McKee v. Kansas City Southern Ry. Co.

Citation358 F.3d 329
Decision Date23 January 2004
Docket NumberNo. 03-60259.,03-60259.
PartiesPhyllis Body McKEE, Plaintiff-Appellant, v. KANSAS CITY SOUTHERN RAILWAY CO.; et al., Defendants, Kansas City Southern Railway Co.; Eric W. Robinson; Robert E. Everett; C.L. Duett, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Carroll E. Rhodes (argued), Law Offices of Carroll Rhodes, Hazelhurst, MS, Constance Iona Harvey, Forest, MS, for Plaintiff-Appellant.

Chad Michael Knight (argued), Wise, Carter, Child & Caraway, Jackson, MS, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DeMOSS, DENNIS and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiff/Appellant sued diverse and non-diverse Defendants/Appellees in Mississippi state court. Defendants removed the case to federal district court based on purported diversity jurisdiction. Plaintiff made a motion to remand the case to state court, claiming there was not complete diversity and therefore the federal district court lacked subject matter jurisdiction. Defendants responded with purported evidence of fraudulent joinder. The district found there was fraudulent joinder, determining that Plaintiff's claims against the non-diverse Defendants were not viable and therefore the court denied the motion to remand and dismissed the non-diverse Defendants, and only the diverse Defendant remained in the case. Discovery was conducted, and after the diverse Defendant's summary judgment motion, only a few of Plaintiff's claims against the diverse Defendant survived and the case proceeded to a jury trial in the federal district court. The jury found that Defendant was not at fault and denied all relief requested by Plaintiff. Plaintiff now appeals, claiming the district court erred in not remanding the case and in its supplemental instruction to the jury. We agree and reverse the decision of the district court in refusing to remand the case, vacate the jury verdict and final judgment, and remand the case to the district court with instructions to remand the case to the state court due to lack of subject matter jurisdiction.

BACKGROUND

The Plaintiff-Appellant, Phyllis Body McKee ("McKee"), filed this action against Defendants-Appellees Kansas City Southern Railway Company ("KCS"), Eric W. Robinson ("Robinson"), Robert E. Everett ("Everett"), C.L. Duett ("Duett"), the City of Forest, Mississippi ("City of Forest"), and the Mississippi Department of Transportation ("MDOT") in the Circuit Court of Scott County, Mississippi. In her Complaint, McKee asserted claims of negligence arising out of a railroad grade crossing accident which occurred on July 10, 1998, at the Cedar Street railroad crossing in Forest, Mississippi. This appeal only concerns issues relating to Defendants KCS, Robinson, Everett, and Duett. Another panel of this Court addressed the issues relating to Defendants City of Forest and MDOT.

McKee was a passenger in a van driven by Lucy R. Shepard ("Shepard"), now deceased. As Shepard drove her vehicle north across the Cedar Street crossing, her vehicle was struck by a westbound freight train owned by Defendant KCS. Defendants Robinson and Duett were the engineers of the KCS train that struck Shepard's vehicle. Defendant Everett was the conductor of the KCS train.1

McKee is a resident of Scott County, Mississippi. KCS is a foreign corporation organized and existing under the laws of the State of Missouri, with its home office and principal place of business located in Kansas City. Robinson is a resident of Lauderdale County, Mississippi. Everett is a resident of Toomsuba, Mississippi. Duett is a resident of Little Rock, Mississippi. MDOT is a governmental entity of the State of Mississippi. City of Forest is a municipal corporation and code charter organized under the laws of the state of Mississippi.

KCS, Robinson, Everett, Duett, and MDOT filed a Notice of Removal on June 8, 1999. City of Forest filed a Joinder of Removal, dated June 10, 1999. In both the Notice of Removal and Joinder of Removal, Defendants claimed that the federal district court for the Southern District of Mississippi, Jackson Division, had subject matter jurisdiction over McKee's lawsuit, because McKee could not state a viable claim against any of the non-diverse defendants (Robinson, Everett, Duett, MDOT, and the City of Forest).

McKee responded to Defendants' Notice and Joinder of Removal with a Motion to Remand based upon two contentions. The first contention, that Defendants' removal of the case was untimely, is irrelevant for purposes of this appeal and has already been addressed and rejected by a prior panel of this Circuit in an unpublished per curiam opinion. McKee v. Kan. City S. Ry., 281 F.3d 1279 (5th Cir.2001) (Table). McKee's second contention was that she could state a viable claim against the non-diverse Defendants, this contention is relevant for this appeal as it relates to McKee's claims against the train crew.

In Count I of her Complaint, McKee alleged that Defendants Robinson, Everett and Duett were "careless, reckless, and negligent" in the following respects: 1) Defendants operated the train at an excessive rate of speed; 2) Defendants failed to keep a reasonable and proper lookout for approaching motorists at the crossing; 3) Defendants failed to have the train under reasonable and proper control; and 4) Defendants failed to blow the train's whistle or horn, or ring the bell within 300 yards of the crossing, and failed to blow the train's horn continuously in order to warn Shepard and McKee of the train's crossing.

In response to McKee's Motion to Remand, KCS submitted evidence purporting to negate the viability of each of the allegations in McKee's Complaint. KCS submitted evidence that the train was operated within the federally determined speed limit, that according to the train crew they maintained a proper lookout, did everything required by law to avoid the collision, and properly sounded the horn. McKee did not respond to KCS's evidence with any evidence to support her allegations but only argued that Defendants did not carry their burden of proving fraudulent joinder because her claims against the train crew were properly alleged and dependent on factual determinations to be made by a jury.

The district court disagreed with McKee and found that all of McKee's causes of action against the non-diverse Defendants were either not viable or preempted. Therefore, the district court found that the non-diverse Defendants were fraudulently joined and denied the Motion to Remand and subsequently dismissed the non-diverse Defendants.

On April 7, 2000, McKee filed a Motion to Correct Filings, Amend, for Reconsideration, and for Relief From, and Supplemental Motion to Remand (hereinafter called "Motion to Reconsider"). In support of her Motion to Reconsider, McKee submitted her own affidavit claiming that she did not hear the train's horn immediately prior to the train's collision with Shepard's van. After considering McKee's Motion to Reconsider, the district court denied the motion.

On March 29, 2001, McKee moved the district court to certify for interlocutory appeal to this Court the issue of remand pursuant to 28 U.S.C. § 1292(b). On May 14, 2001, MDOT and the City of Forest moved the district court to enter final judgment on their behalf pursuant to Federal Rule of Civil Procedure 54(b). On May 31, 2001, the district court granted MDOT's and the City of Forest's Motion for Entry of Rule 54(b) Judgment. Before the district court could rule on McKee's Motion to Certify the issue of remand for interlocutory appeal as to Defendants Robinson, Everett, and Duett, McKee filed her Notice of Appeal to this Court on June 5, 2001.

On McKee's first appeal, a panel of this Court upheld the district court's rulings and dismissal of the City of Forest and MDOT. Because McKee had failed to obtain a Rule 54(b) certification or a 28 U.S.C. § 1292(b) certification from the district court with respect to Defendants Robinson, Everett, and Duett, the panel held that it did not have jurisdiction to hear the appeal of the dismissal of these defendants.

Following the decision on McKee's first appeal and after discovery, KCS filed a Motion for Summary Judgment addressing McKee's remaining claims against KCS. McKee responded to KCS's motion, claiming jury issues existed as to several of her claims. After considering the evidence and arguments, the district court entered an Order addressing KCS's motion and dismissing several of McKee's claims. The district court did not dismiss all of McKee's claims but rather found that she had put forth enough evidence to indicate there were genuine issues of material fact as to the following claims: 1) McKee's claim against KCS for failing to keep a reasonable and proper lookout for motorists approaching the Cedar Street crossing (this claim included McKee's claim for failure to maintain control); 2) McKee's claim against KCS for failing to sound the train's horn; 3) McKee's claim against KCS for failing to keep vegetation clear in the right-of-way near the crossing.

A trial was held February 10 to February 14, 2003. After hearing all of the evidence, the district court instructed the jury, the parties made their closing arguments, and the jury deliberated. During deliberations, the jury sent a note to the court inquiring as to an issue concerning the train's horn. After receiving the note and hearing and considering the parties' arguments concerning the court's proposed response to the jury's inquiry, the court instructed the jury that they were to rely on their memory of the testimony presented at trial in answering their inquiry. McKee's counsel initially agreed with the district court's proposed instruction but later objected and contended that the jury should also be instructed to refer to the exhibits admitted at trial in addressing their question. After deliberating, the jury returned a...

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