Norfolk Southern Railway Company v. Rolison Trucking Co., LLC et al

Filing 43

Order to show cause why the stay should not be lifted and this case dismissed. ( Show Cause Response due by 5/29/2009. Hearing set for 6/18/2009 02:00 PM in US Courthouse, Courtroom 5A, 113 St. Joseph Street, Mobile, AL 36602 Judge Kristi K. DuBose.. Signed by Judge Kristi K. DuBose on 5/21/09. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff, vs. ROLISON TRUCKING CO., LLC., GAIL W. ROLISON, and RONNY P. JOHNSON, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO 06-0288-KD-C ORDER In September 2006, this action was stayed on the defendants' motion (doc. 25). The last status report was received May 18, 2009 (doc. 42). The parties report that the case has now been tried and on May 7, 2009, the Circuit Court of Clarke County, Alabama entered judgment on the jury verdicts in favor of Rolison Trucking Co., LLC, Gail Rolison, and Ronny P. Johnson and against Norfolk Southern Railway Company. Accordingly, the parties are ORDERED to show cause on or before May 29, 2009 why the stay should not be lifted and this case dismissed. See Cashion v Torbert, 881 So. 2d 408, 414-415 (Ala. 2003) (explaining that an order is final for purposes of res judicata or estoppel even though an appeal is pending)(quoting Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 800 (1947) ("In this jurisdiction a judgment will operate as res judicata or as estoppel notwithstanding an appeal when the appellate court action is based on a review of the record made below.")) (citations omitted); see also O'Dell v. Doychak, 2009 WL 1211356, 1 (M.D. 2009) ("During the stay, the state court adjudicated the exact rights which O'Dell asked this Court to adjudicate in his original federal action filed in 2006. [] Thus, the original controversy was fully resolved in state court, and dismissal of the federal action is now appropriate.") (citation omitted) A hearing on this matter is scheduled for June 18, 2009 at 2:00 p.m. before the undersigned in Courtroom 5A of the United States District Court, 113 St. Joseph St., Mobile, Alabama 36602. DONE this the 21st day of May, 2009. s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE 2

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