conboy). See id. at 116:22-117:2 (Conboy).
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 Complaint ¶¶ 27-31, at 4; (iii) nuisance, see Verified Complaint ¶¶ 32-36, at 4-6; (iv) harassment, see Verified Complaint ¶¶ 37-41, at 5;- (v) tortious interference with existing contractual relations, see Verified Complaint ¶¶ 42-46, at 6-6; (vi) intentional interference with prospective contractual relations, see Verified Complaint ¶¶ 48-54, at 6; (vii) prima facie tort, see Verified Complaint ¶¶ 65-60, at 6-7; and (viii) injunctive relief, see Verified Complaint ¶¶ 61-67.
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, 507 U.S. 218, 225, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of. Am., 768 F.3d 938, 958-59 (9th Cir. 2014)(“Betail Prop. Trust”). Firebird Structures contends that Congress did not intend the Carpenters’ Union’s “intentional tortious acts to be protected activity under the NLRA,” and Firebird Structures emphasizes that “granting an injunction in this instance does not affect the rights of Defendants, or more importantly, the rights of Firebird’s employees, under the [NLRA.] ” Motion at 3.
.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.
2. The Carpenters’ Union’s Response.
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, 383 U.S. 715, 736, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)(“Gibbs”); Fry v. Airline Pilots Assoc., 88 F.3d 831, 842 (10th Cir. 1996)(“Fry”)). The Carpenters’ Union asserts that “there is no evidence, let alone ‘clear proof that any of the alleged wrongful acts .., were authorized or ratified by the Defendant labor union, or that tlie alleged acts were committed by the Defendant, as opposed to individuals not acting per any instruction from the Defendant union.” Response at 9. The Carpenters’ Union contends that Firebird Structures “merely alleges” that the union “engaged in certain conduct, with no facts tying the unidentified individuals'allegedly engaging in the unlawful conduct to the Defendant labor union.” Response at 9-10. The Carpenters’ Union reasons that, under 29 U.S.C. §§ 101 & 106, Firebird Structures’ allegations are insufficient for the Court to issue an injunction against the union. See Response at 10 (citing Fry, 88 F.3d at 842; Ritchie v. United Mine Workers, 410 F.2d 827, 834-35 (6th Cir. 1969)).
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., 666 F.2d 1294, 1305 (10th Cir. 1981); NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 & n.3 (2d Cir. 1980)).
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 states that “the non-violent picketing, following workers to jobsites, labor speech, handing out handbills and sending letters is protected,” and consequently cannot ground state-law tort claims. Response at 3 (citations omitted). The Carpenters’ Union denies picketing, stalking, or harassing Firebird Structures; however, the Carpenters’ Union maintains that, even had it conducted the alleged activity, “picketing and following workers to jobsites to talk about the union or to picket is protected conduct,” Response at 11 (citing Steelworkers (Carrier Corp.) v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964)). The Carpenters’ Union asserts that it has the right, “to follow the primary employer’s trucks and,employees to the jobsite.” Response at 12 (citing Local No. 12, Int’l Union of Operating Eng’rs (Cal Tram Rebuilders), 267 N.L.R.B. 272, 274 (1983)).
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,' 768 F.3d 938). Firebird Structures argued that.the Court should not review its claims under any federal act, but rather under New Mexico law and “the standard for issuing an injunction that the Court is well aware of.” Tr. at 143:15-16 (Thomas). Firebird Structures emphasized that “[t]here is damage to property”, and “consistent.harassment” of Firebird Structures’ employees and principals. Tr. at 143:22-144:1 (Thomas). Firebird Structures alleged that this conduct would not stop unless the- Court issues injunctive relief. See Tr. at 144:5-6 (Thomas),.
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., 768 F.3d 938, on which Firebird Structures relies, is inapposite, “because Retail Properties is not an injunction case,” Tr. at 147:3-4 (Shanley).
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 complied 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 Structures represented twice.- See Tr. at 155:2 (Thomas). Firebird Structures then repeated the essence of its application:
[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., 495 F.2d 906, 909 (10th Cir. 1974). A federal district court has “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. There is a federal question if the case arises under the Constitution, laws, or treatises of the United States. See 28 U.S.C. § 1331.
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., 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)(“Franchise Tax Bd.”), specifically, when “a federal question is presented on the face of the plaintiffs properly pleaded complaint,” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)(citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 81 L.Ed. 70 (1936)). This determination is made by examining the plaintiffs complaint, “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Franchise Tax Bd., 463 U.S. at 10, 103 S.Ct. 2841 (citing Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)). The Supreme Court of the United States has further limited subject-matter jurisdiction by requiring that the federal law relied on in the plaintiffs complaint creates a private cause of action. See Franchise Tax Bd., 463 U.S. at 25-26, 103 S.Ct. 2841. The Supreme Court has emphasized that “the, mere presence .of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). See Sandoval v. New Mexico Technology Group L.L.C., 174 F.Supp.2d 1224, 1232 n.5 (D.N.M. 2001)(Smith, M.J.)(“Merrell Dow is the controlling law when invoking subject matter' jurisdiction” and when a right under state law turns on construing federal law). District courts-must exercise “prudence and restraint” when determining whether a state cause of action presents a federal question, because “determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.” Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. at 810, 106 S.Ct. 3229.
3. In addition to the requirement that the federal question appear on the face of the complaint, “plaintiffs cause of action must either be (1) created by federal law, or (2) if it is a state-created cause of action, ‘its resolution must.necessarily turn on a substantial question of federal law.’-” Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003)(quoting Rice v. Office of Servicemembers’ Group Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001)). If the resolution turns on a substantial question of federal law, the federal question must, also be “contested.” Grable & Sons Metal Products Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 313, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)(“Grable & Sons”). Finally, the exercise of federal-question jurisdiction must also be “consistent with congressional judgment about the sound division of labor between state and federal courts governing § 1331’s application.” Grable & Sons, 545 U.S. at 313, 125 S.Ct. 2363. Particularly, the Court must determine whether recognition of federal-quéstion jurisdiction will federalize a “garden variety” state-law claim that will result in the judiciary being bombarded with cases traditionally heard in state courts. Grable & Sons, 545 U.S. at 318, 125 S.Ct. 2363. See Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 WL 1324119, at *7-9 (D.N.M. Apr. 30, 2009)(Browning, J.).
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, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003), As the Supreme Court has explained, the well-pleaded complaint rule means that “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425 (emphasis in original). The Supreme Court has long held:
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, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908).
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, 482 U.S. at 393, 107 S.Ct. 2425. See generally 14B, Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and Procedure, § 3722.2, at 399-583 (4th ed. 2009)(discuss-ing “removal based on complete preemption”). “That doctrine posits that there are some federal statutes that have such ‘extraordinary pre-emptive power’ that they ‘convert[] an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” Retail Prop. Trust, 768 F.3d at 947-48 (alterations original)(quoting Metro. Life Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). “Once an area of state law has been- completely preempted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425. Consequently, “[w]hen a plaintiff raises such a completely preempted státe-law claim in his complaint, a court is obligated to construe the complaint as raising a federal claim and therefore ‘arising under’ federal law.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005)(alteration added).
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., 387 F.3d 1146, 1154-56 (10th Cir. 2004)(discussing Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), and citing Caterpillar Inc. v. Williams, 482 U.S. at 393, 107 S.Ct. 2425)). Additionally, the United States Court of Appeals for the Ninth Circuit has explained:
“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, 768 F.3d at 947 (alteration added)(quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013). The Ninth Circuit has also noted that the occurrence of complete preemption is “rare,” ARCO Envtl. Remediation, LLC v. Mont. Dep’t of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000), and “the Supreme Court has recognized only three instances of ‘complete jurisdiction,’” Retail Prop. Trust, 768 F.3d at 956 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. at 7-11, 123 S.Ct. 2058 (recognizing §§ 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86, as a basis for complete preemption); Metro. Life Co. v. Taylor, 481 U.S. at 65-67, 107 S.Ct. 1542 (recognizing § 502(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a), as a basis for complete preemption); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558-62, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)(recognizing § 301 of the LMRA, 29 U.S.C. § 187, as a basis for complete preemption)). See Carroll v. City of Albuquerque, 749 F.Supp.2d 1216, 1223 (D.N.M. 2010)(Browning, J.)(“The Supreme Court of the United States has recognized complete preemption as to three federal laws: (i) the LMRA, 29 U.S.C. § 185; (ii) the National Bank Act, 12 U.S.C, §§ 85, 86, and (iii) the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1132.”)(citations omitted).
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 the court. 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 ordinarily 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, 383 U.S. at 725, 86 S.Ct. 1130 (alterations original)(quoting U.S. Const. art. III, § 2)(citing Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S.Ct. 549, 77 L.Ed. 1062 (1933)).
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., 379 F.3d 1161, 1165 (10th Cir. 2004)(citing City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997); Gibbs, 383 U.S. at 726, 86 S.Ct. 1130). In circumstances where the supplemental jurisdiction statute may support supplemental jurisdiction, the district court retains discretion to decline to exercise that jurisdiction. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d at 1165. The supplemental jurisdiction statute enumerates four factors that the court should consider in whether to decline jurisdiction:
(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, 506 F.Supp.2d 767, 779 (D.N.M. 2007)(Browning, J.); Gudenkauf v. Stauffer Commc’ns, Inc., 896 F.Supp. 1082, 1084 (D. Kan. 1995)(Crow, J.).
9. Nevertheless, where state issues substantially predominate, those claims may be left for resolution by the state tribunal. See Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130; 28 U.S.C. § 1367(c). In cases in which some of the causes of action in a complaint are removable as claims arising under the original jurisdiction of the federal courts but other causes of action do not and are not independently removable, 28 U.S.C. § 1441(c) provides that “the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.” The Supreme Court has held that “the animating principle behind the pendent jurisdiction doctrine supports giving a district court discretion to remand when the exercise of pendent jurisdiction, is inappropriate.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). See Bonadeo v. Lujan, 2009 WL 1324119, at *7-9.
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 ‘embracing the place where such action is pending.’” Thompson v. Intel Corp., No. CIV 12-0620 JB/LFG, 2012 WL 3860748, at *4 (D.N.M. Aug. 27, 2012)(Browning, J.)(citing 28 U.S.C. § 1441(a)). See Huffman v. Saul Holdings Ltd. P’ship., 194 F.3d 1072, 1076 (10th Cir. 1999). Defendants may remove a civil action to federal court where the district court would have original jurisdiction over the case based upon diversity of citizenship. See Huffman v. Saul Holdings Ltd. P’ship., 194 F.3d at 1076 (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996)). Nonetheless, a presumption against removal jurisdiction exists, and federal courts “are to ... narrowly [construe removal statutes] in light of our constitutional role as limited tribunals.” Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1095 (10th Cir. 2005)(alterations added)(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); United States ex rel. King v. Hillcrest Health Ctr., 264 F.3d 1271, 1280 (10th Cir. 2001)). “All doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The defendant seeking to remove an action to federal court bears the burden of establishing the district court’s subject-matter jurisdiction over the case. See Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Carrillo v. MCS Indus., Inc., No. CIV 12-0573 JB/WPL, 2012 WL 5378300, at *6-9 (D.N.M. Oct. 15, 2012)(Browning, J).
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., 50 F.3d 871, 873 (10th Cir. 1995); Fajen v. Found. Reserve Ins. Co., 683 F.2d at 333; Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001); Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“Removal statutes are strictly construed, and ambiguities should be resolved in favor of remand.”). The defendant seeking removal must establish that federal court jurisdiction is proper “by a preponderance of the evidence.” McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008). See also Bonadeo v. Lujan, 2009 WL 1324119, at *4 (“As the removing party, the defendant bears the burden of proving all jurisdictional facts and of establishing a right to removal.”). Because federal courts are courts of limited jurisdiction, the Tenth Circuit has ruled that “courts must deny such jurisdiction if not affirmatively apparent on the record.” Okla. Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.Appx. 775, 778 (10th Cir. 2005). See Carrillo v. MCS Indus., Inc., 2012 WL 5378300, at *6-9.
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., 2012 WL 3860748, at *5. A removal which does not comply with the express statutory requirements is defective and must be remanded to state court. See Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d at 1077. See also Chavez v. Kincaid, 15 F.Supp.2d 1118, 1119 (D.N.M. 1998)(Campos, J.)(“The [r]ight to remove a case that was originally in state court to federal court is purely statutory, not constitutional.”).
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 district and division where the state action is pending-, “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action,” 28 U.S.C, § 1446(a). Such notice of removal is proper if filed within thirty days from -the date when, the case qualifies for federal jurisdiction. See 28 U.S.C. § 1446(b); Caterpillar Inc. v. Lewis, 519 U.S. at 68-69, 117 S.Ct. 467. The Tenth Circuit has further elaborated that, for the thirty-day period 'to begin to run, “this court requires clear and unequivocal notice from the [initial] pleading itself’ that federal jurisdiction is available. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998). The Tenth Circuit specifically disagrees with “cases from other jurisdictions which impose a duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist.” Akin v. Ashland Chem. Co., 156 F.3d at 1036. See Carrillo v. MCS Indus., Inc., 2012 WL 5378300, at *6-9.
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 519 U.S. at 70-78, 117 S.Ct. 467. Similarly, citing Caterpillar Inc. v. Lewis, 519 U.S. at 77, 117 S.Ct. 467, the Tenth Circuit has held that “a defect in removal procedure, standing alone, is not sufficient to warrant vacating judgment and remand to state court if subject matter jurisdiction existed in the federal court.” Browning v. Am. Family Mut. Ins. Co., 396 Fed.Appx. 496, 505-06 (10th Cir. 2010)(citing Caterpillar v. Lewis, 519 U.S. at 77, 117 S.Ct. 467). In McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir. 1998), the United States Court of Appeals for the Seventh Circuit noticed on appeal defects in the notice of removal, including that- the notice failed to properly allege diversity'of citizenship. See 150 F.3d at 653 (“As it happens, no one paid attention to subject-matter jurisdiction .... ”). The Seventh Circuit permitted the defective notice of removal to be amended on appeal to properly establish subject-matter jurisdiction. See 150 F.3d at 653-54.
15, The Tenth Circuit has allowed defendants to remedy defects in their petition or notice of removal. See Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 723 (10th Cir. 2007)(granting unopposed motion to amend notice of removal to properly allege .jurisdictional facts); Watkins v. Terminix Int’l Co., Nos. CIV 96-3053, 96-3078, 1997 WL 34676226, at *2 (10th Cir. May 22, 1997)(per euriam)(reminding the defendant that, on remand, it should move to amend the notice of removal to properly allege jurisdictional facts); Lopez v. Denver & Rio Grande W.R.R. Co., 277 F.2d 830, 832 (10th Cir. 1960)(“Appellee’s motion to amend its petition for removal to supply sufficient allegations of citizenship and principal place of business existing' at the time of commencement of this action-is hereby: granted, and diversity jurisdiction is therefore present.”).
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., 390 F.2d 299, 301 (10th Cir. 1968). The Tenth Circuit noted that a simple error in a jurisdictional allegation included failing to identify a corporation’s principal place of business or referring to an individual’s state of residence rather than citizenship. Hendrix v. New Amsterdam Cas. Co., 390 F.2d at 301. In McEntire v. Kmart Corp., No. CIV 09-0567, 2010 WL 553443 (D.N.M. Feb. 9, 2010)(Browning, J.), when faced with insufficient allegations in the notice of removal — allegations of “residence” not “citizenship” — the Court granted the defendants leave to amend their notice of removal to cure the errors in some of the “formalistic technical requirements.” 2010 WL 553443, at *8 (citing Hendrix v. New Amsterdam Cas. Co., 390 F.2d at 300-02). Further, in Thompson v. Intel Corp., the Court permitted the defendant Intel Corp. to amend its notice of removal to include missing jurisdictional elements, including evidence that its principal place of business and corporate headquarters— the center of Intel Corp.’s direction, control, and coordination of activities — is out of state, so that the diversity requirements were met. See 2012 WL 3860748, at *1,
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., 2012 WL 5378300, at *6-9.
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., 2012 WL 3860748, at *8 (citing McPhail v. Deere & Co., 529 F.3d at 956). The Tenth Circuit explained in McPhail v. Deere & Co. that a district court may have evidence presented to a district court after a notice of removal .has been filed, even if produced at a hearing on subject-matter jurisdiction, to determine , if the jurisdictional requirements are met. See 529 F.3d at 953. “[B]eyond the complaint itself,, other documentation can provide the basis for determining the amount in controversy— either interrogatories obtained in state court before removal was filed, or affidavits or other evidence submitted in federal court afterward.” 529 F.3d at 956 (citing Meridian Secs. Ins. Co. v. Sadowski, 441 F.3d 536, 541-42 (7th Cir. 2006), and Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). As this Court has explained, “the Seventh Circuit, on which the Tenth Circuit has heavily relied when addressing the amount in controversy, has recognized that ‘events subsequent to removal may clarify what the plaintiff was actually seeking when the case was removed.’” Aranda v. Foamex Int'l, 884 F.Supp.2d 1186, 1208 (D.N.M. 2012)(Browning, J.)(quoting Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011)). Thus, when determining if the requirements for federal jurisdiction are met in a matter removed from state court, a district court may consider evidence submitted after removal. See Thompson v. Intel Corp., 2012 WL 3860748, at *14 (“[I]t is appropriate to consider post-removal evidence to determine whether subject-matter jurisdiction exists.”); Carrillo v. MCS Indus., Inc., 2012 WL 5378300, at *6-9.
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., 792 F.Supp.2d at 1181; 13 Moore’s Federal Practice ¶ 65.36(1), at 65-83 (3d ed. 2004). The primary difference between a TRO and a preliminary injunction is that a TRO may issue without notice to the opposing party and that a TRO is of limited duration. See Fed. R. Civ. P. 65(b). In both cases, however, injunctive relief is an “extraordinary remedy,” and the movant ■must demonstrate a “clear and unequivocal right” to have a request granted. Leviton Mfg. Co., Inc. v. Nicor, Inc., No. CIV 04-0424 JB/RHS, 2007 WL 505796, at *3 (D.N.M. January 8, 2007)(Browning, J.)(citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)). See Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1181. The Supreme Court and the Tenth Circuit have explained that “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). See Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir.2003)(“ ‘In issuing a preliminary injunction, a court is primarily attempting to preserve the power to render a meaningful decision on the merits.’”)(quoting Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)).
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., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)(“Winter”)(citing Munaf v. Geren, 553 U.S. 674, 689-69