United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court
reasons to follow, Plaintiffs' Motion to Remand [ECF No.
21] is granted. The Court hereby remands the case to the
Circuit Court of Cook County, Illinois.
James and Mary Spalo (hereinafter referred to collectively as
"Plaintiffs" and individually as "James"
or "Mary") filed suit in Cook County Circuit Court
against Defendants Union Pacific Railroad Company
("Union Pacific"), Safety-Kleen Corporation, and
Safety-Kleen Systems, Inc. (collectively,
"Safety-Kleen"). According to Plaintiffs, James has
been employed as a Union Pacific machinist since 2000 and was
recently diagnosed with renal cancer attributable to his
protracted on-the-job exposure to exhaust, fumes, and odors
emitted by diesel locomotives, diesel equipment, and toxic
cleaning solvents. Charging negligence under the Federal
Employers' Liability Act ("FELA"), 45 U.S.C.
§ 51 et seq., and violation of the Locomotive
Inspection Act ("LIA"), 49 U.S.C. § 20701
(such a violation is negligence per se under the
FELA), James faults Union Pacific for requiring him to work
with and around such hazards. In a third count, he also sues
Safety-Kleen, who manufactures the various toxins, solvents,
and machines that used them, on products liability theories
sounding in negligence. In the same count, Mary also asserts
a claim against Safety-Kleen for loss of consortium.
removed the case to this Court on May 4, 2017 on the basis of
diversity jurisdiction. Union Pacific did not formally join,
sign, or file a certification concerning the notice of
removal. Instead, the notice indicated simply that
"Defendant UP consents to this removal action."
(ECF No. 1 ¶ 49.) Within thirty (30) days of removal,
Plaintiffs filed the instant Motion to Remand. A few days
before doing so, they amended their Complaint without
altering the nature of the claims or the parties against whom
they assert them.
are instructed to interpret narrowly the statute authorizing
removal and to resolve any doubt in favor of the
plaintiff's choice of forum in state court. See,
Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d
752, 758 (7th Cir. 2009) (citation omitted).
U.S.C. § 1441(c) used to provide that "[w]henever a
separate and independent claim or cause of action, which
would be removable if sued upon alone, is joined with one or
more otherwise nonremovable claims or causes of action, the
entire case may be removed." 28 U.S.C. § 1441(c)
(1948) . In 1990, Congress amended subsection (c),
eliminating its application to cases within a district
court's diversity jurisdiction and instead permitting
removal "[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 nonremovable claims or causes of action."
28 U.S.C. § 1441(c) (1990) (emphasis added); see
also, Fore Investments, LLC v. Travelers Indem. Co. of Am.
r No. 12 C 1702, 2013 WL 3467328, at *8-9
(S.D. Ind. July 9, 2013) (noting that rewritten section 1441
"appl[ies] solely to cases within the court's
federal question jurisdiction"). Congress jettisoned the
"separate and independent" language altogether in
2011 and, effective 2012, § 1441(c) no longer allows a
district court to hear the entire case removed but instead
requires severance and remand of the joined claim "that
has been made nonremovable by statute" (or over which
there is no original or supplemental jurisdiction). 28 U.S.C.
§ 1441(c)(1) (2012).
case, Defendants removed on the basis of diversity
jurisdiction over Plaintiffs' state-law count against
Safety-Kleen, not based on the FELA claims against
Union Pacific (over which federal and state courts have
concurrent jurisdiction, see, Lancaster v. Norfolk and
Western Ry. Co., 773 F.2d 807, 812 (7th Cir. 1985),
cert, denied, 480 U.S. 945 (1987)). This is likely
because Union Pacific knew that this train had left the
station; by asseveration of Congress, FELA claims are not
removable. 28 U.S.C. § 1445(a) (prohibiting removal of
any civil action based on 45 U.S.C. §§ 51-60);
Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 434
(1965) ("Congress, in . . . prohibiting removal of FELA
cases to federal courts, has sought to protect the
plaintiff's right to bring an FELA action in a state
court."); LaDuke v. Burlington Northern R. Co.,
879 F.2d 1556, 1561 & n.9 (7th Cir. 1989). As the basis
for removal is a claim within the Court's diversity
jurisdiction, §§ 1441(a)-(b) and 1446 control here.
Those provisions permit removal of diversity actions
"[e]xcept as otherwise expressly provided by Act of
Congress." 28 U.S.C. § 1441 (a) . Because
Defendants do not seek to avoid the removal bar by claiming
that Plaintiffs have frivolously invoked the FELA, see,
Hammond v. Terminal R.R. Ass'n of St. Louis, 848
F.2d 95, 97-98 (7th Cir. 1988), the only issue sub
judice is the effect of Plaintiffs' state-law count
on the statutory prohibition against removal of "civil
action[s]" "arising under" the FELA. 28 U.S.C.
and contrary to Safety-Kleen's contention, Plaintiffs did
not waive their right to seek remand by filing an Amended
Complaint with this Court once Defendants moved to dismiss.
See, e.g., Armstrong v. LaSalle Bank Nat.
Assfn, 552 F.3d 613, 618-19 (7th Cir. 2009)
(holding that plaintiffs did not waive their right to remand
by filing amended complaint agreeing to venue and
jurisdiction in transferee court or by participating in
pre-trial proceedings); Rapid Displays, Inc. v. Ford,
Walker, Haggerty & Behar, LLP, No. 16 C 1703, 2016
WL 6543207, at *3-4 (S.D. Cal. Nov. 3, 2016) (finding no
waiver of right to seek remand where plaintiff responded to
motion to dismiss by filing amended complaint asserting new
claims for relief). As such, Plaintiffs have the right to
seek remand in this case.
to the amendments scotching § 1441(c)'s erstwhile
diversity application and "separate and
independent" provision, interpretations of the FELA
removal bar in the context of § 1441(a) bear the most
relevance here. For example, in Dupard v. Occidental
Chem. Corp., No. Civ.A. 02-3310, 2003 WL 1837718 (E.D.
La. Apr. 8, 2003), the plaintiff, a railroad employee of
Union Pacific, sued Union Pacific and a chemical manufacturer
in state court based on workplace exposure to chemicals
leaking from an improperly secured rail car. He brought a
claim under the FELA against Union Pacific and a state-law
negligence count against the other defendant. Both claims
were removed to federal court on the basis of diversity over
the state-law claim, and the plaintiff sought remand by
invoking the FELA removal bar. The court remanded the case in
its entirety, unpersuaded "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." Id. at *2.
Nor was the Court "convinced that [the plaintiff] 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." Ibid. As in the instant
case, § 1441 (c) was inapplicable because "the
claim with which the 'otherwise non-removable' FELA
claim is joined - the state law negligence claim" - was
not a federal question claim under 28 U.S.C. § 1331.
Ibid. And even if it were, it did not appear to the
court that the state-law claim was "separate and
independent" of the FELA count against Union Pacific.
such case is Pike v. Burlington Northern R.R., No.
96 C 6017, 1996 WL 403784 (W.D. Mo. July 12, 1996) . There,
the plaintiff sued in state court for personal injuries he
allegedly sustained while working as a switchman for
Burlington Northern Railroad on the premises of Quaker Oats
Company. He sued the railroad for negligence under the FELA
and Quaker Oats for common-law negligence. Quaker Oats
removed the case on the basis of diversity jurisdiction over
the state-law negligence claim, arguing that
"plaintiff's decision to combine this negligence
claim with the FELA claim operated as a waiver of that
privilege of nonremovability afforded him by 28 U.S.C. §
1445." Id. at *1. Rejecting this argument, the
court first noted that Congress clearly prohibited removal
from state to federal court of actions initiated under the
FELA. It then held that the plaintiff did not waive his
entitlement to this prohibition by joining his claim under
the FELA with a state-law claim that, standing alone, would
have been removable. See, id. at *2. It noted
finally the language of § 1441(a), which demands that a
federal court have jurisdiction over the entire "civil
action" for diversity-based removal to be proper, such
that it could not sever the claim against Quaker Oats and
remand only the FELA claim. Ibid. Although few treat
the issue in such depth, other cases are in accord. See,
e.g., leonard Anthony Carrillo v. CSX Transp., Inc.,
No. 3:13 C 1039, 2014 WL 2200903, at *3 (W.D. Ky. May 27,
2014) (granting motion to remand because the court could not
"conclude, based on a plain reading of the statute, that
Plaintiffs have taken this action outside of § 1445
(a)'s scope by bringing related negligence claims against
non-railroad defendants"); Gowdy v. Norfolk Southern
Ry. Co., No. 07 C 365, 2007 WL 1958592 (S.D. 111. July
2, 2007) (remanding case based on FELA removal bar where
plaintiff adequately alleged railroad's liability under
FELA and state law for injuries he sustained while loading
beyond cases that have purchase under the current version of
§ 1441, many applications of the FELA have proceeded on
the basis of the "separate and independent"
requirement under the old version of § 1441 (c) . The
Supreme Court defined its general removal principles in
Am. Fire & Casualty Co. v. Finn, . 341 U.S. 6
(1951), holding that a claim against an insurer was not
separate and independent of a claim against the agent where
both concerned property lost in a fire. Id. at 12.
In other words, there is no separate and independent cause of
action when a plaintiff seeks recovery for a single injury on
separate grounds. Sawyer v. Federal Barge lines,
Inc., 577 F.Supp. 37, 38 (S.D. Ill. 1982). Even if more
than a single wrong exists, claims are not "separate and
independent" if the wrongs arise from an interlocked
series of transactions or otherwise substantially derive from
the same facts. See, Finn, 341 U.S. at 14; New
England Concrete Pipe Corp. v. D/C Sys. of New England,
Inc., 658 F.2d 867, 874 n.12 (1st Cir. 1981). Whether
there is a "single wrong" depends on there being a
"wrongful invasion of a single primary right of the
plaintiff, " not how many legal causes of action are
alleged. Finn, . 341 U.S. at 13.
when rejecting the argument that a removable claim was
"separate and independent" of the concurrent FELA
claim, courts emphasized that the injury for which the
plaintiff sought redress was unitary, concurrent, or
otherwise traced to the same set of facts. See, e.g.,
Hughes v. Union Pacific Railroad Co., No. 05 C 6219,
2005 WL 3071676, at *l-2 (D. Or. Nov. 15, 2005) (granting
motion to remand where plaintiff sued Union Pacific on FELA
negligence claim and other defendants on state-law strict
liability and negligence claims, because plaintiff sought
"relief from a single wrong that ar[ose] from an
interlocking series of transactions"); Hunter v.
Missouri-Pac.-Tex. R.R.,252 F.Supp. 590, 590 (N.D. Okl.
1966) (finding no waiver of 28 U.S.C. 1445(a), and remanding
action bringing FELA claim against one railroad and a
non-FELA claim against another railroad for "a single
injury to his person alleged to have been brought about by
the joint and concurrent acts of the two ...