# Byrd v. BNSF Railway Company

> District Court, W.D. Oklahoma · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10389815

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

LINDA BYRD, an Oklahoma )
resident, Individually, and on behalf of )
all Wrongful Death Beneficiaries of )
Larry Gene Byrd, deceased, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-21-1058-F
)
BNSF RAILWAY COMPANY, ) (District Court of Cleveland County,
KIRBY CARSON, JOSHUA ) Case No. CJ-2021-999)
ERNZEN, JOHN DOE #1, and JOHN )
DOE #2, )
)
Defendants. )

ORDER
This wrongful death action was originally commenced by plaintiff Linda Byrd
(Byrd), individually and on behalf of all wrongful death beneficiaries of Larry
Eugene “Gene” Byrd, deceased, in the District Court of Cleveland County, State of
Oklahoma. Defendant BNSF Railway Company (BNSF), with the consent of
defendants Kirby Carson (Carson) and Joshua Ernzen (Ernzen), timely removed the
action to this court. In the notice of removal, BNSF alleged the court may exercise
federal question jurisdiction pursuant to 28 U.S.C. § 1331 over Byrd’s negligence
per se claim—alleged violation of Oklahoma Administrative Code (O.A.C.)
§ 165:32-1-8(a)—because the claim is completely preempted by the Interstate
Commerce Commission Termination Act (ICCTA), 49 U.S.C. §§ 10101, et seq., and
the court may exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over
Byrd’s remaining claims. Alternatively, BSNF alleged that the court may exercise
diversity jurisdiction pursuant to 28 U.S.C. § 1332 over all of Byrd’s claims because
Carson, who, like Byrd, is an Oklahoma citizen, was fraudulently joined as a
defendant to the action and his citizenship may be disregarded for purposes of
diversity jurisdiction.1
Shortly after removal, defendants BNSF and Carson filed motions to dismiss.
Byrd also filed a motion to remand. All motions are fully briefed and at issue. As
the court’s subject matter jurisdiction over this action is challenged in the motion to
remand and is a plenary issue, the court will address that motion first.
Motion to Remand
Background Facts and Allegations
Byrd is the surviving widow of Gene Byrd. According to Byrd’s state court
petition, at or around 1:15 a.m. on September 6, 2020, police officers with the Noble
Police Department and emergency medical service personnel with the Noble Fire
Department were dispatched to the Byrd home to provide medical assistance to Mr.
Byrd who was having chest pains and losing consciousness, but still breathing. The
only route to the Byrd home required the first responders to travel over a railroad
crossing (the Maple Street crossing). At that time, the Maple Street crossing was
blocked by a train owned and operated by BNSF. The railroad company also owned
and operated the railroad tracks at the Maple Street crossing. At approximately 1:20
a.m., the Noble Police Department contacted BNSF to tell its train crew to move the
train off the Maple Street crossing to allow the emergency medical service personnel
to cross to respond to the medical emergency at the Byrd home.2 At approximately

1 According to the notice of removal, Mr. Byrd was an Oklahoma citizen at the time of death,
BNSF is a citizen of Delaware (state of incorporation) and of Texas (principal place of business)
and Ernzen is a citizen of Texas. Although Byrd’s state court petition also named two John Doe
defendants, BNSF alleged that under Tenth Circuit precedent, the citizenship of these defendants
(John Doe #1 and John Doe #2) may be disregarded for purposes of determining diversity
jurisdiction. See, McPhail v. Deere & Co., 529 F.3d 947, 951 (10th Cir. 2008).
2 Prior to that call, the Noble Police Department had contacted defendant BNSF three times during
the evening hours of September 5, 2020, to advise it of a train blocking another railroad crossing
1:23 a.m., a Noble police officer asked the train conductor if he would be able to
move the train either forward or backward and he said “no.” The front of the train
was then sitting 100 feet north of the Maple Street crossing, “not a long distance for
the train to back up and move off of the crossing.” Doc. no. 1-2, at 6. According to
Byrd, the conductor closed the locomotive window and would not respond to any
further questions from the officer. At approximately 1:30 a.m., the train moved
forward and cleared the railroad tracks. The emergency medical services personnel
proceeded to the Byrd home, located one half mile south of the railroad crossing,
and began defibrillation efforts on Mr. Byrd at 1:32 a.m. However, seventeen
minutes had passed since Mr. Byrd’s cardiac event, and it was “too late for the
defibrillator efforts to be successful in restarting” Mr. Byrd’s heart. Id. at 7.
In her petition, Byrd alleged that defendants, by denying or blocking
emergency medical service personnel access to Mr. Byrd, proximately caused and/or
contributed to cause Mr. Byrd’s death. Along with BNSF, Byrd named as
defendants, John Doe #1 and John Doe #2 (the train conductor and train engineer),3
Carson, BNSF Division Trainmaster, and Ernzen, BNSF Road Foreman of Engines.
Byrd seeks compensatory and punitive damages against defendants under theories
of negligence based upon Oklahoma law. In her petition, Byrd alleged that
defendants were negligent per se for violating O.A.C. § 165:32-1-8(a), which states
in part: “Every railroad shall be operated in such a manner as to minimize obstruction
of emergency vehicles at public grade crossings.”

(the Chestnut Street crossing), approximately 0.2 miles north of the Maple Street crossing. The
police department had received calls from three different individuals who had been waiting for
various times (approximately 30 minutes; approximately one hour; and over two hours), for the
train to clear the Chestnut Street crossing. Plaintiff alleged, upon information and belief, that the
same train was blocking the Maple Street crossing at the same time.
3 Byrd recently dismissed her action against defendants John Doe #1 and John Doe #2. See, doc.
no. 38.
As stated, BNSF removed Byrd’s action to this court, alleging that Byrd’s
negligence per se claim is completely preempted by the ICCTA, giving rise to the
existence of federal question jurisdiction. BNSF alternatively alleged that Carson,
a non-diverse defendant, was fraudulently joined to the action, giving rise to the
existence of diversity jurisdiction. In her motion, Byrd argues that her negligence
per se claim is not completely preempted by the ICCTA and that Carson was not
fraudulently joined as a defendant. Therefore, she contends that court lacks subject
matter jurisdiction and that remand of this action to state court is required.
Discussion
A. Complete Preemption
“Federal courts are courts of limited jurisdiction; they must have a statutory
basis for their jurisdiction.” Dutcher v. Matheson, 733 F.3d 980, 984 (10th Cir. 2013)
(internal quotation marks and citation omitted). Thus, this court presumes no
jurisdiction exists absent an adequate showing by the party invoking federal
jurisdiction. Id. at 985. Here, defendants invoke federal jurisdiction, and they bear
the burden of establishing jurisdiction. Id.
“The federal removal statute, 28 U.S.C. § 1441, permits a defendant to remove
to federal court ‘any civil action brought in a State court of which the district courts
of the United States have original jurisdiction.’” Dutcher, 733 F.3d at 984 (quoting
§ 1441). Under 28 U.S.C. § 1331, federal district courts have “original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United
States.” To determine whether a claim arises under federal law, the court examines
the well-pleaded allegations of the complaint and ignores potential defenses. Devon
Energy Production Co., L.P. v. Mosiac Potash Carlsbad, Inc., 693 F.3d 1195, 1203
(10th Cir. 2012). This is known as the “well-pleaded complaint rule.” Under the
well-pleaded complaint rule, a claim arises under federal law only when the
allegations of the well-pleaded complaint show that the claim is based on federal
law. Id.
One exception or independent corollary to the well-pleaded complaint rule is
the complete preemption doctrine. Board of County Commissioners of Boulder
County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1256 (10th Cir. 2022), pet. for
cert. filed, No. 21-1550 (June 10, 2022). The doctrine of complete preemption
applies when “the pre-emptive force of a [federal] statute is so extraordinary that it
converts an ordinary state common-law complaint into one stating a federal claim
for purposes of the well-pleaded complaint rule.” Id. (quotations marks and citations
omitted). “When this happens, the state-law cause of action becomes purely a
creature of federal law, notwithstanding the fact that state law would provide a cause
of action in the absence of the federal law.” Id. (quotation marks and citation
omitted). “Upon the doctrine’s proper invocation, a complaint alleging only a state
law cause of action may be removed to federal court on the theory that federal
preemption makes the state law claim necessarily federal in character.” Id.
(quotation marks and citations omitted).
The complete preemption doctrine “is a rare doctrine.” Suncor Energy
(U.S.A.) Inc., 25 F.4th at 1257 (quotation marks and citation omitted). “The
circumstances are so rare in fact that the Supreme Court has recognized complete
preemption in only three areas: § 301 of the Labor Management Relations Act[]; §
502 of the Employee Retirement Income Security Act of 1974 [] and actions for
usury against national banks under the National Bank Act.” Devon Energy
Production Co., L.P., 693 F.3d at 1204-05. “[The Tenth Circuit] has also recognized
the complete preemptive effect of the Securities Litigation Uniform Standards Act.”
Suncor Energy (U.S.A.) Inc., 25 F.4th at 1257 (citing Anderson v. Merrill Lynch
Pierce Fenner & Smith, 521 F.3d 1278, 1283-84 (10th Cir. 2008)).
In deciding whether a state-law claim is completely preempted by federal law,
Tenth Circuit precedent requires a two-step analysis. Suncor, 25 F.4th at 1256. First,
the court must ask whether the federal question at issue preempts the state law relied
on by the plaintiff. Id. Second, the court must ask whether Congress intended to
allow removal in such a case, as manifested by the provision of a federal cause of
action. Id. Because the first step of the analysis implicates the merits of an ordinary
preemption defense which cannot support removal, the Tenth Circuit requires the
analysis begin with the second step. Id.
Defendants assert that the ICCTA, specifically, 49 U.S.C. § 11704(c)(1),
provides for a substitute federal cause of action for Byrd’s negligence per se claim.
Section 11704(c)(1) states in relevant part that a person may “bring a civil action
under subsection (b) of this section to enforce liability against a rail carrier providing
transportation[.]” 49 U.S.C. § 11704(c)(1). Subsection (b) of § 11704 states in
relevant part that a rail carrier “is liable for damages sustained by a person as a result
of an act or omission of that carrier in violation of this part[.]” 49 U.S.C. § 11704(b).
Defendants point out that the First Circuit in Fayard v. Northeast Vehicle Servs., 533
F.3d 42, 44 (1st Cir. 2008), and the Eighth Circuit in Griffioen v. Cedar Rapids and
Iowa City Ry. Co., 785 F.3d 1182, 1191 (8th Cir. 2015), have noted that § 11704(b)
would authorize a civil action against a rail carrier where a person has been damaged
by that carrier’s failure to establish reasonable “rules and practices on matters related
to [] transportation or service” as set out in 49 U.S.C. § 10702(2). According to
defendants, Byrd’s negligence per se claim constitutes such a claim, asserting that
defendants’ alleged conduct can be challenged as an unreasonable rule or practice
under § 10702(2).
Upon review, the court concludes that defendants have not met their burden
of establishing that § 11704(c)(1) provides a substitute federal cause of action for
Byrd’s negligence per se claim. The court acknowledges that § 11704(c)(1) allows
a person to bring a civil action under § 11704(b) to enforce liability against a rail
carrier. Section 11704(b) provides that a rail carrier is liable for damages sustained
by “as a result of an act or omission of that carrier in violation of this part[.]” Section
10702(2), a provision within Subtitle IV of Title 49 of the United States Code, does
require rail carriers establish reasonable “rules and practices on matters related to []
transportation or service.” 49 U.S.C. § 10702(2). However, as noted by the First
and Eighth Circuits, § 10702’s scope “may be limited by context.” Fayard, 533 F.3d
at 47; Griffioen, 785 F.3d at 1191; see also, Californians for Alternatives to Toxics
v. North Coast R.R. Authority, Nos. C-11-04012 JCS, C-11-04103 JCS, 2012 WL
1610756, at *9 (N.D. Calif. May 8, 2012). Indeed, the Eighth Circuit explained that
“[t]he majority of cases involving violations of § 10702 concern challenges to tariffs
and disputes between shippers and carriers.” Id. at 1191. Defendants have not cited,
and the court has not found, any case which would clearly support application of
§ 10702 to the type of claim at issue in this case.
Defendants argue that the court should follow the Fifth Circuit’s decision in
Elam v. Kansas City S. Ry., 635 F.3d 796 (5th Cir. 2011), where the appellate court
held that a negligence per se claim based upon the railroad’s violation of Mississippi
anti-blocking statute, Miss. Code. Ann. §77-9-235, was completely preempted by
the ICCTA.4 However, in analyzing whether the claim was completely preempted,
the Fifth Circuit did not specifically address whether the ICCTA provided a
substitute federal cause of action for the claim at issue. See, Elam, 635 F.3d at 803-
808. After determining the claim was completely preempted by the ICCTA, the
Fifth Circuit decided that the district court would have original jurisdiction over the
claim. In so deciding, it stated that § 11704(c)(1) of the ICCTA contemplated civil

4 Defendants point out that O.A.C. § 165:32-1-8(a), upon which Byrd’s negligence per se claim is
based, was promulgated pursuant to Oklahoma’s anti-blocking statute, 66 O.S. § 190. Recently,
the Tenth Circuit in BNSF Railway Company v. Hiett, 22 F.4th 1190, 1192 (10th Cir.), cert. denied,
City of Edmond, Oklahoma v. BNSF Railroad Company, 142 S.Ct. 2835 (2022), determined that
the ICCTA, specifically, 49 U.S.C. § 10501(b), expressly preempted subsection A of that statute,
60 O.S. § 190(A), which provides in relevant part that “no railcar shall be brought to rest in a
position which blocks vehicular traffic at a railroad intersection with a public highway or street for
longer than ten (10) minutes.” However, the court notes the Tenth Circuit did not address the
complete preemption doctrine in its decision and did not address subsection C(4) of the statute, 60
O.S. § 190(C)(4), that, like O.A.C. § 165:32-1-8(a), states “[e]very railroad shall be operated in
such a manner as to minimize obstruction of emergency vehicles at public highway grade
crossings.”
actions under against rail carriers. According to the appellate court, § 11704(b)
authorized a person who has suffered damages resulting from the rail carrier’s
violation of the ICCTA to bring a civil action under § 11704(c)(1). However, the
Fifth Circuit did not identify any substantive provision of the ICCTA, or any
regulation issued pursuant to the ICCTA, that was violated by the railroad under the
circumstances of that case. It did not discuss § 10702, which defendants advance in
their briefing as applicable to Byrd’s claims. From the court’s reading of Elam, the
Fifth Circuit did not make any specific finding that the railroad had in fact violated
the ICCTA. And as the Eighth Circuit stated in Griffioen, “[t]he scope of the
ICCTA’s cause of action is [] limited by the ambit of the statute’s substantive rules.”
785 F.3d at 1191.
Although the court agrees with defendants that the doctrine of complete
preemption does not require the ICCTA to provide Byrd with the exact relief she
seeks under her state law-claim, see, Caterpillar Inc. v. Williams, 482 U.S. 386, 391
n. 4 (1987), it does require, under Tenth Circuit precedent, that the ICCTA provide
Byrd with a cause of action that would “vindicate the same basis right or interest that
would otherwise be vindicated under state law,” Devon Energy, 693 F.3d at 1207
(citations omitted); see also, Dutcher, 733 F.3d at 986 (“The existence of a potential
federal cause of action is critical; complete preemption is not the same as
preemption.”); Griffioen, 785 F.3d at 1191 (“[I]t is unlikely that Congress would
intend to completely preempt state-law causes of action without providing a federal
cause of action designed to vindicate similar rights and interests or to redress wrongs
of a similar type.”) Because defendants have not shown any replacement federal
cause of action for Byrd’s negligence per se claim, the court concludes that
defendants have failed to establish that the complete preemption doctrine applies,
and thus, they have not satisfied their burden of showing that the court may exercise
federal question jurisdiction under § 1331.
B. Fraudulent Joinder
Under 28 U.S.C. § 1332, federal district courts have original jurisdiction over
“all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs,” and is between “citizens of different
States.” Although Byrd and defendant Carson are citizens of Oklahoma, defendants
alleged in their notice of removal that the court may exercise diversity jurisdiction
over all Byrd’s claims because Carson was fraudulently joined to the action and his
citizenship may be ignored for purposes of assessing complete diversity of the
parties. See generally, Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)
(The right to removal cannot be defeated by “a fraudulent joinder of a resident
defendant having no real connection with the controversy.”).
“‘To establish [fraudulent] joinder, the removing party must demonstrate
either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the
plaintiff to establish a cause of action against the non-diverse party in state court.’”
Dutcher, 733 F.3d at 988 (quoting Cuevas v. BAC Home Loans Servicing LP, 648
F.3d 242, 249 (5th Cir. 2011)). “The defendant seeking removal bears a heavy
burden of proving fraudulent joinder, and all factual and legal issues must be
resolved in favor of the plaintiff.” Id. (quotation marks and citation omitted).
In support of removal, BNSF relied upon the second prong of the fraudulent
joinder test—the inability of Byrd to establish a cause of action against Carson.
BNSF submitted a declaration by Carson averring that (1) he was not on duty on
September 5, 2020, or before 2:00 a.m. on September 6, 2020; and (2) he was never
notified that a BNSF train was blocking the Maple Street crossing on September 5,
2020 or September 6, 2020, or that emergency medical service personnel were
prevented from traveling through the Maple Street crossing at that time, until after
September 6, 2020. BNSF argued that given those circumstances, Carson could not
be held liable in negligence under Oklahoma law. Defendants, in response to
plaintiff’s remand motion, again cited Carson’s declaration. In a reply brief, Byrd
asserted that her negligence claims do not require Carson to have been on duty on
the night in question. She specifically relied upon allegations set forth in
subparagraphs o, q, r, and s of paragraph 47 of her state court petition as bases for
possible negligence claims against defendant Carson. In a sur-response allowed by
the court, defendants submitted the declarations of Christopher T. Grissum,
Carson’s direct supervisor, and of Carson averring that Carson did not have any
authority relating to the purported duties alleged in subparagraphs o, q, r, and s of
paragraph 47.
After reviewing the parties’ submissions, the court entered an order (doc. no.
34) advising the parties that under the precedent of Smoot v. Chicago, Rock Island
& Pacific R.R. Co., 378 F.2d 879, 882 (10th Cir. 1967), the court was inclined to
pierce the pleadings, consider the entire record, and determine the basis of joinder
by any means available. As it appeared that Byrd could not contest or dispute the
declarations submitted by defendants, the court, exercising its discretion, granted
Byrd leave to conduct limited discovery as to the matters addressed in both
declarations of Carson and the declaration of Mr. Grissum and to file a sur-reply.
Byrd complied with the court’s order and filed a sur-reply. With leave of court,
defendants filed a supplemental brief and Byrd filed a response.5

5 With her response, Byrd submitted a declaration of Brandon Ogden, a former BNSF Trainmaster,
Director of Administration, Terminal Manager and Superintendent of Operations. Mr. Ogden has
been retained by Byrd as an expert witness. Byrd relies upon testimony by Mr. Ogden to establish
a colorable negligence claim against Carson. Defendants have moved to strike Byrd’s response to
the supplemental brief, arguing that Mr. Ogden’s declaration and the issues he addressed should
have been raised in Byrd’s sur-reply to allow defendants an opportunity to respond. Doc. no. 43.
Defendants contend that because Mr. Ogden’s declaration was not presented in the sur-reply, the
issues raised by him have been waived and the response should be stricken. In the alternative,
defendants have moved for leave to depose Mr. Ogden. Doc. no. 44. Upon due consideration and
acting in its discretion, the court denies both motions. The court is not convinced that Byrd waived
the issues raised by Mr. Ogden by not specifically addressing, in her sur-reply, the meaning of the
“when practical” clause of General Code of Operating Rule 6.32.6 (“[w]hen practical, a standing
train or switching movement must avoid blocking a public crossing longer than 10 minutes.”).
And it appears to the court that Byrd’s response, including Mr. Ogden’s declaration, was merely
To prove their allegation of fraudulent joinder, defendants must demonstrate
that there is “‘no possibility’” that Byrd would be able to establish a cause of action
against defendant Carson in state court. Montano v. Allstate Indemnity, 2000 WL
525592, at *1 (10th Cir. April 14, 2000) (quoting Hart v. Bayer, 199 F.3d 239, 246
(5th Cir. 2000)) (unpublished Tenth Circuit case cited as persuasive pursuant to 10th
Cir. R. 32.1(A)). “[T]he [fraudulent joinder] issue must be capable of summary
determination and be proven with complete certainty.” Dodd v. Fawcett
Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964).
Upon review of the record, the court cannot say that there is no possibility that
Byrd could establish a negligence clam against Carson. Defendants posited that
Carson lacked all authority to act in any manner—whether through policy-making,
policy enforcement, disciplinary action, or operation of the train—prior to
September 6, 2020, that would have prevented or affected the train’s presence at the
Maple Street crossing, when emergency personnel sought access to the Byrd home
on September 6, 2020. Doc. no. 28, ECF p. 4. However, the evidence, viewed in
Byrd’s favor, reveals that defendant Carson had responsibility to conduct operations
testing with train crews as to GCOR 6.32.6, which required standing trains to avoid

responding to matters placed in issue by defendants in their supplemental brief. See, Assessment
Technologies Institute, LLC v. Parkes, 2021 WL 4860553, at *4 (D. Kan. Oct. 19, 2021). The
court declines to grant defendants leave to depose Mr. Ogden and to file a second supplemental
brief. Defendants contend that “Mr. Ogden’s declaration contained several inaccurate statements,
including his interpretation of General Code of Operating Rule (“GCOR”) 6.4 “back up”
movement and conclusion as to whether Mr. Carson had reviewed the necessary documents to
determine the train’s length.” Doc. no. 44, ¶¶ 3-4. The court, however, concludes that it need not
rely upon Mr. Ogden’s testimony regarding these two issues in determining that defendants cannot
show that there is no possibility of a viable negligence claim against defendant Carson. Nor does
the court need to rely upon Mr. Ogden’s description of “a concept of dynamic meet/pass
maneuvers.” Id. at ¶ 6. In the court’s view, Mr. Ogden’s testimony that GCOR 6.32.6 applies to
the meet and pass movements, which defendants do not specifically state is inaccurate, is sufficient
support for Byrd’s negligence claim against Carson. Even if the court were to allow defendants to
depose Mr. Ogden, the court, in deciding the fraudulent joinder issue, is required to determine all
factual issues in Byrd’s favor and the court is not satisfied that allowing the deposition of Mr.
Ogden would result in the court finding that the fraudulent joinder issue is capable of summary
determination and proven with complete certainty.
blocking a public crossing for longer than 10 minutes; GCOR 6.32.6 applied to the
scenario that caused the alleged injuries to Mr. Byrd; and Carson never conducted
any testing of the train crews with respect to GCOR 6.32.6. Further, in Fine v.
Braniff Airways, Inc., 302 F. Supp. 496 (W.D. Okla. 1969), the court determined
that a director of passenger and cargo services for an airline, who was responsible to
see that proper passenger unloading procedures were enforced, and who was
responsible for training personnel charged with unloading passengers and supervised
such operations, might be liable under a negligence theory for injuries sustained by
a passenger when deplaning, even though the director was not at the airport when
the accident occurred. Mindful that legal issues, as well as factual issues, must be
resolved in favor of Byrd in deciding the fraudulent joinder issue, and that the court
is not to “pre-try, as a matter of course, doubtful issues,” Smoot, 378 F.3d at 882,
the court concludes that there is at least a possibility that Byrd can establish a
negligence claim against Carson under Oklahoma law.
In their briefing, defendants argue that Byrd cannot maintain a negligence
claim against Carson because the claim is in essence a “loss of chance of survival”
claim, and Oklahoma law does not recognize such claim except in medical
malpractice actions. They also argue that any negligence claim against defendant
Carson is preempted by the ICCTA. The court notes that these arguments not only
apply with respect to the claims alleged against Carson, but also with respect to the
claims alleged against BNSF and Ernzen. Indeed, the pending motions to dismiss
raise these same arguments.6 But “[t]here is no improper joinder if the defendants’
showing compels the same result for the resident and non-resident defendants,
because this simply means that the plaintiff’s case is ill-founded as to all of the
defendants. Such a defense is more properly an attack on the merits of the claim,

6 Although Ernzen has yet to file a motion to dismiss, BNSF argues in its motion to dismiss that
dismissal of Byrd’s entire action is appropriate for the same reasons proffered by BNSF. Doc. no.
12, ECF p. 12, n. 2.
rather than an inquiry into the propriety of the joinder of the in-state defendant.”
Cuevas, 648 F.3d at 249. Therefore, the court concludes that the merits of these
arguments need not be addressed as they are insufficient to establish fraudulent
joinder of Carson.
Because the court finds that there is at least a possibility that Byrd can
establish a negligence claim against Carson, the court also cannot say that Carson
has been fraudulently joined to this action as a party defendant. As a result, Carson’s
Oklahoma citizenship may not be disregarded, and the court may not exercise
diversity jurisdiction under § 1332.
C. Remand Required Pursuant to 28 U.S.C. § 1447(c)
For the reasons stated, the court may not exercise federal question jurisdiction
under § 1331 or diversity jurisdiction under § 1332. The court therefore concludes
that it lacks subject matter jurisdiction over Byrd’s wrongful death action and
remand of this action to state court pursuant to 28 U.S.C. § 1447(c) is required.
Byrd’s motion to remand will be granted.
Motions to Dismiss
Defendants BNSF and Carson filed motions to dismiss challenging all Byrd’s
claims under Rule 12(b)(6), Fed. R. Civ. P.7 In light of the court’s conclusion that
it lacks subject matter jurisdiction over this action, and that remand is required under
28 U.S.C. § 1447(c), the court does not address the merits of Byrd’s claims. The
court will deny defendants’ motions to dismiss as moot.
Conclusion
Accordingly, it is ORDERED:
Defendants BNSF Railway Company and Kirby Carson’s Motion to Strike
Plaintiff’s Response to Defendants’ Supplemental Brief (doc. no. 43) and

7 In their motions, defendants also cite Rule 12(b)(1), Fed. R. Civ. P. However, defendants do not
develop any arguments with respect to the applicability of Rule 12(b)(1) as a basis for dismissal
of Byrd’s claims.
Defendants BNSF Railway Company and Kirby Carson’s Alternative Motion for
Leave to Depose Plaintiffs Declarant and File Second Supplemental Brief in
Opposition to Plaintiff's Motion to Remand (doc. no. 44) are DENIED.
Plaintiff's Motion to Remand (doc. no. 20) is GRANTED. This action is
remanded to the District Court of Cleveland County, State of Oklahoma pursuant to
28 U.S.C. § 1447(c).
In light of the court’s ruling, Defendant Kirby Carson’s Motion to Dismiss
Plaintiff's Petition for Damages for Wrongful Death (doc. no. 7) and Defendant
BNSF Railway Company’s Motion to Dismiss Plaintiff's Petition for Damages for
Wrongful Death (doc. no. 12) are DENIED as MOOT.
IT IS SO ORDERED this 22" day of September, 2022.

UNITED STATES DISTRICT JUDGE

21-1058p006.docx

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389815. Public record. Not legal advice.