The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
Before the court is the motion of plaintiff Dominica McCoy to remand
this action to the Court of Common Pleas of Philadelphia County.
Count I of the complaint alleges that on February 12, 2003, while on
duty as an Amtrak employee, plaintiff was injured when her car was hit by
a moving Amtrak locomotive. She seeks damages against Amtrak for the
negligence of its engineer under the Federal Employers' Liability Act
("FELA"), 45 U.S.C. § 51-60. In Count II plaintiff alleges that she
was subject to a blood and alcohol test by Amtrak following the incident
while the white male engineer was not required to submit to such testing.
As a black female, plaintiff claims she was fired thereafter because of
her race and/or sex in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2, et sea, and 42 U.S.C. § 1981
Under 28 U.S.C. § 1441(a), "Except as otherwise expressly provided
by Act of Congress, any 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. . . ." Plaintiff contends that this
action was not removable because of 28 U.S.C. § 1445(a) which
provides, "a civil action in any State court against a railroad . . .
arising under . . . 45 U.S.C. [§§] SI-54, 55-60 . . . may not be
removed to any district court of the United States." However, §
1445(a) is subject to 28 U.S.C. § 1441 (c) which states:
Whenever 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, the entire case may be removed and the
district court may determine all issues therein,
or, in its discretion, may remand all matters in
which State law predominates.
Section 1331 reads, "the district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States."
By itself, the plaintiff's claim under the FELA would not be removable
from the state court even though it involves federal law. The question
before us is whether the action becomes removable because it includes
federal civil rights claims. The resolution of the question depends on
whether these latter claims are "separate and independent" from the FELA
claim. If they are "separate and independent," the entire case will be
adjudicated in this court.
Plaintiff's FELA cause of action is based on the purported negligence
of an Amtrak engineer on February 12, 2003 when the locomotive he was
operating injured her. Plaintiff also alleges violations of her civil
rights because she was required to take a blood and alcohol test
after the incident and was then fired because of her race and/or
sex. The complaint does not say when the firing took place, although
plaintiff apparently filed a complaint with the Equal Employment
Opportunity Commission on or about March 18, 2003.
While the underlying events giving rise to the two causes of action
seemed to have occurred closely in time, there are still two distinct
injuries. One resulted from plaintiff's physical encounter with an Amtrak
locomotive and the other resulted from her discharge as an Amtrak
employee allegedly due to racial or sexual discrimination. Plaintiff does
not contend that the errant engineer was the person who made the decision
to administer the blood and alcohol test or had responsibility for
This is not a case "where there is a single wrong to plaintiff . . .
arising from an interlocked series of transactions." American Fire
& Gas. Co. v. Finn, 341 U.S. 6, 13-14 (1951). The allegations in
this case do not involve substantially the same individuals, the same
facts, or the same transactions. Nor did the damage come from a single
incident. Id. at 16. See Lewis v. Louisville &
Nashville R.R. Co., 758 F.2d 219 (7th Cir. 1985).
The federal civil rights claims are separate and independent of the
FELA claim with which they are joined. Accordingly, the action was
properly removed to this court under 28 U.S.C. § 1441(c).
The motion of the plaintiff to remand this action to the Court of
Common Pleas of Philadelphia County will be denied.
AND NOW, this ___ day of March, 2004, for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that the motion of the
plaintiff to remand this action to the Court of Common Pleas of
Philadelphia County is DENIED.
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