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Bready v. CSX Transportation

March 26, 2008

FREDERICK BREADY AND NANCY BREADY, HIS WIFE, PLAINTIFF,
v.
CSX TRANSPORTATION, INC., DB HOTALING, JULIE ROBINSON AND ELAINE BAILEY, DEFENDANT.



The opinion of the court was delivered by: Julie Robinson Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The present case involves a multi-vehicle automobile accident which occurred in Syracuse, New York on September 16, 2006. At the time of the accident, plaintiff Frederick Bready was employed by defendant, CSX Transportation, Inc. and claims that his injury occurred in the course of his employment. Based thereupon, plaintiffs claim CSX is liable for failure to provide him with a reasonably safe place to work under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). The three individuals named as defendants in this matter were also drivers of vehicles involved in the accident and all are residents of the State of New York. Presently before the Court is a motion by plaintiffs to remand this action, removed by defendant CSX from New York State Supreme Court to this District, on August 15, 2007.

In their motion to remand, plaintiffs asserted that this Court lacks subject matter jurisdiction over the complaint and that the complaint contains a non-removable claim under FELA. Defendant CSX opposes remand in the first instance on the ground that the motion for said relief was untimely. CSX also argues that the Court has jurisdiction over this action based on the Federal Tort Claims Act ("FTCA") because an employee of the United States Postal Service ("USPS") was also involved in the automobile accident which is the subject of this action.

The parties concede that neither the federal employee nor USPS is named as a defendant in the complaint. Subsequent to the filing of all motion and opposition papers, plaintiffs' counsel submitted a letter to the Court suggesting that a further ground for granting remand is the failure of all defendants to join in the removal as required by 28 U.S.C. § 1441(a).

II. DISCUSSION

A. Relevant Legal Standard

28 U.S.C. § 1441 provides in part:

(a) [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States[.]

Pursuant to 28 U.S.C. § 1331 "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the united States," while 28 U.S.C. §1332 provides in part:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between--(1) citizens of different States[.]

A notice of removal must be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. See 28 U.S.C. § 1446.

Notably, any motion to remand a case to state court after removal, save for one based on lack of subject matter jurisdiction, must be filed within 30 days in accordance with 28 U.S.C. § 1447(c). Under section 1447(c), "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Federal law also prohibits removal of cases filed under FELA to any district court of the United States. See 28 U.S.C. § 1445(a). On a motion to remand, a court must construe all factual allegations in favor of the party seeking the remand, see R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979), and the removing party has ...


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