Opinion
CIVIL ACTION MDL NO. 1531, SECTION "A".
July 17, 2003.
ORDER AND REASONS
Before the Court is the Zanders plaintiffs' Supplemental Memorandum in Support of Master Motion to Remand (Rec. Doc. 204; Ref. 02-3213 c/w 02-3121). At the June 25, 2003, oral argument, the Court declined to decide whether Larry Polk had been fraudulently joined in Zanders because Plaintiffs' counsel asserted that new evidence pertaining to Polk's liability had been uncovered during the Johnny Glenn deposition. Prior to oral argument the Court was convinced that Plaintiffs had no claim against Polk under Canter v. Koehring Co., 283 So.2d 716 (La. 1973). Plaintiffs also urged the Court to review the case ofFord v. Elsbury, 32 F.3d 931 (5th Cir. 1994).
Larry Polk is defendant CN/IC's Track Supervisor.
Ford merely illustrates Canter's core holding: that supervisory personnel like Polk face liability only for their personal fault as opposed to their status as employees with general administrative or corporate responsibility. In Ford, the Fifth Circuit concluded that a plant manager could be liable to third parties because the record suggested that the manager had personal knowledge of specific safety concerns which were related to the explosion at issue. 32 F.3d at 939. The Fifth Circuit was also concerned that defendant's affidavits did not sufficiently establish that any delegation of the duties within the manager's purview was made with due care. Id. at 938.
Plaintiffs argue that Polk, like the manager in Ford, had specific knowledge of a dangerous situation as attested to by Johnny Glenn in his deposition. Plaintiffs assert that Glenn's deposition demonstrates that Polk knew of a recurring "hold down housing failure" at the Dykes spur where the derailment occurred.
Assuming, as the Court must, that Polk had this specific knowledge, still noticeably absent from Plaintiffs' position is any evidence to suggest that the housing failure was in any way related to the derailment. Glenn stated that such a failure could cause a train to derail, (Glenn depo. at 78), but he never opined that the failure was in any way related to the derailment at issue here. Further, CN/IC provided the Court with additional deposition excerpts tending to negate any inference that Glenn thought that the housing problem could be related to the derailment. (Glenn depo. at 256-60). Thus, the Court is not persuaded that Glenn's testimony helps Plaintiffs on the fraudulent joinder issue.
Finally, Plaintiffs take issue with whether Polk delegated with due care the day to day operations under his supervisory control. They correctly note that the Fifth Circuit recognized in Ford that a corporate officer cannot avoid Canter liability by delegating his duties to others if he fails to do so with due care. Again, Ford emphasizes that individual liability under Canter is only premised upon personal fault even where that personal fault is one's failure to exercise due care in delegating job responsibilities. Gerald McKenzie inspected the track the day before the accident (Rec. Doc. 186, Exhibit H). He is a Track Foreman and qualified track inspector pursuant to federal regulations. (Id.). Plaintiffs have shown the Court nothing to suggest that the delegation of day to day track inspection was made without due care.
Moreover, the record is devoid of any evidence to suggest that Polk made any type of delegation decision for which he could face liability. In fact, CN/IC expressly rejects such a contention and asserts that CN/IC rather than Polk assigned the various job duties. (CN/IC Opposition at 6-7). Polk's affidavit, (Rec. Doc. 186, Exhibit G), does not support such an inference, and Plaintiffs chose not to depose Polk.
Although CN/IC bears a heavy burden of proof on the fraudulent joinder issue, the Zanders plaintiffs cannot rely on conclusory allegations and speculation in light of the evidence offered by CN/IC. Further, Plaintiffs had months prior to the hearing on the motions to remand to conduct discovery as to Polk but chose not to do so. Therefore, this situation is distinguishable fromTravis v. Irbry, 326 F.3d 644 (5th Cir. 2003), where the defendant sought to capitalize upon plaintiff's lack of evidence while pertinent discovery was ongoing.
Based on the foregoing, the Court concludes that CN/IC has met its burden of showing that the Zanders plaintiffs fraudulently joined Polk in order to defeat federal jurisdiction.
Accordingly;
IT IS ORDERED that the Master Motion to Remand (Rec. Doc. 174) filed by the IPSC, as supplemented after oral argument, should be and is hereby DENIED as to Civil Action 02-3213 (Zanders);
IT IS FURTHER ORDERED that the Motion to Remand (Rec. Doc. 32; Ref. 02-3213 c/w 02-3121) filed in the Zanders action should be and is hereby DENIED.