Norfolk Southern Railway Company v. Rolison Trucking Co., LLC et al
ORDER denying 57 Motion to Lift Stay; granting 60 Motion for Leave to File. Signed by Judge Kristi K. DuBose on 11/30/2011. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORFOLK SOUTHERN RAILWAY
ROLISON TRUCKING CO., LLC.,
GAIL W. ROLISON, and RONNY P.
CIVIL ACTION NO 06-0288-KD-C
This action is before the Court on the plaintiff Norfolk Southern Railway Company’s
motion to lift the stay, enter a scheduling order, and resolve the issues of the amount of damages
due to Norfolk and whether the defendants Rolison Trucking Co., LLC, Gail W. Rolison, and
Ronny P. Johnson’s conduct was wanton (docs. 57, 61).1 Upon consideration, and for the
reasons set forth herein, the motion to lift stay is DENIED.
I. Factual Background
On February 14, 2005, a train owned by Norfolk Southern Railway Company (Norfolk)
collided with a truck owned or operated by Rolison Trucking Co. LLC, (Rolison Trucking) and
owned or operated by Gail W. Rolison (Rolison) and driven by their employee Ronny P. Johnson
(Johnson) on Walker Springs Road in Clarke County, Alabama near Jackson, Alabama. Three
locomotives and the truck were damaged and Johnson was injured. (Docs. 1, 9, 12).
Plaintiff’s motion for leave to file a reply (doc. 60) is GRANTED.
II. Procedural history
Previously, defendants filed a motion to stay or dismiss this action because a similar
action had been filed in an Alabama state court. In September 2006, the motion to dismiss was
denied and the motion to stay this action was granted. (doc. 25). This Court applied the
Colorado River analysis2 and found that the potential for excessive and inconsistent piecemeal
litigation outweighed the neutral factors and outweighed the factors in favor of litigation in this
The parties’ arguments
In the motion to lift the stay, Norfolk asserts that because the Alabama Supreme Court
has resolved all claims and because there is a presumption in favor of this Court exercising
jurisdiction, “there is no longer a basis for this Court to abstain from exercising its unquestioned
jurisdiction.”(doc. 57, p. 8). Norfolk argues that this action was not stayed for all issues to be
resolved in the state court but instead now that the issue of liability has been established, the stay
should be lifted and the remaining issues resolved here. Norfolk asserts that when this Court lifts
the stay, it will dismiss its remaining state court counter-cross claim against the defendants. (The
state court counter-cross claim alleges the same claims as the complaint in this action).
Defendants respond that the motion is premature and lifting the stay is inappropriate (doc.
59). They argue that the Alabama Supreme Court did not finally resolve all issues but instead
reversed and remanded the action such that there are matters pending before the state court judge
on remand. Defendants argue that since the claims in the state court are not final and progress in
Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.
Ct. 1236, 1246-1247 (1976).
the state court outdistances any progress in this court, the state court, “by virtue of its prior
experience,” is in the best position to determine damages and see the claims to conclusion. They
also argue that they may petition for writ of certiorari to the U. S. Supreme Court or possibly file
post-remand motions in the state court.
In this Court, Norfolk asserted negligence and wantonness claims against Rolison
Trucking Company, Gail Rolison and Ronnie Johnson. (Doc. 1). In the state court counter-cross
claim, Norfolk asserted negligence and wantonness claims against the same defendants and the
jury returned a verdict in favor of the defendants. Norfolk Southern Ry. Co. v. Johnson, --- So. 3d
----, 2011 WL 835060, *18 (Ala. Mar. 11, 2011). On appeal, the Alabama Supreme Court
decided that defendant Johnson’s negligence was the “sole proximate cause” of the accident,
reversed the verdict, and made no determination as to Johnson’s wantonness. (Id.)
Now, Norfolk seeks to have this Court determine the issue of whether defendants acted
wantonly and fix damages accordingly. In the motion, Norfolk states that the Alabama Supreme
Court decision “is binding and dispositive of the liability issues (except for whether the JohnsonRolison parties’ conduct was wanton) and between the parties in this case, the only substantive
issues left are simply the amount of damages to which Norfolk Southern is entitled and whether
the conduct of the Johnson-Rolison parties was wanton.” (Doc. 57, p. 9) (parenthetical in
However, the Colorado River abstention doctrine3 and principles of comity and
In Colorado River, the Court stated that “... there are principles unrelated to
considerations of proper constitutional adjudication and regard for federal-state relations which
govern in situations involving contemporaneous exercise of concurrent jurisdictions, either by
federal courts or by state and federal courts. These principles rest on considerations of ‘[w]ise
federalism both persuade this Court that the stay should not be lifted. Although, federal courts
are not precluded from the exercise of federal jurisdiction where there is a parallel state court
action pending, “a district court is under no compulsion to exercise that jurisdiction where the
controversy may be settled more expeditiously in the state court.” Will v. Calvert Fire Ins. Co.,
437 U.S. 655, 662–63, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978)). At this point, the state court has
addressed this litigation from the initial complaint through reversal and remand on appeal. Thus,
as defendants argue, the state court, “by virtue of its prior experience”, is in the best position to
determine damages and see the claims to conclusion. Therefore, the motion to lift the stay is
denied. The Court will not consider a motion to lift the stay until and unless the claims are no
longer pending in state court.
DONE this the 30th day of November, 2011.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
judicial administration, giving regard to conservation of judicial resources and comprehensive
disposition of litigation.’” Colorado River Water Conservation Dist. v. United States, 424 U.S.
800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (quoting Kerotest Manufacturing Co., v. C–O–Two Fire
Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200, 203 (1952); see also Lee
Memorial Health Systems v. Guillermo 2011 WL 5826672, 4 -5 (M.D. Fla. Nov. 18, 2011)
(explaining that Colorado River abstention “relies on notions of judicial economy and not
principles of federalism and comity.”).
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