Feichko v. Denver & Rio Grande Western Railroad

• Decision Date: 31 May 2000
• Docket Number: No. 98-4154,98-4154
• Parties: (10th Cir. 2000) FRANK H. FEICHKO, JR., Plaintiff-Appellant, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY; THE SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendants-Appellees,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 586

213 F.3d 586 (10th Cir. 2000)

FRANK H. FEICHKO, JR., Plaintiff-Appellant, v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY; THE SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendants-Appellees,

No. 98-4154

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 31, 2000

Appeal from the United States District Court for the District of Utah (D.C. No. 95-CV-1068) John J. Rossi of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado (Janet Stansberry Drake of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado; and Richard I. Ashton of Ashton, Braunberger & Boud, Sandy, Utah, with him on the briefs), for Plaintiff-Appellant.

Casey K. McGarvey (E. Scott Savage with him on the briefs) of Berman, Gaufin, Tomsic, Savage & Campbell, Salt Lake City, Utah, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, BRORBY and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.

Frank H. Feichko originally brought this action in state court against his employer, the Denver & Rio Grande Western Railroad (D&RGW), and the Southern Pacific Transportation Company (SP) for injuries he sustained while he was standing in a parked D&RGW locomotive that was struck by a moving SP locomotive. Mr. Feichko asserted three claims against each defendant, seeking damages under the Federal Employer's Liability Act (FELA), 45 U.S.C. 51 et seq., the Boiler Inspection Act (BIA), 45 U.S.C. 23 et seq.,¹ and common law negligence.

Defendants removed the case to federal district court and moved for partial summary judgment. Mr. Feichko moved to remand on the ground that the first two claims were not removable under 28 U.S.C. 1445(a), which prohibits the removal of FELA claims filed in state court. The district court dismissed the FELA and BIA claims against D&RGW and all claims against SP as a matter of law, and then denied the motion to remand.² After extended discovery, the court granted D&RGW's motion for summary judgment on the remaining common law negligence claim. See Feichko v. Denver & Rio Grande Western R.R., 13 F. Supp.2d 1212 (D. Utah 1998). Mr. Feichko appeals and we affirm.

I

In January of 1993 Mr. Feichko, a locomotive engineer for D&RGW, came to the D&RGW property on his day off to look for a checkbook he thought he might have left there during the previous day's shift. He was directed to two D&RGW workmen who were cleaning locomotives. They told him they had not seen the checkbook and suggested he look in the parked engines. Mr. Feichko did so. While he was on board one of the parked engines, a moving locomotive collided with it, knocking him into the control stand and console and causing him serious injuries. The moving engine was owned by SP and operated by D&RGW employees at the time of the accident.

Mr. Feichko sought recovery under the FELA, contending that his employer breached its statutory duty to provide him a reasonably safe place to work, safe equipment, and safe procedures. He also claimed under the BIA for breach of the statutory duty to maintain the brakes of the moving locomotive in a safe condition. Finally, Mr. Feichko asserted claims of common law negligence, alleging that defendants violated their statutory duties under the above acts and were negligent in their operation of the moving locomotive and in failing to warn him that the collision was imminent.

Defendants removed the case to federal district court under 28 U.S.C. 1441(b), which provides for the removal of cases where the federal court has original jurisdiction on the basis of diversity of citizenship.³ Mr. Feichko moved to remand the action to state court, arguing that it was not removable under 28 U.S.C. 1445(a), which provides that "[a] civil action in any State court against a railroad or its receivers or trustees, arising under [the FELA] may not be removed to any district court of the United States." Id.⁴

The federal district court determined that Mr. Feichko had failed to establish the elements of a claim under either the FELA or the BIA and that he had failed to show he was an employee of SP. The court then ruled that since neither the FELA nor the BIA claims could stand, those claims need not be remanded. The court further held that the common law negligence claim was properly removed and was not subject to remand. In a subsequent ruling, the court granted summary judgment for D&RGW on Mr. Feichko's negligence claim, concluding that D&RGW owed him no duty under the circumstances.

On apeal, Mr. Feichko contends that material issues of fact exist regarding whether his claim falls within the scope of the federal statutes, and that the district court improperly decided disputed issues of fact in granting summary judgment on his common law negligence claim. Although Mr. Feichko did not raise the denial of his motion to remand, we were concerned that the matter might present a question of subject matter jurisdiction. We therefore directed the parties to submit supplemental briefing on whether this case was properly removed in view of section 1445(a) and, if not, whether we have subject matter jurisdiction to consider the case. As discussed below, we are satisfied that federal subject matter jurisdiction is present. Moreover, our review of the merits persuades us the district court's disposition was correct.

II

The district court addressed Mr. Feichko's motion to remand together with defendants' motion for summary judgment. The court granted the defendants partial summary judgment, concluding on the undisputed facts that Mr. Feichko was not acting within the scope of his employment at the time of his injuries and that his claims under the FELA and the BIA were therefore not sustainable as a matter of law. The court also denied the motion to remand, notwithstanding section 1445(a), based on its ruling that neither statutory claim could stand.

In his supplemental brief, Mr. Feichko contends the court erred in reaching the merits because removal of a FELA case is barred by section 1445(a). Defendants maintain that denial of the motion to remand was proper under these circumstances, pointing to cases holding that such a denial is permissible when the district court determines that the plaintiff's claims are baseless in law and fact. See Yawn v. Southern Ry., 591 F.2d 312 (5th Cir. 1979); Aldredge v. Baltimore & Ohio R.R., 20 F.2d 655 (8th Cir. 1927). These holdings are premised on the notion that a defendant seeking removal may "pierce the pleadings" of a lawsuit asserting claims that are ostensibly barred by section 1445(a) to show that the claims have been fraudulently pled to avoid removal. Burchett v. Cargill, Inc., 48 F.3d 173, 175-76 (5th Cir. 1995) (reviewing action under Jones Act, which incorporates provisions of FELA, including section 1445(a) removal bar). Courts applying this exception to section 1445(a), however, have recognized the tension between a defendant's right to demonstrate the baseless nature of a claim and a plaintiff's right to choose a state court forum. See Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207-08 (5th Cir. 1993) (holding district court should have remanded case because defendants failed to meet burden of demonstrating that Jones Act claim was "undisputedly false"); see also Burchett, 48 F.3d at 176 (cautioning against pretrying a case to determine removal jurisdiction). These courts have not always drawn a bright line between assessing whether a statutory claim is so legally baseless as to constitute a fraudulent attempt to prevent removal and assessing whether the plaintiff has merely failed to state a claim, a determination otherwise committed to the state courts.

We acknowledged in Chacon v. Atchison, Topeka & Santa Fe Ry., 320 F.2d 331 (10th Cir. 1963), that a fraudulent attempt to evade removal may provide an exception to the operation of section 1445(a), but we concluded that the exception did not apply in that case.

[I]t is settled law that a civil action brought in a state court of competent jurisdiction against a railroad company subject to the act to recover damages for personal injuries is not open to removal to the district court of the United States solely on the ground of diversity of citizenship. And in the absence of any issue of a fraudulent attempt to evade removal, the question whether an action instituted in the state court is one under the act is to be determined by reference to the allegations contained in complaint or petition, as the case may be.

Id. at 332 (citations omitted). We need not decide here whether the district court improperly resolved the merits of a claim committed to the state courts instead of remanding the matter. As we discuss below, we hold that a removal barred by section 1445(a) does not in these circumstances present a matter of subject matter jurisdiction. The issue of improper removal was therefore waived by Mr. Feichko's failure to raise it on appeal.

We have held as a general matter that where a suit of which the United States Court may entertain original jurisdiction is instituted in the state court and the defendant obtains its removal, even though the removal is irregular, defective, or unauthorized, and plaintiff acquiesces in such removal by seeking relief from the United States Court, that court acquires jurisdiction of the subject matter.

American Oil Co. v. McMullin, 433 F.2d 1091, 1094 (10th Cir. 1970) (quoting Parks v. Montgomery Ward & Co., 198 F.2d 772, 774 (10th Cir. 1952)); see also Donahue v. Warner Bros. Pictures, Inc., 194 F.2d 6, 10 (10th Cir. 1952) (when suit over which federal district court would have original jurisdiction is brought in state court and defendant obtains wholly unauthorized removal, federal court acquires jurisdiction when plaintiff acquiesces by seeking relief from federal court); Lopata v. Handler, 121 F.2d 938, 940 (10th Cir. 1941) (same). Although these cases are not of recent vintage, current authority indicates they are still good law and are applicable here.

The Supreme Court has addressed...