Spalo et al v. Safety-Kleen Corporation et al

Filing 38

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 7/7/2017:Civil case terminated.Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES SPALO and MARY SPALO,
Plaintiffs,
v.

Case No. 17 C 3357

UNION PACIFIC RAILROAD
COMPANY, SAFETY-KLEEN
CORORATION, and SAFETY-KLEEN
SYSTEMS, INC.,

Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
For the 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.
I.
Plaintiffs
collectively

James

as

and

BACKGROUND
Mary

“Plaintiffs”

Spalo

and

(hereinafter

individually

referred

to

“James”

or

as

“Mary”) filed suit in Cook County Circuit Court against Defendants
Union

Pacific

Corporation,

Railroad
and

“Safety-Kleen”).

Company

Safety-Kleen

(“Union

Pacific”),

Systems,

Inc.

Safety-Kleen

(collectively,

According to Plaintiffs, James has been employed

as a Union Pacific machinist since 2000 and was recently diagnosed
with

renal

exposure

to

locomotives,

cancer

attributable

exhaust,
diesel

fumes,

equipment,

to
and
and

his

protracted

odors
toxic

emitted
cleaning

on-the-job
by

diesel

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

liability theories sounding in negligence.
Mary

also

asserts

a

claim

against

them,

on

products

In the same count,

Safety-Kleen

for

loss

of

consortium.
Safety-Kleen 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.
II.
Courts
authorizing

are

instructed

removal

and

to

DISCUSSION
to

interpret

resolve

any

narrowly
doubt

plaintiff’s choice of forum in state court.
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in

the
favor

statute
of

the

See, Schur v. L.A.

Weight

Loss

Centers,

Inc.,

577

F.3d

752,

758

(7th

Cir.

2009)

(citation omitted).
28

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).

subsection

(c),

eliminating

court’s

diversity

district

its

In 1990, Congress amended

application

jurisdiction

to

and

cases

instead

within

a

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.,
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

severance

hear
and

the
remand

entire
of

case

the

removed

joined

claim

but

instead

“that

has

requires
been

made

nonremovable by statute” (or over which there is no original or
supplemental jurisdiction).

28 U.S.C. § 1441(c)(1) (2012).
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In this 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)

provisions

permit

otherwise

expressly

§ 1441(a).

removal

and
of

provided

by

1446

diversity
Act

of

control

here.

Those

actions

“[e]xcept

Congress.”

28

as

U.S.C.

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, 9798 (7th Cir. 1988), the only issue sub judice is the effect of
Plaintiffs’ state-law count on the statutory prohibition against
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removal of “civil action[s]” “arising under” the FELA.

28 U.S.C.

§ 1445(a).
First, 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. Ass’n, 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

complaint asserting new claims for relief).

by

filing

amended

As such, Plaintiffs

have the right to seek remand in this case.
Thanks
diversity

to

the

amendments

application

interpretations

of

and

the

scotching

“separate
FELA

and

removal

§ 1441(a) bear the most relevance here.

§

1441(c)’s

independent”

bar

in

the

erstwhile
provision,

context

of

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
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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. Ibid.
Another 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.
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He sued the

railroad for negligence under the FELA and Quaker Oats for commonlaw negligence.
diversity
arguing

Quaker Oats removed the case on the basis of

jurisdiction

that

over

“plaintiff’s

the

state-law

decision

to

negligence

combine

this

claim,

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
- 7 -

defendants”);

Gowdy

v.

Norfolk Southern Ry. Co., No. 07 C 365, 2007 WL 1958592 (S.D. Ill.
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 railcar).
Looking 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
facts.

or

otherwise

substantially

derive

from

the

same

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,”

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not how many legal causes of action are alleged.

Finn, 341 U.S.

at 13.
Accordingly,

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 *1-2 (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 defendants”); Anderson v. Union Pac. R.
Co., 200

F.Supp.

465,

466-67

alleging

common

law

negligence

under

the

negligence

FELA

(D.

against

negligent acts).

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Kan.

1962)

against

(remanding

one

co-defendant

action

defendant
for

and

concurrent

On

the

underlying

other

the

characterize

hand,

FELA

sharp

injury

decisions

mismatches

and

denying

the

between

removable

remand.

the

cause

See,

of

facts

e.g.,

action

Lewis

v.

Louisville & Nashville R. Co., 758 F.2d 219, 220-222 (7th Cir.
1985) (finding employee’s claim against railroad for intimidating
him for filing a FELA claim separate and distinct from his FELA
claim for injuries); Palser v. Burlington Northern R. Co., 698
F.Supp. 793, 794-95 (E.D. Mo. 1988) (treating plaintiff’s statelaw employment discrimination claim based on decedent’s alleged
wrongful

discharge

from

managerial

position

in

March

1987

as

separate and independent of the FELA claim arising out of his
alleged

1988

wrongful

death

while

working

as

track

laborer);

Samczyk v. Chesapeake & Ohio Ry. Co., 643 F.Supp. 79, 79-80 (E.D.
Mi.

1986)

injuries

(holding

sustained

independent
challenging

of

that
while

his

plaintiff’s
working

claim

defendant’s

as

under

decision,

FELA

claim

brakeman
state

after

was

arising
separate

discrimination

the

injury

from
and
law

disqualified

him from working as a brakeman, to place him on disability); Hages
v. Aliquippa & Southern R. Co., 427 F.Supp. 889, 891-94 (W.D. Pa.
1977) (denying remand where plaintiff’s FELA count concerned onthe-job injuries and his separate Railway Labor Act claim alleging
wrongful

discharge

independently

arising

removable

on

out

of

the
- 10 -

his
basis

later
of

termination
federal

was

question

jurisdiction); Emery v. Chicago, B. & Q.R. Co., 119 F.Supp. 654,
655-57 (S.D. Iowa 1954) (finding entire case removable because
plaintiff, in addition to FELA negligence claim for bodily injury,
brought

fraud

count

challenging

defendant’s

inducement

of

plaintiff to dismiss prior litigation along with count alleging
defendant’s breach of oral contract to take care of plaintiff for
life).
The

Court

finds

remand

appropriate

here.

When

removal

proceeds on the basis of diversity, it invokes § 1441(a)’s “except
as otherwise expressly provided by Act of Congress” proviso.
law

establishes

that

the

relevant

Congressional

Case

prohibition

on

removal of “[a] civil action” “arising under” the FELA sweeps in
pendent

state-law

claims

that,

brought

on

their

own,

would

otherwise be removable on the basis of diversity jurisdiction.
Similarly, to the extent the cases decided under old § 1441(c)’s
“separate and independent” removal standard retain force, they do
not

help

unitary

Defendants

injury

–

because

James’s

Plaintiffs’

development

in

claims
2016

trace

of

renal

to

one

cancer

allegedly as a result of the harmful exhaust and fumes to which he
was

exposed

equipment.
FELA

while

working

for

Union

Pacific

with

Safety-Kleen

It is immaterial that one defendant is charged with

liability

and

another

is

not,

or

that

the

theories

of

recovery from each defendant may implicate different culpability
- 11 -

standards.

That Mary’s loss of consortium is an indirect result

of James’s unitary injury does not make it less indebted to the
same interlocked series of facts.
Therefore, notwithstanding that Plaintiffs’ negligence count
against

Safety-Kleen

might

on

its

own

be

removable

based

on

diversity jurisdiction, it remains stranded in state court because
Plaintiffs chose to include it with pendent FELA claims or, in the
alternative, because it implicates the same interlocked series of
facts underlying the injury for which James seeks FELA recovery.
The FELA removal bar halts the federal pistons and renders this
case ineligible for removal.
III.

CONCLUSION

For the reasons stated herein, Plaintiffs’ Motion to Remand
[ECF No. 21] is granted.

The case is remanded to Cook County

Circuit Court.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: July 7, 2017

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