McCoy v. Norfolk S. Ry. Co.

• Decision Date: 14 March 2012
• Docket Number: Civil Action No. 2:11–00927.
• Citation: 858 F.Supp.2d 639
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Brenda McCOY, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY and Norfolk Southern Corporation and Jack Stepp, Defendants.

858 F.Supp.2d 639

Brenda McCOY, Plaintiff,

v.NORFOLK SOUTHERN RAILWAY COMPANY and Norfolk Southern Corporation and Jack Stepp, Defendants.

Civil Action No. 2:11–00927.

United States District Court,

S.D. West Virginia,

at Charleston.

March 14, 2012.

Jerry M. Lyall, Williamson, WV, for Plaintiff.

Alexis B. Mattingly, J. David Bolen, Huddleston Bolen, Huntington, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

Pending are 1) the motion of defendant Norfolk Southern Corporation to dismiss for insufficient service of process or, alternatively, to quash service, filed November 23, 2011; 2) the motion of defendant Jack Stepp (the “nondiverse defendant”) to dismiss, filed November 23, 2011; 3) plaintiff's motion to remand, filed December 2, 2011; and 4) plaintiff's motion for leave to amend, filed February 17, 2012.

When, as here, a motion to remand and a motion to dismiss under Rule 12(b)(5) and 12(b)(6) are made, it is ordinarily improper to resolve the motions to dismiss before deciding the motion to remand. The question arising on the motion to remand as to whether there has been a fraudulent joinder is a jurisdictional inquiry. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3rd Cir.1992); cf. Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir.1999) (observing that the propriety of removal and fraudulent joinder are jurisdictional questions).

I. Background

The claims at issue in this case arise from a troubled, two decade-long relationship between plaintiff's family and defendant Norfolk Southern Railway Company (“Norfolk Railway”). Plaintiff Brenda McCoy is a resident of Sprigg, Mingo County, West Virginia. Defendant Norfolk Railway is a Virginia corporation with its principal place of business in Norfolk, Virginia. Defendant Norfolk Southern Corporation is also a Virginia corporation with its principal place of business in Norfolk, Virginia, and is the parent company of Norfolk Railway (together, the “Norfolk defendants”). Defendant Jack Stepp, who at all relevant times was employed by Norfolk Railway as a track supervisor, is a West Virginia resident. The following factual recitation is taken from the amended complaint on which the case was pending at the time of removal, the operative pleading for purposes of plaintiff's motion to remand. ¹

Nestled in the mountains of southern West Virginia and located along the Kentucky border as drawn by the Tug Fork River lies the unincorporated community of Sprigg. Transected by the railway and State Route 49, Sprigg sits a little more than halfway between Williamson, the county seat of Mingo County, and the town of Matewan, West Virginia. Like much of southern West Virginia, coal mining has long driven the economy of Mingo County, and its impact on the village of Sprigg is no less marked.

In the early 1990s, the Tug Valley Land Company (“Tug Valley Co.”) entered into discussions with plaintiff and her late husband, Robert McCoy, for the purchase of their homestead property situated in Sprigg (“original McCoy parcel”). Tug Valley Co., a subsidiary of Massey Coal Sales, Inc., desired to acquire the original McCoy parcel in order to construct a bridge across the Tug Fork River. (Amended Complaint, Material Facts ¶ 5). It was determined that time that construction of the bridge and connecting private road to Route 49 would drastically reduce the coal hauling distance from Massey's Long Fork mining operations in Pike County, Kentucky, to Massey's Rawl Sales & Processing Company's Sprouse Creek coal processing plant in Lobata, West Virginia, from 23.2 miles to 2.3 miles one way. ( Id.).

In consideration for the original McCoy parcel, Tug Valley Co. offered to pay the McCoys' loan on the property in full, convey to them a new homestead parcel about a mile upstream, and pay all relocation expenses plus $10,000, for a total purchase price of $150,000. ( Id. ¶ 6). The transaction was consummated and title to the new parcel was transferred to plaintiff's husband on September 11, 1992. ( Id. ¶ 3). Prior to the transaction, though, several discussions were held with regard to the new parcel—the subject property underlying plaintiff's present suit.

In particular, the McCoys questioned George Farley, agent for Tug Valley Co., about access to the new parcel. He advised the McCoys that the property was served via State Route 49 by a railroad crossing. ( Id. ¶ 7). Mr. Farley further arranged for the McCoys to meet with the then-Norfolk Railway track supervisor Michael Birkelbach to discuss the crossing. ( Id.). Mr. Birkelbach took the McCoys to the location of an abandoned railroad crossing that had previously provided access to the new parcel from Route 49. ( Id. ¶ 8). He informed them that the property had always been served by the now-defunct crossing and orally promised that it would be reinstalled to allow access to their new property. ( Id.). At that time, Birkelbach pledged to complete the proper paperwork for the reinstallation of the crossing. ( Id.).

The location of the derelict crossing was visually apparent when the McCoys acquired the new parcel, and it remains so. ( Id. ¶ 11). In fact, when the McCoys had a fence installed along the front of their new property, the entrance gate was placed in-line with the location of the abandoned crossing. ( Id. ¶ 12). An access road adjoining the crossing and an entrance point to Route 49 were also visually apparent when the McCoys took possession of the property and remain so. ( Id. ¶ 13).

Until the crossing could be reinstalled, the McCoys were directed to use defendant Norfolk Railway's gravel service road to access their new property. No other access routes were available for the new parcel inasmuch as it was wholly bound by railway property on one side and the Tug Fork River on the other. At all pertinent times, the service road was a gravel road that ran directly alongside the railroad. It began at the closest functioning railroad crossing, near the entrance to Route 49 in Sprigg, and followed directly alongside the railroad tracks in an upstream direction, away from Sprigg proper for approximately one mile, to the new parcel. The McCoys consented to the property transaction with the understanding that they would need to use the service road until the derelict crossing could be restored to active service. Significantly, it is impossible to access plaintiff's property from either the railroad crossing in Sprigg or the crossing further upstream in Merrimac, West Virginia, without utilizing the service road.

Following the transaction, Birkelbach informed the McCoys that adjacent property owners, Joseph and Irene Cooper, objected to the reinstallation of the railroad crossing. ( Id. ¶ 14). Mr. Birkelbach advised the McCoys that Norfolk Railway would require documentation supporting an easement from the Coopers before it could reinstall the crossing. The McCoys continued to use the service road to access their property until the easement matter was resolved. ( Id.). Soon after, a right-of-way easement was obtained from the Coopers and notice of the same was forwarded to Norfolk Railway track supervisor Birkelbach and Norfolk Southern Corporation's superintendent, D.M. Kimbrough, on June 5, 1993. ( Id. ¶ 15).

Subsequently, however, Birkelbach informed the McCoys that Norfolk Southern Corporation had decided it would be too dangerous to reinstall the crossing due to “limited sight distance.” ( Id.).² Upon the Norfolk defendants' failure to reinstall the railroad crossing, Birkelbach advised the McCoys to continue using the railroad crossing located approximately one mile downstream at Sprigg, which, as noted above, provided access to the gravel service road situated adjacent to the railway. ( Id.). The McCoys expressed concerns to Superintendent Kimbrough about the decision not to reinstall the crossing and the continuing need to use the service road. ( Id. ¶ 16). Even so, by letter dated December 28, 1993, Kimbrough still refused to reinstall the railroad crossing and claimed that it would be dangerous to do so. ( Id.).

Out of continued concerns for the potential hazardous conditions and the ability to secure emergency services presented by the newly proposed permanent route of access, plaintiff contacted Congressman Nick Joe Rahall, member of the United States House of Representatives, on February 2, 1994, requesting a congressional inquiry. By letter dated February 9, 1994, Kimbrough reiterated to Representative Rahall “that it would be extremely dangerous for the vehicles transversing the requested crossing” and “that there is now access to Mr. McCoy's house from another crossing a very short distance away.” ( Id. ¶ 17).

Eventually, plaintiff ³ resigned herself to utilizing the gravel service road as the only means of accessing her property, and she has continuously used the service road under the direction and full knowledge of the Norfolk defendants, for nearly two decades. ( Id. ¶ 19). For instance, the proximity of the service road to the railroad tracks required “agents of the railway” to dispatch a flagman to permit the safe delivery of the McCoy's single-wide mobile home in 1992. ( Id. ¶ 19(A)). Likewise, railway agents dispatched another flagman to assist in the delivery of a second mobile home and other required foundation materials in 1997. ( Id. ¶ 19(B)). Moreover, the railway has also expressly permitted various public utilities over the years to use the gravel service road for the purpose of servicing plaintiff's residence. ( Id. ¶ 19(C)). Finally, prior to the appointment of the nondiverse defendant as track supervisor, Norfolk Railway had performed all maintenance on the service road. At the same time, it prohibited the McCoys from performing maintenance on the road due to the risk of harming the adjacent rail and ties. ( Id. ¶ 19(D)).

In the late fall of 2008, travel on the service road became difficult due to a lack of maintenance. Plaintiff phoned Norfolk...