Opinion
No. 2:99CV186-B-B
May 26, 2000
MEMORANDUM OPINION
This cause comes before the court on the plaintiff's motion to remand. The court has duly considered the instant motion and supplement and the parties' memoranda and exhibits and is ready to rule.
The plaintiff brought this action in state court against Illinois Central Railroad Company [Illinois Central], J. A. Whitaker, the train engineer, and J.M. Cobb, the train conductor for negligence resulting in the collision between an Illinois Central train and the plaintiff's vehicle.
The defendants removed this cause on the ground of diversity jurisdiction. The notice of removal alleges that Cobb, a nondiverse defendant, was fraudulently joined. Absent fraudulent joinder, Cobb's Mississippi citizenship defeats diversity jurisdiction and precludes removal of this cause under 28 U.S.C. § 1441(b) (a diversity action "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought").
The plaintiff is a Mississippi citizen.
If fraudulently joined, Cobb's citizenship is not considered in determining whether diversity of citizenship exists. Rodriguez v. Sabatino, 120 F.3d 589, 592 (5th Cir. 1997), cert. denied, 523 U.S. 1072, 140 L.Ed.2d 665 (1998); Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 817 (5th Cir.), cert. denied, 510 U.S. 868, 126 L.Ed.2d 150 (1993). The removing party carries a heavy burden in establishing fraudulent joinder and must demonstrate it by clear and convincing evidence. Jernigan, 989 F.2d at 815; B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Fraudulent joinder may be established by showing outright fraud in the plaintiff's pleading of jurisdictional facts. Jernigan, 989 F.2d at 815; B., Inc., 663 F.2d at 549. In addition, "a joinder is fraudulent if the facts asserted with respect to the resident defendant are shown to be so clearly false as to demonstrate that no factual basis existed for any honest belief on the part of the plaintiff that there was joint liability." Bolivar v. R H Oil Gas Co., 789 F. Supp. 1374, 1376-77 (S.D.Miss. 1991). Fraudulent joinder may also be established as follows:
To prove their allegation of fraudulent joinder [the removing parties] must demonstrate that there is no possibility that [the plaintiff] would be able to establish a cause of action against [the nondiverse defendants] in state court. In evaluating fraudulent joinder claims, we must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party. We are then to determine whether that party has any possibility of recovery against the party whose joinder is questioned.
Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992), cited in Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995). If "there is no possibility that the state court would recognize a valid cause of action against the non-diverse defendants . . . then those defendants have been fraudulently joined." Burden, 60 F.3d at 217-18. See Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir. 1989) ("the court may find fraudulent joinder only if it concludes that the plaintiff has no possibility of establishing a valid cause of action against the in-state defendant"). The Fifth Circuit has stated:
Mindful of our obligation to exercise diversity jurisdiction only in cases of complete diversity, we will not authorize removal on the basis of fraudulent joinder unless there is no possibility that the plaintiff could state a cause of action against the non-diverse defendants. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, LTD., 99 F.3d 746, 751-52 (5th Cir. 1996) (citing B, Inc., 663 F.2d at 549).
The complaint alleges, inter alia, that the defendants "[f]ailed to maintain a reasonable and proper lookout," and "[f]ailed to give sufficient and reasonable warning of the approach of said train" and "the presence of the train at the crossing." It is undisputed that the plaintiff's vehicle struck the side of the lead unit of the train while the train was traveling through the railroad crossing. The accident report states that according to Special Agent Speight, the collision damaged the fuel tank on the lead unit and the fourth and tenth cars from the head end of the train. The collision occurred at night during a heavy rain. The accident report reflects that the train and the plaintiff's vehicle were traveling at 25 m.p.h.
The affidavit of defendants Whitaker and Cobb describes the weather conditions at the time of the collision as "a very heavy downpour of rain" and an "extremely heavy rain."
As the engineer operating the subject train, Whitaker had the duty to sound the horn. The defendants do not dispute that Cobb, as the conductor assigned to the subject train, "is in a supervisory position such that he had an obligation to see that the engineer blew the horn." Company Rule 771 provides in part:
See Defendant's memorandum at 19.
The conductor and the engineer will be equally responsible for the safe and proper handling of the train and for the use of whatever signals and other precautions are required.
However, the defendants contend that the company rules impose duties owed to only the company and not third parties. Implicit in the rules submitted for the court's review, e.g., safe and proper use of signals, is the underlying rationale that the company trains be safely and properly operated for the protection of not only passengers but also the traveling public. In addition, the conductor and the engineer, "equally responsible . . . for the use of whatever signals and other precautions are required" have a statutory duty to ensure the use of required signals. Miss. Code Ann. § 77-9-225 reads in pertinent part:
Rule 771 reads in part:
Conductors have charge of the trains to which they are assigned and of all employees on their trains. They are responsible for: (1) the safe and proper management of their trains, (2) the protection and care of passengers and property, (3) the performance of duty by train employees, and (4) the observance and enforcement of all rules and instructions.
As requested by the defendants, the court ignores the legal conclusion in J.C. Scott's affidavit stating that the duties imposed in Rule 771 "extend to the traveling public." See Scott's affidavit at ¶ 6, attached to the plaintiff's rebuttal.
Every railroad company shall cause . . . the bell to be rung or the whistle or horn to be blown at the distance of at least three hundred (300) yards from the place where the railroad crosses over any public highway or municipal street. The bell shall be kept ringing continuously or the whistle or horn shall be kept blowing at repeated intervals until said crossing is passed.
Every person, company or corporation violating the provisions of this section shall be guilty of a misdemeanor
. . . .
The plaintiff's affidavit states that the plaintiff "knew there was a railroad crossing ahead" but "heard no bells, whistles or horns" and saw "[n]o headlight or other light or lights on the train." The affidavit of defendants Whitaker and Cobb states that "[t]he headlight and ditch lights on the train remain `on' at all times, day or night, regardless of weather conditions, and were `on' the entire time of this train trip." As the defendants assert, "the visibility of all parties, including that of Milward, was extremely limited due to a heavy downpour of rain at the time as evidenced by the fact that Milward drove his vehicle into the side of the locomotive." The plaintiff did not see the train approaching or passing through the crossing and the train crew did not see the plaintiff's vehicle at any time and was unaware of the collision. The affidavit of Whitaker and Cobb states that "due to the heavy rain, we could not see very far up the track . . . and our vision to the side of the locomotive was extremely limited." The defendants submitted a photograph of the crossing for the purpose of showing "the view that Milward would have had of the crossbuck sign and the crossing had there not been a heavy downpour of rain."
See Defendants' response in opposition to plaintiff's motion to remand at 1.
The train did not stop after the collision.
The defendants submitted another photograph of an approaching train over 900 feet from the crossing on a clear day. The plaintiff objects to both photographs on the ground that they do not depict the conditions at the time of the collision. The court finds that, for purposes of determining the jurisdictional issue, the plaintiff's objection is not well taken.
See Defendant's memorandum in opposition to the plaintiff's motion to remand at 1 (emphasis added).
For purposes of the statute, "[t]he crossing is passed when it has become entirely occupied by the railroad train, whereupon the statutory obligation to continue the signals no longer exists." Spilman v. Gulf S. I. R. Co., 163 So. 445, 445-46 (Miss. 1935). The general rule is that absent "some peculiar environment," "the occupancy of the entire crossing by a railroad train is a sufficient warning within itself of the presence of the cars on the crossing." Id. at 446. See Gulf, M. O. R. Co. v. Baggett, 8 So.2d 246, 246 (Miss. 1942) ("the actual sight of a locomotive, in unobstructed view in full daylight and within one hundred feet in distance, as was the case here, gives all the warning necessary of its presence and proximity"); Gulf, M. N. R. Co. v. Addkison, 194 So. 593, 594 (Miss. 1940) (the presence of the train on the crossing was sufficient warning since the motorist saw the cars on the crossing for a distance of from 150 to 200 feet). A "peculiar environment" exists if the conditions and circumstances were such that the employees knew, or in the exercise of reasonable care and caution should have known, that a person driving upon the street at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, could not see or might not be able to see the cars in time to avoid a collision therewith. Gulf, M. N. R. Co. v. Holifield, 120 So. 750, 751 (Miss. 1929). See Spilman, 163 So. at 446 ("the peculiar environment . . . means some peculiar condition of hazard which reasonable prudence should have reasonably foreseen would likely lead to a collision, notwithstanding ordinary care on the part of the driver of the motor car").
The court noted:
It was dark at the time of the collision, but the night was otherwise clear; there was no smoke, or fog, or rain."Spilman v. Gulf S. I. R. Co., 163 So. 445, 445 (Miss. 1935).
It is undisputed that neither Whitaker nor Cobb saw the plaintiff's vehicle in spite of the vehicle headlights. The defendants assert that the weather conditions prevented their view of the approaching vehicle. Similarly, the plaintiff asserts that he did not see the passing train or the lights thereon. Assuming arguendo that the individual defendants maintained a proper lookout but could not see the plaintiff's vehicle because of the weather conditions and "extemely limited" visibility, the court finds that they arguably should have foreseen that a motorist maintaining a proper lookout while approaching the crossing would be unable to see the train passing through the crossing and that the use of signals even beyond the statutory requirement would be necessary, under the circumstances, to give sufficient warning of the presence of the train.
The plaintiff's affidavit states that he heard no bells, whistles or horns and that the windows were closed but the radio and air-conditioner were not on. The affidavit of Whitaker and Cobb states that "Whitaker started blowing the whistle for [the subject crossing] as the locomotive approached the whistlepost . . . and continued to blow the horn until the lead locomotive completely occupied the crossing." The affidavit of Professor Robert A. Macrae, an expert retained by the defendants, states that the event recorder data indicates that "the horn blow for [the subject] crossing was first registered approximately 1200 feet south of the . . . crossing and continued through the crossing until the lead locomotive occupied the crossing." The plaintiff's rebuttal affidavit of J.C. Scott, a railroad operations consultant, states in part:
Macrae's analysis, however, is inconclusive as to horn activity and duration. See Macrae's affidavit at ¶ 3, p. 4.
While the event recorder shows horn activity at some point, it is not clear at what point horn activity took place. The horn activity, pattern and duration are still at issue.
Since the defendants' use of signals and the sufficiency thereof remain factual issues, the court finds that, under Mississippi law, there is a possibility of a negligence claim against Cobb, as well as Whitaker. Therefore, Cobb's Mississippi citizenship precludes removal jurisdiction dunder 28 U.S.C. § 1441(b) and defeats diversity jurisdiction. An order granting the motion to remand will issue accordingly.
The defendants move to submit a rebuttal brief in order to challenge Scott's affidavit on the ground that Scott has not analyzed the event recorder data. However, Scott's affidavit states that he has reviewed all the supporting documents and briefs of the parties which would include Macrae's affidavit and attached exhibits. The plaintiff asserts that defendant Illinois Central has not "provided the Court with the data in all possible formats." See Plaintiff's rebuttal memorandum at 3. The court finds that Scott should be given an opportunity to analyze the recorder data since Macrae's conclusion is based on several analytical factors and the court is not convinced that Macrae's interpretation of the data is the only possible interpretation. See supra note 10.
The plaintiff opposes the defendants' motion to submit a rebuttal brief and, in the alternative, requests an opportunity to submit a surrebuttal brief. Since the court accepts Scott's affidavit, the court GRANTS the defendants' motion to submit a rebuttal brief on the ground that it does not prejudice the plaintiff for purposes of the instant motion to remand.
The plaintiff seeks an award of costs and expenses, including attorney fees, incurred as a result of the removal. See 28 U.S.C. § 1447(c) ("An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."). The decision whether to award costs and expenses is discretionary. Teer v. Upjohn Co., 741 F. Supp. 1242, 1244 (M.D.La. 1990) ("when removal was obviously legally defective, an award of costs is within the court's discretion"). The court is not required to find that the removing party acted in bad faith or in a "vexatious, wanton, or oppressive" manner. Penrod Drilling Corp. v. Granite State Ins. Co., 764 F. Supp. 1146, 1147 (S.D.Tex. 1990). In its discretion, the court declines to award costs and expenses to the plaintiff. See C. Wright, A. Miller, E. Cooper, 14A Federal Practice and Procedure § 3739 (2d ed. 1985) (courts "will be [more] inclined to [award costs and expenses] when the nonremovability of the action is obvious"). The issue of fraudulent joinder of Cobb is fact-based and the conclusion of the defendants' expert regarding use of signals was apparently unchallenged at the time of removal.