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Cullivan v. Kansas City Southern Railway Co.

January 27, 2010

JOSEPH PATRICK CULLIVAN, PLAINTIFF,
v.
KANSAS CITY SOUTHERN RAILWAY COMPANY, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff Joseph Patrick Cullivan's (hereinafter "Cullivan") Motion to Remand (Doc. 9) and Memorandum (Doc. 10) in support thereof. Defendant Kansas City Southern Railway Company (hereinafter "KCSR") filed a Response (Doc. 13), to which Cullivan filed a Reply (Doc. 14).

The Court deems Cullivan's reply to be untimely due to its submission more than one month after the response's filing. See S.D. Ill. R. 7.1(c). In addition, the reply represents an almost identical reiteration of Cullivan's original memorandum and offers no new substantive argument. Put another way, Cullivan's reply serves no real purpose and flies in the face of this Court's clear procedural rules. Id. ("Reply briefs are not favored and should be filed only in exceptional circumstances."). Accordingly, the Court STRIKES said reply. Further, for the following reasons, the Court DENIES the instant motion.

BACKGROUND

I. Facts

The following brief statement of facts is taken from Cullivan's state court complaint. (See Doc. 2-1).

On or about July 6, 2007, a train, operated by KCSR employees, struck Cullivan violently and without warning. Just prior to collision, Cullivan had been busy operating a grappling boom truck over a railroad track and road crossing owned by KCSR. The parties dispute whether Cullivan had ever served or had been serving at the time as a dual/joint/borrowed maintenance-of-way employee of KCSR Regardless of his employment status, Plaintiff sustained and has suffered from numerous alleged injuries and psychological/emotional damages due to the accident.

II. Relevant Procedural Posture

Cullivan filed a complaint, naming KCSR defendant, in the Circuit Court of Madison County on July 2, 2009. (See Doc. 2-1). The complaint stated one count of violation of the Federal Employers' Liability Act (hereinafter "FELA"), 45 U.S.C. § § 51 et seq. KCSR timely removed this matter to federal court on September 1, 2009, alleging diversity jurisdiction under 28 U.S.C. § 1332. (See Doc. 2). Cullivan thereafter timely filed the motion to remand at issue.

ANALYSIS

I. Removal Generally

A defendant may remove a case filed in state court to federal court so long as there is original federal jurisdiction over the case. 28 U.S.C. § 1441(a) (2006); Chase v. Shop 'N Save Warehouse Foods, 110 F.3d 424, 427 (7th Cir. 1997). The party invoking the Court's jurisdiction bears the burden of showing that the case is properly brought. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Del Vecchio v. Conseco, Inc., 230 F.3d 974, 979 (7th Cir. 2000); Am. Bankers Life Assur. Co. of Fla. v. Evans, 319 F.3d 907, 909 (7th Cir. 2003). This general policy applies to the FELA context as well. See, e.g., Bunnell v. Union Pacific R.R. Co., No. 07-cv-0686-MJR-DGW, 2007 WL 4531513, at *1 (S.D. Ill. 2007). Statutes that provide for removal are to be construed narrowly, and any doubts concerning removal should be resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).In other words, there is a strong presumption in favor of remand. Jones v. Gen. Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).

II. FELA Generally

Drafted in the wake of the railroad boom of the early twentieth century, FELA's enactment stemmed from the belief that "justice demands that one who gives his labor to the furtherance of the [railroad] enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered." Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 330 (1958). In other words, FELA seeks to "provide broad remedial measures" to railroad employees. Walker v. Ne. Reg'l Commuter R.R. Corp., 225 F.3d 895, 897 (7th Cir. 2000) (citing Lisek v. ...


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