Henderson v. Nat'l R.R. Passenger Corp.

• Decision Date: 05 January 2011
• Docket Number: D.C. No. 2:08-CV-00298-RLP-RHS,No. 09-2173,09-2173
• Parties: MAIDA HENDERSON and KEN STOLLER, M.D., as Co-Personal Representatives of the Estate of Galen Stoller, a minor child; MAIDA HENDERSON, as mother of Galen Stoller, deceased, Plaintiffs-Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK; BURLINGTON NORTHERN SANTA FE CORPORATION, a/k/a BNSF; BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY; SAN MIGUEL COUNTY; DOES I-X, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

MAIDA HENDERSON and KEN STOLLER, M.D., as Co-Personal Representatives

of the Estate of Galen Stoller, a minor child; MAIDA HENDERSON,

as mother of Galen Stoller, deceased, Plaintiffs-Appellants,

v.NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK;

BURLINGTON NORTHERN SANTA FE CORPORATION,

a/k/a BNSF; BOARD OF COUNTY COMMISSIONERS FOR SAN MIGUEL COUNTY;

SAN MIGUEL COUNTY; DOES I-X, Defendants-Appellees.

No. 09-2173

D.C. No. 2:08-CV-00298-RLP-RHS

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT.

Filed: January 5, 2011

ORDER AND JUDGMENT¹

Before BRISCOE, BALDOCK, and TYMKOVICH, Circuit Judges.

Sixteen-year-old Gallen Stoller was killed at a private railroad crossing when an Amtrak passenger train hit the vehicle he was driving on a county road in Rowe, New Mexico. His parents, Plaintiffs Maida Henderson and Ken Stoller, filed a wrongful death suit in New Mexico state court against Defendants Amtrak, Burlington Northern & Santa Fe Railroad Corporation ("BNSF"), and San Miguel County. In their complaint, Plaintiffs alleged negligence and gross negligence in the operation of the train as well as in the design, construction, and maintenance of the crossing, the railroad right-of-way, and/or the county road leading to the crossing.

Defendants successfully removed the matter to federal court based on Amtrak's status as a federal entity. Following some discovery, Plaintiffs filed a motion to dismiss Amtrak voluntarily from the case and to remand the matter to state court. Defendants BNSF and San Miguel County opposed remanding the case. The district court denied Plaintiffs' motion to remand but granted their motion to dismiss Amtrak without prejudice. BNSF and San Miguel County later filed separate motions for summary judgment on the merits. BNSF also moved to strike Plaintiffs' Rule 26 "preliminary" and "supplemental" expert reports and to preclude that expert from testifying at trial. The court held a hearing on the matter and ultimately granted BNSF's motion to strike and motion for summary judgment, refusing to consider either the expert's preliminary or supplemental report in granting BNSF's motion for summary judgment. The court subsequently granted San Miguel County's motion for summary judgment in a separate order. Plaintiffs seek to overturn all of these adverse rulings, including the denial of their motion to remand, on appeal. Exercising appellate jurisdiction under 28 U.S.C. § 1291, we affirm in part andreverse in part.

I.

We first address the propriety of the district court's refusal to remand the case. Plaintiffs argue 28 U.S.C. §§ 1447(c) and 1367(c)(3) required the district court to remand the case to state court once it dismissed the only claim that provided federal subject matter jurisdiction—Plaintiffs' claim against Amtrak. We have "jurisdiction over a denial of a motion to remand to state court when coupled with the appeal of a final judgment" such as the district court's grant of Defendants' motions for summary judgment. Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir. 1999) (internal quotations omitted).

Upon removal, the district court had subject matter jurisdiction over Plaintiffs' claims against Amtrak under 28 U.S.C. § 1331 and 28 U.S.C. § 1349 because Congress created Amtrak and the United States owns over fifty percent of its stock. See 49 U.S.C. §§ 24101-24711 (creating Amtrak). "Federal question jurisdiction exists for congressionally incorporated corporations under 28 U.S.C. § 1331. The limitation to this basis of jurisdiction found in 28 U.S.C. § 1349... does not apply to congressionally incorporated entities, such as Amtrak, more than half of whose capital stock is owned by the federal government.... [F]ederal courts have jurisdiction over all cases involving Amtrak, regardless of the cause of action." Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756, 758 n. 1(7th Cir. 2003) (internal citations omitted). Accord Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1060 (9th Cir. 2002); Chiwewe v. Burlington N. & Santa Fe Ry. Co., 2002 WL 31924776, *2 (D.N.M. Aug. 21, 2002). Plaintiffs' negligence claims against Amtrak, BNSF, and San Miguel County all stemmed from their son's fatal collision with an Amtrak train on a BNSF crossing accessed by a San Miguel County road. The district court, as a result, had supplemental jurisdiction under § 1367(a) over Plaintiffs' state-law claims against BNSF and San Miguel County because they were "so related to claims in the action within such original jurisdiction that they form[ed] part of the same case or controversy under Article III." 28 U.S.C. § 1367(a).

After removal, but well before final judgment, Plaintiffs voluntarily dismissed their claims against Amtrak. Section 1447(c) provides, in relevant part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, [a removed] case shall be remanded."² Plaintiffs contend this language required the district court to remand the case to state court once its claims against Amtrak, the sole basis for federal jurisdiction, had been dismissed. This is not necessarily an unreasonable argument given the statutory language, but it is one thatmost courts to our knowledge have found unpersuasive.³ And, in any event, it is one that the Supreme Court certainly foreclosed in Carlsbad Technology, Inc. v. HIF Bio, Inc., 129 S. Ct. 1862 (2009).

The Supreme Court decided in Carlsbad that a "District Court's remand order, which rested on its decision declining to exercise supplemental jurisdiction over respondents' state-law claims," was not a "remand based on 'lack of subject matter jurisdiction for purposes of § 1447(c).'" 129 S. Ct. at 1866. The Court explained that when the district court dismissed the single federal claim from the case, the district court nonetheless retained its statutory supplemental jurisdiction over the remaining state-law claims because "§§ 1367(a) and (c) provide a basis for subject-matter jurisdiction over any properly removed state claim." Id. at 1867. The district court's subsequent "decision declining to exercise that statutory authority was not based on a jurisdictional defect but on its discretionary choice not to hear the claims despite its subject-matter jurisdiction over them." Id. Thus, an appellate court reviews the district court's remand order in that situation for abuse of discretion. Id. Based on Carlsbad, we must conclude that after granting Plaintiffs' motion to dismiss their only federal claim, the district court in this case retained subject matter jurisdiction over the remaining state-law claims against BNSF and San Miguel County and, therefore, § 1447(c) did not require it to remand the state-law claims. Instead, the district court possessed the discretion to either retain or remand those claims pursuant to § 1367(c).

In exercising that discretion, the Supreme Court has instructed courts should consider "the values ofjudicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon, 484 U.S. at 350. In this case, thedistrict court concluded that judicial economy and fairness supported retaining jurisdiction over Plaintiffs' state law claims against BNSF and San Miguel County. At the time Plaintiffs requested remand, the parties had "filed a Joint Status Report and Provisional Discovery Plan, prepared and served disclosure statements as required by [Fed.]R.Civ.P. 26(a), attended a scheduling conference, exchanged written discovery, taken multiple depositions, participated in a telephonic status conference, and designated expert witnesses. A trial date of August 10, 2009 ha[d] been set." Appx. at 103. We reverse for an abuse of discretion only "when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.... '[W]e may not... substitute our own judgment for that of the trial court.'" Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998) (quoting Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 354-55 (10th Cir. 1986)). Because the district court did not make any erroneous conclusions of law or fact, we uphold its discretionary choice to refuse to remand this case to state court.

II.

Next, we address Plaintiffs' challenge to the district court's exclusion of their August 2008 expert report pursuant to Fed. R. Evid. 702. "Like other evidentiary rulings, we review a district court's decision to exclude evidence at the summary judgment stage for abuse of discretion." Sports Racing Serv., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997). Consequently, "we will not disturbthe determination absent a distinct showing that it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment." Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995). Fed. R. Evid. 702 provides for the admission of expert testimony, "if (1) the testimony is based upon sufficient facts or data." "[N]othing in either Daubert[v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Thus, "the testimony of an expert can be rejected on summary judgment if it is conclusory and thus fails to raise a genuine issue of material fact." Matthiesen v. Bank One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

Plaintiffs timely submitted a sixteen-page expert report prepared by Dr. Kenneth Heathington. In conjunction with granting BNSF's motion for summary judgment, the district court granted BNSF's ...