Boone v. CSX TRANSPORTATION, INC.

Filing 14

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

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