Lee v. BNSF Railway Company, 1:17-cv-00009

Plaintiff Scott Lee, a BNSF employee since 1976, injured his hand attempting to release a locomotive handbrake on August 12, 2013; he alleges the handbrake was defective and reported it to BNSF.
Lee sued in Montana state court on August 4, 2016, asserting four FELA counts (Counts I–IV) and one state-law count (Count V) alleging violations of the Montana Unfair Trade Practices Act and Mont. Code Ann. § 39-2-703 (post-injury claim handling/mismanagement).
BNSF removed to federal court, invoking federal-question jurisdiction based on complete preemption by the FELA; it also filed a Rule 12(b)(6) motion to dismiss.
Lee moved to remand; both parties briefed whether Count V was removable given the FELA and the well-pleaded complaint rule versus complete-preemption theory.
The magistrate judge agreed that FELA claims (Counts I–IV) are not removable under 28 U.S.C. § 1445(a), and held Count V is not completely preempted by the FELA, so the entire case should be remanded.
The court denied plaintiff’s request for costs and attorney’s fees, finding BNSF’s removal argument was objectively reasonable even though it failed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removability of FELA claims (Counts I–IV)	FELA actions against railroads are non-removable under 28 U.S.C. § 1445(a)	Did not dispute non-removability of Counts I–IV	Agreed — Counts I–IV must be remanded
Removability of state-law Count V	Count V asserts only state-law claims; defensive preemption cannot support removal under the well-pleaded complaint rule	FELA completely preempts and thus converts Count V into a federal claim, permitting removal	Count V is not completely preempted by the FELA; remand required
Whether FELA effects complete preemption	Congress did not clearly intend to convert post-injury state claims into federal claims; FELA preserves concurrent state jurisdiction	FELA’s preemptive scope is at least as broad as other statutes that have produced complete preemption (e.g., RLA)	No clear congressional intent to convert these state claims; complete-preemption exception inapplicable
Award of costs and attorney’s fees under 28 U.S.C. § 1447(c)	Fees warranted because removal was improper	Removal was objectively reasonable; fees not warranted	Denied — removal argument was objectively reasonable, so fees are not awarded

Moore-Thomas v. Alaska Airlines, 553 F.3d 1241 (9th Cir.) (removal statute strictly construed; doubts resolved for remand)
Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir.) (burden on removing party; strict construction of removal statute)
Valdez v. Allstate Ins. Co., 372 F.3d 1115 (9th Cir.) (resolve doubts in favor of remand)
ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213 F.3d 1108 (9th Cir.) (well-pleaded complaint rule governs federal-question jurisdiction)
Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1 (U.S. Sup. Ct.) (federal defense, including preemption, cannot provide basis for removal)
Retail Prop. Trust v. United Broth. of Carpenters & Joiners, 768 F.3d 938 (9th Cir.) (complete preemption is an extraordinary jurisdictional doctrine)
Lehmann v. Brown, 230 F.3d 916 (7th Cir.) (distinguishes complete preemption from defensive preemption)
Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102 (9th Cir.) (complete preemption is a jurisdictional doctrine)
Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. Sup. Ct.) (fees under § 1447(c) only when removal lacked an objectively reasonable basis)
Counts v. Burlington Northern R.R. Co., 896 F.2d 424 (9th Cir.) (discusses defensive preemption of post-injury claims)
Toscano v. Burlington Northern R.R. Co., 678 F. Supp. 1477 (D. Mont.) (preemption defense disposition of post-injury claims)