Gamble v. CENTRAL OF GEORGIA RAILWAY COMPANY

• Citation: 356 F. Supp. 324
• Decision Date: 22 March 1973
• Docket Number: Civ. A. No. 996-E.
• Parties: Mrs. Gertywyl Amakyi GAMBLE, who sues in her capacity as Administratrix of the Estate of her deceased husband, Robert Gamble, Plaintiff, v. CENTRAL OF GEORGIA RAILWAY COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. McGREGOR PRINTING CORPORATION, a corporation, Third-Party Defendant.
• Court: U.S. District Court — Middle District of Alabama

356 F. Supp. 324

Mrs. Gertywyl Amakyi GAMBLE, who sues in her capacity as Administratrix of the Estate of her deceased husband, Robert Gamble, Plaintiff, v. CENTRAL OF GEORGIA RAILWAY COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. McGREGOR PRINTING CORPORATION, a corporation, Third-Party Defendant.

Civ. A. No. 996-E.

United States District Court, M. D. Alabama, E. D.

March 22, 1973.

Fred D. Gray, Gray, Seay & Langford, Tuskegee, Ala., and Al G. Rives, Rives, Peterson, Pettus, Conway & Burge, Birmingham, Ala., for plaintiff.

Roy L. Smith, Smith & Smith, Phenix City, Ala., for defendant.

W. F. Horsley, Samford, Torbert, Denson & Horsley, Opelika, Ala., for third-party defendant.

ORDER ON MOTION TO REMAND

VARNER, District Judge.

This proceeding was filed in the Circuit Court of Macon County, Alabama, by the Plaintiff, widow of deceased railroad employee, for employee's wrongful death in Bullock County, Alabama, while in the course of his employment, allegedly as the result of the negligence of the Defendant Railroad, its servants and agents acting in the line and scope of their authority. The proceeding is filed under the Federal Employers Liability Act. The Defendant Railroad impleaded a Third-Party Defendant under the State Third-Party Practice Act, Code of Alabama, Title 7, § 259(2). The Defendant Railroad alleged that the Third-Party Defendant is contractually responsible in whole or in part to the Defendant Railroad for any liability it may have in the premises as a proximate result of the negligence of the Third-Party Defendant.

The Third-Party Defendant removed the proceeding to this Court under the provisions of Title 28, §§ 1441(c) and 1445.¹ The petition for removal pointed out, and it is now stipulated, that the citizenship of all parties is of different states and that the jurisdictional amount is involved. The cause is submitted on Plaintiff's motion to remand the case to the State Court.

The theory of the removal is that, though the original proceeding under the Federal Employers Liability Act would not ordinarily be removable under the provisions of said § 1445, the third-party proceeding, being a separate controversy, because of the requisite diversity of citizenship and jurisdictional amount is removable; and that, therefore, the whole matter is removable to this Court. § 1441(c).

The authorities are in conflict. A number of cases have held that such cases may not be removed to the federal court on the theory that the impleaded third-party cause of action is merely incidental or auxiliary to the main issue and is not a separable controversy which may be removed to this Court, Panzer v. Lyons Cafeterias, (E.D.N.Y.1937) 21 F. Supp. 263; VonHerwarth v. Gristede Bros., (S.D.N.Y.1937) 20 F.Supp. 911, 912; or on the theory that it is unjust to permit a party not sued by the plaintiff, but subsequently brought into the case only at the option of the original defendant, to force the original plaintiff to a trial in a forum not of his own selection and which would have no jurisdiction of the case as stated by the plaintiff himself, Brown v. Hecht Co., (D.C.Md.1947) 78 F.Supp. 540, 544, 545.

Reason for allowing removal was given in the opinion, Industrial Lithographic Co. v. Mendelsohn, (D.C.N.J.1954) 119 F.Supp. 284, 286, as follows:

"It would not seem consonant with the intent of Congress that the right to have a cause tried before a federal tribunal should be made to depend on the fortuitous nature of the laws of a state relating to third party practice. As the Supreme Court said in Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, at page 104 61 S.Ct. 868, at page 87, 85 L.Ed. 1214, `* * * the removal statute which is nationwide in its operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied.'

"If the removal statute is to be uniform in its application, construction should not depend on the procedures of a particular state respecting third party practice. Had New Jersey practice not permitted third party joinder, McKesson & Robbins, Inc. might have been brought into the courts of that state on the cause here in issue between it and third party plaintiffs as an ordinary defendant, instead of as a third party defendant, as in this case. Had this occurred, its right to remove could not have been questioned. It does not seem to this court that the right of removal may be defeated by a procedure made possible by local law, as would appear to be the effect of Professor Moore's dictum and the opinion in the Sequoyah case." See Moore's Federal Practice, Vol. 1A, ¶ 0.167(10), at page 1051.

Other cases have permitted the removal of the third-party claim as a separable controversy, Central of Georgia Railway Co. v. Riegel Textile Corporation, (C.A. 5, 1970), 426 F.2d 935, or they have permitted removal of both controversies and have exercised their § 1441(c) discretion to remand the FELA case as a matter not otherwise within the district court's original jurisdiction.²

Professor Moore, Moore's Federal Practice, Vol. 1A, ¶ 0.167(10), states the following:

"We do not, however, believe § 1441(c) was intended to effect removal of a suit, not otherwise within federal jurisdiction, because of the introduction of a third-party claim. Removal on such basis is too much akin to the tail wagging the dog. Moreover, third-party claims in one view are too ancillary to the main action to be classified as separate and independent claims.

"To summarize the judicial attitude toward third-party claim and removal:

"1. Courts agree that a third-party claim cannot afford a basis for removal unless the `separate and independent claim or cause of action' of 1441(c) applies.

"2. Some courts permit removal under § 1441(c), by a third-party defendant, of a separate and independent third-party claim which could be removed if sued on alone. This takes the entire action into the federal court. The district court may, however, exercise its discretion and remand all matters not otherwise within its original jurisdiction.

"3. Other courts do not permit removal on the basis of a third-party claim, although it would have been removable by the defending party if the claim had been sued on alone. These courts limit removal under § 1441(c) to a party defending against claims which have been joined by the plaintiff.

"To us the last view is the sound one. The purely statutory right of removal is a limited right that is not to be expanded by judicial construction. If the original defendants have no right to remove the plaintiff's suit, or if the original defendants have chosen not to exercise their right of removal, why should an ancillary defendant to an ancillary claim be construed, absent an expressed statutory declaration, to have the right to remove and defeat the main parties' choice of the state forum? We believe the joinder of claims under § 1441(c) is limited to the plaintiff's claims. And for the reasons expressed concerning counterclaim and cross-claim defendants, we believe that a third-party defendant is not a defendant within the meaning of § 1441."

This Court has reservations about several aspects of the views taken by Professor Moore. Often the third-party defendant is, to the exclusion of the original defendant, the real party who is interested in the defense; the analogy of the tail wagging the dog is hardly applicable where the third-party defendant is more nearly the dog than is the original defendant. As to Professor Moore's question quoted hereinabove as to, "Why should an ancillary defendant to an ancillary claim be construed, absent an expressed statutory declaration, to have the right to remove and defeat the main parties' choice of the state forum", the answer is twofold:

First, to do otherwise might invite collusion between a plaintiff and a defendant who will be fully protected by a third-party defendant. In a court hostile to the third-party defendant or to the original defendant, a conspiracy so as to increase as much as possible the liability of the third-party defendant is a serious hazard. The third-party defendant, as much as the original defendant, is subject to the local prejudices against which the original diversity-jurisdiction-removal procedure was adopted to protect.

Secondly, it seems to this Court that there is an expressed statutory declaration giving the right to remove to a third-party defendant. As more fully discussed hereinafter, although § 1445 makes FELA cases nonremovable on a general basis, § 1441(c) provides a specific exception to the general rule by allowing removal of an otherwise nonremovable case if joined with a separate cause of action which is removable.

The purpose of joinder — including third-party procedure — is to facilitate justice. This purpose — one of the most basic in jurisprudence — should not be discouraged by technicality.

The Court of Appeals for the Fifth Circuit in Central of Georgia Railway Co. v. Riegel Textile Corp., supra, approached the problem. Parts of that opinion are illuminating, as follows:

"The cases are hopelessly divided on whether and under what circumstances a third party defendant may remove to a federal court. There are three thorny problems:

"(I)s a third party defendant a defendant within the meaning of § 1441; is the application of § 1441(c) limited to claims joined by the plaintiff; is a third party claim sufficiently unrelated to the main claim to be a separate and independent cause of action.

"1A Moore, Federal Practice, ¶ 0.167(10) at 1049 (1961). The District Court did not wrestle with these issues. We conclude that subsection (c) is inapplicable to the facts of this case, therefore, we need reach only the first of the problems described by Moore. Subsection (c) describes the conditions under which an `entire case may be removed'. It does not reach the issue of the removability of a third party

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