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1:05-cv-02817-MBS Date Filed 09/28/05 Entry Number 1 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

AIKEN DIVISION











Plaintiff,

Defendants.

Avondale Incorporated,



v.

Norfolk Southern Corporation, Norfolk
Southern Railway Company, Benjamin
Aiken, Mike Ford, and James Thornton,

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TO: The Honorable District Court of the United States for the District Of South




The defendants, Norfolk Southern Corporation and Norfolk Southern Railway Company,

Carolina, Aiken Division

NOTICE OF REMOVAL

C.A. ______________

would respectfully show unto the court as follows:



1.

The defendants, Norfolk Southern Corporation (hereinafter “NSC”) and Norfolk

Southern Railway Company (“NSRC”), are parties to a civil action brought against them in the

Court of Common Pleas of Aiken County entitled “Avondale Corporation v. Norfolk Southern

Corporation, Norfolk Southern Railway Company, Benjamin Aiken, Mike Ford, and James

Thornton,” C.A. No. 2005-CP-02-1235, which action was commenced as against these

defendants by the filing of a summons and complaint on September 26, 2005.



2.

NSC and NSRC appeared in this matter by filing an answer in the Aiken County

Court of Common Pleas on September 28, 2005. Upon information and belief, no other

defendants have appeared or been served in this matter. No further proceedings have taken

place.



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3.

This petition for removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it

is filed within thirty (30) days from the date on which these defendants were first received with

the summons and complaint.

4.

NSC and NSRC are corporations organized and existing pursuant to the laws of

the State of Virginia with their principal places of business in Norfolk, Virginia. Thus, NSC and

NSRC are citizens of Virginia.



5.

Upon information and belief, the plaintiff is a citizen and resident of the State of

Georgia. (Complaint ¶ 5).

6.

Benjamin Aiken, Mike Ford and James Thornton are citizens of South Carolina.

However, the residency of Defendants Aiken, Ford and Thornton must be disregarded for two

reasons: (1) because Plaintiff has improperly named them as defendants in order to fraudulently1

defeat the removal of this action and the jurisdiction of this Court and (2) because Defendants

Aiken, Ford and Thornton have not yet been properly joined and served.

7.

The joinder of Benjamin Aiken, James Thornton and Mike Ford is fraudulent

because Plaintiff has no real intention in good faith to seek a joint judgment against Benjamin

Aiken, Mike Ford, and James Thornton, based upon the magnitude of the damages sought.

Moreover, the presence of NSC and NSRC as defendants render the joinder of nondiverse

defendants unnecessary, to obtain a complete remedy. See Alexander v. Electronic Data

Systems Corp., 870 F.Supp. 749 (E.D. Mich. 1994)(holding that removal was proper under a

sham defendant analysis when there was no intention to seek joint judgment against the

individual nondiverse defendants and the nondiverse defendants were named jointly and

severally with the corporate defendant and there was “no concern that [the corporate defendant]


1 “Fraudulent joinder is a term of art; it does not reflect on the integrity of plaintiff or counsel but is merely the
rubric applied when a court finds either that no cause of action is stated against the nondiverse defendant or in fact
no cause of action exists.” Lewis v. Time Inc., 83 F.R.D. 455 (E.D. Cal. 1979).



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would be unable to satisfy any judgment against them in this matter”); Scientific Computers, Inc.

v. Edudata Corp., 596 F. Supp. 1290 (D. Minn. 1984)(holding joinder of nondiverse defendants

was fraudulent when there was no intent to obtain a joint judgment against them). Benjamin

Aiken, Mike Ford and James Thornton are therefore, sham defendants whose joinder does not

defeat this Court’s jurisdiction. The defendants would also allege and show that Benjamin

Aiken, Mike Ford and James Thornton, as sham defendants, are not required to join in this

removal. See Steel Valley Authority v. Union Switch and Signal Div., 809 F.2d 1006, 1009, n.2

(3d Cir. 1987) (fraudulently joined defendants need not join in removal).

8.

Additionally, NSRC and NSC have properly removed this case before service has

occurred upon Aiken, Ford and Thornton. Accordingly, this matter is properly removed and

before this Court. See Wensil v. E.I. Du Pont De Nemours and Company, 792 F. Supp. 447

(D.S.C. 1992)(holding that 28 U.S.C. §1442(b) allows removal of a diversity action where the

defendants removed the action to federal court before the South Carolina resident co-defendants

were served); See also, Roberston v. Nye, 275 F. Supp. 497 (W.D. Okla. 1967)(holding that the

implication of the wording of 28 U.S.C. § 1441(b) seems clear that there can be removal where

the resident defendant has not been served).

9.

Further, the amount in controversy, exclusive of interest and costs, exceeds the

sum of $75,000.00. Plaintiff seeks recovery of alleged damages including: damage to textile

machinery, equipment,

inventory, electrical circuitry, wiring, and

telecommunications

equipment, business interruption including lost revenues, increased production costs, trespass,

nuisance, temporary and permanent reduced production capacity, inspection and testing costs,

total loss of real and personal property, temporary loss of the use of property, clean-up and

remediation costs, replacement costs, increased administrative costs, long-term damage to

business and punitive damages. (See Complaint ¶¶ 25, 26, 27, 28, 30, and 40). The allegations



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of injuries and damages sought in the complaint are substantial, with payments to plaintiff by

NSRC already in excess of the jurisdictional amount, and similar to other actions in which other

plaintiffs have sought and recovered damages in excess of $75,000.00. Thus, the jurisdictional

amount is satisfied.

10. The United States District Court for the District of South Carolina, Aiken

Division, has original subject matter jurisdiction of this civil action pursuant to 28 U.S.C. § 1332

because there is complete diversity of citizenship among all the properly joined and served

parties, and the amount in controversy in this civil action, exclusive of interest and costs, exceeds

the sum of $75,000.00.

11.

Additionally, because the plaintiff asserts claims that are so related to other

matters before this Court, it has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). The

claims asserted by this plaintiff and by plaintiffs in other matters are so related to one another

that they are part of the same case or controversy under Article 3 of the United States

Constitution. Thus, the plaintiff’s claims may be removed to this Court pursuant to 28 U.S.C. §

1441 with supplemental jurisdiction appropriate under 28 U.S.C. § 1367(a).





12.

Currently pending before this Court are the following cases, all of which arise

from the same incident that forms the basis of Plaintiff’s complaint in this action: Teal, et al v.

Norfolk Southern Railway Company, No. 1:05-114-24; Coon, et al. v. Norfolk Southern Corp., No.

1:05-148-24; Rodney Bakari Johnson, et al. v. Norfolk Southern Railroad Co., et al., No. 1:05-209-

24; DeLoach, et al. v. Norfolk Southern Corp., et al., No. 1:05-132-24; Watson v. Norfolk Southern

Railway Co., No. 1:05-256-24; Deal v. Norfolk Southern Railway Co., No. 1:05-253-24; Coleman,

et al. v. Norfolk Southern Railway Co., No. 1:05-258-24; Ofori, et al. v. Norfolk Southern Railway

Co., No. 1:05-254-24; Watson v. Norfolk Southern Railway Co., No. 1:05-256-24; Sanders, et al. v.

Norfolk Southern Corp., et al., No. 1:05-470-24; Jones v. Norfolk Southern Corp., et al., No. 1:05-



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471-24; Nathaniel Massey v. Norfolk Southern Railway Co., No. 1:05-598-24; Curtis Mitchell v.

Norfolk Southern Railway Co., No. 1:05-596-24; Tawana Glover, et al v. Norfolk Southern

Railway Co., No. 1:05-657-24; Leonard Cuellar, et. al. v. Norfolk Southern Railway Co., No.

1:05-847-24; Timothy J. McCullough v. Norfolk Southern Corporation, et. al., No. 1:05-894-24;

Recardo Coleman v. Norfolk Southern Corporation, et. al., No. 1:05-1053-24; Roosevelt Myrick

v. Norfolk Southern Corporation, et. al., No. 1: 05-1108-24; Laird v. Norfolk Southern

Corporation, et al., C.A. No.: 1:05-1681-24; Cindy Bates et al v. Norfolk Southern Corporation

et al, No.: 1:05-1811-24; Mark C. Broome v. Norfolk Southern Corporation, et al., No.: 1:05-

1948-24, Antonio Toole v. Norfolk Southern Corporation, et al., No.: 1:05-2040-24; and Lance

Pinson v. Norfolk Southern Corporation, et al., No.: 1:05-2095-24.



28 U.S.C. § 1441 empowers this Court to remove an entire civil action despite the fact

that not all the defendants would otherwise qualify as nondiverse parties. Because this claim,

purportedly involving nondiverse parties, is so related to those already within the original

jurisdiction of this Court, that they are part of the same case or controversy under Article 3 of the

United States Constitution, this claim shall be removed to this Court pursuant to 28 U.S.C. §

1441 with supplemental jurisdiction appropriate under 28 U.S.C. § 1367(a). See 28 U.S.C. §

1367(a)(providing that “in any civil action of which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction”); See also Cohen v. Reed, 868 F.Supp.

489, 494 (E.D.N.Y. 1994)(noting that supplemental jurisdiction is required for matter lacking

original jurisdiction when it “involves many of the same factual intricacies” before the court in

an action in which the district court has original jurisdiction); Leith v. Lufthansa German

Airlines, 793 F. supp. 808 (N.D. Ill. 1992)(denying remand of claims involving nondiverse

parties and finding federal jurisdiction appropriate pursuant to 28 U.S.C. § 1367 because the



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claims were “so related” to other claims arising out of the original jurisdiction of the court when

“the complaints, answers, and affirmative defenses are virtually identical” and “most of any

proffered evidence will apply to each claim”).



13.

Further, jurisdiction by this Court is appropriate under 28 U.S.C. § 1331. NSRC

is heavily regulated by the federal government and plaintiff has alleged negligence per se by the

defendants for violation of “statutes and/or regulations” governing its “ownership, control,

operation, use, maintenance, inspection and/or transportation and handling of hazardous

materials, which were designed to specifically protect against occurrences such as collision and

release.” (See Complaint ¶ 42). Plaintiff’s claims involve issues related to speed, signage,

warning devices, inspection, and hours of service which center on compliance with federal laws

and regulations. (See Complaint ¶¶ 36 and 39). Plaintiff’s claims require resolution of issues

premised on the application of federal law and regulations and whether such federal law and

regulations were violated. Accordingly, federal issues are actually in dispute, the federal issues

are substantial, and the exercise of jurisdiction by this Court is consistent with congressional

judgment about the sound division of labor between the state and federal courts. See Grable &

Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, ___ U.S. ____, 162 L. Ed. 2d

257, 125 S.Ct. 2363, 2369-70 (2005)(holding that federal question jurisdiction exists

notwithstanding the fact that Congress did not provide a private right of action in the federal

statute forming the basis of the substantial federal question); See also, Ormet Corp. v. Ohio

Power Co., 98 F.3d 799 (4th Cir. 1996)(holding that where the resolution of a federal issue in a

state-law cause of action could, because of different approaches and inconsistency, undermine

the stability and efficiency of a federal statutory regime, the need for uniformity becomes a

substantial federal interest, justifying the exercise of jurisdiction by federal courts).



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14.

Finally, to the extent that this action alleges that Defendants failed to employ or

incorporate adequate, necessary, reasonable safety and warning devices, procedures or practices

into the switching devices, railway lines, tank cars, locomotives or other related equipment, this

action is removable based upon federal question jurisdiction, without regard to diversity of

citizenship, pursuant to 28 U.S.C. §1442(a)(1), in that:

A.


In complying with extensive regulations governing the operation of
the trains in question and the transport and handling of hazardous materials,
which regulations are mandatory, Defendants were acting under the direction of
several federal regulatory agencies, including the United States Department of
Transportation (DOT), the Federal Railway Administration (FRA) and the
Research and Special Programs Administration (RSPA), among others.


Compliance with these mandatory directions has caused the
Defendants to be sued, to the extent that this action alleges that Defendants failed
to depart from the mandatory requirements applicable under federal law and
regulation of the rail transport of hazardous materials.


Defendants have colorable federal affirmative defenses to these
claims, i.e., the preemptive provisions of the Federal Railroad Safety Act (FRSA),
49 U.S.C. §20106 and the pre-emptive provision of the Federal Hazardous
Materials Transportation law (HMTA), 49 U.S.C. §5125(a)(1), (a)(2) & b.

B.

C.




15.

Pursuant to 28 U.S.C. § 1446(a) a copy of all process, pleadings and orders

received by the removing defendants are attached hereto as “Exhibit A.”

16.

The defendants submit this notice of removal without waiving any defenses to the

claims asserted by Plaintiff or conceding that Plaintiff has pled claims upon which relief can be

granted.



WHEREFORE, Defendants, Norfolk Southern Corporation and Norfolk Southern

Railway Company, pray that the above case now pending against them in the Court of Common

Pleas for Aiken County, South Carolina, be removed therefrom to this Court.

(SIGNATURE ON FOLLOWING PAGE)



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September 28, 2005































































































s/Christopher M. Kelly
Daniel B. White (Fed. I.D. #4612)
Ronald G. Tate (Fed. I.D. #4021)
Ronald K. Wray, II (Fed. I.D. #5763)
Christopher M. Kelly (Fed. I.D. # 6999)
GALLIVAN, WHITE & BOYD, P.A.
55 Beattie Place, Suite 1200
P.O. Box 10589
Greenville, SC 29603
(864) 271-9580
(864) 271-7502 FAX
[email protected]
[email protected]
[email protected]
[email protected]

Attorneys for Defendants,
Norfolk Southern Corporation and
Norfolk Southern Railway Company

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