Opinion
CIVIL ACTION NO. 02-3310 SECTION "N"
April 8, 2003
ORDER AND REASONS
Defendant Occidental Chemical Corporation removed this action from Louisiana state court on November 1, 2002. Before the Court is a motion to remand filed by Plaintiff, Cornelius J. Dupard, on November 22, 2002. Counsel for the parties presented oral argument on the motion to the Court on February 5, 2003. For the reasons that follow, Dupard's motion to remand is GRANTED. Dupard's request for an award of attorney's fees and costs under 28 U.S.C. § 1447(c), however, is DENIED.
BACKGROUND
Dupard, a railroad worker, alleges that he was injured on or about October 1, 2001, when he was exposed to chemicals leaking from an improperly secured rail car owned, operated, and/or maintained by Defendants Occidental Chemical Corporation ("Occidental") and Union Pacific Railroad Company ("Union Pacific"). At the time of his injury, Dupard allegedly was in the course and scope of his employment for Defendant Union Pacific. Dupard filed suit in Louisiana state court on September 24, 2002. He sued Union Pacific under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq.; he sued Occidental based on a state law negligence theory. Asserting removal jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. § 1441(a) and (b), Occidental removed the action, including the FELA claim asserted against Union Pacific, on November 1, 2002. Although Union Pacific did not seek independently to remove the action, it consented to the removal of the action by Occidental.Citing Gamble v. Central Electric Co., 486 F.2d 781 (5th Cir. 1973), and 28 U.S.C. § 1445(a), Dupard argues that neither his FELA claim against Union Pacific nor his negligence claim against Occidental is removable, because the non-FELA claim against Occidental is not "separate and independent" from his FELA claim against Union Pacific. Dupard also asserts that allowing removal in this case would encourage FELA plaintiffs to file two separate actions, which would defeat judicial economy and create the possibility of inconsistent verdicts. Contending that his petition notified Occidental that this action could not be removed, Dupard additionally asks the Court to require Occidental to pay the costs and attorney's fees he has incurred in seeking remand.
Section 1445(a) of Title 28 prohibits the removal of "a civil action . . . against a railroad or its receivers or trustees, arising under [FELA]."
Occidental does not specifically contest Plaintiff's assertion that the state law claim against Occidental is not "separate and independent" from the FELA claim against Union Pacific for purposes of removal under 28 U.S.C. § 1441(c). Rather, Occidental maintains that its removal was authorized by § 1441(a) and (b), which do not require "separate and independent" claims. Specifically, Occidental argues that § 1445(a) is inapplicable here because it prohibits removal only by the railroad against whom a state court action has been filed under FELA. In other words, Occidental argues the bar to removal of FELA actions found in § 1445(a) does not apply when a plaintiff railroad employee also asserts a state law claim against a diverse, non-employer, non-railroad defendant, and it is that additional defendant, not the railroad, who removes the action. Even if the proscription against removal in § 1445(a) does apply, Occidental further argues that Dupard waived its protection when he chose to assert a non-FELA claim against Occidental in this action. Once Plaintiff waived the protection of § 1445(a), Occidental urges, the action became removable under 28 U.S.C. § 1332 and § 1441(a) and (b), because there is complete diversity between Dupard and Occidental and Union Pacific.
Section 1441(c) of Title 28 provides: "[w]henever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, 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."
Based on these arguments, Occidental asks the Court to deny Dupard's motion to remand with respect to the non-FELA claim asserted against it and the FELA claim asserted against Union Pacific. Alternatively, Occidental asks the Court to sever the FELA claim and remand only it to state court. In any event, if all or part of the action is remanded, Occidental maintains that it should not be required to pay Dupard's associated fees and costs, because its removal appeared to be warranted by existing law, or a justified argument for extension or modification of existing law or the establishment of new law.
LAW AND ANALYSIS
As the removing party, Occidental bears the burden of demonstrating this Court's jurisdiction and that removal was proper. Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Occidental has not met this burden.
"Except as otherwise expressly provided by Act of Congress," § 1441(a) authorizes the removal of any civil action brought in state court of which federal district courts have original jurisdiction. See 28 U.S.C. § 1441(a). In § 1445, Congress expressly prohibited removal of certain types of actions, including actions arising under FELA. See 28 U.S.C. § 1445(a). The Court is not persuaded that the otherwise non-removable FELA claim against Union Pacific was rendered removable when it was joined with the otherwise removable state law claim against Occidental. Although the Court agrees that the legislative history of § 1445(a) cited by Occidental demonstrates that Congress was concerned about railroads removing FELA actions filed against them, the Court does not find that legislative history to be dispositive of the particular removal issue presented here. Nor is the Court convinced that Dupard waived the bar to removal created by § 1445(a) when he chose to join his FELA claim with a state law claim asserted against a non-FELA defendant.
To support its waiver argument, Occidental analogizes to Givens v. Wight, 24 F. 233, 236 (N.D. Tex. 1918). In Givens, the court held that the plaintiff waived the protection from removal generally provided for FELA actions when he chose to assert an otherwise removable state law claim, arising out of the same transaction, against a railroad/employer defendant as to whom he also was asserting a FELA claim. 247 F. at 235-36. Thus, the entire action was removable. Id. at 236. The rationale applied in Givens, however, appears contrary to that of the Fifth Circuit and other district courts in this circuit. See, e.g., Addison v. Gulf Coast Contracting Servs., Inc., 744 F.2d 494, 499-501 (5th Cir. 1984) (summary calendar); Rideau v. Hendry Corp., 2001 WL 799587 at * 1-2 (E.D. La.). In Addison and Rideau, a Jones Act claim remained non-removable even when joined with an otherwise removable non-Jones Act claim that was not "separate and independent" from the Jones Act claim.
Although these cases involve the Jones Act, 46 U.S.C. § 688, rather than FELA, the Jones Act incorporates the general provisions of FELA, including the bar to removal found in 1445(a). See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir. 1987) (en banc).
Furthermore, the removal statute is to be construed strictly against removal. Herron v. Continental Airlines, Inc., 73 F.3d 57, 58 (5th Cir. 1996) (summary calendar). To the extent that a plaintiff waives the proscription against removal found in § 1445(a) by joining a claim made nonremovable by that statute with an otherwise removable claim, Congress has set forth the circumstances under which such waiver occurs in 28 U.S.C. § 1441(c). Those circumstances are not present here. To begin, the claim with which the "otherwise non-removable" FELA claim is joined — the state law negligence claim against Occidental — is not one "within the jurisdiction conferred by [ 28 U.S.C. § 1331]." See 28 U.S.C. § 1441(c). In addition, based on the allegations in Dupard's petition, it does not appear that his claim against Occidental is "separate and independent" from the FELA claim against Union Pacific.
Because it is not required to do so, the Court does not decide the "potential conflict" recognized by the Fifth Circuit between the bar to removal set forth in 28 U.S.C. § 1445(a) and the provision in 28 U.S.C. § 1441(c) providing for removal of "separate and independent" non-removable claims. See Albarado v. Southern Pacific Transp. Co., 199 F.3d 762, 765 (5th Cir. 1999) (stating, in dicta, "a FELA claim . . . may not be removed unless it is joined with separate and independent claims over which the federal courts exercise exclusive jurisdiction"); Hopkins v. Dolphin Titan Int'l, Inc., 976 F.2d 924, 926 n. 14 (5th Cir. 1992) (pretermitting consideration of the potential conflict between § 1445(a) and § 1441(c) because the court was without appellate jurisdiction); In re Dutile, 935 F.2d 61, 62 (5th Cir. 1991) (concluding the court "need not resolve the potential conflict between § 1445(a) and § 1441(c)").
In Lirette, the Fifth Circuit determined that the proscription against removal found in § 1445(a) was not jurisdictional and thus was waived if not timely asserted. 820 F.2d at 117-18. Occidental has not asserted, and the Court does not find, that Dupard's November 22, 2002 motion to remand was untimely under 28 U.S.C. § 1447(c).
Claims asserted against different defendants are not "separate and independent" if "`there is a single wrong to plaintiff, for which relief is sought, arising from an interlocking series of transactions[.]'" Addison, 744 F.2d at 500 (quoting American Fire Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 792 (1951)). Whether there is a "single wrong" depends on there being a "wrongful invasion of a single primary right of the plaintiff,' not how many different legal causes of action are alleged." Id. (quoting Finn, 341 U.S. at 13, 71 S.Ct. at 540). "If all damages come `from a single incident' or all claims involve `substantially the same facts' invasion of a single, primary right is indicated." Id. (quoting Finn, 341 U.S. at 16, 71 S.Ct. at 541). Here, Defendants' alleged liability stems from a single release of chemicals from a tank car "owned and operated" by Defendants, which caused injury to Plaintiff. Further, the acts and omissions of each Defendant, which allegedly were negligent, appear from Plaintiff's petition to be substantially the same. In any event, Occidental has not even asserted, much less demonstrated, that the claims at issue are "separate and independent." Indeed, Occidental has renounced any reliance on § 1441(c) to support its removal. Accordingly, because Occidental has not established that the bar to removal provided by § 1445(a) does not apply here, the Court finds that the FELA claim against Union Pacific must be remanded to state court.
For the same reasons, the Court will not sever the claim against Occidental from the FELA claim against Union Pacific and retain jurisdiction over the non-FELA claim. Although Occidental suggests Gamble v. Central Electric Co., 486 F.2d 781 (5th Cir. 1973) authorizes the Court to do so, the third-party claim to be retained by the federal court in Gamble was "separate and independent" for purposes of § 1441(c) from the FELA claim. When the otherwise removable claim joined with a claim rendered non-removable by § 1445 is not "separate and independent," both claims must be remanded. The presence of a defendant which has not had a claim rendered non-removable by § 1445 asserted against it does not yield a different result. See Lirette v. N.L. Sperry Sun, Inc., 810 F.2d 533, 539 (5th Cir.), rev'd in part on other grounds on reh'g en banc, 820 F.2d 116 (5th Cir. 1987); McInnis v. Parker Drilling Co., 2002 WL 461660, at *4 (E.D.La.); Rybolt v. Laborde Marine Lift, 2001 WL 263119, at *2 (E.D. La.); Nunez v. Unocal Exploration Corp., 1994 WL 24248, at *2 (E.D. La.); In re Waterman Steamship Corp., 1992 WL 124819, at *3 (E.D. La.); Kattelman v. Otis Engineering Corp., 701 F. Supp. 560, 567 (E.D. La. 1988). Thus, because Occidental has not shown the claim against it to be "separate and independent" from the FELA claim asserted against Union Pacific, the claim against Occidental likewise is remanded.
Although the Court finds that the claims asserted against Union Pacific and Occidental, i.e., the entire action, are to be remanded, it does not find an award of fees and costs under 28 U.S.C. § 1447(c) to be appropriate. In deciding whether such an award is appropriate, the Court must determine whether the defendant had objectively reasonable grounds to believe removal was proper. Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000) (summary calendar). Here, although there are a number of cases addressing similar removals based in 28 U.S.C. § 1441(c), the propriety of such removals under 28 U.S.C. § 1441(a) and (b) is less clear.
CONCLUSION
Occidental has not demonstrated that this action properly was removed under 28 U.S.C. § 1441, in light of the bar to removal found in 28 U.S.C. § 1445(a). Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion to remand filed by Plaintiff, Cornelius J. Dupard, is GRANTED. Dupard's request for attorney fees and costs under 28 U.S.C. § 1447(c), however, is DENIED. IT IS FURTHER ORDERED that this action, in its entirety, is remanded to the Twenty-Ninth Judicial District Court for the Parish of St. Charles, State of Louisiana.