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Boone v. CSX Transportation, Inc.

United States District Court, E.D. Virginia, Richmond Division

March 13, 2018

KEVIN L. BOONE, Plaintiff,
v.
CSX TRANSPORTATION, INC., Defendant.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge

         This 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.

         BACKGROUND

         This 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, [1] 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.

         PROCEDURAL HISTORY

         On 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).

         On 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 Br.")

         DISCUSSION

         A. 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 have appeared.
(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. ...

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