The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Procedural History
On April 5, 2007, Bernard Gowdy filed a personal injury suit in the Circuit Court of Madison County, Illinois. Gowdy's four-count complaint contains claims of negligence and strict liability as well as claims under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, and the Safety Appliance Act, 49 U.S.C. § 20302. He named a single Defendant -- Norfolk Southern Railway Company.
Gowdy was injured in January 2007 while loading and unloading railcars "placed into the stream of commerce" by Norfolk Southern. He asserts that he was a borrowed servant of Norfolk Southern at that time or "was acting for two masters simultaneously as a dual servant, or was a subservant of a company that was in turn a servant" of Norfolk Southern (Doc. 2-2, p. 2). Additionally, Gowdy alleges that Norfolk Southern had the right to direct and control him in the performance of his job at the time of the injury in question (id.). Gowdy seeks damages for pain, suffering, emotional distress, permanent disability, medical treatment and lost wages.
Served with the complaint on April 16, 2007 (see Doc. 2-2, pp. 10-11), Norfolk Southern removed the case to this United States District Court on May 16, 2007.*fn1 Removal was premised on this Court having diversity jurisdiction under 28 U.S.C. § 1332.
Norfolk then moved for summary judgment on Counts I and II, moved to dismiss Count III and part of Count IV, and obtained leave to supplement the removal notice. On June 5, 2007, Plaintiff moved to remand the case to state court. The Court now turns to that fully-briefed motion, since subject matter jurisdiction must be resolved before any other motions may be reviewed.
B. Analysis of Remand Motion
The central jurisdictional question is whether 28 U.S.C. § 1445(a) renders Gowdy's complaint nonremovable. Analysis begins with the FELA statute, 45 U.S.C. §§ 51-60. Enacted over one hundred years ago, FELA creates a tort remedy for railroad workers injured on the jobs. Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 812 (7th Cir. 1985), cert. denied, 480 U.S. 945 (1987). FELA holds a rail carrier liable for the reasonably foreseeable negligence of its officers, agents and employees, id. at 818, citing 45 U.S.C. § 51, and a FELA plaintiff "can get to the jury with even slight evidence of negligence." Id.
State and federal courts enjoy concurrent subject matter jurisdiction over FELA actions. LaDuke v. Burlington Northern R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989); 45 U.S.C. § 56. But "defendants are not allowed to defeat a FELA plaintiff's choice of a state forum by removing the action to federal court." Id.Congress expressly provided, in 28 U.S.C. § 1445(a), that a state court civil lawsuit filed against a railroad under FELA "may not be removed to any district court of the United States." LaDuke, 879 F.2d at 1561, n.9.
At first blush, then, it appears that § 1445 bars the removal of Gowdy's case, at least part of which involves a FELA claim. But this assumes that Gowdy has a true FELA claim. Norfolk Southern argues that Gowdy's claims do not fall within FELA. Which leads to the issue hotly contested by counsel here -- whether this Court can look beyond the allegations of Gowdy's complaint in determining whether subject matter jurisdiction lies and removal was proper.
Citing 1916 and 1918 Supreme Court cases (both of which are somewhat inapposite), Gowdy broadly contends "the question of removal jurisdiction must be determined by reference to the allegations contained in the complaint" and cannot be aided by reference to any statements in the removal petition (Doc. 22, p. 2). To the contrary, Defendants maintain that it is proper to "pierce the pleadings" in assessing the propriety of removal (Doc. 2, pp. 3-4; Doc. 30, p. 1).
On this point, both sides produce a dizzying array of non-binding precedent. Gowdy urges consideration of an unreported Eastern District of Missouri decision, Rea v. Norfolk Southern, Case No. 00-cv-0116-SNL (E.D. Mo. 2000), plus an Eastern District of Kentucky case, Tucker v. CSX Transp., Inc., -- F. Supp. 3d --, 2007 WL 293862 (E.D. Ky. 2007).
Norfolk Southern relies on decisions from the Tenth Circuit Court of Appeals, the Fifth Circuit Court of Appeals, the Eighth Circuit Court of Appeals, and district court cases from the Central District of Illinois, the Eastern District of Louisiana, the Middle District of Louisiana and this District. The latter decision is the Honorable William D. Stiehl's unreported ruling in Williams v. Riverway Co., 2005 WL 3299372 (S.D. Ill. 2005)(Case No. 05-cv-0710), a Jones Act case.*fn2 In Williams, Judge Stiehl acknowledged that although Jones Act cases generally are not removable, "in certain circumstances, 'defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal.'" Id., quoting Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993).*fn3
Seventh Circuit cases discussing motions to dismiss for lack of subject matter jurisdiction offer guidance on this issue. Clearly, when jurisdiction is tested via a Rule 12(b)(1) motion, the district court can look beyond the allegations of the complaint "and view whatever evidence has been submitted ... to determine whether in fact subject matter jurisdiction exists." Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir.), cert. denied, 540 U.S. 984 (2003), quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993). Accord Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 ...