Jon Campisi Feb. 12, 2013, 6:46am

The plaintiffs in a case initiated against Conrail following the headline-grabbing

derailment of a freight train in South Jersey late last year have succeeded in persuading a federal judge to grant remand in the litigation.

In the case of Swindell-Filiaggi, et al. v. CSX Corporation & Conrail, the plaintiffs assert negligence and other claims against CSX and Conrail over the Nov. 30, 2012, collapse of a bridge owned and operated by Conrail.

The incident, which took place in Paulsboro, N.J., caused a toxic chemical called vinyl chloride to be released into the waterway below the bridge, and led to the subsequent evacuation of many homes and businesses in the Gloucester County town.

Seven of the 84 train cars on the freight derailed during the collapse of the Jefferson Street Bridge over the Mantua Creek.

Many people allege they sustained respiratory and bronchial related illnesses, headaches, eye and skin irritations, and other symptoms as a result of the vinyl chloride release.

The lawsuit was originally filed on Dec. 12 at the Philadelphia Court of Common Pleas on behalf of 54 plaintiffs.

The defendants subsequently remanded the action to the U.S. District Court for the Eastern District of Pennsylvania, arguing that the case should play out in the federal venue because there is diversity in citizenship.

The plaintiffs, however, moved to remand the action back to state court on the basis of the forum defendant rule, which provides that a suit cannot be removed on the basis of diversity jurisdiction if any of the parties in interest “properly joined and served” as defendants are citizens of the state in which the action was brought.

In this case, the defendants argued that the rule doesn’t bar removal because when CSX, which is the out-of-state defendant, filed for removal, Conrail, the in-state defendant, had not yet been properly joined and served.

In his Feb. 8 memorandum and order, U.S. District Judge Michael M. Baylson wrote that although the defendants’ argument finds “some support in the literal meaning of the statute, a statute should not be read literally when doing so produces, as here, an absurd result at odds with congressional intent.”

Therefore, he wrote, remand to state court is proper in this case, a decision consistent with most of the case law in the Eastern District of Pennsylvania.

Citing case law, Baylson wrote that congressional intent in the removal statute would be “significantly frustrated if unserved non-forum defendants can remove cases simply because they have the technical wherewithal to file for removal before the plaintiff can effectuate service.”

And that’s exactly what appeared to be the case in this instance, the judge noted.

“It is absurd to think that Congress intended to ‘reward defendants for conducting and winning a race which serves no conceivable public policy goal,” Baylson wrote, citing a previous federal case. “Further, as this Court has previously recognized, it is ‘especially absurd’ to interpret the ‘joined and served’ rule as allowing naked gamesmanship by defendants since Congress intended for the rule to prevent gamesmanship.”

“While Defendants argue that Congress has implicitly approved the plain meaning interpretation by failing to amend the ‘joined and served’ language, it remains undisputed that Congress intended for the removal statute to limit the right of removal,” Baylson states in his memorandum. “Thus, Defendants’ argument fails to overcome the fact that rewarding a ‘race to remove’ is at odds with Congress’s interest in limiting the right of removal.”

Baylson cited three recent cases that came out of the Eastern District that supported his ruling.

The judge went on to write that even if the court was to enforce the plain meaning of the federal statute, it isn’t clear that this would necessitate denial of the plaintiffs’ motion to remand.

“Here, there is no dispute that on the same day that CSX filed for removal, Conrail was served,” Baylson wrote. “Although Defendants insist that the Court must focus on the circumstances that were present at the precise time of removal (versus the date of removal), the plain meaning of the statute does not dictate this result.”

The defendants in the case had also asked for a stay because they believe the Third Circuit Court of Appeals should be given an opportunity to resolve the split that currently exists within the Eastern District.

Baylson, however, denied the defense motion, writing that the defendants failed to cite any authority from either the Eastern District or the Third Circuit to justify a certification of appeal under similar circumstances.

One of the reasons offered by Baylson for his decision to deny a stay was that it would be “in tension with the longstanding doctrine that federal courts should interpret removal statutes with “[d]ue regard for the rightful independence of state governments” to “provide for the determination of controversies in their courts.”

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