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Bunnell v. Union Pacific Railroad Co.

December 19, 2007


The opinion of the court was delivered by: Reagan, District Judge


In September 2007, William Bunnell filed a second amended complaint*fn1 in Illinois state court naming eight Defendants, one of which was Union Pacific Railroad -- sued as successor to Chicago & Northwestern Railway Company ("CNW"). Bunnell alleged that he sustained personal injuries (including mesothelioma) from asbestos exposure while working for CNW for one year between 1948 and 1949. Bunnell's suit was filed under the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq.("FELA"). Union Pacific removed the case on October 2, 2007, invoking subject matter jurisdiction under 28 U.S.C. § 1332.

On threshold review, the undersigned Judge noted that Union Pacific bore the burden of demonstrating that all jurisdictional requirements have been satisfied, Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006), cert. denied, 127 S.Ct. 2952 (2007). After concluding that the amount in controversy sufficed under § 1332 and Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th Cir. 2006), the undersigned Judge (a) raised a concern as to Union Pacific's allegations of citizenship based "upon information and belief," and (b) questioned whether this case fell within the scope of FELA's removal bar, found in 28 U.S.C. § 1445(a).

As to the latter point, the second amended complaint (Doc. 2-2) plainly pleads a FELA claim, but Union Pacific argues that Bunnell never worked for Union Pacific or any other railroad and did not work as a subcontractor for CNW during the period alleged (see Doc. 2-1, p. 3).

The Court directed Union Pacific ("UP") to clarify the citizenship issue and directed Bunnell to respond to UP's argument that the operative complaint stated no real FELA claim. On October 24, 2007, UP provided a detailed jurisdictional memorandum (supported with corporate records) quelling any concern regarding diversity of citizenship (Doc. 8). But Bunnell moved to remand the case, noting several alleged defects in UP's removal procedure and insisting that the action is nonremovable under 28 U.S.C. § 1445(a)(Doc. 6).

The issues are fully briefed.*fn2 Having carefully reviewed the pleadings and supporting documents, the Court now rules on the remand motion and removal issues.

28 U.S.C. § 1445(a) provides that a civil action pending in any state court against a railroad arising under FELA may not be removed to any federal district court. See Monroe v. Missouri Pacific R. Co., 115 F.3d 514, 520 (7th Cir.), cert. denied, 522 U.S. 967 (1997). The first paragraph of Bunnell's second amended complaint (filed in Madison County, Illinois) alleges that the action arises under FELA. The sixth paragraph of that complaint alleges that Bunnell worked as a subcontractor for CNW at the Superior, Wisconsin jobsite and that CNW (or its successor, UP) retained the right to control the work performed at that jobsite during 1948-1949.*fn3

A "claim does not arise under the FELA merely because the plaintiff names that statute in his complaint and omits (accidentally or by design) the claim's true source." Hammond v. Terminal R.R. Ass'n of St. Louis, 848 F.2d 95, 97 (7th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). So, although § 1445(a)'s removal bar constitutes a "stark imperative" as to any claim that truly arises under FELA, neither crafty wording of a complaint nor frivolous invocation of FELA bars removal. Id., 848 F.2d at 98.

FELA creates a tort remedy for railroad workers injured on the job.

Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 812 (7th Cir. 1985), cert. denied, 480 U.S. 945 (1987). Under FELA's relaxed standard of proof, the railroad is liable if "employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Coffey v. Northeast Illinois Regional Commuter R. Corp., 479 F.3d 472, 476 (7th Cir. 2007). The fact that "there may have been a number of causes of the injury is ... irrelevant as long as one cause" is the railroad's negligence." Id.

Congress expressly provided state courts with concurrent jurisdiction over FELA actions. 45 U.S.C. § 56; LaDuke v. Burlington Northern R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989). Moreover, defendants cannot defeat a FELA plaintiff's choice of state forum by removing the action to federal court. Id., citing 28 U.S.C. § 1445(a). In the case at bar, the question is whether Plaintiff Bunnell's claim arises under FELA.

UP contends that the operative complaint states no FELA claim against UP but merely a strict liability claim based on failure to warn Bunnell of the hazards of working with or near asbestos products. Typically, to state a claim arising under FELA, a plaintiff must allege "one of the traditional 'physical' torts, such as assault, battery, and negligent infliction of personal injury." Lancaster, 773 F.2d at 815. Here, the complaint does allege negligence by a railroad (UP or its predecessor, CNW) resulting in personal injury to Plaintiff Bunnell. This states a FELA claim.

Asking the Court to inquire further, UP maintains that (1) Bunnell "never worked for Union Pacific or another railroad," and (2) he could not have worked as a subcontractor for CNW during the time period alleged, i.e., 1948-1949 (Doc. 2-1, p. 3).

The first point is true, although not dispositive of whether Bunnell's claim arises under FELA. UP has supplied interrogatory answers filed by Bunnell in state court (attached as Exhibit C to the removal notice herein). In response to an interrogatory asking for "the work locations at which Plaintiff worked, including the county of each employer," Bunnell originally responded "Chicago - Northwestern." He amended his responses to clarify that during the period "1948-1949" he was employed not by UP or its predecessor CNW but rather by "Shipley," a subcontractor, cleaning box cars and working on switches ...

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