The opinion of the court was delivered by: OBERDORFER
On or about February 7, 1994, plaintiff William Neibuhr, an engineer employed by defendant National Railroad Passenger Corporation (d/b/a Amtrak), was operating a train traveling from Washington, D.C. to Philadelphia, Pennsylvania. En route, he alleges that his locomotive seat broke causing him to fall to the floor and sustain bodily injury.
On February 23, 1996, plaintiff sued Amtrak in the Superior Court for the District of Columbia pursuant to the Federal Employers Liability Act, 45 U.S.C. § 51-60, and the Boiler Inspection Act, 45 U.S.C. § 23.
A September 30, 1996 Superior Court Order granted Amtrak leave to file a third-party complaint. On October 4, 1996, Amtrak filed a third-party complaint against Coach and Car Equipment Association ("Coach") and TMB Associates, who Amtrak alleges designed, manufactured, sold, and distributed the allegedly defective engineer's seat. On October 28, 1996, Coach removed both the original action (Neibuhr v. Amtrak) and the third-party action (Amtrak v. Coach and TMB Associates) to this Court.
On November 4, 1996, Neibuhr moved to remand both the original action and the third-party action to the Superior Court for the District of Columbia. Neibuhr also moved for sanctions, alleging that Coach had no basis to remove these actions. On November 22, 1996, Coach opposed Neibuhr's motion to remand the third-party action but consented to Neibuhr's motion to remand the original action. On November 27, 1997, Neibuhr withdrew his motion for sanctions against Coach because Coach consented to remanding the original action to the Superior Court for the District of Columbia. On November 27, 1997, Amtrak opposed any effort to bifurcate the original action and the third-party action. It requested that both actions either remain in this Court or be remanded to the Superior Court for the District of Columbia.
28 U.S.C. § 1441 is the provision of the United States Code governing removal of cases from state courts. Section 1441 contains five subdivisions. Coach's October 28, 1996 notice of removal and its opposition to Neibuhr's motion to remand, however, are unclear as to which subdivisions of 28 U.S.C. § 1441 Coach relies upon in removing these actions. Coach's notice of removal refers to 28 U.S.C. § 1441 generally but does not cite a subdivision. Coach's opposition to Neibuhr's motion to remand invokes § 1441(a), see Opp. at 3 n.2, but the argument actually relies upon § 1441(c). Coach's lack of precision is immaterial because it cannot rely on either § 1441 (a) or (c).
Coach cannot rely upon 1441(c) because (i) circuits are split as to whether a third-party defendant is authorized remove any case to district court pursuant to this subdivision; (ii) even if a third-party defendant can exercise such a power, plaintiff erroneously relies upon diversity jurisdiction to effect removal, which is explicitly barred by § 1441(c); and (iii) even in the absence of the aforementioned, Coach's third-party action cannot be removed to this court because it is not "separate and independent" from the original action.
Neibuhr's original action against Amtrak was based, in part, on the Federal Employers' Liability Act, 45 U.S.C. § 51-60. It is not disputed that prior to the point at which Amtrak filed its third-party complaint, this case was not removable to this court. 28 U.S.C. § 1445(a) states:
A civil action in any state court against a railroad or its receivers or trustees, arising under §§ 51-60 of Title 45 [FELA], may not be removed to any District Court of the United 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 non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, ...