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E.H.S. v. BNSF Railway Co.

United States District Court, E.D. Missouri, Southeastern Division

August 20, 2019

E.H.S., by her Next Friend, ROBIN PHELAN NORTHERN, Plaintiff,



         This matter is before the Court on Plaintiffs motion to remand (Doc. No. 10) and motion for expedited hearing (Doc. No. 8). Defendant BNSF Railway Company ("BNSF Railway") opposes the motions. (Doc. No. 30). For the reasons set forth below, the Court will remand the matter to the Circuit Court of Cape Girardeau County, Missouri, and deny as moot the motion for expedited hearing.

         I. Background

         This lawsuit arises out of a motor vehicle accident on Missouri Highway AB, near a railroad grade crossing. E.H.S., the minor plaintiff, was a passenger in a vehicle driven by her father. E.H.S. was injured when her father lost control of his vehicle, struck a center median in the roadway, and crashed into a railroad crossing gate.

         On August 10, 2017, Plaintiff filed her petition against Cheryl Townlian, an employee of BNSF Railway, in Missouri state court, asserting claims of negligence in design, construction, and maintenance of an allegedly dangerous railroad crossing. Townlian is the "manager of public projects for BNSF's River Subdivision." (Doc. No. 12). On August 23, 2017, Plaintiff amended her petition to add BNSF Railway as a defendant.

         On May 17, 2018, Townlian was deposed. A year later, on May 31, 2019, Townlian and BNSF filed a joint motion for summary judgment, which was denied by the trial court. Thereafter, the parties engaged in settlement negotiations.

         On August 15, 2019, Plaintiff dismissed her claims against Townlian without a formal settlement. Trial in the state court was set to begin on August 20, 2019.

         On August 17, 2019, BNSF Railway filed its notice of removal. In support, BNSF Railway claims that Plaintiff engaged in bad faith by treating Townlian, a diversity-destroying defendant, as a superfluous party, never serving any written discovery on her, and dismissing Townlian on the eve of trial without a formal settlement. BNSF Railway contends that this conduct provides it with a basis for asserting the exception to the one-year limitations period for removal. BNSF Railway also contends that counsel for Plaintiff has exhibited a pattern and practice of joining nondiverse defendants to defeat diversity jurisdiction, but then dismissing them shortly before trial.

         On August 19, 2019, Plaintiff filed a motion to remand, arguing that the one-year limitation barred removal and mandated remand. Plaintiff maintains that she spent time, money, and effort to pursue her claims against Townlian, including taking her deposition and defeating her motion for summary judgment, which defeats the bad faith exception of the removal statute.

         On August 20, 2019, the Court held a telephone conference with counsel to discuss the positions of the parties and the status of the underlying state court case. Counsel for BNSF Railway requested additional time to file a formal opposition to Plaintiffs motion to remand. Counsel indicated his intent to supplement his notice of removal to include additional case law and evidence of Plaintiffs counsel's pattern and practice of dismissing diversity-destroying defendants shortly before trial. Counsel for Plaintiff asked for an expedited ruling on the motion to remand because jurors were scheduled to be called into state court the following day. The Court permitted BNSF Railway a brief opportunity to file its opposition, and BNSF Railway timely complied.

         II. Discussion

         Under the circumstances of this case, an expedited ruling on the motion to remand is necessary. A jury trial was set to begin in state court today, and the state court has indicated to the parties that potential jurors would be called to serve tomorrow. The Court notes BNSF Railway's request to formally file its opposition to remand. However, it is the Court's belief that BNSF Railway has had the opportunity to adequately present its arguments and authority in its notice of removal, and BNSF Railway has also provided supplemental authority following the telephone conference. The Court has reviewed the briefing and the record from the state court in rendering this decision.

         "A defendant may remove a state law claim to federal court only if the action originally could have been filed there." In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). The removing defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). "All doubts about federal jurisdiction should be resolved in favor of remand to state court." In re Prempro, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)).

         When removal is predicated on diversity of citizenship, the case cannot be removed "more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." 28 U.S.C. § 1446(c)(1). "The statute is a product of Congress' different treatment for diversity cases (as opposed to federal question cases): it is a legislative judgment that a suit governed by state law that is filed in state court should remain in state court if it has been pending and consuming state judicial resources for more than one year." Trokey v. Great Plains Roofing &Sheet Metal, Inc., No. 4:16-CV-01193-ODS, 2017 WL 722607, at *1 (W.D. Mo. Feb. 23, 2017) (citation omitted). "This legislative judgment dictates that diversity cases remain in state court unless bad faith is evidenced; the one year limit is not obviated by considerations of fairness, equity, or some other basis for ascertaining what seems 'right,' but only by bad faith." Id. ...

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