237 F. Supp. 688 | W.D. Pa. | 1965
Plaintiff filed an action in the Court of Common Pleas of Allegheny County, Pennsylvania, against defendant and Phillip P. O’Connor to recover damages for injuries allegedly x'esulting from their negligent operation of motor vehicles. Thex-eafter, upon certification by the United States Attorney that defendant was acting within the scope of his employment as an employee of the United States at the time of the accident, pursuant to 28 U.S.C. § 2679(d)
This is an action which clearly comes within the provision of 28 U.S.C. § 2679 (d) and is removable. Upon presentation of the necessary certificate by the United States Attorney, this cause of action was properly removed to this Court. Gustafson v. Peck, 216 F.Supp. 370 (N.D.Iowa W.D.1963); Van Dorn v. Huffman, 221 F.Supp. 285 (E.D.Ill.1963). This action is distinguishable from the situation involved in McMahan v. Fontenot, 212 F.Supp. 812 (W.D.Ark.1963). In that case, the action was removable as to both defendants, although the removal petition was presented by only one defendant without the joinder of the other. The Court there pointed out that the petition for removal failed to “disclose any reason why Langston did not join therein.” McMahan v. Fontenot, supra, 814. Here the action as to Phillip P. O’Connor was not removable and that fact was clearly set forth in the petition. While there is authority for the Court’s retaining jurisdiction of a cause of action not removable if joined with a removable one, that is not to say that the joinder of O’Connor is required here for a proper removal under 28 U.S.C. § 2679(d). Van Dorn v. Huffman, supra. Because this action was properly removed, plaintiff’s motion to remand must be denied.
In an action such as this, arising out of the alleged negligent operation of a motor vehicle by an employee of the United States, the remedy against the United States shall be exclusive and the individual employee shall be immune from liability. 28 U.S.C. § 2679(b)
An appropriate order will be entered.
. “(4) Upon a certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the At
. “ (b) The remedy by suit against the United States as provided by section 1346(b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of bis office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.”