Fuqua v. Gulf, Colorado and Santa Fe Railway Company

• Decision Date: 24 July 1962
• Docket Number: No. 5130.,5130.
• Citation: 206 F. Supp. 814
• Parties: Robert Dale FUQUA, Plaintiff, v. GULF, COLORADO AND SANTA FE RAILWAY COMPANY, and R. D. Wheelock, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

206 F. Supp. 814

Robert Dale FUQUA, Plaintiff, v. GULF, COLORADO AND SANTA FE RAILWAY COMPANY, and R. D. Wheelock, Defendants.

No. 5130.

United States District Court E. D. Oklahoma.

July 24, 1962.

Riddle, Riddle & Mordy, Ardmore, Okl., and Rucker, Tabor, Best, Sharp & Shepherd, Tulsa, Okl., for plaintiff.

Rainey, Flynn & Welch, Oklahoma City, Okl., and Bonds & Matthews, Muskogee, Okl., for defendants.

BOHANON, District Judge.

This is a Motion by plaintiff to Remand and by the defendant R. D. Wheelock to Dismiss.

This is a personal injury action arising out of a railroad crossing accident between one of the defendant railroad's trains and an automobile driven by the plaintiff. The action was instituted in the State District Court of Carter County, Oklahoma, on August 14, 1961. The action as filed named Gulf, Colorado and Santa Fe Railroad Company and R. D. Wheelock defendants. The plaintiff is a citizen and resident of Carter County, Oklahoma. The railroad company is organized under and has its principal office in the State of Texas. R. D. Wheelock is a citizen and resident of Carter County, Oklahoma. The issues were made up in the State District Court and the case was set for trial. It was admitted by the railroad company that Wheelock was its agent. The Petition charged that the agent Wheelock was negligent:

1. In failing to ring a bell or sound a whistle in violation of the laws of Oklahoma.

2. In operating the train at a careless and dangerous rate of speed.

3. In failing to keep proper lookout.

4. In failing to use the degree of caution an ordinary person under similar circumstances would use.

Under the issues as made up in State Court the case was not removable to Federal Court. 28 U.S.C. § 1332(a) (1).

On March 16, 1962, pursuant to notice, plaintiff took the deposition of the defendant Wheelock, and it was then disclosed for the first time that Wheelock was the conductor of the train and before and at the time of the accident was in the caboose at the rear end of the train; that he had no duty to do and perform the acts which he was charged with performing or failing to perform as stated above. These duties were those of the engineer of the train. When these facts were brought out by the deposition taken by the plaintiff, the defendant railroad company on the same day filed in this Court its Petition, Bond, et cetera, for Removal, as provided by 28 U.S.C. § 1446(a) (d) (e), and on the same day the defendant Wheelock moved the Court to dismiss the claim as to him because it failed to state a claim upon which relief could be granted.

Upon the Motion to Remand the plaintiff contended that the Petition for Removal was not timely filed as required by 28 U.S.C.A. § 1446, asserting that the defendant railroad company at all times since the institution of the case in the State District Court had knowledge of the facts brought out in the deposition and therefore its Petition for Removal should have been filed within 20 days after service of summons upon defendant railroad.

28 U.S.C.A. § 1446(b) provides in the second paragraph:

"If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper, from which it may first be ascertained that the case is one which is or has become removable." (Emphasis supplied.)

Plaintiff further contended that because of defendant railroad company's knowledge of the facts brought out in the deposition their failure to remove within 20 days from the service of summons amounted to a waiver of their right to do so.

The Court holds that the defendants' removal was timely under Section 1446 (b) inasmuch as it was effected within the time provided in said section. The case was removed by the defendant railroad company after it was first ascertained that it was removable. The initial pleading and subsequent pleadings filed in State Court stated facts showing that it was not removable. The right to remove dates from the receipt of a pleading, amended pleading, motion or other paper from which it may...