Pace et al v. CSX Transportation, Inc., et al.

Filing 12

MEMORANDUM ORDER: For these reasons, Plaintiffs' motion to remand (Doc. # 3 ) is denied. Signed by Judge David L. Bunning on 1/9/13.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 12-203-DLB
CURTIS PACE and BETHANY PARKER, Administratrix of the
ESTATE OF CAROLYN S. PARKER

V.

PLAINTIFFS

MEMORANDUM ORDER

CSX TRANSPORTATION, INC., Unknown Operator of
CSX Train individually, and as agent, servant and
employee of CSX Transportation, Inc,
& Any Unknown Defendants

DEFENDANTS

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This matter is before the Court upon Plaintiffs’ motion to remand the case to Harlan
Circuit Court (Doc. # 3).

At the Court’s request, the parties were directed to file

memoranda specifically addressing whether a judgment may be entered against both an
individual defendant and Defendant CSX if Plaintiffs were to establish that the individual
defendant was negligent while acting within the scope of his employment. Defendant CSX
was also directed to file a Notice reflecting the citizenship of certain CSX employees who
were identified in a prior interrogatory. Those filings having been made (Docs. # 9-11), the
motion to remand is ripe for review. Because the citizenship of the defendants which have
been named is diverse from that of the plaintiffs, the Plaintiffs’ motion to remand must be
denied.
In their motion to remand, Plaintiffs allege that Defendant CSX Transportation (CSX)
was negligent in its operation of the train, and that negligence was a substantial factor in
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the death of Carolyn Parker and injuries sustained by Curtis Pace. The complaint also
names the “unknown operator of the CSX train” and “any unknown defendants.” All
plaintiffs are citizens of Kentucky. Defendant CSX Transportation is a Virginia corporation
with its principal place of business in Jacksonville, Florida. Through discovery the parties
have identified the “unknown operator of the CSX train” as John Kiser, the locomotive
engineer. Mr. Kiser is citizen of Tennessee (Doc. # 10). Although several other CSX
employees have been identified in discovery as potential witnesses1 to the accident, the
complaint contains no allegations against any of these individuals. As a result, the fact that
these witnesses are citizens of Kentucky does not destroy diversity in this case.
Defendants are permitted to remove an action on the basis of diversity of citizenship
if there is complete diversity between all named plaintiffs and all named defendants, and
no defendant is a citizen of the forum state. Lincoln Property Co. v. Roche, 546 U.S. 81,
85 (2005). Additionally, the Court's diversity jurisdiction is determined at the time the notice
of removal is filed. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289
(1938). Here, all named defendants were diverse from all plaintiffs at that time. The Court,
therefore, concludes that Defendants have carried their burden of establishing proper
removal jurisdiction. Rogers v. Wal–Mart Stores, Inc., 230 F.3d 868, 871-72 (6th Cir.
2000).
For these reasons, Plaintiffs’ motion to remand (Doc. # 3) is denied.

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Those individuals include Mitchel C. Short, CSX Conductor, Adam L. Harris, CSX Trainman, and Marcus
B. Fox, CSX Trainmaster. Each of these individuals are citizens of Kentucky (Doc. # 10).

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This 9th day of January, 2013.

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