McKee v. Kansas City So Rwy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-60462
Summary Calendar
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PHYLLIS BODY McKEE,
Plaintiff-Appellant,
versus
KANSAS CITY SOUTHERN RAILWAY CO.;
ERIC W. ROBINSON; ROBERT E. EVERETT;
C. L. DUETT; CITY OF FOREST;
MISSISSIPPI DEPARTMENT OF TRANSPORTATION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:99-CV-393-WS)
_________________________________________________________________
November 23, 2001
Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
Phyllis McKee was a passenger in a vehicle that was struck by
a freight train at a crossing in Forest, Mississippi. She filed an
action in Mississippi state court against the railroad, the
engineers, the conductor, the City of Forest, and the Mississippi
Department of Transportation (MDOT), asserting various claims of
negligence. McKee and all of the defendants except the railroad
are Mississippi residents.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The railroad defendants removed the action to federal court,
maintaining that the district court had diversity jurisdiction
because all of the defendants except the railroad had been
fraudulently joined. The district court agreed and, on March 30,
2000, denied McKee’s motion to remand. McKee filed a motion for
reconsideration and a supplemental motion to remand, which the
district court denied on March 19, 2001.
McKee filed a petition for permission to appeal the
interlocutory orders denying remand and reconsideration pursuant to
28 U.S.C. § 1292(b) and Federal Rule of Civil Procedure 54(b). The
City of Forest and MDOT moved for entry of final judgment pursuant
to Rule 54(b). On May 31, 2001, the district court granted the
Rule 54(b) certification requested by the City of Forest and MDOT.
Although the district court had not yet ruled on her petition for
permission to appeal the orders denying remand and reconsideration,
McKee filed a notice of appeal from those orders as well as the
final judgment in favor of the City of Forest and MDOT.
On appeal, McKee contends that the district court erred by
failing to remand the case to state court. McKee does not
challenge on appeal the district court’s ruling that her claims
against the City of Forest and MDOT for inadequate signalization at
the crossing are preempted by federal law. She argues, however,
that the City of Forest and MDOT are liable under Mississippi law
for their failure to keep the right of way along the road
approaching the railroad crossing clear of overgrown vegetation
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which obstructed the view of motorists. She also argues that the
engineers and conductor were not fraudulently joined, because the
train crew admitted that the engineer did not keep a proper lookout
and there were competing affidavits on whether the train properly
sounded its horn, bell, and whistle.
The district court did not make any Rule 54(b) or § 1292(b)
certification as to its order denying remand. Accordingly, that
order is not appealable. See DeMelo v. Woolsey Marine Industries,
Inc., 677 F.2d 1030, 1035 n.12 (5th Cir. 1982). We therefore do
not have jurisdiction over the district court’s ruling that the
engineers and conductor were fraudulently joined. We have
jurisdiction only as to the Rule 54(b) dismissal of McKee’s claims
against the City of Forest and MDOT.
The district court correctly held that, under Mississippi law,
the City of Forest and MDOT had no duty to keep the railroad’s
right-of-way approaching the crossing clear of vegetation which
might obstruct the view of motorists. See Mississippi Central R.
Co. v. Alexander, 152 So. 653, 656 (Miss. 1934) (municipality has
no duty to maintain railroad crossing); Felter v. Texas Co., 86
So.2d 873, 873 (Miss. 1956) (municipality has no duty to maintain
walkway located on private property). We therefore hold that the
district court did not err by dismissing McKee’s claims against the
City of Forest and MDOT.
A F F I R M E D.
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