
    No. 295
    FUGITT v. L. E. & W. R. CO.
    U. S. District Court, Ohio
    No. 2580.
    March 12, 1923
    This opinion has not been published except in Abstract
    FEDERAL PRACTICE — (1) Remandability of case to state court — (2) The Federal Conformity Act does not apply to discretionary matters — (3) Dismissal on non-appearance of plaintiff — (4) Interpretation of Ohio GC. 11586.
   KILLITIS, J.

Epitomized Opinion

Plaintiff brought an action for personal injuries in the common pleas court of Huron county, Ohio, under the common law of. Ohio. The Railroad Co. removed the case to the federal court. A motion to remand was overruled, and as the plaintiff did not appear, a jury was impaneled, defendant’s witnesses heard, and a verdict rendered for defendant. Shortly afterward plaintiff began the action in the' same county court basing his cause of action upon the Federal Employers’ Liability Act. The Railroad then obtained á temporary restraining order and filed a petition for removal. A decree pro eon-fesso was entered restraining plaintiff from prosecuting his claim in the state court. The plaintiff then made a motion to remand. In refusing the motion, the federal court held:

1. While the case was remandable in character, it would be futile to remand the case, as plaintiff could not proceed in the state court without violating the federal injunction.

2. While the Federal Conformity Act (R. S. 419) requires a federal court to submit to the dictation of the state practice in which said court is sitting, yet it does not require the court to follow the state practice on matters discretionary in character and matters respecting the final disposition of a case over which, both as to fact and parties, it has complete control.

3. The court is not bound to dismiss a case by the simple non-appearance of the plaintiff at the day of the trial, but may proceed with the evidence to a complete determination of the controversy.

4. Under Ohio 11586 GC., which deals with the dismissal of actions,...the word “may” means “must” or “shall” only in those cases where the public interests and public rights are concerned.  