NORFOLK SOUTHERN RAILWAY COMPANY v. CLARK

Filing 17

ORDER DENYING 12 Motion to Remand. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/25/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
NORFOLK SOUTHERN RAILWAY
COMPANY,
Plaintiff,
v.
FREDERICK J. CLARK
Defendant.

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CIVIL ACTION NO. 5:16-CV-107(MTT)

ORDER
Plaintiff Frederick J. Clark has moved to remand this case to state court pursuant
to 28 U.S.C. § 1447. (Doc. 12). He relies on 28 U.S.C. § 1445(a), which bars railroads
from removing FELA actions to federal court. Defendant Norfolk Southern Railway
Company points out in its response that this action has never been pending in state
court and hence was never removed from state court. (Doc. 15 at 3). Clark, who did
not file a reply brief, never explains how this Court can remand a case that was never
removed, and the Court is not aware of any authority that would allow it to do so.
Clark’s real issue is that he thinks Norfolk Southern’s complaint is a tactical move
to force him to file his FELA claim in this Court as a compulsory counterclaim. He thinks
this violates the spirit of § 1445(a) because by filing this action here before Clark filed
his state-court FELA action, Norfolk Southern deprived him of his right to file his FELA
claim in state court. Clark may have a legitimate gripe, but moving to remand a case
that was never removed is not a viable way to combat Northern Southern’s tactic.
Accordingly, Clark’s motion to remand is DENIED. (Doc. 12).

SO ORDERED, this 25th day of July, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT