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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Norfolk Southern Corporation, Norfolk
Southern Railway Company, Benjamin
Aiken, Mike Ford, and James Thornton,
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
would respectfully show unto the court as follows:
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.
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
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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.
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.
Upon information and belief, the plaintiff is a citizen and resident of the State of
Georgia. (Complaint ¶ 5).
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.
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).
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).
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
inventory, electrical circuitry, wiring, and
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.
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).
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”).
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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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:
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.
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.”
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
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) 271-7502 FAX
Attorneys for Defendants,
Norfolk Southern Corporation and
Norfolk Southern Railway Company