Watson v. BNSF Railway Company et al
Filing
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OPINION AND ORDER by Judge Claire V Eagan (Honeycutt's motion to dismiss (Dkt. # 7) remains pending. ; remanding case (terminates case) ; granting 19 Motion to Remand; finding as moot 21 Motion to Stay (Re: State Court Petition/Complaint ) (Documents Terminated: 19 MOTION to Remand , 21 MOTION to Stay ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TERRI WATSON,
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Plaintiff,
v.
BNSF RAILWAY COMPANY,
JASON MORRIS, and
ROGER HONEYCUTT,
Defendants.
Case No. 15-CV-0287-CVE-FHM
OPINION AND ORDER
Now before the Court are the following motions: Defendant Roger Honeycutt’s Motion to
Dismiss (Dkt. # 7); Plaintiff’s Motion to Remand (Dkt. # 19); and Plaintiff’s Motion to Stay
Proceedings (Dkt. # 21). Defendant BNSF Railway Company (BNSF) argues that plaintiff
fraudulently joined Roger Honeycutt as a party for the sole purpose of defeating diversity
jurisdiction, and BNSF requests that the Court dismiss Honeycutt as a party and retain jurisdiction
over this case. Plaintiff responds that she has stated a viable claim against Honeycutt and she asks
the Court to remand this case to Pawnee County District Court due to a lack of subject matter
jurisdiction.
I.
Plaintiff alleges that her husband, Paul Wayne Watson, was driving a vehicle in the
eastbound direction on County Road 5200 near Hallett, Oklahoma, and he approached the
intersection of County Road 5200 and County Road 36000. Dkt. # 2-1, at 4. Plaintiff and the
couple’s daughter, T.W., were passengers in the vehicle. Paul Watson continued to drive eastbound
on County Road 5200 and he crossed onto the railroad tracks that intersect County Road 5200.
Plaintiff alleges that BNSF Railway Company (BNSF) and its roadmaster,1 Honeycutt, were
responsible for maintaining the railroad crossing, which includes the “maintenance, cutting and
trimming of the trees and obstructive vegetation” near the railroad crossing. Id. at 4. Plaintiff
claims that the railroad crossing was not marked with flashing lights to warn drivers of oncoming
trains and that a driver was unable to see oncoming trains due to overgrown grass, shrubs, and tree
limbs. Id. at 6. As Paul Watson drove across the railroad tracks, a train operated by BNSF collided
with the vehicle at approximately 45 miles per hour, and plaintiff claims that the vehicle came to rest
approximately 70 feet away from the railroad crossing. Id. at 5. Paul Watson died as a result of the
accident, and plaintiff and T.W. suffered severe personal injuries. Id.
On April 20, 2015, plaintiff filed this case in her individual capacity, on behalf of her
deceased husband, and as next friend of T.W., and she alleges that BNSF, Honeycutt, and the
engineer of the train, Jason Morris, were negligent. In her petition, she states that she is seeking
actual and punitive damages in excess of $10,000. The case was filed in Pawnee County District
Court. Plaintiff has served BNSF and Honeycutt, but Morris has not been served. Dkt. # 2-2, at 2.
The petition states that Honeycutt and Morris are citizens of Oklahoma and that BNSF is a citizen
of Texas. Honeycutt filed a motion to dismiss and argued that plaintiff had failed to state a claim
against him. While the motion to dismiss was pending in state court, BNSF filed a notice of removal
stating that this Court has diversity jurisdiction over this case. Defendant argues that Morris is
actually a citizen of Texas for the purpose of diversity jurisdiction and that Honeycutt was
fraudulently joined as a party to defeat diversity jurisdiction. Plaintiff has filed a more definite
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The parties refer to Honeycutt as a “roadmaster” for BNSF, but BNSF notes that some
decisions by the Oklahoma Supreme Court refer to the same position as a “section foreman.”
Dkt. # 29, at 4.
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statement (Dkt. # 22) admitting that she seeks damages in excess of $75,000. Plaintiff has filed a
motion to remand (Dkt. # 19) and she asserts that BNSF relies on outdated law in an attempt to show
that Honeycutt was fraudulently joined as a party.
II.
Plaintiff asks the Court to remand this case to Pawnee County District Court, because
Oklahoma law is “clear” that individual employees may be joined in a suit against his employer for
negligent acts committed within the scope of employment. Dkt. # 19, at 9. Plaintiff argues that she
has sufficiently alleged that Honeycutt had a duty as a roadmaster for BNSF to maintain safe
railroad crossings and to issue a “slow order” if he had knowledge of a potentially dangerous
railroad crossing. Id. at 12. BNSF responds that Oklahoma Supreme Court precedent from the
1930s clearly establishes that a roadmaster is immune from tort liablity for railroad crossing
accidents, and that precedent has not been explicitly or implicitly overturned by any subsequent
decision of the Oklahoma Supreme Court. Dkt. # 29. BNSF and Honeycutt ask the Court to dismiss
plaintiff’s claim against Honeycutt and to find that the Court has diversity jurisdiction over this case.
The Supreme Court has recognized that a defendant’s “right of removal cannot be defeated
by a fraudulent joinder of a resident defendant having no real connection with the controversy.”
Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). BNSF can prove fraudulent joinder
by showing that either: (1) plaintiff’s jurisdictional allegations are fraudulent and made in bad faith;
or (2) plaintiff has no possibility of recovery against the non-diverse defendant. Slover v. Equitable
Variable Life Ins. Co., 443 F. Supp. 2d 1272, 1279 (N.D. Okla. 2006). If BNSF can show that the
non-diverse defendant, Honeycutt, was fraudulently joined, the parties will be completely diverse
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and the Court may exercise subject matter jurisdiction over this case. See American Nat. Bank &
Trust Co. of Sapulpa, v. Bic Corp., 931 F.2d 1411, 1412 (10th Cir. 1991) (“If, as defendant suggests,
plaintiffs joined the Oklahoma residents without good faith, defendant may remove on the grounds
of fraudulent joinder.”). To prove that a party has been fraudulently joined, the defendant has the
burden to “demonstrate that there is no possibility that [plaintiff] would be able to establish a cause
of action against [the joined party] in state court.” Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.
2000). When a defendant raises specific allegations of fraudulent joinder, the Court may pierce the
pleadings to evaluate the defendant’s argument. Smoot v. Chicago, Rock Island & Pac. R.R. Co.,
378 F. 2d 879, 881-82 (10th Cir. 1967); Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th
Cir. 1964). “The burden of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a
heavy one.” Hart, 199 F.3d at 246 (quoting B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th
Cir. 1981)). Although the Court can pierce the pleadings, “[t]his does not mean that the federal
court will pre-try, as a matter of course, doubtful issues of fact to determine removability; the issue
must be capable of summary determination and be proven with complete certainty.” Smoot, 378
F.2d at 882.
The Court must initially determine what standard of review is applicable to determine if
plaintiff has some possibility of recovering against Honeycutt. Under Fed. R. Civ. P. 12(b)(6), a
motion to dismiss is properly granted when a complaint provides no “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to
relief that is plausible on its face”and the factual allegations “must be enough to raise a right to relief
above the speculative level.” Id. (citations omitted). The majority of federal district courts to
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consider the issue of fraudulent joinder have not applied the Twombly standard to determine if a
plaintiff has shown that she can possibly recover from a defendant. See Stillwell v. Allstate Ins. Co.,
663 F.3d 1329, 1333 (11th Cir. 2011); Rudzik v. Star Ins. Co., 2015 WL 1923892, *3 (D. Kan. Apr.
28, 2015); Nance v. Cal-Western Reconveyance Corp., 2015 WL 452747, *5 (C.D. Cal. Jan. 29,
2015). In Shue v. High Pressure Transports, Inc., 2010 WL 4824560 (N.D. Okla. Nov. 22, 2010),
this Court found that the failure to allege a plausible claim under Twombly is a distinct and separate
issue from whether plaintiff has established that she has “any possibility” of recovering against a
non-diverse defendant in state court. Id. at *7. The proper test for fraudulent joinder is whether the
plaintiff could state possibly state a claim against the non-diverse defendant in state court, and a case
should be remanded to state court if it is possible that a plaintiff could file an amended complaint
that could state a claim against the non-diverse defendant. Id.
In this case, the parties dispute whether Oklahoma law allows the plaintiff to assert a claim
against Honeycutt in his capacity as an employee of BNSF. In considering whether a defendant has
been fraudulently joined, a federal district court is required to resolve any uncertainties as to state
law in favor of the plaintiff and a case should be remanded if there is any possibility that the state
court would recognize the plaintiff’s claim. Coyne v. American Tobacco Co., 183 F.3d 488, 493
(6th Cir. 1999); Kennedy v. Allstate Property & Cas. Ins. Co., 2015 WL 4111816, *7 (E.D. Pa. July
8, 2015); Manley v. Ford Motor Co., 17 F.3d 1375, 1384 (N.D. Ga. May 1, 2014). With this
principle in mind, the Court will consider the parties’ arguments concerning Honeycutt’s potential
liability to plaintiff under Oklahoma law in his capacity as a roadmaster for BNSF.
Defendant argues that the Oklahoma Supreme Court decided in 1930 that a roadmaster or
section foreman has no duty to the public and cannot be held liable for negligence. In Chicago R.I.
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& P. Ry. Co. v. Witt, 291 P. 59 (Okla. 1930), the Oklahoma Supreme Court held that a section
foreman could not be held personally liable under a theory that he carelessly maintained railroad
tracks or a railroad crossing, because the statute allegedly giving rise to a duty to maintain railroad
crossings applied to the railroad company only, not employees of the railroad company. Id. at 62.
The Tenth Circuit Court of Appeals and the United States District Court for the Western District of
Oklahoma have cited Witt for the proposition that a roadmaster can be held liable only for “acts of
positive wrong and negligence,” rather than the mere non-performance of a duty within the scope
of the roadmaster’s employment. Scott v. Huffman, 237 F.2d 396, 398 (10th Cir. 1956); Killibrew
v. Atchison, Topeka & Santa Fe Ry. Co., 233 F. Supp. 250, 251 (W.D. Okla. 1964). Defendant
argues that Witt has not been expressly or implicitly overruled by the Oklahoma Supreme Court and
that there is no federal authority interpreting Oklahoma law that would suggest that a roadmaster
or section foreman can be held individually liable. Dkt. # 29, at 4-6.
Plaintiff asserts that Witt was implicitly overruled by the Oklahoma Supreme Court’s
decision in J.C. Penney v. Barrientez, 411 P.2d 841 (1966), and she argues that federal courts have
found that railroad employees can be held individually liable based on J.C. Penney. In J.C. Penney,
the Oklahoma Supreme Court held that a store manager was directly in control of the store premises
when the plaintiff slipped and fell and he was in effect the owner of the store from the perspective
of the plaintiff. Id. at 851. The Oklahoma Supreme Court distinguished, but did not expressly
overrule, Witt and other cases involving the non-liability of railroad employees on the ground that
the plaintiffs in those cases did not present evidence that the individual defendant assumed a duty
or attempted to exert control over the railroad crossing. However, subsequent decisions by federal
district courts have cited J.C. Penney and have declined to find that a railroad employee was
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fraudulently joined as a party when a plaintiff has joined a non-diverse railroad employee as a party
for alleged negligence committed with the scope of the non-diverse defendant’s employment.
Sparks v. St. Louis & San Francisco Ry Co., 366 F. Supp. 957, 959 (N.D. Okla. 1973); Thomas v.
Archer, 330 F. Supp. 1181, 1183 (W.D. Okla. 1971). Sparks and Thomas do not actually find that
the railroad employee could be held liable to the plaintiff, but that there was a sufficient possibility
of such liability that fraudulent joinder was not established. Although Witt was distinguished in J.C.
Penney, there are no subsequent decisions by the Oklahoma Supreme Court addressing whether Witt
is still binding precedent or what force the J.C. Penney decision has outside of the premises liability
context.
The Court finds that Oklahoma law on the subject of Honeycutt’s potential liability to
plaintiff is unclear, and this uncertainty as to state law requires the Court to remand this case to state
court. Defendant relies on Witt and argues that Witt has not been overruled by the Oklahoma
Supreme Court. However, the Tenth Circuit has stated that the Oklahoma Supreme Court
“undertook to clarify the existing Oklahoma case law as to the joint liability of an employer and
employee for negligence” in J.C. Penney. Smoot, 378 F.2d at 881. This suggests that the Tenth
Circuit would find that J.C. Penney modified Oklahoma law concerning the liability of an individual
employee for negligence in a broader context than simply premises liability cases. Faced with this
uncertainty, the proper course for this Court is to resolve uncertain issues of state law in favor of
plaintiff and remand the case to state court, because there is at least a possibility that plaintiff has
stated a viable claim against Honeycutt. The Court declines to rule on Honeycutt’s motion to
dismiss, because the Court is faced with an uncertain issue of state law and the state court should
be permitted to consider this issue in the first instance.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand (Dkt. # 19) is granted,
and the Court Clerk is directed to remand this case to Pawnee County District Court. Honeycutt’s
motion to dismiss (Dkt. # 7) remains pending.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Proceedings (Dkt. # 21) is
moot.
DATED this 14th day of August, 2015.
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