Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weaver v. Conrail

July 12, 2010

AZRIEL WEAVER, PLAINTIFF,
v.
CONRAIL, INC., ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION AND ORDER

I. INTRODUCTION

Before the Court is Defendants' Motion for Reconsideration of the December 30, 2009, Order Granting Plaintiff's Petition to Remand (Doc. No. 18). On or about August 14, 2009, Plaintiff commenced this action in the Court of Common Pleas of Philadelphia County, Pennsylvania, against Defendants Conrail, Inc., Consolidated Rail Corporation, Conrail Shared Assets (hereinafter "Conrail Defendants"), CSX Corporation, CSX Transportation, Inc., Norfolk Southern Corporation, and Norfolk Southern Railway Company, alleging claims in negligence against all Defendants for injuries Plaintiff sustained when she was struck by a train. (Not. Of Removal, Doc. No. 1, Ex. A, at ¶¶ 47-48, 57 (hereinafter "Doc. No. 1-A")).

II. SUMMARY OF THE FACTS AND PROCEDURAL HISTORY

On or about May 16, 2009, Plaintiff Azriel Weaver, who was then a minor residing with her older brother and his family in Erie, Pennsylvania, was seriously injured while crossing railroad tracks on her way home from a friend's house. (Doc. No. 1-A, at ¶¶ 31, 43, 48). The City of Erie is "divided by railroad tracks that run parallel to the shoreline of Lake Erie," and there are "permissive crossings at nearly every street intersection of the railroad in the heavily populated residential areas of the City." (Id., at ¶¶ 32, 34). On May 16, 2009, Plaintiff's route to her home required her to cross the railroad tracks. (Id., at ¶43). Pedestrian underpass crossings are provided along the railroad tracks in the City. However, Plaintiff's route that day took her down Chestnut Street, which is roughly midway between the two closest underpasses located at Sassafras and Cherry Streets, which are nearly one mile apart from each other. (Id., at ¶¶ 37, 43, 44). In order to avoid crossing the railroad tracks at Chestnut Street, which has a ground-level permissive crossing,*fn1 a pedestrian would have to walk approximately one mile to the nearest underpass and then return to her original route. (Id., at ¶¶ 37-38, 43). Accordingly, when she reached Chestnut Street, Plaintiff opted to cross at the permissive crossing, rather than to walk to the distant underpass. (Id.)

When Plaintiff crossed the railroad tracks at the Chestnut Street permissive crossing on May 16, she encountered a one-mile long stationary train blocking the crossing. (Id., at ¶¶ 44-45). Because the railcars were "stopped, had been stopped for some time, and [gave] no indication whatsoever that they would begin to move at any time in the near future, [Plaintiff] proceeded to cross in between two gondola style rail cars that were blocking the crossing." (Id., at ¶ 46). As Plaintiff was climbing over the coupler that connected the rail cars, "the consist lurched forward and began to roll, without warning of any kind, thereby knocking [Plaintiff] down and causing her to fall to the tracks." (Id., at ¶ 47). Once on the tracks, Plaintiff was run over by the rail car twice, which instantly amputated her left leg at the knee and caused substantial soft tissue damage to her thigh and past her hip. (Id., at ¶¶ 48-49). Plaintiff then crawled about twenty feet to the edge of Chestnut Street and made a tourniquet from a shirt she had in her back pack. (Id., at ¶¶ 50-51). With calls for help, she was able to attract assistance from a pedestrian. (Id.).

In Count I of her Complaint, Plaintiff alleges "Negligent Maintenance of Railroad Facilities" against all Defendants. (Doc. No. 1-A, at ¶¶ 58-69). In Count II of her Complaint, Plaintiff alleges "Negligent Maintenance and Operation of Rail Vehicles" against CSX Corporation and CSX Transportation, Inc. (hereinafter "CSX Defendants"). (Id., at ¶¶ 70-81). Defendants' Motion addresses only the claims in Count I against Conrail Defendants.

Plaintiff alleges that the crossing at Chestnut Street is a "well-defined, frequently used and well-beaten" permissive crossing that all Defendants knew existed or should have known existed, based on the following factors: the tracks are located in a residential area and are not fenced off; the street is paved without interruption up to the railroad ballast; well defined foot paths are visible crossing the tracks; pedestrians frequently cross while in the presence of Defendants' employees; graffiti and garbage are present near the tracks; schools and residential areas that house the students are divided by the tracks; and there are reported injuries at permissive crossings in the area that date back many decades. (Doc. No. 1-A, at ¶ 42). Plaintiff alleges that the permissive crossing at Chestnut Street is not fenced, blocked or barricaded in any way, and that there are no signs posted to keep pedestrians off the track area. (Id., at ¶¶ 39-40). Plaintiff further alleges that all Defendants' negligence and carelessness consisted of the following: "[c]reating a known dangerous hazard in the nature of uncontrolled permissive crossings [and] . . . [i]gnoring actual knowledge of permissive crossings in the City of Erie and, in particular, at Chestnut Street." (Id., at ¶ 59).

Plaintiff alleges in her Complaint that she is a citizen of Pennsylvania, and that Conrail Defendants are citizens of Pennsylvania by virtue of their organization under the laws of the Commonwealth and the location of their primary place of business in Pennsylvania. (Doc. 1-A, at ¶¶ 1-8); Hertz Corp. v. Friend, 130 S.Ct. 1181, 1186 (2010) (defining "principal place of business," for purposes of determining a corporation's citizenship, as "the place where the corporation's high level officers direct, control and coordinate the corporation's activities"). Defendants CSX Corporation, CSX Transportation, Norfolk Southern Corporation, and Norfolk Southern Railway Company are citizens of Virginia and/or Florida. (Id., at ¶¶ 11-26).

On November 23, 2009, despite lack of diversity of citizenship among Plaintiff and every Defendant, all Defendants except Norfolk Southern Corporation and Norfolk Southern Railway Company*fn2 filed a Notice of Removal, asserting that the citizenship of Conrail Defendants should be disregarded for diversity jurisdiction purposes as "there is no reasonable basis in fact or colorable ground supporting Plaintiff's . . .[claim] against these Defendants." (Doc. No. 1, at 4). On November 30, 2009, CSX Defendants answered the Complaint. (Doc. Nos. 5 and 6). Defendants Norfolk Southern Corporation and Norfolk Southern Railway Company (hereinafter "Norfolk Defendants") answered the Complaint with cross-claims on December 4, 2009. (Doc. No. 10).

On November 30, 2009, Conrail Defendants filed a Motion to Dismiss, asserting that because Conrail Defendants neither own, operate, maintain nor control the railroad tracks referenced in Plaintiff's Complaint, they cannot be held liable to Plaintiff under Count I of the Complaint. (Doc. No. 8, "Brief in Supp. Of Mot. To Dismiss," at 2 (hereinafter "Doc. No. 8")). On December 18, 2009, and December 23, 2009, Plaintiff filed a Response in Opposition to Conrail Defendants' Motion to Dismiss (Doc. No. 12), and a Petition to Remand to the Court of Common Pleas of Philadelphia County (hereinafter "Doc. No. 13"). Conrail Defendants filed a Supplement to their Motion to Dismiss and a Reply Brief in Support of Motion to Dismiss on December 23, 2009. (Doc. Nos. 14 and 15).

On December 30, 2009, this Court entered an Order Remanding this case to the Court of Common Pleas of Philadelphia County, Pennsylvania, and Denying Defendants' Motion to Dismiss. On January 4, 2010, Conrail Defendants filed the instant Motion for Reconsideration of this Court's Order (hereinafter "Doc. No. 18"). Plaintiff filed a Response in Opposition on January 27, 2010, (hereinafter "Doc. No. 20"). A hearing was held on the Motion on February 1, 2010. At the hearing, the Court requested further briefing from the parties. On March 2, 2010, Conrail Defendants filed a Supplemental Brief in Opposition to Plaintiff's Motion to Remand (hereinafter "Doc. No. 23"), and on March 10, 2010, Plaintiff filed a Response to Defendant's Supplemental Brief (hereinafter "Doc. No. 25").

In the current Motion for Reconsideration, Conrail Defendants assert that Plaintiff fraudulently joined Conrail Defendants in order to deprive a federal court of jurisdiction under diversity of citizenship jurisdiction and that the Court may consider evidence apart from the pleadings in determining whether Conrail Defendants have shown fraudulent joinder. Conrail Defendants further assert that public records prove that Conrail Defendants do not own, operate, maintain or control the premises on which Plaintiff was injured, and as a result, the Court should reconsider its prior Order, dismiss Conrail Defendants as named parties and deny Plaintiff's Motion to Remand. Plaintiff asserts that she has stated a claim for negligence against Conrail Defendants based not upon their current ownership or control of the premises where Plaintiff was injured, but rather based upon their failure to disclose the existence of the dangerous condition at Chestnut Street when they transferred ownership to CSX Defendants. For the following reasons, the Court is persuaded that the Motion for Reconsideration should be granted. Conrail Defendants will be dismissed without prejudice, and Plaintiff will be granted leave to file an amended complaint.

III. STANDARD ON MOTION FOR RECONSIDERATION

A motion for reconsideration may be filed pursuant to Fed. R. Civ. Proc. 59(e) and E.D. Pa. Local Rule of Civ. Proc. 7.1(g): "Motions for reconsideration or reargument shall be served and filed within fourteen (14) days after the entry of the . . . order . . . concerned." "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001) (internal citation and quotation marks omitted). "The purpose of a motion for reconsideration . . . is to correct manifest errors of law or fact or to present newly discovered evidence." Howard Hess Dental Labs., Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010) (internal citation and quotation marks omitted). Accordingly, a motion for reconsideration will only be granted on one of the following grounds: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available" when the court issued the contested order; "or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Id.

With regard to the third ground, "[a] motion for reconsideration is not to be used as a means to reargue matters already argued and disposed of . . . In other words, such a motion is not properly grounded on a request that a court rethink a decision it has already made." Drysdale, 153 F. Supp. 2d at 682 (internal citation and quotation marks omitted). To succeed on a motion for reconsideration on the ground of clear error of law or fact, the movant must "show that there were facts or legal issues properly presented but overlooked by the court in its decision." Blue Mountain Mushroom Co., Inc. v. Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 398-99 (E.D. Pa. 2002) (quoting E.D. Pa. R. Local Rule of Civ. Proc. 7.1(g) cmt., 6.b.)).

IV. DISCUSSION

Defendants ask this Court to reconsider its December 30, 2009 Order which was based in part on this Court's reliance on Baum v. NGK Metals Corp., 155 F. Supp. 2d 376 (E.D. Pa. 2001), and cited "for the proposition that in ruling on Plaintiff's petition, the Court is constrained to focus solely upon Plaintiff's Complaint and accept as true all facts pled in such pleading." (Doc. No. 18, at 2 (citing Doc. No. 17, Order, at 2 n.1 (hereinafter "Doc. No. 17"))). Defendants assert the Court should reevaluate this legal principle in light of In re: Briscoe, 448 F.3d 201, 219 (3d Cir. 2006), which was cited by Defendants in their Supplemental Brief in Opposition to Plaintiff's Motion to Remand (hereinafter "Doc. No. 23"). In Briscoe, the Third Circuit held that in determining whether a defendant was fraudulently joined by the plaintiff, a court may look beyond the face of the complaint "for indicia of fraudulent joinder." (Doc. No. 23, at 3). Defendants assert that under Briscoe, the Court may examine matters of public record demonstrating that Conrail Defendants did not own, operate, maintain or control the track area in question in May 2009. For this reason, Conrail Defendants argue that they cannot be liable to Plaintiff under Count I of the Complaint, and must be dismissed as being fraudulently joined defendants. (Id. at 4-5).

Plaintiff asserts that her claim under Count I against Conrail Defendants is premised on the Restatement (Second) of Torts, ยง 353, "Undisclosed Dangerous Conditions Known to Vendor." Plaintiff asserts that Section 353 imposes liability on Conrail Defendants for failing to disclose a dangerous condition to the vendee of the property when it allegedly sold the property to CSX Defendants. (Doc. No. 25, at 6). Plaintiff asserts that her Complaint states a colorable claim against Conrail Defendants under Section 353 of the Restatement (Second) of Torts, that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.