Filing 14

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/13/2018. (jsmi, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EATERN DISTRICT OF VIRGINIA Riclunond Division KEVIN L. BOONE, Plaintiff, v. Civil Action No. 3:17cv668 CSX TRANSPORTATION, INC., Defendant. MEMORANDUM OPINION This matter is before the Court on Plaintiff Kevin Boone's NOTICE OF VOLUNTARY DISMISSAL OF COUNT MOTION FOR VOLUNTARY DISMISSAL WITHOUT II, OR ALTERNATIVELY, PREJUDICE (ECF No. 3), PLAINTIFF'S MOTION TO WITHDRAW NOTICE OF & COUNT II MOTION FOR VOLUNTARY DISMISSAL OF COUNT II (ECF No. 11), PLAINTIFF'S MOTION TO AMEND COMPLAINT (ECF No. 9); and PLAINTIFF'S MOTION TO REMAND (ECF No. 5). For the reasons set forth below, Boone's NOTICE OF VOLUNTARY DISMISSAL OF COUNT II, OR ALTERNATIVELY, VOLUNTARY DISMISSAL WITHOUT PREJUDICE OF COUNT II will be stricken WITHDRAW NOTICE (ECF No. 11) and & will denied as moot; MOTION FOR (ECF No. 3) MOTION TO PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL OF COUNT II be granted; PLAINTIFF'S MOTION TO AMEND COMPLAINT (ECF No. 9) will be granted; and PLAINTIFF'S MOTION TO REMAND (ECF No. 5) will be granted. BACKGROUND This action involves, in essence, Kevin Boone against CSX Transportation involving a van County, had train and a negligence ("CSX") vehicle in suit by for an accident which Boone was a On September 15, 2015, 1 Boone was a passenger in a passenger. Ford CSX a travelling Virginia. stopped north Pl. ' s one of Industrial Drive, on Industrial Compl. its 2 ( ECF No. trains in order to at a conduct Drive in Caroline 1-1) . CSX employees railroad a brake crossing check. on As a result, the railroad crossing was fully blocked. Pl.'s Compl. 2. The train car blocking Industrial Drive was not illuminated in any way. motorists The of CSX the employees did not The obstruction. do CSX anything warn had employees to done nothing to protect the railroad crossing. Pl.'s Compl. 2-3. The vehicle in which Boone was travelling struck the railroad car that was blocking Industrial Drive, and Boone was injured. Pl.'s Compl. 2, 4. PROCEDURAL HISTORY On September Circuit Court Summons (ECF 1 for No. 6, 2017, the 1-1). City Boone asserted of First, The Complaint states that unlikely. See Pl.'s Compl. 2. Richmond. he the 2 two raised date was claims Pl.'s a Compl. basic 2105, in the 1-7; negligence but that is claim. Pl.' s Compl. 1-6. Second, he alleged negligence per se based on CSX's failure to comply with Va. Code§ 56-412.1. Pl.'s Compl. 6-7. On September 29, both claims. 2017, the Def. 's Demurrer 1-2 however, ground 2017, CSX served a demurrer as to {ECF No. 1-2} . On October 3, CSX filed a NOTICE OF REMOVAL in this Court on that Boone's negligence per se claim {Count II} involves a statute that is completely preempted by the federal Interstate Commerce Commission Termination Act ("ICCTA11 ) and therefore raises a federal question. Def.'s Notice of Removal 23 {ECF No. 1). On October 12, {preempted) P. 41(a). 2017, Boone sought to dismiss Count II, negligence per se claim, Pl.'s Mem. in Supp. of pursuant to Fed. Pl.'s Mot. for R. 4) ("Pl. 's Dismissal Br. 11 ] • dismissed, the lack would Court 1 {ECF Boone also moved to remand to state court on October 16, 2017 on the ground that, were Civ. Voluntary Dismissal Without Prejudice of Count II of Pl. ' s Compl. No. the if Count II matter subject jurisdiction. Mem. in Supp. of Pl.'s Motions in Limine [sic] 1- 2 ("Pl.' s Remand Br. 11 ) (ECF No. 5) • On October 31, 2017, after CSX responded to Boone's notice/motion to dismiss Count II and after he apparently realized procedural vehicle, Mem. in Supp. that Rule 41 (a) was an improper Boone moved to withdraw this notice/motion. of Mot. to Withdraw Notice Dismissal of Count II 1- 2 ( ECF No. 12) 3 & Mot. for Voluntary ("Pl. ' s Withdrawal Br. 11 ) • On the same day (filed earlier), Boone Complaint under Rule 15 (a) (2) Supp. to Amend Compl. of Pl.' s Mot. to omit moved Count 2 II. (ECF No. to amend See Mem. 10) the in ("Pl.' s Amendment Br.") DISCUSSION A. Plaintiff's Notice of Dismissal/Motion to Dismiss and Plaintiff's Motion to Withdraw These Documents 1. Federal Rule of Civil Procedure 41 Plaintiff originally sought to dismiss Count II under Rule 41{a). (a) The Rule provides: Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.l(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (i) (ii) a stipulation of signed by all parties appeared. dismissal who have (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. 4 (2) By Court Order; Effect. Except as provided in Rule 41 (a) (1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant' s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. Fed. R. Civ. P. 4l{a). CSX convincingly argues that Rule 4l(a) allows dismissal of entire "actions," not individual claims. Def. 's Dismissal Opp' n 2-3. This view appears to align with the weight of authority. See Miller v. Terramite Corp., 2004) ( "Because 'actions' Rule 114 F. App'x 536, 41 (a) (2) rather than claims, provides for the 540 (4th Cir. dismissal of it can be argued that Rule 15 is technically the proper vehicle to accomplish a partial dismissal of a single claim."); Skinner v. First Am. Bank of Va., 64 F.3d 659, at *2 (4th Cir. 1995) {per curiam) (table) 41 provides for the dismissal of actions, Rule 15 is technically partial dismissal."); the proper Martin v. cv-464, 2015 WL 540183, at *2 ("Because Rule rather than claims, vehicle to accomplish MCAP Christiansburg LLC, a 7: 14- (W.D. Va. Feb. 10, 2015); Cox v. Cawley, 3:ll-cv-557, 2011 WL 4828890, at *2-3 (E.D. Va. Oct. 11, 2011) ; (E.D. Keck v. Va. Virginia, July 12, 2011); 3: 10-cv-555, 2011 WL 2708357, see also Taylor v. 5 Brown, at *3 787 F.3d 851, 857-58 (7th Cir. 2015); Bailey v. Shell W. E&P, Inc., 609 F.3d 710, 720 (5th Cir. 2010); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 687-88 (9th Cir. 2005); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) . Plaintiff seeks to dismiss less than his entire action. Thus, plaintiff's motion to withdraw notwithstanding, his notice of dismissal under Rule 4l(a) (1) (i) and motion to dismiss under Rule 41(a) (2) are not supported by the law. 2. Motion to Withdraw Ordinarily, a party cannot withdraw a notice of dismissal under Rule 41(a) (1) (i) because the notice, once filed, is self- executing and terminates the litigation without any intervention from the district court. Abandoned Vessel, See Marex Titanic, 2 F.3d 544, 546 Inc. (4th Cir. v. 1993); Wrecked & Great Am. Ins. Co. of N.Y. v. Day, DKC 12-2295, 2013 WL 254563, at *1 (D. Md. Jan. 2399685, 22, at 2013); *1-2 Buzzell v. (E. D. Va. Wallins, June 15, 3:09-cv-795, 2010) ; Shlikas Forest Univ., l:97-cv-1188, 1999 WL 1939241, at *2 26, 1999) 15 6 5 , 2013 see also Luv N' WL 5 7 2 6 0 5 2 , at Care, *1 Ltd. v. (W. D . La . Moore's Federal Practice - Civil§ 41.33. 2010 v. 21 , Wake (M.D.N.C. May Jackel Int'l Ltd., Oct . WL 2013 ) ; 138 - 41 Courts appear not to treat a notice of dismissal under Rule 41(a) (1) (i) as effective, however, where it seeks a partial dismissal. See Berthold Types 6 Ltd. v. Adobe Sys. EQT Gathering, ~, 12-58, Metcalf v. at *1-2 Inc., 776-77 LLC v. A Tract of Prop. 2012 WL 3644968, at *1, Countrywide Fin. (E.D. Cal. Corp., Aug. 11, Enters., Commonwealth Tube *1, 4 242 F.3d 772, LLC, (W.D.N.C. Apr. 7, WL 1686931, at *1 4 (7th Cir. 2001); Situated in Knott Cty., (E.D. Ky. Aug. 24, 2012); C-09-2707, 2009); 2009 WL 2485750, Galvatubing, 1: 09-cv-3, 2009 2009); Moss v. Mackey, WL Inc. v. 962254, at l:07-cv-135, 2007 (W.D.N.C. June 11, 2007); see also Bailey, 609 F.3d at 719-20. Accordingly, i.e. , strike, the could exercise its may allow his notice of dismissal. matter within the Court Court not discretion of grant the discretion WITHDRAW NOTICE & MOTION Rule and the the to withdraw, Whether to do so is a Court. 41 (a) grant plaintiff motion, And, because the Court PLAINTIFF'S the will MOTION TO COUNT II Complaint to FOR VOLUNTARY DISMISSAL OF (ECF No. 11). B. Plaintiff's Motion to Amend 1. Federal Rule of Civil Procedure lS(a) Alternatively, Plaintiff seeks to amend his omit Count II under Fed. R. Civ. P. 15(a). The Rule states: (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 7 (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12 (b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. Fed. R. Civ. P. 15(a). Boone argues that amendment should be permitted under Rule 15 (a) (2). 2. Amendment with the Court's Leave Rule 15 (a) (2) standards have been described in the following way: Fed. R. Civ. P. 15 (a) (2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave. Courts should freely give leave when justice so requires." "Leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile." Djenasevic v. Dep't of Justice, No. 16-6085, 2016 WL 4120669, at *1 (4th Cir. Aug. 3, 2016) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)); see also Farnan v. Davis, 371 U.S. 178, 182 (1962). Mullins v. Wells Fargo Bank, N.A., 3:16-cv-841, 2017 WL 1202656, at *3 (E.D. Va. Mar. 30, 2017); 8 see also Farnan v. Davis, 371 U.S. 178, 182 (1962) undue delay, bad ("In the absence of . faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice . . . futility of etc.-the amendment, leave sought should, as the rules require, be 'freely given.'"). Boone's motion to amend although unopposed, is represents that CSX has not given its consent. That, he however, does not change the fact CSX has not opposed the motion. As to the relevant factors, there is no undue delay because the motion to amend was filed within the first litigation. In any case, "[i]t is well two months of established in this circuit that '[d]elay alone, without prejudice, does not support the denial of a motion for leave to amend.' United States, 199 F.3d 694, 706 (4th Cir. Pittston Co. 11 v. 1999). And because the motion is unopposed, defendant has not shared any reason why it might be prejudiced by the amendment. Furthermore, there have been no previous amendments. The only question, then, is bad faith. Generally, it is not "bad faith for a plaintiff to bring both State claims in State court and then, upon removal, the federal Giant of Md., at *3 LLC, 204 federal seek dismissal of claims and remand to State court. 2015 WL 4506806, and 11 See Williams, (citations omitted); see also Verbal v. F. Supp. 3d 83 7, 841 (D. Md. 2016) ; Morris v. Joe Gibson Auto., Inc., 7:08-1739, 2008 WL 2805000, at 9 *1 (D.S.C. July 9, 2008); Henry v. UBS Prod. Support Ctr., Inc., l:08-cv-123, 2008 WL 5378321, at *5, 8 (N.D. W. Va. Dec. 24, 2008). But see Evans v. Groom, 7:17-cv-4, 2017 WL 2779645, at *2 (E.D.N.C. June 26, 2017) (suggesting that amending to deprive the court of jurisdiction constitutes bad faith). Moreover, the Fourth Circuit has upheld a district court's grant of leave to amend where the plaintiff sought to omit all federal claims, stating that, avoid federal court, she "[w]hile Harless clearly wanted to also had substantive reasons for amending the pleadings. Her counsel candidly represented to the Court that, allege a in drafting the Complaint, federal claim. " See Harless v. F.3d 444, 448 (4th Cir. he never intended CSX Hotels, Inc. , to 389 2004). Here, although it is clear that the motion to amend is largely for the purpose of seeking remand to Virginia state court, for it. See Harless, there are also "substantive reasons" 389 F.3d at 448. Boone asserts that he is amending to respond to the arguments in the demurrer that his negligence per Amendment Br. se 2-3. claim "is not a viable cause of action. " These reasons for requesting amendment seem to be much more meritorious than those accepted by the Fourth Circuit in Harless, in which the plaintiff merely wanted to omit federal claims because they were Harless, 389 F.3d at 448. 10 raised unintentionally. See In light COMPLAINT of (ECF the No. foregoing, 9) will PLAINTIFF'S be granted MOTION and the TO AMEND Clerk shall immediately file the proffered amendment. C. Plaintiff's Motion for Remand Boone next argues that if Count II is eliminated, the Court should remand the case to state court because the sole basis for federal question removal jurisdiction would be eliminated. Pl.'s Remand Br. 1-2. 1. Supplemental Jurisdiction and Remand As the Fourth Circuit has held, once a post-removal amendment has eliminated federal claims and therefore only state claims {and supplemental jurisdiction) remain, "the Court has the discretion to remand the case to the state court in which the action was initially filed." see also Haymaker v. Frederick, *3 (W.D. Va. Dec. 15, See Harless, 389 F. 3d at 448; 3:15-cv-52, 2015 WL 9244646, at 2015); Asheville Downtown Holdings, Ltd. v. TD Bank, N.A., l:13-cv-135, 2014 WL 712597, at *1-2 (W.D.N.C. Feb. 25, 2014); Green v. Balt. City Police Dep't, 10-3216, 2011 WL 335868, at *l (D. Md. Jan. 31, 2011); Henry, 2008 WL 5378321, at *5, 8. Indeed, this is explicitly provided for in 28 U.S.C. § 1367 which states: supplemental " [t] he district jurisdiction courts over 11 a may decline claim under to exercise subsection (a) if . . . the district court has dismissed all claims over which it has original 2 8 U. s. C. jurisdiction." § 13 6 7 ( c) ( emphasis added); see also Henry, 2008 WL 5378321, at *7-8. Although remand is discretionary, there are several factors that guide "principles Henry, the analysis. of economy, convenience, 2008 WL 5378321, Cohill, 484 U.S. Specifically, at *8 343, 357 S.C., Inc., 239 F.3d 611, also consider " [i] f the forum." Cohill, these include fairness and comity." (citing Carnegie-Mellon Univ. v. (1988)); see also Hinson v. Nw. 617 the Fin. (4th Cir. 2001). The Court should the plaintiff has attempted to manipulate 484 U.S. at 357; see also Hinson, 239 F.3d at 617. This final factor is not particularly rigorous, however, as the Harless court upheld the district court's grant of remand even though the plaintiff "clearly wanted to avoid federal court" and amended the complaint in part to achieve that result. See Harless, 389 F.3d at 448, 450. Additionally, all federal there is a strong preference for remand when claims Verizon Commc'ns, have Inc., as a dismissed. 292 F.3d 181, also United Mine Workers (1966) been of Am. V. See 196 Darcangelo (4th Cir. Gibbs, v. 2002); see 383 U.S. 715, 726 ( "Needless decisions of state law should be avoided both matter parties, by of comity procuring applicable law. and for Certainly, to them promote a justice surer-footed between reading the of if the federal claims are dismissed 12 before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.") . This is especially true when the after removal. 595300, at federal See Dunlevy v. *4 (E.D. Va. claims are dismissed shortly Couoiilin, Feb. 10, 2: 15-cv-347, 2016); Haymaker, 9244646, at *3; Payman v. Lee Cty. Cmty. Hosp., 679, 682 (W.D. enumerated above, Va. 2004). where And when 2016 WL 2015 WL 388 F. Supp. 2d evaluating the factors "dismissal of the federal claim occurs early in the pre-trial period, concerns of fairness and judicial economy are less likely to be significant, and concerns of comity and federalism are more likely to predominate and counsel against retaining jurisdiction." Dunlevy, 2016 WL 595300, at *4. Applying these standards here, remand is appropriate. As to economy, this factor adds little to the analysis proceedings are at such an early stage because the (defendant has not even filed an answer). Minimal work has been done in either Virginia state court or this Court as to the issues in this matter. There would be little cost, moreover, state court. to this case being litigated in And because Virginia courts are best positioned evaluate Virginia law, remand may be the most efficient option. As to convenience, has been expended, a similar analysis applies. Little cost and there would be no major difference in convenience between this Court and Virginia state court. As to 13 fairness, because the proceedings are at such an early stage, neither party would be prejudiced by remand. As to comity, claim remaining, is because given that there is only a Virginia state this factor counsels in favor of remand. "the primary responsibility for applying state law rests with state courts." developing Dunlevy, This and 2016 WL 595300, at *4. The final factor, manipulate the forum, It is clear However, that as dismissing in his whether the plaintiff has attempted to applies but does not affect the outcome. plaintiff Harless, federal wants to return plaintiff claim. See has to state other Harless, 389 court. reasons F. 3d at for 448. Furthermore, given that plaintiff's suit reached this Court only by way of preemption-based specifically plead a that, as federal in Harless, claim. plaintiff's federal See removal, cause of plaintiff Harless, "manipulation" i.e. , did 389 plaintiff action, not F.3d did not it is probable "intend" to raise at 448. a Accordingly, is not severe enough to counter the other factors. In short, the factors above favor remand. And granting remand is further supported by the Fourth Circuit's preference for remanding a case when all federal claims have been dismissed early in the action. The PLAINTIFF'S MOTION TO REMAND 5) will be granted. 14 (ECF No. CONCLUSION For the foregoing DISMISSAL OF COUNT II, DISMISSAL WITHOUT stricken NOTICE & and reasons, as NOTICE OR ALTERNATIVELY, PREJUDICE OF denied Boone's moot; COUNT OF VOLUNTARY MOTION FOR VOLUNTARY II (ECF No. PLAINTIFF'S 3) MOTION TO will be WITHDRAW MOTION FOR VOLUNTARY DISMISSAL OF COUNT II (ECF No. 11) will be granted; PLAINTIFF'S MOTION TO AMEND COMPLAINT (ECF No. 9) will be granted; and PLAINTIFF'S MOTION TO REMAND (ECF No. 5) will be granted. It is so ORDERED. /sf Robert E. Payne Senior United States District Judge Richmond, Virginia Date: March 2018 =t}..-, 15

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