McCoy v. Norfolk Southern Railway Company et al
Filing
57
MEMORANDUM OPINION AND ORDER directing that defendant Norfolk Southern Corporation's 40 MOTION to Dismiss for Lack of Personal Jurisdiction is held in abeyance for a 60-day period of jurisdictional discovery ending 8/15/2012; plaintiff, b earing the burden of proof, to file a supplemental response to defendant's motion to dismiss for lack of personal jurisdiction by 9/4/2012, and defendant to file a reply by 9/11/2012. Signed by Judge John T. Copenhaver, Jr. on 6/14/2012. (cc: attys; any unrepresented parties) (taq)
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BRENDA MCCOY,
Plaintiff,
v.
Civil Action No. 2:11-00927
NORFOLK SOUTHERN RAILWAY COMPANY and
NORFOLK SOUTHERN CORPORATION,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion of defendant Norfolk Southern
Corporation to dismiss for lack of personal jurisdiction, filed
April 16, 2012.
I.
Background
The claims at issue in this case arise from a
troubled, two decade-long relationship between plaintiff’s
family and defendant Norfolk Southern Railway Company (“Norfolk
Railway”).
Plaintiff Brenda McCoy is a resident of Sprigg,
Mingo County, West Virginia.
Defendant Norfolk Railway is a
Virginia corporation with its principal place of business in
Norfolk, Virginia.
Defendant Norfolk Southern Corporation is
also a Virginia corporation with its principal place of business
in Norfolk, Virginia, and is the parent company of Norfolk
Railway (together, the “Norfolk defendants”).
The facts of the
case as taken from the amended complaint, which are fully
recounted in a previous opinion of the court, are incorporated
by reference.
See McCoy v. Norfolk S. Ry. Co., No. 2:11-cv-
0927, ___ F. Supp. 2d ___, 2012 WL 873352, at *1-5 (S.D. W. Va.
Mar. 14, 2012).
The essential thrust of the action is as follows.
McCoy contends that she moved from her homestead along the Tug
Fork River in September 1992 to a new parcel approximately a
mile upstream to make way for the construction of a private coal
truck bridge.
Prior to the property transaction, plaintiff and
her now-deceased husband held several discussions with the thentrack supervisor for Norfolk Railway regarding whether an
abandoned railroad crossing would be reinstalled to allow direct
access to the new parcel.
At that time, a Norfolk Railway
official pledged to complete the proper paperwork for the
reinstatement of the crossing.
It was never reinstalled,
allegedly because of safety concerns.
Instead, Norfolk Railway
has -- since 1992 -- provided plaintiff with access to her
property by way of a gravel access road lying parallel to the
railroad tracks.
Plaintiff alleges that the access road has
suffered from various stages of hazardous disrepair over the
years, though recently its condition has worsened substantially.
Consequently, plaintiff has lodged multiple complaints about the
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condition of the road with agents of Norfolk Railway and various
local and federal officials.
Plaintiff initiated this action against Norfolk
Railway, Norfolk Southern Corporation, and Norfolk Railway track
supervisor Jack Stepp in the Circuit Court of Mingo County, West
Virginia, on October 20, 2011.
on October 25, 2011.
counts.
She filed an amended complaint
The amended complaint sets forth seven
Counts I and II seek declaratory and injunctive relief
with respect to an alleged easement by implication and an
easement by necessity, respectively.
of contract.
Count III alleges breach
Count IV, styled “nonfeasance, misfeasance, and
malfeasance,” appears to allege the violation a public duty.
Count V alleges “Estoppel by Negligence” and Count VI alleges
“Hazardous Negligence.”
Finally, Count VII alleges intentional
infliction of mental and emotional distress.
By memorandum opinion and order dated March 14, 2012,
the court denied plaintiff’s motion to remand and motion for
leave to amend.
See McCoy, 2012 WL 873352.
Nondiverse
defendant Jack Stepp was dismissed as fraudulently joined and
defendant Norfolk Southern Corporation’s motion to dismiss or
quash was granted to the extent that plaintiff’s service upon
Norfolk Southern Corporation was quashed.
Id.
Plaintiff was
given 30 days from the date of the order to properly serve
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Norfolk Southern Corporation.
Id.
Norfolk Southern Corporation
now moves to dismiss for lack of personal jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(2).
II.
A.
Motion to Dismiss for Lack of Personal Jurisdiction
Governing Standard
Personal jurisdiction differs from subject-matter
jurisdiction.
It is designed to protect an individual liberty
interest rather than an institutional interest.
J. McIntyre
Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 2789 (2011)
(plurality); Constantine v. Rectors and Visitors of George Mason
Univ., 411 F.3d 474, 480 (4th Cir. 2005); Ins. Corp. of Ireland
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)
(“The requirement that a court have personal jurisdiction . . .
represents a restriction on judicial power . . . as a matter of
individual liberty.”).
A Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction involves both procedural and substantive
components.
On the procedural side, the plaintiff ultimately
bears the burden of proving to the district court judge the
existence of jurisdiction over the defendant by a preponderance
of the evidence.
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
4
1989).
“But when, as here, the court addresses the question on
the basis only of motion papers, supporting legal memoranda and
the relevant allegations of a complaint, the burden on the
plaintiff is simply to make a prima facie showing of a
sufficient jurisdictional basis to survive the jurisdictional
challenge.”
New Wellington Financial Corp. v. Flagship Resort
Development Corp., 416 F.3d 290, 294 (4th Cir. 2005) (citations
omitted); Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004);
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334
F.3d 390, 396 (4th Cir. 2003).
“In deciding whether the
plaintiff has proved a prima facie case of personal
jurisdiction, the district court must draw all reasonable
inferences arising from the proof, and resolve all factual
disputes, in the plaintiff’s favor.”
Mylan Labs., Inc. v. Akzo,
N.V., 2 F.3d 56, 60 (4th Cir. 1993).
Importantly, “‘[a] threshold prima facie finding . . .
[of] personal jurisdiction . . . does not finally settle the
issue; plaintiff must eventually prove the existence of personal
jurisdiction by a preponderance of the evidence, either at trial
or at a pretrial evidentiary hearing.’”
New Wellington, 416
F.3d at 294 n.5 (quoting Prod. Group Int’l v. Goldman, 337 F.
Supp.2d 788, 793 n. 2 (E.D. Va. 2004) (citation omitted)).
Respecting the substantive component, the nonmovant is
5
faced with two hurdles.
First, she must identify, and bring the
nonresident within, the terms of an applicable state long-arm
statute.
Second, the nonmovant must show that the exercise of
personal jurisdiction would be consistent with the Due Process
Clause of the Fourteenth Amendment.
See Consulting Engineers
Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th Cir. 2009);
Mitrano, 377 F.3d at 407; English & Smith v. Metzger, 901 F.2d
36, 38 (4th Cir. 1990).
Inasmuch as our court of appeals has
held that the West Virginia long-arm statute is coextensive with
the proper reach of due process,
In re Celotex Corp., 124 F.3d
619, 627 (4th Cir. 1997), the two-part inquiry merges into one,
namely, whether the exercise of personal jurisdiction over the
nonresident defendant will comport with due process.
The due process requirement is satisfied if the
defendant has “minimum contacts” with the forum.
These contacts
must be of a quality and quantum that requiring the nonresident
party to defend its interests within the state would “not offend
traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal
quotation marks omitted); Goodyear Dunlop Tires Operations, S.A.
v. Brown, 131 S. Ct. 2846, 2848 (2011); Mitrano, 377 F.3d at
407; Carefirst, 334 F.3d at 396.
In sum, “[a] defendant should be able to anticipate
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being sued in a court that can exercise personal jurisdiction
over him; thus, to justify an exercise of jurisdiction, a
defendant’s actions must have been ‘directed at the forum state
in more than a random, fortuitous, or attenuated way.’”
Mitrano, 377 F.3d at 407 (citing ESAB Group, Inc. v. Centricut,
Inc., 126 F.3d 617, 625 (4th Cir. 1997)); ePlus, 313 F.3d at
176.
Put another way, “there must ‘be some act by which the
defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.’”
Base Metal Trading,
Ltd. v. OJSC "Novokuznetsky Aluminum Factory”, 283 F.3d 208, 213
(4th Cir. 2002) (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462,
474-76 (1985).
The standard for determining whether a court may
exercise personal jurisdiction over a nonresident defendant
depends on whether that defendant’s contacts with the forum
state provide the basis for the suit.
406-07; Carefirst, 334 F.3d at 397.
See Mitrano, 377 F.3d at
If so, the court applies
the standard for specific jurisdiction, as more fully discussed
in the recent Goodyear decision:
First, the Court recognized that jurisdiction could be
asserted where the corporation’s in-state activity is
“continuous and systematic” and gave rise to the
episode-in-suit. It also observed that the commission
7
of “single or occasional acts” in a State may be
sufficient to render a corporation answerable in that
State with respect to those acts, though not with
respect to matters unrelated to the forum connections.
These two categories compose what is now known as
“specific jurisdiction.”
Goodyear, 131 S. Ct. at 2848-49 (citations omitted).
If the specific contacts do not provide the basis for
the suit, the International Shoe standard may still be satisfied
in terms of the second basis for the exercise of judicial power,
namely, general jurisdiction, explained more fully in the recent
plurality opinion in J. McIntyre:
A person may submit to a State’s authority in a number
of ways. There is, of course, explicit consent.
Presence within a State at the time suit commences
through service of process is another example.
Citizenship or domicile -- or, by analogy,
incorporation or principal place of business for
corporations -- also indicates general submission to a
State’s powers. Each of these examples reveals
circumstances, or a course of conduct, from which it
is proper to infer an intention to benefit from and
thus an intention to submit to the laws of the forum
State. These examples support exercise of the general
jurisdiction of the State’s courts and allow the State
to resolve both matters that originate within the
State and those based on activities and events
elsewhere. By contrast, those who live or operate
primarily outside a State have a due process right not
to be subjected to judgment in its courts as a general
matter.
J. McIntyre, 131 S. Ct. at 2787 (citations omitted).
While the standards governing general jurisdiction are
essentially confined to the foregoing excerpt, the requirements
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for specific jurisdiction require coverage in greater depth.
In
determining whether specific jurisdiction exists, the court
considers (1) the extent to which the defendant has purposefully
availed himself of the privilege of conducting activities in the
state; (2) whether the plaintiff’s claims arise out of those
activities directed at the state; and (3) whether the exercise
of personal jurisdiction would be constitutionally reasonable.
Mitrano, 377 F.3d at 407; Carefirst, 334 F.3d at 397; ALS Scan,
Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th
Cir. 2002) (alteration & internal quotation marks omitted).
As to the reasonableness inquiry, “courts ‘must
consider [1] the burden on the defendant, [2] the interests of
the forum State, and [3] the plaintiff's interest in obtaining
relief’ when determining whether the exercise of jurisdiction is
reasonable in any given case.”
Base Metal Trading, 283 F.3d at
213-14 (quoting Asahi Metal Indus. Co. v. Superior Court, 480
U.S. 102, 113 (1987)).
In making its determination, the court does not simply
engage in idle “contact counting”:
We should not “merely . . . count the contacts and
quantitatively compare this case to other preceding
cases.” Id. Even a single contact may be sufficient
to create jurisdiction when the cause of action arises
out of that single contact, provided that the
principle of “fair play and substantial justice” is
not thereby offended. Id. (citing Burger King Corp.
9
v. Rudzewicz, 471 U.S. 462, 477-78 (1985)); see McGee
v. Int’l Life Ins. Co., 355 U.S. 220, 223-24 (1957).
Carefirst, 334 F.3d at 397.
At all points, the touchstone of the inquiry remains
the defendant’s contacts with the forum.
See ESAB, 126 F.3d at
626 (stating “[a]lthough the place that the plaintiff feels the
alleged injury is plainly relevant to the [jurisdictional]
inquiry, it must ultimately be accompanied by the defendant's
own [sufficient minimum] contacts with the state if jurisdiction
. . . is to be upheld.”) (quoted in New Haven Advocate, 315 F.3d
at 262)).
B.
Norfolk Southern Corporation
Defendant disputes the court’s jurisdiction over
Norfolk Southern Corporation on the grounds that its subsidiary
Norfolk Railway is not the alter ego of Norfolk Southern
Corporation such that the court should impute the subsidiary’s
West Virginia contacts to its parent.
See Norfolk S. Ry. Co. v.
Maynard, 437 S.E.2d 277, 281-82 (W. Va. 1993); Newport News
Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 43334 (4th Cir. 2011).
Plaintiff responds that the court’s
exercise of jurisdiction over Norfolk Southern Corporation is
proper not on the basis of the alter ego theory, but rather
10
because the parent maintained control over certain real property
at issue in this case, which is owned by Norfolk Railway and
situated in West Virginia.
Thus, the court looks to the nature
of the control Norfolk Southern Corporation exercised over the
disputed property to ascertain if its contacts were of a quality
and quantum that requiring Norfolk Southern Corporation to
defend its interests within the state would “not offend
traditional notions of fair play and substantial justice.”
Int’l Shoe Co., 326 U.S. at 316 (internal quotation marks
omitted).
As defendant points out -- and plaintiff concedes -Norfolk Southern Corporation has never had a formal interest in
the property at issue in this case.
Plaintiff instead relies on
evidence indicating that at relevant times, West Virginia-based
officials of Norfolk Southern Corporation contributed to the
circumstances that form the basis of plaintiff’s claims, namely,
by denying her repeated requests for a railroad crossing.
Plaintiff chiefly relies on a series of letters as
proof of Norfolk Southern Corporation’s contacts with the forum.
Involved in the discussions over restoring the defunct crossing
was Mr. T.L. Ingram, superintendent for Norfolk Southern
Corporation in Bluefield, West Virginia.
(See Pl.’s Exs. B-D).
The ongoing written correspondence also involved an individual
11
appearing to be Ingram’s successor as superintendent for Norfolk
Southern Corporation in Bluefield, Mr. D.M. Kimbrough.
(Pl.’s
Ex. J, Letter to Mr. McCoy from Kimbrough, dated October 27,
1993).
Notably, plaintiff’s request to restore the crossing was
ultimately denied by Kimbrough in a letter dated December 28,
1993.
(Pl.’s Ex. L, Letter to Mr. and Mrs. McCoy from
Kimbrough, dated December 28, 1993).
As with the correspondence
from Ingram, Kimbrough’s letters to plaintiff contained the
letterhead of Norfolk Southern Corporation, which identifies
Norfolk Southern Corporation as being located at 800 Princeton
Avenue, Bluefield, West Virginia 24701.
Plaintiff also points
out that when she complained to Representative Nick Joe Rahall
of West Virginia’s Third Congressional District, the
congressman’s subsequent correspondence directed to Norfolk
Railway was answered by Superintendent Kimbrough of Norfolk
Southern Corporation.
(Pl.’s Ex. O, Letter to Congressman
Rahall from Kimbrough, dated February 9, 1994).
Defendant did
not file a reply in response to these specific contentions.
McCoy does not specify whether the type of personal
jurisdiction over Norfolk Southern Corporation is specific or
general in nature.
Although it appears that Norfolk Southern
Corporation may have had a physical presence in Bluefield, West
Virginia, at the time Superintendent Kimbrough denied the
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McCoys’ request, the record is insufficiently developed to
indicate whether the court has personal jurisdiction of either
variety over Norfolk Southern Corporation.
In view of this
uncertainty, the better course is to hold defendant’s motion in
abeyance for a 60-day period of jurisdictional discovery, at the
end of which plaintiff may file a response to defendant’s motion
with proof of Norfolk Southern Corporation’s contacts with the
forum in accordance with the principles of personal jurisdiction
expounded above in Part II.A.
III.
Conclusion
Accordingly, it is ORDERED that defendant Norfolk
Southern Corporation’s motion be, and it hereby is, held in
abeyance for a 60-day period of jurisdictional discovery ending
August 15, 2012.
It is further ORDERED that plaintiff, bearing
the burden of proof, shall then file a supplemental response to
defendant’s motion to dismiss for lack of personal jurisdiction
on or before September 4, 2012, and defendant shall file a reply
on or before September 11, 2012.
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The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
Enter: June 14, 2012
John T. Copenhaver, Jr.
United States District Judge
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