Burnett v. New York Central Railroad Company

PETITIONER:Burnett
RESPONDENT:New York Central Railroad Company
LOCATION:Longshore and Warehouse Union

DOCKET NO.: 437
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 380 US 424 (1965)
ARGUED: Mar 11, 1965
DECIDED: Apr 05, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – March 11, 1965 in Burnett v. New York Central Railroad Company

Earl Warren:

Number 437, Otto V. Burnett, petitioner versus New York Central Railroad Company.

Mr. Cole.

Douglas G. Cole:

Mr. Chief Justice, may it please the Court.

This is the case of Otto Burnett V. New York Central Railroad.

The petitioner was a resident of the State of Kentucky who was employed by the dependent Railroad and while working in the state of Indiana on March 17, 1960, he was injured.

Thereafter on March 13, 1963 four days before the three-year statute limitations under the Federal Employers’ Liability Act, a suit was brought on his behalf under the Federal Employers’ Liability Act in Hamilton County, Ohio, Court of Common Pleas and service was issued and returned upon the defendant and thereafter the defendant came in and moved to dismiss on the basis of improper venue of the case.

This motion was granted by reason of Ohio Statute 2307.37, which is a venue statute.

Thereafter, within eight days of the time of the dismissal of the case in the state court, the suit was re-filed in the U.S District Court of the Southern District of Ohio on behalf of the petitioner, relying upon the Ohio saving statue which is section 2305.19, of the Ohio Revised Code, and the respondent came in and filed the motion to dismiss, alleging that the Ohio Saving Statute did not apply in a Federal Employers’ Liability Act case and the District Court sustained the motion and it was affirmed upon – from appeal to the Sixth Circuit Court of Appeals.

This squarely presents a very simple question to this Court and that is, does the three-year limitation period contained in a Federal Employers’ Liability Act which is Section 56 of the Act, may it be extended by the Ohio Saving Statute when a case has been commenced within the three-year period, but by reason of a problem because of venue, the original action has had to be transferred to another court which had the jurisdiction and the venue to hear the case to it’s completion after this three-year period of —

[Inaudible] State or Federal Court.

Douglas G. Cole:

That’s correct sir, it really does not matter.

It just happened been in a Federal Court and that is because the state of –

Potter Stewart:

It couldn’t have been filed in the State Court (Voice Overlap)

Douglas G. Cole:

Well as you say in Ohio, it could not have happened in a state court because of venue section of the statute, you cannot bring an action anywhere in Ohio by nonresident where the cause arose outside of the State Ohio.

It could, perhaps has happened in some other states, not in Ohio.

An examination of the background of Section 56 of the Federal Employers’ Liability Act itself indicates that there was no intention on the part of Congress when they first enacted that section, first, it was two -ear section and later amended to be a three year section, there was no intention on their part to make this a limitation period which was cutoff at the end of that period of time and not be extended by various rules of law such as estoppel, fraud, fraudulent concealment and the whole idea was to grant minimum protection to the employees of the Railroad and not to create some maximum series of rights.

In other words, they were not attempting to say that you had to bring an action within three years and thereafter you cannot bring any action.

Congress rather intended that they were trying to set up a uniform system, uniform minimum length of time throughout the United States so that various state legislatures cannot say in one state, you had minimum of two years or minimum of year-and-a-half and then another state say three years.

So, they were trying to say that this minimum period and there was no attempt on a part of Congress at anytime to say that the ordinary rules which applied to statue of limitations should not apply to this one.

The only construction that has caused this idea of a substantive procedural dichotomy to arise has been by judicial construction and some of the lower of courts of an earlier age, but principally before 1939 and the amendment to the Federal Employers’ Liability Act where the whole trend went the other way in order to protect the employees, considerably more than they have ever been protected prior to 1939.

And certainly these old cases which have been cited repeatedly to the proposition that this was a substantive statue which set up a period of three years and that this was a limitation upon the right, rather than upon a remedy, does not bear itself out in any rational or logical construction of the — either the purpose of the act or the language itself.

Now we have cited in number of the cases which have been decided in United States by various Federal Courts since 1947 and the defense and as matter of fact the Sixth Circuit pick these up saying that these all contain problems of fraud or fraudulent concealment, estoppel by some activity of the railroad as opposed to situation that we have here where there it no fraud involved, nobody said that the railroad mislead the petitioner in this case as to how long he had. What we were trying to show by citing these cases is that there has been a revolution in the United States, since mid 1940s and the thinking on how this Federal Employers’ Liability Act, Section 56, the limitation period could be handled, the package you can’t open it up.

If it can be open for one reason that certainly it can be opened for the same reasons that other statue limitations are generally opened up, whether it be fraud concealment or just the circumstances that arise which call into play state saving statues.

Now, we say that it just as unjust to a petitioner to make him guess correctly upon the elusive questions of venue in a case and make him stick to that even though he makes a mistake, this is just as unjust as his fraud or fraudulent concealment.

He has never had the opportunity to get his case to a court for determination on the merits and yet it is recognized by this Court in decisions of this Court that this can be just as unjust, the problem of wading through elusive questions of venue, this can be just as unfair as any other form of problem such as fraud which calls for equitable inter position by a court.

In the case of which I have cited in the brief of Goldlawr versus Heiman, 369 U.S. 463, a point is made that this problem of employing injustice where some elusive fact that were the kind upon which venue provisions often turn is required in order to that an expeditious and orderly adjudication of cases and controversies on their merits can be had.

As the court there point it out, the main problem is a question of whether there has been notice to the defendant within at three-year period and there is no question that in this particular case there was notice to the defendant.

They were actually served with the summons within the three-year period of time and it was only after they came in and defended the case in the Common Pleas Court of Hamilton County, Ohio, that it was subsequently removed to the District Court in the Southern District of Ohio.

So there is no question that the petitioner had done all that he could.

William J. Brennan, Jr.:

So far as the venue is concerned [Inaudible]

Douglas G. Cole:

Yes, there is a the venue statute of the state of Ohio, it is a very peculiar one, which reads that an action against the owner or lessee of line mail of stages, coaches, railway companies, inner urban railway companies, sub-urban railway companies or street railway company, maybe brought in any County through which the line extends.

However, all actions against such owner, lessee or company for injuries to personal property or for wrongful death must be brought in the County in which the cause of action are some part thereof arose or in the County in which the claimant for injury to the personal property was caused resides at the time when the cause of action arose, if the line or owner is located in such a County.

It goes on – another –

William J. Brennan, Jr.:

And how did plaintiff fail to satisfy that clause?

Douglas G. Cole:

Because the plaintiff was a resident of Kentucky.

William J. Brennan, Jr.:

The accident occurred in Indiana.

Douglas G. Cole:

The accident occurred in Indiana and while Ohio allows every transitory cause of action, they allow every transitory cause of action except this particular transitory cause of action which is barred and I had considered attacking the constitutionality of that section which I think is constitutional, but I instead went the route of refilling under the state saving statute in an US District Court because I felt that it from a rational standpoint, it followed necessarily from the decisions of this Court both Herb versus Pitcairn in 324 and 325 U.S. and the Glus versus Brooklyn Eastern Terminal in 359 U.S., because both of those cases have discussed in a passing way exactly the situation that we have here.

William J. Brennan, Jr.:

I gather your — basically your position that this has begun, these facts — equitably, you in fact brought your action within the federal statute of limitation.

Douglas G. Cole:

That’s correct.

William J. Brennan, Jr.:

As a sub (Voice Overlap)

Douglas G. Cole:

Yes, the – in the case of Herb versus Pitcairn in the original case in 324 U.S., this was a case that was brought in a City Court of Illinois when that court did not have proper venue to try the whole case, but they had a venue statute in Illinois allow them to transfer the case to another court in Illinois that had jurisdiction and venue to handle the whole case without the new issuance of process and there exactly the same thing happened as happened here.

The original suit was brought within a three-year period, but by the time a motion to dismiss was brought in the City Court in Illinois, the three-year statute had run and when the case was transferred over to the proper court in Illinois which could try the case, the defendant then came in and said it was too late, it couldn’t even transfer it even though no new service process was required.

Now this Court in that case, in its twins decisions in 324 and 325 U.S. said that the case had been commenced within the meaning of the word as it is used in Section 56, the Federal Employees Liability Act, when it was first brought in the City Court and the mere fact that it had to be transferred later to a court which could properly hear the case, did not militate against the theory that the word commenced in the section of the limitation statute meant started, notice being given to the defendant and that’s exactly what we are saying here.

The only distinction between that case and this case is the fact that under the State of Ohio saving statute new service of process has to be issued when the case is transferred under that saving statute.

But otherwise —

William J. Brennan, Jr.:

That statute of course let us — was it possible on these facts to bring an action of that section of constitutional in anywhere in any course of Ohio?

Douglas G. Cole:

Well if I may go outside the record for a moment I can answer you.

For eight years I represented the New York Central in Cincinnati.

During that time I represented New York Central, we had convinced the New York Central that it was to their advantage not to enact — I mean not to interpose this venue section because they would be better off if they tried the case in the State Court and that was — then I left that firm and went on separately represented the petitioner in this case and I thought they were working on the same theory.

They were better off, if they try the case in the State Court better than in an federal court and I learned to my amazement that — I was no longer–

William J. Brennan, Jr.:

Well but on these facts my question was whether it was possible to bring this FELA action in any Ohio state court?

Douglas G. Cole:

Well as I further investigated the case after they filed the motion to dismiss, I am fairly well convinced now that under the present reading of the construction of the statute it is impossible to have brought it in the state court, that’s correct.

[Inaudible]

Douglas G. Cole:

That’s correct.

I believe that it is — some interesting thing, there were two associates in this law firm that I worked in representing New York Central, both us are now out of that firm.

The one lawyer is in Cleveland and — his case is attacking the constitutionality of that section, my case went be other way and as taken.

[Inaudible]

Douglas G. Cole:

I am not arguing the constitutionality of that Ohio venue section, although I think it is unconstitutional but it’s not raised in this case.

The point –-

[Inaudible]

Douglas G. Cole:

The point that I was bringing out in this Herb versus Pitcairn is – the case is that the Court there realized the problem that petitioners can get into struggling with venue statute and they — and the Court announced in that case the necessity of giving an employ of the railroad the opportunity to try his case on a merits and not allow him to get bogged down in procedural niceties which would prevent this because he guessed wrong when he first filed the suit, when he done everything he could to put him on notice that he was bringing an action.

There was no question of his defrauding that Railroad by waiting years and years — and where the witnesses will get lost anything like that because they suit had originally being brought within the period of time setup by this statute and therefore the ruling — the rules in both of these cases are important more than anything else because they call attention to the fact that there is nothing in the Federal Employers’ Liability Act limitation section which prohibits the operation of a section like the Ohio saving statute.

As was said in — by Mr. Jackson — by Mr. Justice Jackson in the second Herb versus Pitcairn in 325 at page 79, the case, — An action is ‘commenced’ for these purposes as a matter of federal law when instituted by service of process issued out of a state court, even if one which itself is unable to proceed to judgment, if the state law or practice directs or permits the transfer through change of venue or otherwise to a court which does have jurisdiction to hear, try, and otherwise determine that cause.

In other words, he made the point that there was nothing in the section of the Federal Statute which prohibits the operation of a state statute in conjunction with it which is exactly what we are seeking to have accomplished here today.

Which would mean that we have a state would have no certain statute (Inaudible).

Douglas G. Cole:

Well the reason that I have stressed in earlier in my argument here Mr. Justice Harlan that what converse attempted to do with this Section 56 of the Federal Employers’ Liability Act was to grant certain minimum protection to employees of railroads.

They weren’t attempting to set-up maximum rights and therefore the maximum period of time will vary from case to case but they certainly have minimum lengths of time which is three years plus the interposition of any equitable remedies that arise either by federal or state law and that would be the maximum period, but I think that you can use that argument as an argument against the position that I make simply because there is some variance in the maximum length of time.

What we are seeking is a minimum protection of these people which is that equitable rule should apply as well as mere wording of the statute itself.

In other words [Inaudible] state couldn’t have saving statute?

Douglas G. Cole:

Well as I say that that in a case like that — there would be a maximum period of time of the three years but unfortunately they would not get benefit of it.

Well obviously — the point of my question is it does cut into the uniformity which you say is one of the factors of it.

Douglas G. Cole:

Well, yes except that — I think that a lot of this — the lot of the problem that I seek is pointing up is the fact that attorney representing petitioners base their original thinking on in terms of the statute they feel like can work with.

In other words, in Ohio where you have both the Federal Employers Liability Act Section 56 and a state saving statute you can tend to consider those together and you would work accordingly — I mean you might not bring a case quite as soon figuring that you have the opportunity to use a state saving statute if some mistake was made on venue or jurisdiction where you might otherwise in a state where there was no saving statute, bring your action much earlier.

A lot of that is a matter of choice depending upon the numbers of statutes you have to work with.

We just want to point out the applicability of both the Glus and the Herb versus Pitcairn cases on the whole logic that this case was commenced within the proper length of time and this is the logic rather of the Herb versus Pitcairn that the commencement of the enactment in the first place does not require an interposition of any equitable remedy such as you had in some of these earlier cases of the questions of estoppel or fraudulent concealment.

In Herb V. Pitcairn cases they said frankly as the Court said at that time, that the case was commenced properly within the three-year period and merely because it had to be transferred over to another court was not — did not detract from the basic determination that the case had been commenced when it was first filed in the original court.

Now you can really apply the logic of those two cases Herb versus Pitcairn, to this case because the case here was commenced within the proper length of time and it had to be transferred over to another court, but only after a proper notice to the defendant and the only deference is the question of the giving of the new service of process which at least in the original Herb versus Pitcairn cases was not considered to be too important although it was not necessary to decide it, but if I can read those decisions, it is fairly obvious that the Court at that time did not feel that that point dispositive of anything because the basic question the that defendant had notice, the plaintiff had brought the suit within the three-year and that those were the operative question.

Now the court in the Glus case, the 359 case went about it from a different angle.

In other words instead of saying the case was commenced within the proper period of time instead they said that even if you didn’t commence it within the proper period of time your equitable remedy such as estoppel would allow the limitation period of the statue to be opened up, to be tolled, to be extended, and if you use that logic, you’d still come to the same result which is the state saving statute is a method that can be used to extend or toll the operation of the federal saving statute I mean the federal limitations statute.

William J. Brennan, Jr.:

I gather, you don’t think you have to rely on this?

Douglas G. Cole:

Well I think only to the extend that new service of process was necessary as opposed to the other case, but other than that I don’t think that it’s a question of words.

I mean, after all this wasn’t a case where we waited several years to bring the suit or anything like that and that’s why I think that it is — well it is the case that saving statute was set up to accomplish and this, the Federal Government under the Federal Statutes, the Federal courts have used state saving statutes.

They are empowered to do this and this is the rule uniformly throughout the United States and we submit that the only way this petitioner can get through all of these time consuming and justice defeating technicalities as they have been called in the past by a number of judges and get to a decision of this case upon merits.

It’s for this Court to either say that there is no distinction between procedure and substance as far as what you call a limitation period that they all stem from the same basic idea and that is a giving of notice to defendant within a length of time or in the alternative that you say that this case was commenced properly within the three-year period.

In either case this particular petitioner deserves his day in court.

Earl Warren:

We will recess now.

[Luncheon Recess]

Mr. Short, you may proceed with your argument.

Roy W. Short:

Mr. Chief Justice may the Court please.

The petitioner in his briefs and in his oral argument today has referred to many cases exemplifying the equity powers of our courts.

Roy W. Short:

Such powers invoked under unique, some times peculiar and nearly always extreme circumstances.

This is as it should be.

Certainly a fundamental theory our equity jurisprudence is predicated upon a remedy at law being inadequate or a non-existent.

I don’t think any sensible person and this is inline with the cases cited by the petitioner whether he’d be a layman, a lawyer or a jurist would deny access to our courts to a plaintiff who could not bring his action within the statutory time because of internment as a prisoner war.

Similarly, can anyone question the justice in tolling a statute and opening the courtroom door to one who because of a state of war was prevented from filing in time?

A plaintiff lulled by the defendant into inactivity induced by willful misrepresentations or by means of other manifest fraud prevented from filing within time should not, cannot and I don’t believe will be denied access to our courts.

I think this is the law and I think it is good law.

It has however been delicately conceded by the petitioner in this case that his present predicament is a result of initiating suit in the wrong court, not being prevented from filing his suit.

He now seeks to engraft the Ohio saving statute as an exception to the Federal Act which in and of itself has no exceptions.

Let us first consider a point in time prior to the enactment of the Federal Employer’s Liability Act, Mr. Otto V. Burnett, the petitioner for example, might have been able to file his suit in his state of Kentucky and be guided by Kentucky Statute of Limitations.

He might as the cause of action arose in Indiana, have filed in the state of Indiana and be governed by the their statute of limitations or have the cause of action arose in Ohio, filed and be governed by Ohio statute of limitations which incidentally is two years in referenced to personal injuries.

Then Congress enacted —-

William J. Brennan, Jr.:

(Inaudible)

Roy W. Short:

Pardon me Justice Brennan?

William J. Brennan, Jr.:

I thought his position was that in face of that venue statute, there was no Ohio court which actually what I thought.

Roy W. Short:

I’m coming to that Justice Brennan, that is correct.

William J. Brennan, Jr.:

But it could be that the defendant didn’t raise the venue, could he go on in the court?

Roy W. Short:

Then you’re being of course only jurisdictional if the defendant raises it, he could go on of course venue can be waived upon.

Byron R. White:

(Voice Overlap)

Roy W. Short:

Pardon me Justice?

Byron R. White:

The case could be filed in the court?

Roy W. Short:

The case could be filed and I’ll discuss that in quite —

Byron R. White:

But you said he’s brought them in the wrong court, he brought them in the wrong court only if you — if your clients thought it was a wrong court or one of it in a different court.

Roy W. Short:

Well, in fact it would have to be the wrong court if we assert that position and obtain an motion to quash our summons.

Byron R. White:

That’s true, that’s true, but if you for example what if they had asked your client for where do you wanted, well, was it the federal court or a state court – he says lets file up in the state court and you had to raise it at all if it have been filed in the right court.

Roy W. Short:

Then that court, yes Your Honor, then that court could have gone through to a decision without an objection being raised by the defendant.

After Congress enacted the Federal Employer’s Liability Act, it seems to me there were certain benefits, certain protections and certain advantages afforded to a potential plaintiff under this act.

In Ohio for example as in many other states substantial defenses of perhaps contributory negligence, assumption of the risk were not available to a defendant under this act.

The two-year statute of limitations for example existing in the state of Ohio became three years under the Federal Act and subsequent to its most recent amendment.

Members of the Court, this is a federal law the Federal Employer’s Liability Act, it’s a statute, a Congressional pronouncement, if you will, creating a new right and setting forth in precise terms, the time would then which such right maybe exercised.

Roy W. Short:

I wish now to direct this Honorable Court’s attention to just one case cited in my brief Bell versus Wabash Railway Company and the case is noted on page 5 and make a very brief quote from that case.

The Court said at page 571, “an act of Congress which at the same time and in itself authorizes or creates a new liability and prescribes the limitations thereof and of its enforcement, makes those limitation’s conditions as to the liability itself.

Such an act is not a statute of limitations and a compliance with the conditions which it prescribes is indispensable to the enforcement of the liability it authorizes or creates because such limitations are conditions of the liability itself and not limitations of the remedy only.”

I submit that this case and the other cited by myself in my briefs by the respondent herein clearly establish that the federal three-year limitation in the Federal Act is substantive.

In my opinion however I’ll go one step further.

I think that many of the cases cited by the petitioner would have been decided in the same manner whether the courts had found a limitation procedural or substantive.

I submit further that the decisions cited by the petitioner were made under circumstances, extreme, circumstances which to do otherwise would offend the cognitions of many right thinking persons.

May the Court please this plaintiff Otto V. Burnett through its counsel prepared a petition, alleging facts, bringing him within the protection and benefits of the Federal Employer’s Liability Act, not the least of which is the three-year period within which to assert this right.

I am not aware of any state statute allowing three years for actions for personal injuries.

Now having possessed himself of the protection and benefits of this act, it seems to me that he should comply with its integral and its substantive provisions.

Mr. Burnett for reasons known only to himself, permitted approximately 1090 days to pass from the time his cause of action arose before asserting his alleged claim, then filed his suit in the wrong court.

His was the choice of the forum of action.

His was the choice of the court to hear the action.

He was not a prisoner of war.

There was no situation occasioned by state of war preventing from filing his suit or making him file in the wrong court.

The defendant made no misrepresentations, no one perpetrated a fraud inducing him to file in the wrong court.

There is no single case cited by the petitioner, in point factually or legally with his present position,

Byron R. White:

I notice you don’t deal with the Herb in your brief.

Roy W. Short:

No I don’t, Your Honor.

I intend to deal with that at the close of my argument here orally.

Byron R. White:

Because that your statement, you just made simply covers Herb single case cited by (Voice Overlap)

Roy W. Short:

I certainly believe it does Your Honor and I intend to point that out orally.

If we are to follow the plaintiff’s theory, what then will be the meaning, the future meaning of the three-year federal limitation?

Following this theory can we say to future claimants under this act; first, make up the petition, alleging injuries and facts bringing you within the Federal Employer’s Liability Act, then file it in the court, almost any court, but file it.

Then let that court or possibly opposing counsel to tell you what court you should be in, go there, file your suit and then lay back and bask in the arms of a state savings clause.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

In general, Justice Goldberg, there is venue in personal injury actions —

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

Simply because the action here was filed against a railroad company and there is a separate section in Ohio’s Revised Code pertaining to venue against railway companies.

Therefore if a person were suing another personal for an automobile accident, this section would not be involved.

Roy W. Short:

It’s only when a person seeks venue against a railway company that this particular section of the code is involved and it provides essentially that the plaintiff must either reside in the county or a cause or a part of that cause of action must have arisen in the county in which the railroad has a line or is doing business.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

Yes, it is, Justice Goldberg.

In other sections and in general terms, personal injury actions of course being transitory in nature are governed in the sense that the plaintiff neighboring his action in the county in which the cause of action arose or in which he can obtain service upon the defendant and if it’s the case of joint liability, he may bring his action properly in one county and service be obtained over to another county bringing that join defendant in, although that joint defendant could not have been sued by himself.

In discussing various ramifications of this case in recent months many of my colleagues have urged that I’m representing a so called target defendant.

They have urged that if my client was a poor little white haired lady, we wouldn’t have seen the United States District Court much less the Supreme Court of the United States.

I don’t know about that, I do know that beyond question –-

Hugo L. Black:

You don’t about that –-

Roy W. Short:

Pardon me Mr. Justice?

Hugo L. Black:

You don’t know about that?

Roy W. Short:

I don’t know about their feelings and I’m not willing to subscribe to the expressions that have been urged on me.

I know beyond question that the financial responsibility of the defendant, well respondent in this case New York Central Railway while it is of considerable significance to the plaintiff, it’s certainly there is no consideration here or in any other Court, appellate or otherwise.

Earl Warren:

Do you think it’s necessary to argue that to us?

Roy W. Short:

No I don’t, Your Honor.

Earl Warren:

So why you’re doing?

Roy W. Short:

On the other hand, I felt this way, there is no place to go after this Court and I feel obliged to bring before this Court every thought I have relative to this case.

Earl Warren:

No, no place for the other man to go either after this Court?

Roy W. Short:

Well Your Honor, if we may deviate from the record for a moment I appreciate that and I respect that fact and we as attorneys carry insurance for such situations and I don’t need to go any further there.

I don’t feel it is of significance and perhaps I was presumptive in bringing it up in the first place.

Earl Warren:

You are.

Roy W. Short:

In conclusion I would like to mention to the Court that and most respectfully urge the Court to bear in mind, this is a Federal Law with which we are dealing.

It seems to me that the basic purpose of Federal Legislation is to establish a rule of law uniform to all states, uniform to all citizens of those states.

If we permit this situation in the circumstances of this case, we could possibly and conceivably resolve in facing a Georgia litigant under FELA, having the three years within the commence an action or attempt to commence it and another six months if he fails otherwise on the merits to bring his action properly in the right Court.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

It does Justice Goldberg, precisely it does and I again would like to urge at this point upon the Court, I’m not expressing in doing an attempt to express my feeling about the merits of the venue section in reference to service upon railroads, but I’m simply saying that under the present existing law, this situation should not be permitted to exist.

We can have an Indiana litigant under FELA, commencing action within three years and have five more years if he fails otherwise then on the merits within which to properly file his action or properly re-file his action.

In Maryland, I could locate no savings clause, therefore a Maryland litigant would have the three-year period extended to him under the Federal Act.

In Michigan, he might have three years plus 90 days and so forth.

I submit to this Court that if that were the intention of Congress, it could have provided such in the act, when it was enacted.

I most respectfully urge in closing that the United States Court Of Appeals For The Sixth Circuit follow the existing law and it properly distinguish those cases cited by this plaintiff, involving war, fraud, estoppel and so forth from the cases such as I have cited in my brief which I believe to be precise in point.

Roy W. Short:

The case cited by plaintiff Herb versus Pitcairn is a removable case, a removable case, simply because by the law of Illinois, a plaintiff is permitted to file a motion in a trial Court and if that motion is granted, the same summons, the same process and the same case is transferred over to a Federal District Court, that is not the law of the State of Ohio.

A plaintiff cannot remove a case from a State Court in Ohio to a Federal District Court as such.

His only recourse is to dismiss his case in State Court and re-file in the US District Court.

On the other hand, a defendant in the State of Ohio may remove his case from State Court to Federal Court without the issuance of new summons and I submit that the Herb versus Pitcairn has no application to this case either and I again most respectfully urge the Court to affirm the ruling of the United States Court of Appeals For The Sixth Circuit.

Thank you.

Earl Warren:

Mr. Cole, you want to add something typical —

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

Yes, Your Honor the subject matter was obtained by the Court that is it had jurisdiction over the subject matter.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

Yes, Your Honor as a matter of fact as I’m sure this Court well knows, if the case had been properly filed in the State Court to begin with and if the Court had the venue, then of course the case could not have been removed under any circumstances by the defendant.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

I think Justice Goldberg, however, in taking that statement and I would certainly agree with you that take in its context as you read it, it would be applicable, but I think an entire reading if the case changes that.

Arthur J. Goldberg:

[Inaudible]

Roy W. Short:

Yes, Your Honor.

Earl Warren:

Mr. Cole.

Very well.