United States District Court, E.D. Virginia, Richmond Division
KEVIN L. BOONE, Plaintiff,
CSX TRANSPORTATION, INC., Defendant.
E. Payne, Senior United States District Judge
matter is before the Court on Plaintiff Kevin Boone's
NOTICE OF VOLUNTARY DISMISSAL OF COUNT II, OR ALTERNATIVELY,
MOTION FOR VOLUNTARY DISMISSAL WITHOUT PREJUDICE OF COUNT II
(ECF NO. 3), PLAINTIFF'S MOTION TO WITHDRAW NOTICE &
MOTION FOR VOLUNTARY DISMISSAL OF COUNT II (ECF No. 11),
PLAINTIFF'S MOTION TO AMEND COMPLAINT (ECF No. 9); and
PLAINTIFF'S MOTION TO REMAND (ECF No. 5). For the reasons
set forth below, Boone's NOTICE OF VOLUNTARY DISMISSAL OF
COUNT II, OR ALTERNATIVELY, MOTION FOR VOLUNTARY DISMISSAL
WITHOUT PREJUDICE OF COUNT II (ECF No. 3) will be stricken
and denied as moot; PLAINTIFF'S MOTION TO WITHDRAW NOTICE
& MOTION FOR VOLUNTARY DISMISSAL OF COUNT II (ECF No. 11)
will be granted; PLAINTIFF'S MOTION TO AMEND COMPLAINT
(ECF No. 9) will be granted; and PLAINTIFF'S MOTION TO
REMAND (ECF No. 5) will be granted.
action involves, in essence, a negligence suit by Kevin Boone
against CSX Transportation ("CSX") for an accident
involving a CSX train and a vehicle in which Boone was a
passenger. On September 15, 2015,  Boone was a passenger in a
Ford van travelling north on Industrial Drive in Caroline
County, Virginia. Pl's Compl. 2 (ECF No. 1-1). CSX
employees had stopped one of its trains at a railroad
crossing on Industrial Drive, in order to conduct a brake
check. As a result, the railroad crossing was fully blocked.
Pl's Compl. 2. The train car blocking Industrial Drive
was not illuminated in any way. The CSX employees did not do
anything to warn motorists of the obstruction. The CSX
employees had done nothing to protect the railroad crossing.
Pl's Compl. 2-3. The vehicle in which Boone was
travelling struck the railroad car that was blocking
Industrial Drive, and Boone was injured. Pl's Compl.2, 4.
September 6, 2017, Boone asserted two claims in the Circuit
Court for the City of Richmond. Pl's Compl. 1-7; Summons
(ECF No. 1-1) . First, he raised a basic negligence claim.
Pl's Compl. 1-6. Second, he alleged negligence per se
based on CSX's failure to comply with Va. Code §
56-412.1. Pl's Compl. 6-7. On September 29, 2017, CSX
served a demurrer as to both claims. Def.'s Demurrer 1-2
(ECF No. 1-2). On October 3, 2017, however, CSX filed a
NOTICE OF REMOVAL in this Court on the ground that
Boone's negligence per se claim (Count II) involves a
statute that is completely preempted by the federal
Interstate Commerce Commission Termination Act
("ICCTA") and therefore raises a federal question.
Def.'s Notice of Removal 2-3 (ECF No. 1).
October 12, 2017, Boone sought to dismiss Count II, the
(preempted) negligence per se claim, pursuant to Fed.R.Civ.P.
41(a). Pl's Mem. in Supp. of Pl's Mot. for Voluntary
Dismissal Without Prejudice of Count II of Pl's Compl. 1
(ECF No. 4) ("Pl's Dismissal Br."]. Boone also
moved to remand to state court on October 16, 2017 on the
ground that, if Count II were dismissed, the Court would lack
subject matter jurisdiction. Mem. in Supp. of Pl's
Motions in Limine [sic] 1-2 (ECF No. 5) ("Pl's
Remand Br."). On October 31, 2017, after CSX responded
to Boone's notice/motion to dismiss Count II and after he
apparently realized that Rule 41(a) was an improper
procedural vehicle, Boone moved to withdraw this
notice/motion. Mem. in Supp. of Mot. to Withdraw Notice &
Mot. for Voluntary Dismissal of Count II 1-2 (ECF No. 12)
("Pl's Withdrawal Br."). On the same day (filed
earlier), Boone moved to amend the Complaint under Rule 15(a)
(2) to omit Count II. See Mem. in Supp. of Pl's
Mot. to Amend Compl. 2 (ECF No. 10) ("Pl's Amendment
Plaintiff's Notice of Dismissal/Motion to Dismiss and
Plaintiff's Motion to Withdraw These Documents
1. Federal Rule of Civil Procedure 41
Plaintiff originally sought to dismiss Count II under Rule
41(a). The Rule provides:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject
to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable
federal statute, the plaintiff may dismiss an action without
a court order by filing:
(i) a notice of dismissal before the opposing party serves
either an answer or a motion for summary j udgment; or
(ii) a stipulation of dismissal signed by all parties who
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if the
plaintiff previously dismissed any federal- or state-court
action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except
as provided in Rule 41(a)(1), an action may be dismissed at
the plaintiff's request only by court order, on terms
that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff's
motion to dismiss, the action may be dismissed over the
defendant's objection only if the counterclaim can remain
pending for independent adjudication. ...