machinery, track, roadbed, works, boats, wharves, or other equipment.'
The face of the statute indicates that plaintiff cannot support his claims for the alleged willful and intentional actions of defendants because liability is limited to negligence. Davis v. Green, 260 U.S. 349, 43 S. Ct. 123, 67 L. Ed. 299 (1922). It should also be noted that the provision applies only to negligent acts of a railroad which would immediately exclude a cause of action under this provision against Retail Credit Company.
Moreover, the alleged injuries by plaintiff were not sustained while engaged in interstate commerce.
The second provision relied upon is 45 U.S.C.A. § 55 which provides as follows:
'Any contract, rule, regulations, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.'
There is no basis for plaintiff's contention that this section creates a civil cause of action. Therefore, the claims based on the provisions of the Federal Employers' Liability Act must be dismissed for failure to state a claim upon which relief can be granted.
(D) Finally, plaintiff relies on 28U.S.C.A. § 1337 which confers jurisdiction on the district courts in cases under any act of Congress regulating commerce. The dismissal of the claims based on the provisions of the Federal Employers' Liability Act render a discussion of this section unnecessary.
As to the common law torts, plaintiff contends that the doctrine of 'pendent jurisdiction' applies and therefore the Court should retain jurisdiction against Defendant Carrier even though diversity of citizenship is absent. The doctrine of 'pendent jurisdiction' provides that original jurisdiction resting on a federal claim extends to any nonfederal claim against the same defendant if the federal question is substantial and the federal and nonfederal claims constitute a single cause of action. Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933). The federal questions presented in the instant situation are not substantial since they have been dismissed on the pleadings alone without the presentation of evidence. Rumbaugh v. Winifrede RR Co., 331 F.2d 530 (C.A.4, 1964). Therefore, the Court cannot retain jurisdiction of the common law claims against Defendant Carrier and its motion to dismiss will be granted as to all of plaintiff's claims.
An independent basis of jurisdiction does exist as to Retail Credit Company because plaintiff is a citizen of Pennsylvania and Retail Credit Company is incorporated and has its principal place of business in Georgia. Taking all facts contained in the Complaint as admitted and every inference fairly deducible therefrom, and viewing the same in the light most valuable to the plaintiff, the Court cannot say, as a matter of law, that plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claims against Retail Credit Company for invasion of privacy, defamation and the intentional causing of emotional distress. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (C.A.3, 1965). This statement and conclusion also applies to Retail Credit's contention that the one-year statute of limitations bars plaintiff's claim for relief for defamation.
Since Defendant Carrier is not against Retail Credit, plaintiff will be permitted to proceed with his action against Retail Credit based on the foregoing common law torts. States v. John F. Daly, 96 F.Supp. 479 (E.D.Pa.1951).
Therefore, Retail Credit Company's Motion to Dismiss the Claims based on the common law torts should be denied.
© 1992-2004 VersusLaw Inc.