Elam et al v. The Kansas City Southern Railway Company et al

Filing 61

MEMORANDUM OPINION re 60 Order on Motion to Remand to State Court. Signed by Glen H. Davidson on 5/23/11. (mhg)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

BARBARA ELAM AND BOBBY ELAM

VS.

PLAINTIFFS

CIVIL ACTION NO. 1:08CV304-D-D

THE KANSAS CITY SOUTHERN RAILWAY
COMPANY AND RONALD MICHAEL

DEFENDANTS

OPINION GRANTING MOTION TO REMAND
Presently before the Court is Plaintiffs, Barbara Elam and Bobby Elam's renewed Motion
to Remand (docket entry 46). After reviewing the motion, response, reply, rules, and authorities,
the Court makes the following findings:

A. Factual and Procedural Background
On November 18, 2006, Barbara Elam ('Elarri) drove her 2003 Ford Explorer into the side
of a Kansas City Southern Railway Company ('KCSR) rail car that was blocking the Pinecrest
Street crossing ('crossing) in Corinth, Mississippi. At the time, the crossing was equipped with
reflectorized crossbucks, advanced warning signs, and pavement markings. Ronald L. Michael
was the locomotive engineer of the train involved in the accident. Elam sustained personal
injuries as a result of her collision with KCSR's train.
On November 20, 2008, Elam and her husband filed suit against KCSR and Michael in
the Circuit Court of Alcorn County, Mississippi, asserting negligence claims against KCSR and
Michael arising from their alleged failure to clear the crossing, provide sufficient warnings of the
train's presence on the crossing, and their alleged failure to properly maintain the subject
crossing and warning signals. Plaintiffs further alleged that, by allowing the train to occupy the

crossing for more than five (5) minutes, KCSR and Michael violated section 77-9-235 of the
Mississippi Code of 1972 (the"Anti-Blocking Statute'), and were thus negligent per se.
On or around December 23,3008, KCSR timely removed this case to this Court claiming
the existence of both federal question and diversity subject matter jurisdiction. Plaintiffs filed
their Motion to Remand on or about January 15,2009. On March 23,2009, this Court issued an
order and opinion denying said motion. Plaintiffs filed a Motion for Clarification on April 20,
2009. This Court entered an order and opinion granting Appellants' Motion for Clarification and
dismissing Appellants' claims without prejudice for refilling with the STB.
On March 24, 2010, Plaintiffs timely filed their Notice of Appeal. On March 15,2011,
the Fifth Circuit Court of Appeals issued a Memorandum Opinion affirming the ruling of this
Court in part, reversing in part and remanding the action on Plaintiffs' simple negligence claims
for further proceedings in this Court. Elam v. Kansas City Southern Ry. Co., 635 F.3d 796 (5th
Cir. 2011).
On April 19, 2011, Plaintiffs timely filed a renewed Motion for Remand. On May 6,
2011, Defendants filed their response in opposition. Plaintiffs filed their rebuttal on May 19,
2011.

B. Standard/or Remand and Discussion
The Judiciary Act of 1789 provides that''any civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending:' 28 U.S.C. § 1441(a).

Original federal

jurisdiction exists ''where the matter in controversy exceeds the sum or value of $75,000.00,
exclusive of interest and costs, and is between ... citizens of different states .. :' 28 U.S.C. §

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1332(a); Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th
Cir. 1996).
In this Court's Opinion Denying Motion to Remand entered on March 23,2009, the Court
rejected the Defendants' argument that the Court had diversity jurisdiction due to the fraudulent
joinder of Defendant Michael.

The Fifth Circuit stated in its Opinion remanding the Plaintiffs'

simple negligence claims back to this Court for further proceedings, '1t]he district court properly
rejected this contention Here, as in Travis, the Elams allege facts providing at least a reasonable
basis to predict Michael was negligent:' Elam, 635 F.3d at 812.
In addition, the Act provides that'1a]ny civil action of which the district courts of the have
original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of
the United States shall be removable without regard to the citizenship or residence of the parties~'
28 U.S.C.§ 1441(b).
Once a motion to remand has been filed, the burden is on the removing party to establish
that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
Here, Defendants argue that the Plaintiffs' simple negligence claims are also preempted by the
Interstate Commerce Commission Termination Act ('ICCTA:), 49 U.S.C. § 10101, et seq.,
specifically § 10501 (b).

Defendants argue in their response that"per the Fifth Circuit decision in

this case'they should be allowed to "develop the record to determine if some or all of Plaintiffs'
remaining state law negligence claims are completely preempted by the ICCTA, on the basis that
the claims unreasonably burden or interfere with KCSR's operation:' However, the Fifth Circuit
stated, ''the ICCTA does not expressly or completely preempt the Elams' simple negligence
claims~'

In an Order denying Defendants' motion for summary judgment entered this same day,

the Court found The Fifth Circuit continued, 'It]he district court will need to determine whether

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the Elams' simple negligence claim in turn should be remanded to Mississippi state

court~'

Id. at

814. Having fully reviewed the record in this case, the Court is of the opinion that the remaining
claims are the equivalent of a routine crossing case which is typically resolved in state court. See
New Orleans & GulfCoast Ry. Co. v. Barrois, 533 F.3d 321,333 (5th Cir. 2008)..
C. Conclusion

In sum, the Court finds that Plaintiffs' simple negligence claims against Defendants based
upon inadequate warning of the train and/or the crossing. Therefore Plaintiffs motion to remand
shall be granted.
A separate order in accordance with this opinion shall issue this day.
l?d­

Thisthe~dayofMay,2011.

~

Senior Judge

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