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Thaler v. CSX Transportation

July 31, 2008


The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge


This action arises from an accident which occurred in the City of Rome, New York, on August 16, 2006. The accident involved a freight train locomotive and a vehicle carrying five young people, resulting in the tragic death of a young woman, Sara Thaler ("Sara"). The plaintiff in this action is Randi J. Thaler ("Thaler"), the mother of Sara, and subsequently, the administratrix of Sara's estate. The defendant, CSX Transportation, Inc. ("CSX"), is a corporation organized and existing under the laws of the State of Virginia, with its principal place of business in the State of Florida (Doc. No. at 2). CSX states that it is authorized to do business in the State of New York (Doc. No. 5). Thaler filed suit against CSX in State of New York Supreme Court on April 28, 2008, claiming negligence and demanding judgment against CSX for Sara's pain, suffering, emotional trauma leading up to her death, as well as burial expenses and expenses necessary for settlement of Sara's estate.

On May 19, 2008, CSX removed the action to this court (Doc. No. 1), citing complete diversity of citizenship between the parties. On May 29, 2008, CSX filed a third-party complaint against three individuals who are not citizens of New York State, and against the City of Rome, New York (Doc. No. 5). On June 17, 2008, Thaler moved this court to remand the action back to the state court, citing CSX's failure to demonstrate that Thaler was not only a resident but a citizen of New York State (Doc. No. 13). For the reasons set forth below, Thaler's motion to remand will be granted.


The court deems it unnecessary to delve into the specific facts of the case in order to decide the jurisdictional issue before it, and only includes the facts as needed for the purpose of this decision. As stated supra, Thaler filed the original action against CSX in State of New York Supreme Court on April 28, 2008. The automobile involved in the collision with the train carried five passengers, including Sara. All five passengers, including Thaler on Sara's behalf, commenced actions in State Supreme Court in Oneida County against the driver of the vehicle and the owner of the vehicle. After the commencement of those proceedings, Thaler filed a separate action against CSX for negligence based upon the same facts and circumstances, the action that was subsequently removed to this court (Doc. Nos. 13, 25). Including the case at bar, prior to its removal, CSX is named as either a defendant or third party defendant in as many as six pending state court actions arising from the same incident, with all actions consolidated for the purpose of discovery (Doc. No. 31 at 3).

The state court actions continue, with depositions nearly complete. Depositions yet to be taken are of CSX representatives who were not allowed to be deposed by Thaler's counsel (Doc. No. 25). During other depositions, Thaler obtained information regarding an additional party, Ruston Paving ("Ruston"), a New York Corporation, which was involved in the paving of the road over the railroad tracks where the accident occurred. Thaler filed a letter motion with this court to amend her complaint to include Ruston as an indispensable party (Doc. No. 37). On July 31, 2008, Magistrate DiBianco denied the letter motion as insufficient pursuant to the Local Rules (Doc. No. 41).


A. Removal

1. Diversity Jurisdiction

Pursuant to 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a) (West 2008). To bring an action in or to remove an action to federal court, there must be complete diversity of citizenship between the parties and a minimum amount in controversy of $75,000. 28 U.S.C. § 1332(a)(1) (West 2008). "This statute and its predecessors have consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365,373, 98 S.Ct. 2396 (1978).

Section 1332 states clearly that the matter in controversy must be between citizens of different states. 28 U.S.C.A. § 1332 (a)(1) (West 2008) (emphasis added). It is well established law that allegations of residency alone cannot establish citizenship. Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997). However, "[a] failure to allege facts establishing jurisdiction need not prove fatal to a complaint." Id. The court has discretion to allow amendment to pleadings to show jurisdiction pursuant to 28 U.S.C.A. § 1653, which states that "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C.A. § 1653 (West 2008).

"Absent diversity of citizenship, federal question jurisdiction is required ... Federal district courts have original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, n.4 (citing 28 U.S.C. § 1331 (1987)).*fn1

Subsequent counterclaims filed by a defending party or parties pursuant to third-party practice may defeat diversity, resulting in a lack of federal jurisdiction over the action. Rule 14 of the Federal Rules of Civil Procedure accommodates third-party practice, i.e., "[a] defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it." Fed.R.Civ.P. Rule 14(a)(1) (West 2008). However, "[a] failure of diversity ... contaminates the action, so to speak, and takes away any justification for providing a federal forum ... [T]he presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original jurisdiction over the entire action." Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 179 (2d Cir. ...

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