Dugle et al v. Norfolk Southern Railway Company
Filing
473
OPINION & ORDER: Plaintiffs' Motion for Relief from Final Judgment pursuant to Rule 60(b)(6) 469 is DENIED. Signed by Judge Karen K. Caldwell on 4/21/2011.(CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at FRANKFORT
CIVIL ACTION NO. 07-40
PAUL DUGLE, by and through his co-legal guardians
Michael Dugle and Brenda Radcliff, and MEGAN DUGLE, in her
individual capacity,
KENTUCKY ASSOCIATION OF COUNTIES
WORKERS COMPENSATION FUND,
v.
PLAINTIFFS,
INTERVENOR PLAINTIFF,
OPINION AND ORDER
NORFOLK SOUTHERN RAILWAY COMPANY,
DEFENDANT.
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This matter is before the Court on the Plaintiffs’ Motion for Relief from Final Judgment
pursuant to Rule 60(b)(6) [DE 469] .
On November 15, 2010, this Court entered Judgment for the Defendant Norfolk Southern.
[DE 461]. On December 13, 2010, the Plaintiffs appealed that ruling to the United States Court of
Appeals for the Sixth Circuit. [DE 462]. The Plaintiffs’ Rule 60(b)(6) motion was filed after the
Notice of Appeal.
The filing of a notice of appeal generally divests the district court of jurisdiction. Pittock v.
Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993). After the filing of a notice of appeal, this court
no longer has jurisdiction to grant a Rule 60(b) motion. Pickens v. Howes, 549 F.3d 377, 383 (6th Cir.
2008). However, under Rule 62.1 of the Federal Rules of Civil Procedure, this Court can 1) defer
considering the Plaintiff’s Rule 60(b)(6) motion; 2) deny the motion; or 3) state either that it would
grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial
issue. See also Advisory Committee's Note on Fed.R.Civ.P. 62.1. If this Court should state it would
grant the motion or that the motion raises a substantial issue, the Court of Appeals can then remand
the case to this Court. Fed. R. App. P. 12.1(b). Accordingly, the Court will consider the Plaintiffs’
Rule 60(b)(6) motion.
I.
Background.
To briefly summarize this action, on September 1, 2006, the Plaintiff Paul Dugle, who was
a Shelby County Deputy Sheriff at the time, was driving a police cruiser across a railroad crossing
in Shelby County, Kentucky when a train owned by Norfolk hit the cruiser, leaving Dugle
permanently impaired. The Plaintiffs assert a negligence claim against Norfolk.
As the Court noted in its initial ruling on summary judgment, the Plaintiffs have not disputed
that the crossing at issue in this case is private under Kentucky law. Under Kentucky law, a railroad’s
duties at private crossings have been described as practically non-existent. Most relevant to this case,
a railroad has no duty to sound the horn when approaching a private crossing and there is no dispute
that Norfolk did not do so when approaching this crossing prior to the accident.
There is an exception, however, for private crossings that are “ultrahazardous.” At such
crossings, if the railroad knew or by the exercise of ordinary care should have known the crossing was
ultrahazardous, then the railroad has a duty to warn travelers at the crossing of an approaching train.
In its initial decision on summary judgment, the Court determined that whether the crossing
was ultrahazardous was an issue for a jury to determine. However, as the Court noted in ruling on
Norfolk Southern’s motion for reconsideration, that decision did not come easily.
Determining whether a crossing is ultrahazardous seems to involve multiple factual inquiries
that are generally the duty of the jury and not the courts to make. However in, by far, the majority
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of Kentucky cases, the courts had made that determination as a matter of law. Neither party to this
matter, however, desired to await the Kentucky Supreme Court’s ruling in Calhoun v. CSX
Transportation, Inc., 331 S.W.3d 236 (Ky. Jan. 20, 2011). In granting discretionary review of that
case, the Kentucky Supreme Court indicated it would review the proper standard for evaluating
whether a crossing is ultrahazardous and the general duties owed by railroads at private crossings.
The Court thus proceeded again on reconsideration to try to make sense of the relevant
Kentucky case law and ultimately ruled that the crossing at issue in this matter was not ultrahazardous
as a matter of law. After the Plaintiffs filed their Notice of Appeal, the Kentucky Supreme Court
issued its ruling in Calhoun.
II.
Analysis.
Relying on Rule 60(b)(6) [DE 469 at 3, 5], the Plaintiffs now move the Court to reconsider
its ruling on reconsideration in light of the decision in Calhoun. In Calhoun, the court ruled that,
under the facts of that case and under the state summary judgment standard, the question of whether
the crossing at issue was unusually dangerous was for the jury and not the courts to decide. Id. at 246.
The Plaintiffs argue that Calhoun represents a “clarification. . . of the controlling state law.” [DE 469
at 5]. The Plaintiffs also state that Calhoun “confirmed that Kentucky law has not changed in
decades.” [DE 469 at 2].
For purposes of this motion, the Court assumes that Calhoun does indeed clarify the law on
when a jury should determine whether a crossing is ultrahazardous. The question is whether a
clarification of state law in a diversity case is grounds for granting a Rule 60(b)(6) motion. The rule
appears to provide this Court wide latitude in altering a judgment, stating that the court may grant
relief from a final judgment for “any...reason that justifies relief.”
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But the Sixth Circuit has held that the rule “applies only in exceptional or extraordinary
circumstances. . . . ” See Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249
F.3d 519, 524 (6th Cir.2001) (quotations & citation omitted). Accordingly, “courts must apply Rule
60(b)(6) relief only in unusual and extreme situations where principles of equity mandate relief.” Id.
(quotations and citation omitted).
The Plaintiffs point to no Sixth Circuit cases finding that such “extraordinary circumstances”
exist where, in a diversity case such as this, the state’s highest court “clarifies” the law. Nor has the
Court located any such cases. Even a change in the applicable law does not warrant relief unless it
is “coupled with some other special circumstance.” Id., 249 F.3d at 524 (“[i]t is well established that
a change in decisional law is usually not, by itself, an ‘extraordinary circumstance’ meriting Rule
60(b)(6) relief.”). See also Agostini v. Felton, 521 U.S. 203, 239 (1997) (“Intervening developments
in the law by themselves rarely constitute the extraordinary circumstances required for relief under
Rule 60(b)(6).”).
Thus, whether Calhoun changes or clarifies Kentucky law, the Plaintiffs must set forth special
circumstances in this case warranting relief under Rule 60(b)(6). They have not done so.
For these reasons, the Court hereby ORDERS that the Plaintiffs’ Motion for Relief from Final
Judgment pursuant to Rule 60(b)(6) [DE 469] is DENIED.
Dated this 21st day of April, 2011.
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