Jones et al v. Union Pacific Railroad Company

Filing 19

MEMORANDUM AND ORDER re: 12 MOTION to Remand Case to State Court to Butler County Missouri filed by Plaintiff Anthony Jones, Plaintiff Chris Jones, Plaintiff Quincy Dewayne Jones, Plaintiff Joanne Jones. IT IS HEREBY ORDERED that plaintiffs' motion to remand (#12) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 2/27/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JOANNE JONES, et al.,
Plaintiffs,
v.
UNION PACIFIC RAILROAD CO.,
Defendant.

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Case No. 1:16-CV-263-SNLJ

MEMORANDUM AND ORDER
Plaintiffs are the surviving relatives of a man who was killed as the result of a train
accident in Butler County, Missouri. In 2012, plaintiffs filed a lawsuit against Butler
County and Union Pacific Railroad Company for wrongful death and other claims in the
Circuit Court of Butler County, Missouri (“2012 Case”). Plaintiffs settled with Butler
County but proceeded to trial with Union Pacific. On the eve of trial, the court granted
partial summary judgment to Union Pacific. Plaintiffs wanted to appeal the decision
immediately, so they dismissed the remaining counts (Counts I and II) without prejudice
and appealed the summary judgment to the Missouri Court of Appeals. In order to
preserve the claims they had dismissed, and in recognition that they might not win on
appeal and thus might not be able to add those claims back to the 2012 Case, plaintiffs refiled the two dismissed claims in a new action again filed in Butler County (“2016
Case”). Plaintiffs did not, however, serve defendant Union Pacific with process as they
waited for a result in the 2012 Case appeal.

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The Missouri Court of Appeals reversed the Butler County trial court’s grant of
summary judgment on October 18, 2016. Plaintiffs thus sought to amend their 2012 Case
petition to include the previously-dismissed claims. That motion is still pending.
Meanwhile, Union Pacific --- although not yet served with the petition in the 2016
Case --- learned of the 2016 Case, and its attorney entered an appearance and promptly
removed the case to this Court citing this Court’s diversity jurisdiction (#1).
Plaintiffs moved to remand this matter back to state court (#12). Plaintiffs do not
contest that the Court has jurisdiction over the case. Rather, plaintiffs argue that it is
fundamentally unfair for Union Pacific to have removed the case before being served
with process because, plaintiffs say, they have not yet determined whether they need to
proceed with the 2016 Case. If the state court grants their motion to amend the petition to
re-add Counts I and II in the 2012 Case, then plaintiffs can dismiss or consolidate their
2016 Case.
Plaintiffs also argue that this Court should apply the “Colorado River Abstention”
doctrine due to the “substantial similarity . . . between the state and federal proceedings”
because “there is a substantial likelihood that the state proceeding will fully dispose of
the claims presented in the federal court.” Fru-Con Const. Corp. v. Controlled Air, Inc.,
574 F.3d 527, 535 (8th Cir. 2009). In the alternative, plaintiffs suggest the Court should
remand the case because “pending action doctrine” abstention is appropriate here to allow
the first-filed (2012) case to proceed and the second-filed (2016) case dismissed or
remanded. United States v. Doe Run Res. Corp., 4:10CV01895 JCH, 2011 WL 1771007,
at *2 (E.D. Mo. May 10, 2011).
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Again, plaintiffs do not contest that subject matter jurisdiction exists here because
the plaintiffs and defendants are citizens of different states. The procedure for removal
of civil actions statute, 28 U.S.C. § 1446, does not require that removal occur only after
service. Although the Supreme Court has held that the 30-day limitations period on
removal begins after service, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526
U.S. 344, 354 (1999), that case does not stand for the proposition that removal must occur
after service. “The Court’s holding in Murphy Brothers … concerned only what
triggered the thirty day deadline for removal; it did not resolve whether a party could file
for removal before being formally served.” Miller v. Cottrell, Inc., 06-0141-CV-WNKL, 2006 WL 1313367, at *2 (W.D. Mo. May 12, 2006). Nothing in 28 U.S.C. § 1441
or any other statute requires defendants to have been served prior to removing a case to
federal court. Taylor v. Cottrell, Inc., 4:09-CV-536-HEA, 2009 WL 1657427, at *2 (E.D.
Mo. June 10, 2009). In fact, because a defendant can submit to the jurisdiction of a court
by waiving process, and because the federal statute provides a mechanism for serving
process after removal, 28 U.S.C. § 1448, plaintiffs’ position that removal was improper is
all the more untenable. See, e.g., Hutton v. KDM Transp., Inc., CIV.A. 14-3264, 2014
WL 3353237, at *4 (E.D. Pa. July 9, 2014).
As for the two abstention doctrines, the Court agrees with defendant that there
currently is no pending state court action that is substantially likely to “fully dispose of
the claims presented in the federal court.” Fru-Con Const. Corp., 574 F.3d at 535. The
plaintiffs’ motion to amend the petition to make the 2012 Case substantially similar to the
2016 Case is still pending. The Court must be mindful that its “analysis focuses on
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matters as they currently exist, not as they could be modified.” Id. Although the
pending state-court claims are similar to the claims here in that they seek the same
ultimate relief, if the plaintiffs were to lose on their currently-pending claims in the 2012
case, they would still be able to proceed on the claims now pending in this Court.
“[J]urisdiction must be exercised if there is any doubt as to the parallel nature of the state
and federal proceedings.” Id.
Defendant admits that if plaintiffs are granted leave to file the First Amended
Petition in the 2012 Case, then plaintiffs may revisit the abstention issue with the Court
on a later motion. (#17 at 13.) However, the Court undoubtedly has jurisdiction over
plaintiffs’ claims currently pending before the Court, and the motion to remand must be
denied.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand (#12) is DENIED.

Dated this 27th day of February, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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