DALY v. NORFOLK SOUTHERN RAILROAD COMPANY et al

Filing 23

LETTER OPINION (FELA action removed contrary to 28:USC 1445(a). Signed by Judge William J. Martini on 2/17/10. (gh, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M A R T I N LU T H E R KIN G JR . FED E R A L BLD G . & U . S . C O U R T H O U S E 5 0 W A L N U T STR E E T , P.O . BO X 419 N E W A R K , N J 07101-0419

[phone]

WILLIAM J. MARTINI JUDGE

L E T T E R OPINION

F e b ru a ry 17, 2010

A la n L. Krumholz K ru m h o lz Dillon PA 5 7 4 Summit Avenue S u ite 402 J e rs e y City, New Jersey 07306 (Attorney for Plaintiff) A la n Muraidekh H o d g s o n Russ LLP 6 0 East 42nd Street 3 7 th Floor N e w York, New York 01065 (Attorneys for Defendant Norfolk Southern Railroad Company) RE: D a ly v. Norfolk Southern Railroad Co., et al. C iv . No. 09-4609 (WJM)

D e a r Counsel: T h is is a wrongful death and survival action, asserted in part under the Federal E m p lo ye e Liability Act ("FELA"). Defendant Norfolk Southern Railroad Company (" N o rf o lk Southern") removed this action to federal court on September 8, 2009. After re v ie w of the papers, this Court questioned the propriety of the removal sua sponte at a h e a rin g on December 17, 2009. At the hearing, the Court invited the parties to submit s u p p le m e n ta l briefing addressing whether a FELA action, which is removed contrary to 2 8 U.S.C. § 1445(a), may remain in Federal court after Plaintiff fails to object to removal w ith in the thirty-day period set forth in 28 U.S.C. § 1447(c). For the reasons that follow, th e Court holds that Plaintiff's failure to object to Defendant Norfolk Southern's

improper removal waived this procedural defect. Accordingly, this case, while removed in clear contravention of 28 U.S.C. § 1445(a), will not be remanded. In addition, the C o u rt grants Plaintiff leave to file her amended complaint within thirty days. I. BACKGROUND

T h e decedent, Sean Daly, was an employee of Intermodal Ramp Management, Inc. (" In te rm o d a l" ), assigned to work at a Norfolk Southern site in Elizabeth, NJ. While at th is work site, Daly suffered a fatal accident on August 11, 2008. Following his death, D a ly's wife brought the instant action against Norfolk Southern and Intermodal in the N.J. S u p e rio r Court, which then was removed to federal court by Norfolk Southern.1 In lieu of an answer, Norfolk Southern filed a motion to dismiss on September 14, 2 0 0 9 . After reviewing the papers, the Court held a hearing and questioned sua sponte w h e th e r removal of this FELA action was proper. In addition, the Court noted at the h e a rin g that Plaintiff attached an amended complaint to his opposition briefing on the m o tio n to dismiss. Plaintiff's attorney indicated at that time that he wished to file that a m e n d e d complaint. II. D ISC U S S IO N A. C o m p la in t Should Not Be Remanded

A n action brought under FELA in state court is not removable. See 28 U.S.C. 1 4 4 5 (a ) ("A civil action in any State court against a railroad ... arising under [FELA], m a y not be removed to any district court of the United States."). However, removal in v io la tio n of a statutory provision does not deprive a district court of subject matter ju ris d ic tio n , provided that the court would have had original jurisdiction over the matter h a d it been filed in federal court in the first instance. See Korea Exch. Bank v. Trackwise

Intermodal has not filed a notice of appearance before this Court. Norfolk Southern states in its notice of removal that it does not know whether Intermodal has been served. If Intermodal had not been served at the time of removal, then it did not have to appear on the notice of removal. Instead, it would have thirty days after service to either join in the notice of removal or otherwise formally manifest its consent to the Court. See Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985) ("There are exceptions to the rule requiring that all defendants join in the removal petition. One exception arises when a non-resident defendant has not been served at the time the removing defendants file their petition. In that situation the removal petition will be effective provided that it alleges that the defendants who did not join in it were not served in the state proceeding."). 2

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Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995) (citing Grubbs v. Gen. Elec. Credit Corp., 405 U .S . 699, 702 (1972)). Here, this court would have had original jurisdiction over this c a s e ­ either under diversity jurisdiction or federal question jurisdiction. Accordingly, while removal by Norfolk Southern in this instance was plainly im p ro p e r, it was a procedural defect. See Korea Exch. Bank, 66 F.3d at 50 ("Thus, there is no dispute that this case could have been filed originally in federal court on the basis of d iv e rsity jurisdiction pursuant to 28 U.S.C. § 1332. The invocation of the removal m a c h in e ry ... while error, is not a `jurisdictional' defect under relevant Supreme Court p re c e d e n t. Rather, it is a `defect in removal procedure' which can be waived."). Plaintiff's failure to object to this procedural defect within the statutory period ­ thirty d a ys ­ rendered this defect waived. Id. at 51 (citing the thirty-day period for objection to re m o v a l in 28 U.S.C. § 1447(c)). As such, this matter will not be remanded. B. P a rtie s Should Proceed With the Amended Complaint

A t the December 17, 2009 hearing, the Court discussed the amended complaint a tta c h e d to Plaintiff's opposition with the parties. After Plaintiff's counsel indicated to th e Court that he wished to file the amended complaint, the Court granted Defendant time to review the document. After this, Defendant submitted a letter brief, arguing that the a m e n d e d complaint fails to state a claim upon which relief can be granted. (Docket No. 1 9 ). At this point, the Court grants Plaintiff leave to file her amended complaint. See F e d . R. Civ. P. 15(a)(2) (providing that a "court should freely give leave" to a party to a m e n d its complaint "when justice so requires"). The Court notes that amendment should o rd in a rily be permitted absent a showing of "undue delay, bad faith or dilatory motive ... re p e a te d failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of the a m e n d m e n t, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). Here, Defendant's letter b rie f offers no reason to jettison Rule 15(a)(2)'s liberal amendment policy. There has b e e n no showing of undue delay, bad faith, or undue prejudice by Defendant Norfolk S o u th e rn ; instead, Defendant argues that the amended complaint fails to state a claim. This argument may be re-asserted on a motion to dismiss; it does not bar Plaintiff from f ilin g the amended complaint. Accordingly, the Court grants Plaintiff leave to file her a m e n d e d complaint within thirty days.

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III.

C O N C L U S IO N

F o r the foregoing reasons, the instant action shall not be remanded to state court. Further, the Court grants Plaintiff leave to file her amended complaint within thirty (30) d a ys . An Order accompanies this Letter Opinion.

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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