Appendix — Swindell v. Florida East Coast Railway Co.

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Opinion filed January 2, 2002, United States

Court of Appeals for the Eleventh Circuit... la

Order on Rehearing filed March 7, 2002,

United States Court of Appeals for

BD TO GO bio te vcnedcscccccccinesecss 9a

Judgment filed March 30, 2001, United States

District Court, Middle District of Florida,

SORE LE A lla

Opinion and Order dated March 26, 1999,

United States District Court, Southern

Ee 13a

ae Docket Entries for the United States

3 District Court, Middle District of

4 Florida, Jacksonville Division ............... 25a

Notice dated April 24, 2001, United States

District Court, Middle District of Florida,

ee Se ca meseaanceenceons 34a

Notice of Voluntary Dismissal, Circuit Court

of the 11th Judicial Circuit, Dade County,

te eve Covi ekivenseatcoansse 36a

Agreed Order on Defendant’s Motion to

4 Remove Case from Trial Calendar dated

eS June 18, 1997, Circuit Court of the 11th

Judicial Circuit, Dade County, Florida....... 38a

Lc Cre RCE

Defendant’s Motion to Tax Costs dated July 5,

1998, Circuit Court of the 11th Judicial

Circuit, Dade County, Florida................

Tolling of Statute of Limitations..................

Note Re: 3 Year Statute of Limitations ...........

Psychiatric Report, dated March 29, 2002........

Employee Duties ..............seeeeeeeeeeeeceeeeee

List of Swindell Co-Workers................seeee

PAGE

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12263

Non-Argument Calendar

Filed January 2, 2002

D.C. Docket No. 00-00224-J-21

EDWARD LEROY SWINDELL,

and Others of Similar Circumstance,

Plaintiff-Appellant,

—versus—

FLORIDA EAST COAST RAILWAY Co.,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(January 2, 2002)

Before

CARNES, MARCUS and WILSON,

Circuit Judges.

PER CURIAM:

Edward LeRoy Swindell, a pro se litigant, appeals the

district court’s summary judgment in favor of Florida

East Coast Railway Company (“Railway”) in his action

for monetary damages based on a Florida state court

judgment and for physical and emotional damages under.

the Safety Appliance Act (“SAA”), 45 U.S.C. §§ 1-16;

the Boiler Inspection Act (“BIA”), 45 U.S.C. §§ 22-34;

and the Federal Employers Liability Act (“FELA”),

45 U.S.C. § 51 et seq. On appeal, Swindell argues that

(1) the three-year statute-of-limitations period under

FELA does not apply to his claims under the SAA and

the BIA, and (2) the district court erred by finding that

it lacked. subject matter jurisdiction under the Rooker-

Feldman doctrine' over his monetary damages claim

based on a previous state court action.

We review a summary judgment ruling de novo, apply-

ing the same legal standards used by the district court.

See Johnson v. Board of Regents of the Univ. of Ga., 263

F.3d 1234, 1242-43 (11th Cir. 2001). Summary judgment

is appropriate where “there is no genuine issue as to any

material fact and the moving party is entitled to a judg-

ment as a matter of law.” Fed. R. Civ. P. 56(c). We

review questions of subject matter jurisdiction de novo.

See Singleton v. Apfel, 231 F.3d 853, 856 (11th Cir.

2000).

Upon thorough review of the record, as well as care-

ful consideration of the parties’ briefs, we find no

reversible error and affirm. 3

The relevant facts are straightforward. On February

29, 2000, Swindell filed this suit against Railway. In

| See District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482, 103 S. Ct. 1303, 1314-15, 75 L. Ed.2d 206 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68

L.Ed. 362 (1923).

Count I, he alleged that he was employed by Railway

from 1939 until 1952, during which time he was exposed

to toxic carcinogenic substances, which included asbestos

and diesel exhaust fumes and debris, in violation of the

BIA, the SAA, and the FELA, and that as a result, he

suffered permanent physical and mental injuries.

Swindell asserted that he first became fully aware of

these injuries in 1997 when he underwent psychiatric

care, consultation, and treatment. In Count II, Swindell

alleged that Railway maliciously obtained a costs judg-

ment in a prior state court action, which was based on

the same underlying facts as this action, after he vol-

untarily dismissed the suit.

Railway filed a motion for summary judgment and

argued that Swindell did not assert his cause of action

within three years as required under the FELA, 45

U.S.C. § 56. Railway also argued-that under the doctrine

of res judicata, Swindell’s claim based on the Florida

state court judgment was barred. Railway attached Eric

L. Leach’s affidavit to the summary judgment motion.

Leach stated that in June 1996, Swindell filed a suit

against Railway in a Florida state court and alleged vio-

lations of the BIA, the SAA, and the FELA for exposure

to asbestos containing products and diesel exhaust while

he a Railway employee. According to Leach’s affidavit,

the Florida action was actively litigated for two years,

when, on June 11, 1998, Swindell voluntarily dismissed

the action and was taxed with costs. Also attached to the

summary judgment motion was the complaint that was

filed in Florida state court.

Swindell responded to the motion for summary judg-

ment and argued that the SAA and the BIA did not

contain statutes of limitations, and that a four-year lim-

itations period applied rather than the three-year period

enunciated under the FELA. Swindell also raised the fol-

lowing arguments: (1) that soon after he was diagnosed

with asbestosis, on February 4, 1994 he commenced an

action in state court, thereby tolling the statute of limi-

tations period; (2) that it was not until April 16, 1997

that he was diagnosed with severe emotional distress,

and that the limitations period for his emotional injuries

did not begin running before the date of his diagnosis;

(3) that his prior to Florida state court action and an

action in the Southern District of New York, which was

dismissed on March 26, 1999 for improper forum based

on venue considerations, see Swindell v. Florida East

Coast Railway Co., 42 F. Supp. 2d 320 (S.D.N.Y.), aff'd,

201 F.3d 432 (2d Cir. 1999) (unpublished table deci-

sion), tolled the statute of limitations period; and (4) that

the claim against Railway for damages incurred due to

the state costs judgment was not barred by res judicata

because he was not properly served.

In granting summary judgment to Railway, the district

court first made the following findings: (1) Swindell

filed suit against Railway in Florida state court on June

7, 1996 and alleged permanent injuries to his lungs due

to exposure to toxic substances; (2) Swindell tiied a

notice of voluntary dismissal on June 11, 1998, which

provided in part that each party would bear their own

costs; (3) Railway subsequently filed a motion to tax

costs and obtained a judgment, (4) on September ll,

1998, Swindell filed suit in the Southern District of New

York, claiming that he suffered physical and emotional

injury as a result of his exposure to toxic substances in

the course of his employment, (5) the district court in

the New York action granted Railway’s motion to dis-

miss for lack of jurisdiction by order dated March 26,

19991; and (6) Swindell then filed the instant action on

February 29, 2000.

The district court held that neither the SAA nor the

BIA provided Swindell with an independent source of

redress, and that violations of those acts are actionable

only under the FELA. The FELA’s three-year statute of

limitations period accordingly applied to Swindell’s

action. The district court rejected Swindell’s argument

that the prior action in Florida state court tolled the lim-

itations since Swindell voluntarily dismissed his Florida

state action, and therefore equitable tolling did not apply

during the pendency of the Florida state action.

The district court also noted that Swindell’s state

claim in Florida, which was filed on June 7, 1996,

alleged both physical and emotional injuries related to

his workplace exposure to asbestos and other toxic sub-

stances. The district court found that Swindell became

aware of both the nature of his lung injuries and the con-

nection to workplace exposure on February 4, 1994, and

that although Swindell was not diagnosed and treated for

emotional injuries until April 16, 1997, his symptoms

first manifested themselves at least by June 7, 1996,

when he filed his Florida state court claim. Thus, the

district court concluded, the statute of limitations on

Swindell’s claims for emotional injuries began to run at

the latest on June 7, 1996. While the limitations period

was tolled during the pendency of the federal action in

the Southern District of New York from the date it was

filed (September 11, 1999) to the date it was dismissed

(March 26, 1999), the district court found that the

statute-of-limitations period was not tolled during

Swindell’s appeal from the district court’s dismissal to

the Second Circuit.

The district court concluded that the statutory period

tolled approximately six and one-half months during the

pendency of the New York action, and that Swindell’s

three-year limitations period therefore ended on or about

January 7, 2000. The district court then ruled that

Swindell’s instant action, which was filed February 29,

2000, was time-barred. Finally, the district court found

that it lacked jurisdiction over Count II of Swindell’s

complaint, stating that the Rooker-Feldman doctrine did

not allow it to review the state trial court proceedings.

The district court granted Railway’s motion for sum-

mary judgment. This appeal followed.

On appeal, Swindell first argues that the district court

erred by holding that the FELA three-year statute of lim-

itations applies to his claims under the SAA and the

BIA. Neither the BIA nor the SAA confer any right of

action. See Urie v. Thompson, 337 U.S. 163, 189, 69

S.Ct. 1018, 1034, 93 L.Ed. 1282 (1949). Rather, they

merely make violations of their provisions “unlawful.”

Id. These Acts supplement the FELA. See id. It is well-

established that actions under the BIA and the SAA are

subject to the three-year statutory limitations period pro-

vided by FELA. See id. at 168; Tiller v. Atlantic Coast

Line R. Co, 323 U.S. 574, 580-81, 65 S.Ct. 421, 424, 89

L.Ed. 465 (1945) (amendment alleging a violation of the

BIA related back to the original petition and was there-

fore timely under the FELA’s three-year statute-of-lim-

itations period). We are unpersuaded by Swindell’s

arguments to apply a four-year limitations period instead.

The district court did not err by holding that Swindell’s

action was time-barred.

Swindell also argues that he was not diagnosed with

any emotional disorders until 1997, and that there was

no evidence prior to that date that he was suffering from

anything more than reasonable anxiety. Thus, Swindell

urges, the tolling period began in 1997 and not 1996, as

the district court found. Railway highlights the district

court’s finding that Swindell was aware of his symptoms

of emotional injury no later than 1996, as evidenced by

the allegations in his action filed in Florida state court,

and that he had an affirmative duty to investigate its

cause after that date. We agree.

Generally, a cause of action accrues and the statute of

limitations begins when in the exercise of reasonable

diligence the claimant knew or should have know of the

injury. See Hill v. Georgia Power, Co., 796 F.2d 1071,

1074-1075 (11th Cir. 1986). Although it is essentially

undisputed that Swindell was diagnosed with emotional

problems in April 1997, he had previously filed a state

action in Florida, in which he alleged that he suffered

emotional injuries, which stemmed from his employment

at Railway. Based on this prior state action, the district

court found that Swindell was aware that he suffered

from emotional injuries in 1996, although he might not

have been aware of the full extent of the injuries. In

light of Railway’s motion for summary judgment and

supporting documents, we can find no error in the dis-

trict court’s conclusion that, at the latest, Swindell knew,

or should have know, that he suffered emotional injuries

the day he filed his Florida state action, June 7, 1996.?

Swindell next challenges the district court’s applica-

tion of the Rooker-Feldman, doctrine to his supplemen-

tal state claim. Swindell argues that he is not seeking

review, reversal, or invalidation of the Florida state

court’s judgment, but is merely seeking redress for the

institution of wrongful civil proceedings and abuse of

process. Under the Rooker-Feldman doctrine, federal

2 Swindell’s alternative argument, that the FELA limitations

period was tolled during the pendency of his Florida state court

action, which he voluntarily dismissed, is equally unpersuasive. See

Dade County v. Rohr Indus., Inc., 826 F.2d 983, 989 (11th Cir. 1987)

(for purposes of FELA limitations period, the voluntary dismissal of

a prior action has the effect of placing the parties in a position as if

the earlier suit had never been filed, and the statutory limitations

period is not tolled). The limitations period was also not tolled dur-

ing Swindell’s appeal! from the district court’s decision in the South-

ern District of New York. Cf. Armstrong v. Martin Marietta Corp.,

138 F.3d 1374, 1391 (11th Cir.) (en banc), cert. denied, 525 U.S.

1019 (1998) (the pendency of a class action tolls the applicable

statute of limitations only until the district court makes a class cer-

tification decision, but not during a direct appeal of that decision).

, aeiciammaaiaiataiis

}

]

courts, other than the United States Supreme Court, have

no authority to review final judgments of state courts.

See Siegel v. LePore, 234 F.3d 1163, 1172 (11th Cir.

2000). The doctrine extends not only to constitutional

claims presented or adjudicated by a state court, but also

to claims that are “inextricably intertwined” with a state

court judgment. Jd. A federal claim is inextricably inter-

twined with a state court judgment “ ‘if the federal claim

succeeds only to the extent that the state court wrongly

decided the issues before it.’ ” Jd. (quoting Pennzoil Co.

v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 1533, 95

L. Ed. 2d 1 (1987)). Notably, the Rooker-Feldman doc-

trine does not apply if the plaintiff had no “reasonable

opportunity to raise this federal claim in state proceed-

ings.” Powell v. Powell, 80 F.3d 464, 467 (11th Cir.

1996).

In Count II, Swindell asserted that the Florida state

court’s costs judgment was obtained without notice and

with the intent to intimidate him. Swindell requested the

district court to find that Railway practiced abuse of pro-

cess and malicious prosecution in obtaining and exe-

cuting the costs judgment, and requested damages in the

amount of the judgment and for injury to his credit rat-

ing. Simply put, Swindell’s claim of abuse of process

and malicious prosecution would succeed only upon

proof that the Florida state court judgment was erro-

neously obtained. The district court lacked subject mat-

ter jurisdiction over Swindell’s second cause of action

pursuant to the Rooker-Feldman doctrine, and correctly

dismissed Count II under that doctrine.

AFFIRMED.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12263-AA

Filed March 7, 2002

EDWARD LEROY SWINDELL,

and Others of Similar Circumstance,

Plaintiff-Appellant,

—versus—

FLA. E. COAST RR,

Defendant-Appellee.

On Appeal from the United States District Court

for the Middle District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANK

(Opinion , [lth Cir., 19__, F.2d

10a

Before:

CARNES, MARCUS and WILSON,

Circuit Judges.

PER CURIAM: .

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure), the

Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

[ILLEGIBLE]

UNITED STATES CIRCUIT JUDGE

lla

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

Case No. 3:00-cVv-224-J-21TJC

FILED March 30, 2001

EDWARD LEROY SWINDELL, |

Plaintiffs,

FLORIDA EAST COAST RAILWAY COMPANY,

Defendant.

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

X_ Decision by Court. This action came to trial or

hearing before the court. The issues have been

tried or heard and a decision has been rendered.

“otc pi ea a as eae aaa en 7 c - RD. ‘4 _ - m,

OES SEE RRR A ED eT ae Oe RE ER eM RP da

IT Is ORDERED AND ADJUDGED that the plaintiff,

Edward Leroy Swindell take nothing, that the action be

12a

dismissed on the merits, and that the defendant, Florida

East Coast Railway Company recover the plaintiff.

Edward Leroy Swindell their costs of action.

Clerk

Date: March 30, 2001

(By) Deputy Clerk

13a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

98 Civ. 6440 (WCC)

EDWARD LEROY SWINDELL,

Plaintiff,

—against—

FLORIDA EAST COAST RAILWAY COMPANY,

Defendant.

OPINION AND ORDER

APPEARANCES:

EDWARD LEROY SWINDELL

Plaintiff Pro Se

P.O. Box 36, Tower Hill Road

Millbrook, New York 12545

BARRY N. GUTTERMAN & ASSOCIATES

Attorneys for Defendant

360 Lexington Avenue

New York, New York 10017

a YES eM Fe

Seren

ILENE J. FELDMAN, Esq.

Of Counsel

l4a

Conner, Senior D.J.:

This action for personal injuries is before the Court on

defendant’s motion to dismiss for lack of personal juris-

diction, pursuan: to Rule 12(b)(2) of the Federal Rules

of Civil Procedure. For the reasons stated hereinafter, the

motion is granted.

BACKGROUND

Plaintiff, Edward LeRoy Swindell (“plaintiff”), a

resident of New York, brings this action against the

defendant, Florida East Coast Railway (“defendant”), for

injuries sustained while employed by defendant.

Swindell worked as a laborer for defendant from 1939 to

1952, working exclusively in the state of Florida. Plain-

tiff claims that while employed by defendant, his work

caused him to be exposed to asbestos and other toxic

substances, causing him permanent physical and emo-

tional injury. Plaintiff claims that the extent of these

injuries was not discovered until 1997. This action seeks

compensatory and punitive damages for such injuries.

Defendant asserts and plaintiff does not contest the

following relevant facts. Defendant is a railway com-

pany and has its headquarters in St. Augustine, Florida.

Defendant is a corporation duly established pursuant to

the laws of the state of Florida; it is not incorporated

under New York law nor registered to do business in the

state of New York. Defendant does not have in the state

of New York any office or place of business, mailing

address, telephone, or bank accounts.

Plaintiff contends, however, that defendant is respon-

sible for transporting persons and goods in and out of

New York. He further argues that defendant previously

maintained both freight and passenger agents in New

York. Thus, for example, a passenger could go to a travel

ORAL OPT P ITI MSN

15a

agent or train station in New York and purchase a ticket

for passage on defendant’s trains. Finally, plaintiff

alleges that defendant retains legal counsel in New York.

DISCUSSION

I. Introduction

The plaintiff bears the ultimate burden of proving the

court’s jurisdiction. See Metropolitan Life Ins. Co. v.

Roberston-Ceco Corp., 84 F.3d 560, 566(2d Cir. 1996);

Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904

(2d Cir. 1981); Lehigh Valley Industries, Inc. v. Biren-

baum, 527 F.2d 87, 92 (2d Cir. 1975). However, when

the issue is decided initially on the pleadings and with-

out discovery, the plaintiff must only make a prima facie

showing of personal jurisdiction to survive a motion

to dismiss. A.J. Trade Finance, Inc. v. Petra Bank, 989

F.2d 76, 79 (2d Cir. 1993); Volkswagenwerk Aktienge-

sellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d

Cir. 1984). All allegations must be construed in the light

most favorable to the non-moving party, the plaintiff,

and all doubts resolved in his favor. A.J. Trade Finance,

989 F.2d at 79-80. Personal jurisdiction will ultimately

have to be established by a preponderance of the evi-

dence, either at an evidentiary hearing or at trial.

Personal jurisdiction over a defendant in a diversity

action in the United States District Court for the South-

ern District of New York is determined by reference to

the relevant jurisdictional statutes of the state of New

York. See United States v. First Nat'l City Bank, 379

U.S. 378, 381-82 (1965); Beacon Enters. v. Menzies, 715

F.2d 757, 762 (2d Cir. 1983). We turn to an examination

of the only jurisdictional bases alleged by plaintiff—

§ 301, § 302(a)(1), and § 302(a)(3) of the New York

Civil Practice Law (hereafter “§ 301” and “§ 302”).

16a

Il. N.Y. Civ. Prac. Law § 301: “Doing Business”

Under the New York courts’ interpretation of § 301, a

non-domiciliary corporation subjects itself to personal

jurisdiction in New York with respect to any cause of

action if it is “engaged in such a continuous and sys-

tematic course of doing business here as to warrant a

finding of its presence in this jurisdiction.” Simonson v.

International Bank, 14 N.Y.2d 281, 285, 200 N.E.2d

427, 429, 251 N.Y.S.2d 433, 436 (1964) (internal quo-

tations omitted). The non-domiciliary must be “doing

business” in New York “ ‘not occasionally or casually,

but with a fair measure of permanence and continuity.’ ”

Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692,

694, 449 N.Y.S.2d 456, 458 (1982) (quoting Tauza v.

Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E.

915, 917 (1917)); see also Katz Communications, Inc. v.

Evening News Assn, 705 F.2d 20, 23 (2d Cir. 1983).

Accumulating all of defendant’s contacts with the

forum set forth in the record, we conclude that the cor-

poration is at most only “occasionally” doing business in

New York and is not “eagaged in such a continuous and

systematic course of ‘doing business’ ” in New York as

to subject the corporation to personal jurisdiction under

§ 301. Laufer, 55 N.Y.2d at 310. Plaintiffs most plausi-

ble basis for asserting personal jurisdiction over defen-

dant is his cryptic reference to the presence of sales

agents in New York that sell passenger and cargo space

aboard defendant’s trains. However, it is an oft-cited

principle that “mere solicitation” of business within New

York does not satisfy § 301’s requirements. See, é.g.,

Elish v. St. Louis S.W. Ry. Co., 305 N.Y. 267, 268, 112

N.E.2d 842, 843 (1953); Laufer, 55 N.Y.2d at 311. This

is especially true when, as is the case regarding defen-

dant’s freight and passenger representatives, the com-

pany working in New York on behalf of the defendant is

Pe LAO OL ee FE em

Cy Ne LR ER RS LOOT BE Le POH

17a

an independently-owned profit-making organization,

functioning as an independent contractor. See Dunn v.

Southern Charters, Inc., 506 F. Supp. 564, 567 (E.D.N.Y.

1981) (solicitation of orders for defendant’s products

through independent agents, brochures and trade maga-

zines insufficient under § 301 in suit by purchaser);

Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 151 N.E.2d

874,176 N.Y.S.2d 318 (1958); Elish, 305 N.Y. at 268.

Plaintiff also contends that defendant’s trains transport

persons and goods in and out of New York. In appro-

priate situations, such contact, coupled with the exis-

tence of representatives in New York to sell tickets

or cargo space, has been ruled sufficient to establish

personal jurisdiction. See, e.g., Scanapico v. Richmond,

Fredericksburg & Potomac R.R. Co., 439 F.2d 17 (2d

Cir. 1970) (en banc). In these cases, however, the courts

have placed heavy emphasis on the fact that the solici-

tation was carried out by the defendant’s “own employ-

ees.” Id. at 21; see also Bankhead Enters., Inc. v. Norfolk

& Western Ry. Co., 642 F.2d 802 (Sth Cir. 1981). In con-

trast, plaintiff in the instant case alleges only that such

solicitation was carried out by independent workers,

such as travel agents or employees at separately owned

train stations. In this regard, the instant case is almost

identical to Wilcox v. Pennsylvania R.R. Co., 269 F.

Supp. 326, 328 n.6 (S.D.N.Y. 1967), in which the court

found no personal jurisdiction where the defendant’s

“principal contact with the state is that it owns railroad

cars which from time to time are brought into New York

while in the management and control of interstate trains

being operated by other railroad companies.”' In so

holding, the Wilcox court expressly distinguished the sit-

uation in which a railroad company might also own

| The court in Wilcox analyzes § 302, but its reasoning can be

analogized to § 301.

18a

office space and maintain full-time employees within

New York; but found that without such additional con-

tacts, no personal jurisdiction could be established. Jd.

For the same reasons, we cannot find personal jurisdic-

tion over defendant merely because some of its railroad

cars, which have been “interlined” to other railroads,

may pass through New York in trains operated by other

railroads, or because completely independent workers in

this state, not employed directly by defendant, may sell

cargo and passenger space on defendant’s trains, oper-

ating outside the state.

Finally, plaintiff claims that defendant’s hiring of New

York counsel to contest personal jurisdiction is sufficient

to establish personal jurisdiction over defendant. This

argument also must fail, because it is well established

that a defendant does not waive its right to contest juris-

diction simply by moving to dismiss for lack thereof.

See, e.g., Martin v. New York State Dept. of Mental

Hygiene, 588 F.2d 371, 373 (2d Cir. 1978). This would

create an untenable “Catch-22” in which no defendant

could contest personal jurisdiction, because the act of

contesting jurisdiction would itself establish jurisdiction.

Thus, none of these “contacts” cited by plaintiff, either

in isolation or in aggregate, is sufficient to establish per-

sonal jurisdiction under § 301.

Ill. N.Y. Civ. Prac. Law § 302 ¢

We will first analyze plaintiffs § 302(a)(1) claim and

then his claim made under § 302(a)(3).?

It appears plaintiff makes no claim under § 302(a)(2), and

even construing the pleadings liberally, we could imagine no plau-

sible jurisdictional claim under this subsection. Further, even if an

argument under § 302(a)(2) were properly before us, the tortious

act must take place in New York under § 302(a)(2); as our discussion

of § 302(a)(1) will make clear, plaintiffs claims of negligence by

19a

A. 302(a)(1): “Transacting Business”

Section 302(a)(1) provides:

(a) Acts which are the basis of jurisdiction. As to a

cause of action arising from any of the acts enu-

merated in this section, a court may exercise per-

sonal jurisdiction over any non-domiciliary, or his

executor or administrator, who in person or through

an agent:

1. transacts any business within the state or con-

tracts anywhere to supply goods or services in the

state.

A defendant who is not “doing business” in New York

within the meaning of § 301 may be sued in New York

on a lesser showing of forum contacts if the cause of

action arises from those contacts. To satisfy the “doing

business” test under § 301, the corporation’s activities in

New York must be regular; if they are, the corporation is

amenable to suit in the state on any claim, arising or not

arising out of the New York acts. However, if the activ-

ity is not regular, but it is shown that the claim specifi-

cally arises out of whatever that local activity was, then

the “transacting business” test of § 302 would be satis-

fied. See generally Galgay v. Bulletin Co., 504 F.2d

1062, 1064 (2d Cir. 1974); George Reiner and Co. v.

Schwartz, 41 N.Y.2d 648, 653-54, 363 N.E.2d 551,

554-55, 394 N.Y.S.2d 844, 847-48 (1977); David D.

Siegel, New York Practice § 86 (2d ed. 1991). Thus,

§ 302(a)(1) requires not only that the defendant transact

business in the state, but also the cause of action must

arise from the very business transacted within the state.

defendant had nothing to do with any of defendant’s activities within

New York. Feathers v. McLucas, 15 N.Y.2d 443, 209 N.E.2d 68, 261

N.Y.S.2d 8 (1965).

Moreover, plaintiff makes no claim pursuant to § 302(4).

20a

McShan v. Omega Louis Brandt Et Frere, S.A., 536 F.2d

516, 518 (2d Cir. 1976); Fontanetta v. American Board

of Internal Medicine, 421 F.2d 355, 357 (2d Cir. 1970)

(holding that § 302(a)(1) requires “a direct relation

between the cause of action and the in-state conduct” as

“an important condition of acquiring jurisdiction over-

the non-domiciliary defendant”); McGowan v. Smith, 52

N.Y.2d 268, 272, 419 N.E.2d 321, 323, 437 N.Y.S.2d

643, 645 (1981) (“[e]ssential to the maintenance of a suit

against a non-domiciliary under CPLR 302(a)(1) is the

existence of some articulable nexus between the business

transacted and the cause of action sued upon”).

Even if we assume that defendant in this case was

transacting some business within New York, plaintiff

does not, and cannot, allege that there is any nexus

between the business transacted within New York and

the cause of action sued upon. McGowan, 52 N.Y.2d at

272. Plaintiff’s complaint is grounded entirely in neg-

ligence, claiming, inter alia, negligent failure to warn,

failure to instruct, and failure to provide plaintiff with a

reasonably safe place to work. Complaint at 4-5. Assum-

ing every allegation by plaintiff related to contact by

defendant with the state of New York, i.e. that: (1)

defendant is responsible for transporting persons and

goods in and out of New York; (2) defendant previously

maintained both freight and passenger representatives in

New York; (3) defendant utilizes representatives in the

state of New York; and (4) defendant has retained legal

counsel in New York, we must still hold that these con-

tacts have nothing to do with the cause of action alleged

in the complaint. Plaintiff’s claim is simple: his work

site in Florida was unsafe. Agents selling freight and

passenger space to customers in New York, the presence

of New York counsel, and even the existence of trains

running through the state of New York all have abso-

lutely nothing to do with plaintiff's claim of a negli-

2la

gently run work site in Florida. See J W. Edwards v. St.

Louis-San Francisco R.R. Co., 361 F.2d 946, 957 (7th

Cir. 1966) (“it is abundantly clear. . . . that appellant’s

cause of action against the railroad did not arise out of

any of the business activities carried on in [the state]”).

B. Section 302(a)(3)

Plaintiff’s claim under 302(a)(3) is equally unavailing.

Section 302(a)(3) provides that a court may also exercise

personal jurisdiction over a non-domiciliary if he/she:

commits a tortious act without the state causing

injury to person or property within the state, except

as to a cause of action for defamation of character

arising from the act, if he

(i) regularly does or solicits business, or engages

in any other persistent course of conduct, or derives

substantial revenue from goods used or consumed or

services rendered, in the state, or

(11) expects or should reasonably expect the act to

have consequences in the state and derives sub-

stantial revenue from interstate or international

commerce.

Thus, this subsection applies when a defendant com-

mits a tortious act outside of New York that injures a

plaintiff within New York. Plaintiff offers the creative

argument that while the tortious activity took place in

Florida, he developed emotional distress as a result of

this tortious conduct in New York, and thus § 302(a)(3)

applies. However, the case law does not support this

contention. With respect to § 302(a)(3), it has been held

that the original injury must occur in New York. If the

injury occurs outside New York and merely becomes

manifest in New York, or has its greatest consequences

——

22a

in New York, the statute is not satisfied. Black v. Oberle

Rentals, Inc., 55 Misc. 2d 398, 285 N.Y.S.2d 226 (N.Y.

Sup. Ct. 1967); Siegel, New York Practice § 86A. Plain-

tiff’s complaint clearly alleges that his exposure to dan-

gerous materials in Florida caused him emotional

| distress. His alleged injury therefore occurred in Florida

| and not New York, just as the Vietnam veteran suffering

| Post-Traumatic Stress Disorder was injured in Vietnam,

not in the American city to which he returned. Moreover,

plaintiff’s argument must fail because it would allow any

injured party claiming emotional distress to move to

any state in the country, and then claim that their injury

was sustained in that state. This would abrogate the

long-established rule that “an injury-does not occur in

New York simply because the plaintiff is domiciled. . .

there.” Dogan v. Harbert Const. Corp., 507 F. Supp. 254,

262 (S.D.N.Y. 1980); Van Essche v. Leroy, 692 F. Supp.

320, 325 (S.D.N.Y. 1988); Fantis Foods, Inc. v. Standard

Importing Co., 49 N.Y.2d 317, 402 N.E.2d 122, 425

N.Y.S.2d 783 (1980).

Further, even if plaintiff were able to establish that

New York was the situs of his injury, he would be unable

to satisfy the criteria of either § 302(a)(3)(@i) oF

| § 302(a)(3)(ii). In order to establish personal jurisdiction

under § 302(a)(3), plaintiff must either show that the

defendant is regularly “doing business” in New York

under subsection (i), or, pursuant to subsection (ii), he

must show that defendant could have reasonably fore-

seen that its acts would have consequences in the state of

New York.

As to § 302(a)(3)(i), we note that the “doing business”

test in this regard was not intended to be as rigorous as the

test for “doing business” under § 301. Siegel, New York

Practice § 88; 12th Jud. Conf. Rep. (1967) 343. However,

for the same reasons as enumerated in our discussion of

§ 301, plaintiff has not presented us with sufficient evi-

—— eT

23a

dence to assure that the defendant’s overall contact with

New York is substantial enough to make it reasonable to

subject the defendant to jurisdiction in the state.

As to § 302(a)(3)(ii), plaintiff is forced to argue that

defendant could reasonably foresee that an employee

would develop emotional distress as result of contact

with asbestos while working in Florida, but such distress

would not manifest itself for the entirety of the thirteen

years plaintiff was working in Florida, and then plaintiff

would move to New York, only to develop emotional

distress here, forty-five years after he ceased employ-

ment with defendant. We hold that this unlikely scenario,

even if true, was not reasonably foreseeable to defendant

so that the corporation could expect to be sued in New

York. For these reasons, plaintiff’s argument under

§ 302, like his arguments under § 301, must fail.

IV. Analysis Under the United States Constitution

Finally, it is unnecessary to determine whether the

exercise of personal jurisdiction would comport with

federal constitutional standards of due process, see, e.g.,

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980), since a statutory basis for jurisdiction has not

been established. See Beacon Enters., 715 F.2d at 764

n.6. As interpreted by the New York state courts, §§ 301

and 302 do not extend personal jurisdiction to the limits

of due process. Id.; see also Longines- Wittnauer Watch

Co. v Barnes & Reinecke, Inc., 15 N.Y.2d 443, 459-60,

209 N.E.2d 68, 77-80, 261 N.Y.S.2d 8, 20-21 (1965).

CONCLUSION 30

Plaintiff has asked us to assert personal jurisdiction

“in the interest of justice.” We note, however, that our

power under Article III is based on limited jurisdiction,

24a

and we cannot assert jurisdiction except where expressly

authorized by statute or the Constitution. Moreover, if

we were to stretch the meaning of New York’s laws in

order to assert jurisdiction over the case, and plaintiff

conducted arduous discovery and proceeded through a

lengthy trial, only to have any award he received vacated

by the Court of Appeals because this Court did not have

jurisdiction over the defendant, the “interests of justice,”

even for plaintiff, would not be served.

Plaintiff also asks that, in the event we find no per-

sonal jurisdiction over defendant, “to transfer the action

to an appropriate district.” Plaintiff’s Affidavit in Oppo-

sition to Motion to Dismiss at 4. Yet, absent personal

jurisdiction, this Court cannot transfer this case to

another jurisdiction. See, ¢.8., Zhang v. Crisp, 1995 WL

523724, *2 (N.D. Cal. Aug. 30, 1995). We therefore dis-

miss this case without prejudice as to the merits of the

claims raised herein, and leave plaintiff free to file his

complaint in any court in which he believes jurisdiction

is appropriate.

Defendant’s motion to dismiss the action in its entirety

for lack of personal jurisdiction is granted. The action is

dismissed without prejudice to re-filing in an appropri-

ate forum.

So ORDERED.

Dated: White Plains, NY

March 26, 1999

WILLIAM C. CONNER _

‘Senior United States District Judge

25a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA (JACKSONVILLE)

Civil Docket for Case # 00-CV-224

Swindell v. Fla. E. Coast RR

Filed February 29, 2000

Assigned to: Judge Ralph W. Nimmons, Jr.

Jury demand: Plaintiff

Demand: $3,000,000

Nature of Suit: 330

Lead Docket: None

Jurisdiction: Federal Question

Dkt# in other court: None

Cause: 45:51 Railways: Fed. Employer’s Liability Act

EDWARD LEROY SWINDELL,

and Others of Similar Circumstance,

Plaintiff,

FLA. E. COAST RR,

Defendant.

26a

EDWARD LEROY SWINDELL

[NTC] [Pro Se]

P.O. Box 36

Tower Hill Rd.

Millbrook, NY 12545

ERIc L. LEACH

[COR LD NTC]

MILTON, LEACH, & D’ ANDREA

& RITTER, P.A.

815 S. Main St., Suite 200

Jacksonville, FL 32207-8157

USA

904/346-3800

2/29/00

3/24/00

3/31/00

CoMPLAINT filed; jury demand (mfk)

[Entry date 03/01/00]

MAGISTRATE JUDGE CASE ASSIGNMENT

Magistrate assigned: Timothy J. Corrigan

(mfk) [Entry date 03/01/00)

FILING FEE PAID. (Filing Fee $ 150.00

Receipt # J619) (mfk) [Entry date

03/01/00)

SUMMONS(ES) issued for Fla. E. Coast

RR . Consent(s) issued. (mfk) {Entry date

03/01/00)

NoTICE of designation under Local Rule

3.05 - TRACK 2. (ctc) (mfk)

ANSWER and affirmative defenses to [1-

1] complaint by Fla. E. Coast RR (mfk)

[Entry date 04/03/00]

3/31/00

4/6/00

4/14/00

4/24/00

4/25/00

5/5/00

5/10/00

27a

(and) MOTION by Fla. E. Coast RR with

memorandum in support to dismiss count

II of plaintiff’s complaint (mfk) [Entry

date 04/03/00]

CERTIFICATE OF SERVICE of [2-1] track 2

notice by Edward LeRoy Swindell (mfk)

RESPONSE by Edward LeRoy Swindell to

defendant’s [3-1] answer (mfk)

(and) RESPONSE by Edward LeRoy

Swindell to [3-1] motion to dismiss count

iI of plaintiff’s complaint (mfk)

CERTIFICATE OF SERVICE of [5-1]

response object, [5-1] motion response by

Edward LeRoy Swindell (mfk)

MOTION by Fla. E. Coast RR for sum-

mary judgment, and supporting memo-

randum of law (mfk) [Entry date

04/25/00)

AFFIDAVIT of Eric L. Leach by Fla. E.

Coast RR Re: [7-1] motion for summary

judgment (mfk) [Entry date 04/25/00]

SUMMARY JUDGMENT NOTICE (mfk)

MOTION by Edward LeRoy Swindell to

extend time to reply to defendant’s

motion for summary judgment (spw)

ORDER granting [10-1] motion to extend

time to reply to defendant’s motion ‘for

summary judgment, response to motion

set to 5/22/00 for [7-1] motion for sum-

mary judgment by defendant (Signed by

Judge Ralph W. Nimmons Jr.) ctc (mfk)

[Entry date 05/11/00]

5/15/00

5/16/00

5/22/00

5/30/00

5/31/00

28a

RESPONSE by Edward LeRoy Swindell to

[7-1] motion for summary judgment

(mfk)

MOTION by Fla. E. Coast RR with mem-

orandum in support for leave to file reply

to plaintiff’s response to motion for sum-

mary judgment (mfk)

ORDER directing defendant’s compliance

with Local Rule 3.01(g); Defendant’s

counsel shall file a statement in regard to

motion #13 by 06-02-00 (Signed by Judge

Ralph W. Nimmons Jr.) ctc (mfk) [Entry

date 05/23/00]

CASE MANAGEMENT REPORT (c: court-

room deputy) (Iss)

NoTICE/CERTIFICATE OF COMPLIANCE

by Fla. E. Coast RR Re: [13-1] order in

regard to defendant’s motion for leave to

file reply brief (Iss)

CASE MANAGEMENT AND SCHEDULING

ORDER setting Third-party claims/Joinder

of parties on 8/ 15/00; Discovery cutoff

1/31/01; dispositive motion filing dead-

line for 4/2/01; Final Pretrial conference

for 10:30 5/31/01; Jury trial set during the

term 7/2/01 through 07-25-01; Scheduled

for Judge Ralph W. Nimmons Jr. (signed

by Judge Ralph W. Nimmons Jr.) ctc

(mfk)

ORDER directing answers to standard

interrogatories. Response to standard

interrogatories due 6/ 15/00 (Signed by

Judge Ralph W. Nimmons Jr.) ctc (mfk)

6/9/00 19

6/12/00 20

6/19/00 21

7/5/00 9-22

7/28/00 23

8/16/00 24

10/13/00 25

12/8/00 26

1/16/01 27

1/29/01 28

29a

ANSWERS to standard court-ordered inter-

rogatories filed by Fla. E. Coast RR (jec)

RESPONSE to standard interrogatories

filed by Edward LeRoy Swindell (mfk)

[Entry date 06/13/00]

ORDER granting [13-1] motion for leave

to file reply to plaintiff’s response to

motion for summary judgment (Signed by

Judge Ralph W. Nimmons Jr.) ctc (mk)

[Entry date 06/20/00]

REPLY by Fla. E. Coast RR to response to

[7-1] motion for summary judgment

(mfk) [Entry date 07/06/00]

MOTION by Edward LeRoy Swindell for

leave to respond to defendant’s reply to

plaintiff’s response to motion for sum-

mary judgment (mfk)

ORDER denying [23-1] motion for leave

to respond to defendant’s reply to plain-

tiff’s response to motion for summary |

judgment (Signed by Judge Ralph W.

Nimmons Jr.) ctc (mfk)

MOTION by Edward LeRoy Swindell to

continue final pretrial conference (mfk)

NOTICE by Fla. E. Coast RR of change of

address for counsel, Eric L. Leach (Ipp)

[Entry date 12/11/00]

NOTICE to the court by Fla. E. Coast RR

regarding pendency of motions (ejw)

[Entry date 01/17/01)

ORDER referring case to mediation.

Appointing Dominic Caparello as media-

2/5/01

2/15/01

2/16/01

3/1/01

3/2/01

30a

tor. Conduct hearing by 5/18/01 Lead

counsel, Eric L. Leach, to coordinate

dates, and by 2/16/01 file a notice of

mediation schedule. (Signed by Judge

Ralph W. Nimmons Jr.) cte (jec)

NOTICE to the Court pursuant to Local

Rule 3.01(h), by Edward LeRoy Swindell

(Irb) [Entry date 02/06/01] [Edit date

02/09/01)

AGREED MOTION by Fla. E. Coast RR to

change mediator (AGREED) (jec)

ORDER on mediation: granting [30-1]

agreed motion to change mediator, and

Dominic Caparello is relieved of respon-

sibility herein and the court appoints

Alexandra K. Hedrick. Together with a

copy of this order, the clerk shall provide

a copy of the court’s order, #28, to Ms.

Hedrick as well as the mediator’s report.

Lead counsel shall file a notice of medi-

ation schedule on or before 3/2/01.

(Signed by Judge Ralph W. Nimmons Jr.)

ctc (jec) [Entry date 02/20/01)

NOTICE of mediator schedule, conference

set for 5/8/01 at 1:00 p.m. by Fila. E.

Coast RR (jec)

DEADLINE updated; set mediation con-

ference for 1:00 5/8/01 (jec)

ORDER on mediation schedule: The

mediation conference shall be held with

mediator Alexandra K. Hedrick on 5/8/01

at 1:00 p.m. (Signed by Judge Ralph W.

Nimmons Jr.) ctc (jec)

3/22/01

3/23/01

3/30/01

3la

AMENDED NOTICE of mediation date set

for 5/8/01 at 1:00 p.m. (location only) by

Alexandra K. Hedrick (jec) [Entry date

03/23/01) :

MOTION by Edward LeRoy Swindell to

compel defendant to respond to plaintiff’s

requests for production or inspection

referred to Magistrate Judge Timothy J.

Corrigan (jec)

NOTICE to the court that an additional 30

days have elapsed since plaintiff's reply

to defendant’s motion for summary judg-

ment and plaintiff’s motion for summary

judgment as to count II has not been

decided by the court through the present

date, by Edward LeRoy Swindell (jec)

MOTION by Edward LeRoy Swindell to

continue pretrial conference (titled, “Re:

case management and scheduling order

final pretrial conference, scheduled

5/31/01”) Gec)

ORDER granting [7-1] motion for sum-

mary judgment, the clerk shall enter judg-

ment for defendant Florida East Coast

terminate all pending motions as moot

and close the case; mooting [3-1] motion

to dismiss count II of plaintiff’s com-

plaint, mooting [25-1] motion to continue

final pretrial mooting [35-1] motion to

compel defendant to respond to plaintiff’s

requests for production or inspection,

mooting [37-1] motion to continue pre-

trial conference (Signed by Judge Ralph

W. Nimmons Jr.) ctc (jec)

3/30/01

4/24/01

5/2/01

5/4/01

5/22/01

32a

JUDGMENT for Fla. E. Coast RR against

Edward LeRoy Swindell that plaintiff

take nothing, that the action be dismissed

on the merits, and that the defendant

recover of the plaintiff, their costs of

action. Civil appeals checklist mailed.

(Signed by Deputy Clerk) ctc (jec)

CASE CLOSED. (jec) [Entry date

04/03/01)

NOTICE OF APPEAL by Edward LeRoy

Swindell re: [38-1] order, [39-1] judg-

ment order. Filing fee $105.00; Receipt #

J004583 Transcript information form due

5/8/01 ctc USCA #01-12263-A (seg)

[Edit date 05/02/01]

TRANSMITTAL of initial appeal package

to USCA consisting of certified copies of

notice of appeal, docket sheet, order/judg-

ment being appealed, and motion, if

applicable, re: [40-1] appeal. Transcript

information form sent. (seg)

NOTICE assigning 11th Circuit case num-

ber re: [40-1] appeal USCA case #: 01-

12263-A (seg)

TRANSCRIPT. INFORMATION ForM filed

re: [40-1] appeal; no transcript is required

for appeal purposes, Certificate of readi-

ness due 5/18/01 USCA # not received

(seg)

CERTIFICATE of readiness with certified

copies of indexed district court docket

sheet sent to USCA re: [40-1] appeal

5/29/01

7/13/01

7/24/01

3/20/02

33a

(ROA consists of: Volume pleadings: 1)

USCA# 01-12263-A (seg)

ACKNOWLEDGMENT by USCA of receiv-

ing certificate of readiness on 5/24/01 re:

[40-1] appeal USCA # 01-12263-A (seg)

[Entry date 06/04/01)

REQUEST by USCA to forward record on

appeal re: [40-1] appeal USCA # 01-

12263-AA (seg)

RECORD ON APPEAL sent to USCA re:

[40-1] appeal Transmittal includes: (ROA

consists of: Volume pleadings: 1) USCA#

01-12263-A (seg)

ACKNOWLEDGMENT by USCA of receiv-

ing record on appeal on 7/16/01 re: [40-1]

appeal USCA # 01-12263-AA (seg)

USCA DECISION (certified copy) [40-1]

appeal affirming judgment/order. Mandate

date: 3/18/02 USCA EOD: 1/2/02 USCA

# 01-12263-AA (seg)

RECORD on appeal returned from USCA

re: (ROA consists of: Volume pleadings:

1) USCA# 01-12263-AA (seg)

inte A LCL a

34a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

D.C. No.: 3:00-cv-J-21TJC

U.S.CA. No.:

April 24, 2001

Mr. Thomas K. Kahn, Clerk

U.S. Court of Appeals—Eleventh Circuit

56 Forsyth St., N.W.

Atlanta, GA 30303-3147

IN RE: Edward Leroy Swindell v. Florida East Coast

Railway Company

Enclosed are documents regarding an appeal in this mat-

ter. Please acknowledge receipt on the enclosed copy of

this letter.

X Copy of notice of appeal (Doc. #40), judgment &

opinion/order under appeal, motion which is the sub-

ject of the order, and certified copy of docket entries

enclosed.

X This is the first Notice of Appeal. (If not, date(s)

other(s) filed: a

This is a DEATH PENALTY appeal. Other cases: __

35a

X The appellate filing fee has been paid. Date paid:

April 24, 2001.

The appellant () was previously granted leave to pro-

ceed in forma pauperis in the District Court; has

been () granted () denied leave to proceed in forma

pauperis (copy of order enclosed).

Civil Appeal Statement Form furnished to appel-

lant’s counsel.

X The Judge/Magistrate Judge appealed from is the

Honorable Ralph W. Nimmons, Jr.

The court reporter(s) is/are.

X There was no hearing from which a transcript could

me made.

Other:

Sincerely,

c: Counsel of Record SANDRA GATZ

Pro se parties (if any) Deputy Clerk

36a

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL

CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE No. 96-011352 CA 42

EDWARD LEROY SWINDELL,

Plaintiff,

—vs.—

FLORIDA EAST COAST RAILWAY COMPANY,

Defendant.

NOTICE OF VOLUNTARY DISMISSAL

Pursuant to the provisions of Rule I.420(a), Florida

Rules of Civil Procedure, the Plaintiffs, hereby volun-

tarily dismiss their claim, without prejudice, against the

Defendant, FLORIDA EAST COAST RAILWAY COMPANY

each party to bear their own costs.

I HEARBY CERTIFY that a true and correct copy of

the foregoing was mailed this 11 day of June, 1998 to:

William O. Solms, Jr., Esquire., Solms & Price, P.A.

6701 Sunset Drive, Suite 104, Miami, Florida 33143,

Eric L. Leach, Esquire, Milton, Leach & D’ Andrea, P.A.,

1660 Prudential Drive, Suite 200, Jacksonville, Florida

as en ngs aaa nanan anaareceare

37a

32207 and Susan J. Cole, Esquire, 2801 Ponce de Leon

Boulevard, Coral Gables, Florida 33134.

HIGH, STACK, LAZENBY, PALAHACH

MAXWELL & PLATT

3929 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Telephone: (305) 443-3329

By: MICHAEL PALAH ACH

MICHAEL PALAHACH

Florida Bar No. 164232

0 ————————————————_

38a

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL

CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE No. 96-011352 CA 42

EDWARD LEROY SWINDELL and

MARY YOUNG SWINDELL, his wife,

Plaintiffs,

—VS.—

FLORIDA EAST COAST RAILWAY COMPANY,

Defendant.

AGREED ORDER ON DEFENDANT’S MOTION

TO REMOVE CASE FROM TRIAL CALENDAR

THIS CAUSE came before the Court’s Asbestos Motion

Calendar on June 18, 1997, on Defendant’s Motion to

Remove Case from Trial Calendar. The Court having

reviewed the file and being fully advised in the premises

of agreement of the parties, it is hereby

ORDERED and ADJUDGED that the motion is hereby

granted and this case will hereby be removed from the

39a

trial docket of October 20, 1997, to be renoticed for trial

by the parties.

DONE and ORDERED at Miami, Dade County, Florida,

this 18th day of June, 1997.

JUDGE ROBBIE M. BARR

ROBBIE M. BARR

CIRCUIT COURT JUDGE

Copies furnished to all parties.

aaa

40a

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL

CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE No. 96-011352 CA 42

EDWARD LEROY SWINDELL and

MARY YOUNG SWINDELL, his wife,

Plaintiffs,

—vs.—

FLORIDA EAST COAST RAILWAY COMPANY,

Defendant.

DEFENDANT’S MOTION TO TAX COSTS

ComEs Now, the Defendant, FLORIDA EAST COAST

RAILWAY COMPANY (hereinafter referred to as “FEC”),

by and through its undersigned attorney in it’s Motion to

Tax Costs saying:

1. Florida East Coast Railway, Co. after entry of

Plaintiff’s filing of his Voluntary Dismissal With Prej-

udice i entitled to tax its costs in the amount described

hereafter.

4la

2. The following were the costs incurred by the

Defendant during the trial of the above-captioned case:

A. Process Service/Court Reporting/Transcribing

Fees

11/21/96 Caplan, Markowitz & Kaye Inv.#44931

11/21/96 Caplan, Markowitz & Kaye Inv.#449385

11/21/96 Caplan, Markowitz & Kaye Inv.#449386

11/21/96 Caplan, Markowitz & Kaye Inv.#449387

05/30/97 Caplan, Markowitz & Kaye Inv.#500970

06/11/97 Caplan, Markowitz & Kaye Inv.#495887

06/11/97 Caplan, Markowitz & Kaye Inv.#503096

02/25/97 Mudrick, Witt, Levy & Consor

$21.00

21.06

21.00

20.00

80.00

45.00

418.28

03/04/97 Mudrick, Witt, Levy & Consor Inv.#720771 418.28

03/19/97 Mudrick, Witt, Levy & Consor

680.72

03/24/97 Mudrick, Witt, Levy & Consor Inv.#721159 680.72

07/07/97 Mudrick, Witt, Levy & Consor

03/18/97 The Caption Co. Inv.4SA9707 167

05/15/97 Walsh Process Service & Legal Service

06/10/97 Walsh Process Service & Legal Service

06/12/97 Walsh Process Service & Legal Service

05/29/97 Goodenow Associates Service fee

B. Expert Witness/Witness Fees

11/15/96 I.A. Feingold, M.D. Inv.#96130

11/15/96 I.A. Feingold, M.D. expert witness fee

06/19/97 I.A. Feingold, M.D. expert witness fee

TOTAL TRIAL COSTS

TOTAL COSTS TO DATE

154.44

778.20

130.00

125.00

$3,864.64

400.00

600.00

$1,400.00

$5,264.64

42a

WHEREFORE, Florida East Coast Railway, Co. demands

Entry of a Final Judgment for costs against Rufus Walker

in the amount of $5,264.64.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of

the foregoing was mailed this Sth day of July, 1998 fur-

nished to Michael Palahach, Esq., High, Stack, Lazenby,

Palahach & Del Amo, 3929 Ponce de Leon Boulevard,

Coral Gables, Florida 33134, and Eric L. Leach, Esq.,

Milton, Leach & D’ Andrea, P.A., 1660 Prudential Drive,

Ste. 200, Jacksonville, Florida 32207.

43a

b. Tolling of Statute of Limitations

The panel stated that the statute of limitations—if

FELA’s statute is deemed applicable—ended a month

prior to the filing of the present action in the District

Court of Florida. They specifically excluded from the

tolling, the time of appeal from the venue decision in

New York and relied on the decision en banc in Arm-

strong v. Martin Marietta Corp., 138 F.3d 1374, (11th

Cir) (en banc), cert. denied, 525 U.S. 1019 (1998). The

Armstrong case involved the question of whether an

appeal in a separate class action case in which the appel-

lants were no longer a party acted as a tolling with

respect to them. To follow the reasoning of the panel

would deny a potential appellant his right of appeal in a

case of litigation close to the ending of a statute period.

The appellant in this case would have been forced to

forego his right to appeal the New York District Court

decision and bring this case in Florida instead. The fact

that he lost his appeal is of no matter. He would have

been denied his true rights. It is not fair to punish the

petitioner because the New York Court of Appeals was

perhaps dilatory in rendering a decision. Had the Court

rendered its decision one or two months earlier, the

petitioner would have been able to file in the Florida

District Court within the statutory period. As is inscribed

above the portals of the so-called “Rocket Court” in

Virginia:

“JUSTICE DELAYED IS JUSTICE DENIED”.

It is clear that the appellant has not “slept on his

rights”, but has been continually attempting to achieve

the justice that is his due. There has been no harm to the

defendant, since he has been alerted well within the

statutory period and all the facts and testimony have

44a

been assembled in the Florida state case for presentation.

The only harm is to the appellant pro se who is being

most cruelly punished as he tries for recompense.

45a

Re: 3yr. Statute of Limitations

In Court Not in Court

2/4/94 Diagnosed-Asbestosis

Dr. Krainson

2yrs. 3months

3/16/96 Filed Case—State Court

in Miami, Fla.

2yrs. 3months

6/15/98 Filed for Discontinuance

in Miami

Oyrs 3months

9/11/98 Filed in US Dist Court

White Plains, N.Y.

lyr. 3 months

12/13/99 U.S. Court of Appeals ????

New York City—2nd Dist

Oyrs. 2months

2ldays

2/25/2000 Filed in Dist Court—Jax

lith Dist

3years—6months 2years 8mos

2ldays

Note: Out of six years there was only

two years eight months that the matter

was not in a court of competent juris-

diction.

46a

DAVID M. TOBOLOWSKY, M. D., FAPA

7400 NORTH KENDALL DRIVE, SUITE 310

MIAMI, FLORIDA 33156-7706

TELEPHONE (305) 670-1167 FAX (305) 670-8785

CONFIDENTIAL & PRIVILEGED

Psychiatric Report

March 29, 2002

Re: Edward Leroy Swindell

DOB 01-29-1922

SS# 262-01-0807

Mr. Swindell first consulted me April 16, 1997 and has

been seen six times since the report dated April 24,

) 2001. I changed his antidepressant from Prozac to Well-

butrin SR 150 mg b.i.d., hoping for greater efficacy but

his score on the CES-D has dropped only 7 points since

November. He has significant difficulties with his mem-

ory, and his scores of 26/30 on the MMSE and 12/50 on

the EXIT-25 suggest mild cognitive impairment or early

Alzheimers disease. His TSH level was 1.374, which is

normal. Accordingly, I have started him on Aricept 10

mg daily. He will contact me on his return to Miami in

the winter.

{

sett en cee ct nt ee a ate tea aaa

47a

My impressions were:

AxisI Major depression, single episode

Mild cognitive impairment

Ethanol abuse by history

Axis II Defer

Axis III Pulmonary asbestosis

Hypertension

Diabetes mellitus, type II

Sleep apnea

Unspecified heart condition

Axis IV None

Axis V Current, 50

DAVI mE i WSK

David M. Tobolowsky, M. D., FAPA

296.25

48a

Employee Duties

Work Description at Millers Shop ( Locomotive Shop)

The duties of the plaintiff while working as a laborer at

Miller Shops was to remove asbestos lagging from the

boiler in accordance with CFR-49II or when leaks

occurred. This asbestos lagging was either stored or

ground-up to make asbestos mortar for use as mortar for

insulation between asbestos lagging when the lagging

was reinstalled. Should a serious steam leak develop

under the lagging, and examination must be made and

the leak located and the boiler must be taken out of ser-

vice at once and thoroughly repaired pursuant to the

rules. (1)

Work Description at Millers Shops (Coach Shop)

The duties of the plaintiff working as an electrician in

the Coach Shop on passenger Cars consisted of removing

and repairing all types of electrical equipment: genera-

tors, motors, fans, lighting fixtures, batteries. The work

was under and on the inside of coaches in for repair

and/or overhaul.

Work Description While Operating Equipment on

Line-of-Road Safety Standards

The duties of the Diesel Locomotive attendant on Line-

of-Road was to operate the steam boiler (steam gener-

ator) in accordance with the rules and regulations of the

Interstate Commerce Commission (1) with particular

attention to CFR 49: Transportation, subtitle A and B

Chapters I, II, 229.102-229/131

49a

The instructions for the operation of the steam generator

requires that it be operated at a safe working pressure

with a minimum safety factor of four and equipped with

an operable test valve or other means of determining

whether the steam generator is filled with water.

§ 229.103

It was necessary that the plaintiff make inspections and

sign reports on the locomotive in use. Each locomotive

inspected after each trip and a report made-out and

all defects found and reported on an approval form.

§ 230.104

The plaintiff General Requirements of Safety protection

came under the CFR Ch. 11 § 229.41 and the definition

of (m) serious injury came under § 229.5(m) (6)

50a

Swindell Co-Workers

AF=Afro-American

W=Witness (Osborne)

SD=Deposition (Swindell)

OD=Deposition (Osborne)

E=Employee

Herman Mitchell

391 Warren Avenue

New Smyrna, Florida

(OD) C.H. Cody

391 Fortune Street

St. Augustine, Florida

(SD) R.V. Osborne

1320 Wildwood Drive

St. Augustine, Florida

(OD) Beydette Fox

215 Estroda Avenue

St. Augustine, Florida

(WO) Billy Moore

51 19th Street

St. Augustine, Florida

(AF) Wilbur Meeks

439 Palms Street

New Smyrna, Florida

(AF) Rufus Walker vs FEC 2/21/92

1054 Sheridan Road Fla. 92-4181CA

Daytona Beach, Florida 32014

John Osborne vs FED Vol 1 Fla. 92-04179

3356 13th Street Vol 2

Elkton, Florisa 32033

904-824-1656

5la

(SD) Edward LeRoy Swindell vs FEC Fla. 96-011352

(AF) Leroy Thrift vs FEC Fla. 92-04180

(SD) David Edgell

P.O. Box 2192

St. Augustine, Florida 32085

(AF) Rosevelt Robert James

70 Palmer Street

St. Augustine, Florida

829-3625

Jimmy Herndon

(pipe fitter)

340 Floyd Drive

Smithville, Tennessee 37166

615-597-6105

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.