Norfolk Southern Railway Company v. Tobergte et al

Filing 233

ORDER & OPINION: (1) GRANTING IN PART & DENYING IN PART Hall & Tobergte's 121 JOINT MOTION to Dismiss &/or Strike Count II & MOTION for Costs; granting the motion to extent that it asks the court to strike pla's 1st Amended Complaint ; denying the motion to extent it asks the court to dismiss pla's 1st Amended Complaint; motion for sanctions is DISMISSED WITHOUT PREJUDICE; (2) pla's 117 First amended Complaint is STRICKEN; (3) GRANTING IN PART & DENYING IN PART pla� 39;s 124 MOTION to Dismiss & MOTION to Strike & MOTION for Costs; granting motion to extent that it asks the court to strike dfts' answer to pla's 1st Amended Complaint; denying the motion to extent it asks the court to dismiss dfts' ; answers; the motion for sanctions is DISMISSED WITHOUT PREJUDICE; (4) dft Tobergte's 119 Answer to pla's 1st Amended Complaint & Counterclaim & dft Hall's 122 Answer to pla's 1st Amended Complaint & Counterclaim & jury demand are STRICKEN. Signed by Judge Karen K. Caldwell on 3/11/22.(KJR)cc: COR

U NITED S TATES D ISTRICT C OURT
E ASTERN D ISTRICT OF K ENTUCKY
C ENTRAL D IVISION
L EXINGTON
Norfolk Southern Railway
Company,

Civil No. 5:18-207-KKC-MAS

Plaintiff,
v.

O RDER

AND

O PINION

Kevin Tobergte and
Andy Hall,
Defendants.

** ** ** ** **

This matter is before the Court on Defendants/Counter Claimants Andy Hall

Amended Complaint and Motion for Costs (DE 121) and Plaintiff/Counter Defendant
to Dismiss and/or Strike Count Two of

Counterclaims, and Motion for Costs (DE 124). For the following reasons, both
motions will be granted in part and denied in part.

BACKGROUND
On March 18, 2018, Plaintiff Norf
southbound train 175 collided with its northbound train M74 in Georgetown,
Kentucky, causing extensive damage to the locomotives, rail cars, and other property.
(DE 1 ¶¶ 614.) Defendant Kevin Tobergte was the locomotive engineer on Train 175,
and Defendant Andy Hall was Train
On April 5, 2018, Plaintiff filed a complaint in this

filed answers, which included counterclaims against Norfolk Southern. (DE 22; DE
23.)

began during discovery when Plaintiff Norfolk Southern Railway Company
unambiguously waived its claims for payments to third parties related to this lawsuit
in answers to interrogatories.1 (DE 52-2 at 6.) After confirming the waiver by letter,
Defendant Andy Hall requested that Norfolk Southern amend its complaint
consistent with the responses to interrogatories. (DE 52 at 4.) Norfolk did not seek to
amend its complaint until about a year later on May 1, 2020, when it asked this Court

2.)
The proposed amended complaint submitted to the Court no longer included
erty of adjacent land owners

ements to third party owners of rail
ion. (DE 103-1 at 5.) On February 4,
amend to include a claim for damages to
third-party rail equipment. The Court rejected the proposed amended complaint

1

third party relating to property damage sustained in the collision, state the name and address of the
person(s) issuing and approving such payment, payee, the form of the payment, the date of the
(DE 52-2 at 6.) On July 19, 2019, Plaintiff respon
) In follow up, counsel for Defendant Hall requested
that Plaintiff either respond in substance to Interrogatory No. 19 or amend the complaint to reflect
waive any claim for collection of payments to third
has stated in its written response to Interrogatory No. 19 that it expressly
waives any claim for the collection of such payments

because the original complaint had not included a general indemnity claim, and thus
Norfolk could not add this new claim for indemnity because good cause was not shown
for expanding claims so long after the dead
olk leave to amend its complaint in
order to drop claims for third-party adjacent landowners and customers, consistent
with its earlier waiver duri
When Norfolk filed its First Amended Complaint on May 24, 2021, it
inexplicably included an expanded general claim for indemnity for third-party
damages. (DE 117 at 4.) In
filed a joint motion asking the Court to dismiss or strike Count II of the First
Amended Complaint, and for costs associated with filing their motion. (DE 121.)
In short, Norfolk Southern waived the claims it had made in its original
complaint for indemnity for payments to third-party landowners and customers, then
sought leave to amend its complaint and expand its claim to a general claim for
indemnity to third parties. After holding that Norfolk could not broaden its claim to
one of general indemnity, the Court directed Norfolk to amend its complaint to reflect
the waiver it had made during discovery.
order, Norfolk filed an amended complaint that made an expanded general claim for
indemnity.
s and Answers to the Amended
Complaint
First Amended Complaint (DE 117),
Defendants filed answers. (DE 119; DE 122.) In each of their answers, Defendants
incorporated by reference the counterclaims from their initial answers (DE 119 at 5;
DE 122 at 7.)

Plaintiff has filed a motion to dismiss
counterclaims, to strike certain allegations contained in the counterclaims, and for
costs, which is currently before the Court (DE 124). In its motion, Norfolk argues

allegations . . . which this Court previo

at 3) because it
iginal counterclaims, some of which were
Order (DE 114). Norfolk further seeks

payment of costs and other sanctions that the Court may find appropriate, contending
uary 2021 Order and required Plaintiff to
prepare its motion. (DE 124 at 5.)

ANALYSIS

First Amended Complaint (DE 117) pursuant to Federal Rule of Civil Procedure 12(f).

redundant, immaterial, impertinent, or scan
In the Sixth Circuit, courts have stricken an amended complaint where the
grant of leave to amend. Helms v. Nationwide Ins. Co.
of Am., 280 F.R.D. 354, 362 (S.D. Ohio 2012) (striking new allegations and claims
In re Keithley Instruments, Inc., 599
F. Supp. 2d 908, 912 (N.D. Ohio 2009) (striking new causes of action that exceeded
see also Urioste v. Corizon, No. 1:16-CV-00755-JCHKRS, 2021 WL 1811694, at *7 (D.N.M. May 6,
strike allegations, claims, and even entire amended pleadings under Federal Rule of
Civil Procedure 12(f) where that material exceeds the scope of an amendment

The amended complaint filed by Norfolk Southern plainly does not comport
to amend. The scope of leave granted by
the Court was clear: Norfolk was permitted to amend the complaint to omit its claims
that it had waived during discovery, as the Norfolk had asked to do. (DE 114 at 34.)
Further, the Court expressly prohibited Norfolk from adding a new indemnity claim
for settlements paid to third-party owners of damaged rail equipment. (DE 114 at
34.)
so clear: in Count II of the initial
ht indemnity for liability for damages paid
did not include a general claim for
indemnity for payments made to third parties

nternal quotations

omitted) (emphasis added).) The Court held that the initial complaint did not include
a general indemnity claim for payments to third parties, but a specific one for
indemnity for amounts paid to adjacent landowners and customers. Norfolk

amended pleadings, and the Court clearly explained why Norfolk had not
demonstrated good cause to add a new claim in an amended complaint. (See DE 114

indemnity claim for liability to third parties. In paragraphs 18 and 19 of the amended
complaint, Norfolk states that
negligence, third parties sustained signific
Plaintiff has been or can be liable to third parties for the above described
damage . . . Plaintiff is entitled to inde

such sums as paid or may be payable to
exceeds the scope of leave that the Court granted Norfolk Southern to amend its

claim for indemnity. Norfolk was given leave only to omit claims that it had
previously waived, and was expressly prohibited from adding new indemnity claims.
ended complaint is unavailing. Norfolk

Count II entirely, and thus it merely made changes to the language of the claim in

count is titled. (DE 128 at

t have expressly ordered

Count II be omitted, that does not excuse Plaintiff from making changes to the

complaint. (DE 128 at 12.) Rather, the Court ordered Norfolk to file an amended
complaint that omitted certain claims. (DE 114 at 34.) The Court gave no instructions
regarding the language Norfolk was to use in order to omit those claims, and simply

eliminated and replaced certain words without regard to their substance and
meaning is unconvincing, because Norfolk acknowledges the intent of its amendment
was to state a general claim for indemnity for liability to third parties in order to
preserve the cause of action for appeal.2 (See DE 128 at 14.)
The Court granted Norfolk leave to amend its complaint to drop the indemnity
nity claims for payments to adjacent
2

a general claim to recover all payments [Plaintiff] has made to third parties as a result of the subject
the issue for appeal, [Plaintiff] intends to request the Court permit it to submit an offer of proof
regarding these payments outside the presence of
argument is misplaced, because if Plaintiff disagr
truction of the initial
complaint, its February 4, 2021 Order and Opinion (DE 114) provides the adverse ruling necessary to
provide the right to appeal. If Plaintiff disagrees with

indemnity claims. The Court also held that Count II of the initial complaint only

essly stated, the only logical directive
was that Norfolk was required to drop its indemnity claim that had been asserted in

aims in Response to the Norfolk
In their answers to the Norfolk So
Defendants incorporate by reference the counterclaims that were included in their
initial answers. (DE 119 at 5; DE 122 at 7.) Norfolk Southern argues that this
incorporation by reference violates the
counterclaims. Pursuant to Rule 12(f),
Norfolk now asks the Court to strike those dismissed claims from the answers to the
First Amended Complaint. Norfolk also seeks payment of costs against the
Defendant, arguing it was forced to prepare its motion to strike only because
124 at 5.) In response, Defendants assert
that it was necessary to incorporate their original counterclaims by reference because
(1) some courts have held that counterclaims are waived or abandoned if not repled
when answering amended complaints; (2) Defendants could not amend their
counterclaims without leave of the Court; and (3) removing the portions of their
counterclaims on which the Court granted summary judgment could jeopardize the

are divided on the question of whether
the Federal Rules of Civil Procedure require a party to replead a counterclaim in
2.) Within the Sixth Circuit, the issue

is not settled. See Artisan Estate Homes, LLC v. Hensley Custom Bldg. Grp., LLC, No.
1:19-cv-566, 2021 WL 1964476, at *2 (S.D. Ohio
on whether the Federal Rules of Civil Procedure require a party to replead a
counterclaim to an amended complaint, or the counterclaim is otherwise
see also Hemlock Semiconductor Corp. v. Kyocera Corp., No. 15-cv11236, 2016 WL 3254552, at *2 (E.D. Mich. June 14, 2016) (citing Hayward v.
Cleveland Clinic Found.
law, a party does not need to replead the dismissed claims to preserve them for
appeal, as the order dismissing the counte
courts have employed varying approaches to the question of whether leave must be
sought to file an amended counterclaim in response to an amended complaint. See
Raymond James & Assocs., Inc. v. 50 N. Front St. TN, LLC, No. 18-CV-2104-JTFTMP, 2020 WL 7332846, at *3 (W.D. Tenn. June 23, 2020), report and
recommendation adopted, No. 218CV02104JTFTMP, 2020 WL 6694299 (W.D. Tenn.
Nov. 13, 2020) (collecting cases).
Here, Defendants do not appear to oppose
but rather only appear concerned with proper preservation of the issues for appeal
s. In the Sixth Circuit, courts have
adopted varying approaches to the decide whether a party should replead
counterclaims in response to an amended complaint, but the consensus appears to be
that repleading is not always necessary. E.g., Mathews v. Ohio Pub. Emps. Ret. Sys.,
No. 2:12-CV-1033, 2014 WL 4748472, at *4 (S.D. Ohio Sept. 23, 2014) (permitting a
counterclaim to proceed even though the defendant had not repled the claim in
response to an amended complaint).
The Court finds the opinion of the Hemlock court persuasive, and holds that
under Sixth Circuit law, a party does not need to replead dismissed counterclaims in
order to preserve them for appeal. Hemlock Semiconductor Corp., 2016 WL 3254552,

at *2 (citing Hayward, 759 F.3d at 618). Therefore, the inclusion of counterclaims

redundant, and they will be stricken.
III.

Motions for Costs and Sanctions
In their motion to strike, Defendants seek payment of costs and other sanctions

as the Court deems appropriate against Plaintiff. (DE 121 at 7.) Likewise, Norfolk
Southern seeks payment of costs and other sanctions against the Defendants. (DE
124 at 5.) Both sides claim that the other vi
and that but for those alleged violations, they would not have had to file their instant
motions to strike.
Rule 11(c)(2) requires a motion for sanctions be made as a separate motion,
which is to be served under Rule 5, but not filed if the challenged filing is withdrawn
or corrected within 21 days after service. Fed. R. Civ. Proc. 11(
motions ask the Court to impose monetary sanctions upon the opposing side in the
form of costs incurred for the motion, but neither side filed separate motions as
required by Rule 11. Rather, they simply included their request for monetary
sanctions within their motions to strike
Defendants and Plaintiff filed combined motions, the motions for sanctions cannot be
granted and will be dismissed without prejudice. Id.; Myers v. Anthem Life Ins. Co.,
316 F.R.D. 186, 213 (W.D. Ky. 2016).
A court may order sanctions on its own initiative, but it must first order the

11(c)(3). Here, the Court declines to do so
as to any party.

CONCLUSION
For the reasons stated in this opinion, the Court hereby ORDERS as follows:
1.
Motion to Dismiss and/or Strike Count II of the First Amended
Complaint and Motion for Costs (DE 121) is GRANTED IN PART
and DENIED IN PART. The Court GRANTS the motion to the
Complaint. The Court DENIES the motion to the extent it asks the
motion for sanctions is DISMISSED WITHOUT PREJUDICE.
2.

mplaint

(DE

117)

is

hereby

STRICKEN.
3.
and/or Strike Count Two of Defe
Costs (DE 124) is GRANTED IN PART and DENIED IN PART.
The Court GRANTS the motion to the extent that it asks the Court
Complaint. The Court DENIES the motion to the extent it asks the
ers. However, the motion for
sanctions is DISMISSED WITHOUT PREJUDICE.
4.
Answer to First Amended Complaint, Counterclaim, and Jury
Demand (DE 122) are hereby STRICKEN.
Dated March 11, 2022.