Feezle et al v. Norfolk Southern Railway Co. et al
| Harold R. Feezle, Susan E Scheufele, David J. Scheufele, Rollerena Auto Sales, LLC and Marilyn Figley |
| Norfolk Southern Railway Co. and Norfolk Southern Corp. |
| 4:2023cv00242 |
| February 7, 2023 |
| US District Court for the Northern District of Ohio |
| Benita Y Pearson |
| P.I.: Other |
| 28 U.S.C. § 1332 Diversity-Personal Injury |
| Both |
Docket Report
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Filing 29
Transcript of Hearing held on 3/31/23 before Judge Benita Y. Pearson. To obtain a bound copy of this transcript please contact court reporter Mary L. Uphold at (330) 884-7424 or mary_uphold@ohnd.uscourts.gov. [87 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 4/13/2023. Redaction Request due 4/27/2023. Redacted Transcript Deadline set for 5/7/2023. Release of Transcript Restriction set for 7/5/2023. (U,ML)
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Filing 28
Order For the reasons set forth herein, the Court grants Plaintiffs' Motion (ECF No. #25 in Case No. 4:23CV0242; and appoints Interim Class Counsel as proposed by the Feezle Leadership Group and adopts the Feezle Leadership Group's proposed leadership structure with slight modification. The Court notes that both the Feezle Leadership Group and Team Ohio have demonstrated the qualifications, experience, and commitment to adequately represent the putative class. While both sets of counsel raise compelling arguments, the Court finds that the Feezle Leadership Group will best serve the interests of the putative class. Because the Court finds the Feezle Leadership Group clearly satisfies the requirements of Rule 23(g), it approves their proposed organizational structure consisting of Interim Class Counsel, Co-Lead Counsel, an Executive Committee (which includes Plaintiffs' Liaison Counsel), Plaintiffs' Steering Committee (which includes Plaintiffs' Co-Liaison Counsel), Community Liaison Counsel, and several Subcommittees such as Discovery, Law and Briefing, Science, and Experts, and appoints the attorneys and responsibilities set forth herein. The Court has also considered the parties' Joint Status Report (ECF No. #26 in Case No. 4:23CV0242). Case Nos. in 4:23-cv-00242, 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672 are hereby consolidated pursuant to Fed. R. Civ. P. 42. On or before 5/4/2023, Co-Lead Counsel shall serve and file a Master Consolidated Class Action Complaint in Case No. 4:23-cv-00242 (i.e. the first-filed case) joining the claims from the consolidated cases (including cases filed by individual plaintiffs that are not putative class actions) that reflects their joint representation of Plaintiffs. Therefore, Defendants need not respond to the Complaint (ECF No. #1 ) in Case No. 4:23-cv-00242. The record, including the docket sheet for Case No. 4:23-cv-00242 shall be changed to reflect that "In re: East Palestine Train Derailment" is the name of this litigation, in lieu of "Feezle et al v. Norfolk Southern Railway Co. et al. " Further proceedings in the following cases are stayed: Case Nos. 4:23-cv-00250, 4:23-cv-00257, 4:23-cv-00268, 4:23-cv-00292, 4:23-cv-00298, 4:23-cv-00303, 4:23-cv-00308, 4:23-cv-00315, 4:23-cv-00324, 4:23-cv-00344, 4:23-cv-00345, 4:23-cv-00350, 4:23-cv-00363, 4:23-cv-00380, 4:23-cv-00415, 4:23-cv-00429, 4:23-cv-00440, 4:23-cv-00479, 4:23-cv-00495, 4:23-cv-00509, 4:23-cv-00510, 4:23-cv-00529, 4:23-cv-00586, 4:23-cv-00600, 4:23-cv-00601, 4:23-cv-00602, 4:23-cv-00603, 4:23-cv-00604, 4:23-cv-00634, and 4:23-cv-00672. Defendants shall have until 30 days after service of the Master Consolidated Class Action Complaint to answer, plead or otherwise move in response to the affirmative pleading. If Defendants serve and file a motion in response to the Master Consolidated Class Action Complaint, Plaintiffs must serve and file a memorandum in opposition within 30 days after service of the motion. Defendants may serve and file a reply memorandum in support of any motion filed in response to the Master Consolidated Class Action Complaint within 14 days after service of the memorandum in opposition. The Fed. R. Civ. P. 26(f) conference shall be completed on or before 5/18/2023. See Order for additional information and requirements. Judge Benita Y. Pearson on 4/5/2023. (Attachments: #1 Attachment No. 1, #2 Attachment No. 2) (JLG)
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Minutes of proceedings [non-document] before Judge Benita Y. Pearson. Hearing on Plaintiffs' Motion to Appoint Interim Class Counsel and a Plaintiffs' Leadership Structure (ECF No. #25 in Case No. 4:23CV0242) and the Joint Status Report (ECF No. #26 in Case No. 4:23CV0242) held on 3/31/2023 via Zoomgov.com. The matters set forth in the 2 filings are heard and submitted. Present were Plaintiff Attorneys Seth A. Katz, M. Elizabeth Graham, Jayne Conroy, T. Michael Morgan, Steve W. Berman, Jeffrey S. Goldenberg, Ronald R. Parry, Kristen A. Johnson, Nils P. Johnson, Jr., Nils Peter Johnson, R. Andrew Jones, Katherine Rudzik, Christopher A. Seeger, Charles Schaffer, Mark P. Bryant, Daniel N. Abraham, James J. Bilsborrow, Eric H. Zagrans, D. Blayne Honeycutt, Mark P. Chalos, Michelle L. Kranz, Robert R. Sparks, Michael T. Rapier, Elizabeth A. Bernard, Ashlie Case Sletvold, Justin D. Newman, Calvin C. Fayard Jr., Gary A. Davis, Daniel Karon, Whitney K. Siehl, Vincent L. Greene, IV, Terence R. Coates, David I. Shroyer, and Dena Young; and Attorneys J. Lawson Johnston and Scott D. Clements as counsel for Defendants. Attorney Shanon J. Carson and K. Matthews also appeared. Attorney Jones withdrew Plaintiff's Motion for Preliminary Injunction (ECF No. #15 in Case No. 4:23CV0509). Attorney Goldenberg agreed to speak to Attorney Coates about Plaintiffs' Motion for Expedited Relief (ECF No. #10 in Case No. 4:23CV0315) and advise the Court. Attorney Clements advised the Court that Blackhawk School District v. Norfolk Southern Corporation et al, No. 2:23-cv-00500-CB is pending in the U.S. District Court for the Western District of Pennsylvania. (Court Reporter: Mary Uphold); Time: 1 Hour 55 Minutes. (JLG)
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Filing 27
Order: Pursuant to prior Orders, the parties in the cases related to the 2/3/2023 Norfolk Southern train derailment in East Palestine, Ohio then pending on the docket of the undersigned filed Plaintiffs' Motion to Appoint Interim Class Counsel and a Plaintiffs' Leadership Structure (ECF No. #25 in Case No. 4:23CV0242 (i.e. the first-filed case)) and a Joint Status Report (ECF No. #26 in Case No. 4:23CV0242). Take notice that Plaintiffs' Motion to Appoint Interim Class Counsel and a Plaintiffs' Leadership Structure (ECF No. #25 in Case No. 4:23CV0242) and the Joint Status Report (ECF No. #26 in Case No. 4:23CV0242) shall come on for hearing on Friday, 3/31/2023 at 9:00 a.m. EDT before the undersigned via Zoomgov.com. Counsel in the 29 cases now pending on the docket of the undersigned shall be prepared to voice their positions regarding the matters set forth in the 2 filings. The Court will email the Zoomgov.com meeting link to Seth A. Katz and M. Elizabeth Graham (Plaintiffs' counsel in Case No. 4:23CV0268), who shall be responsible for forwarding the link to all other counsel in the 29 cases now pending on the docket of the undersigned. Judge Benita Y. Pearson on 3/24/2023. (G,M)
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Filing 26
Joint Status Report filed by All Plaintiffs. (Conroy, Jayne)
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Filing 25
Motion to Appoint Interim Class Counsel and a Plaintiffs' Leadership Structure and Memorandum of Law in Support filed by Harold R. Feezle, Marilyn Figley, Rollerena Auto Sales, LLC, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Exhibit 1 Feezle Attorney Profiles, #2 Exhibit AA Hagen Berman Profile, #3 Exhibit BB Johnson & Johnson Profile, #4 Exhibit CC Goldenberg Schneider Profile, #5 Exhibit DD Fayard Honeycutt Profile, #6 Exhibit EE Markovits Stock & DeMarco Profile, #7 Exhibit FF Bryant Law Center Profile)(Conroy, Jayne)
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Filing 24
Order On 3/8/2023, the Court entered an Order in each of the 18 cases then pending on the docket of the undersigned. Since that time, Ceramfab, Inc. v. Norfolk Southern Corp., No. 4:23CV0509 (N.D. Ohio filed 3/13/2023), has been filed. On or before 3/15/2023, counsel for Plaintiffs in Ceramfab, Inc. shall participate in the preparation of the motion proposing a class counsel organizational structure, including, if necessary, a competing structure(s). This motion shall be filed only in Case No. 4:23CV0242 (i.e. the first-filed case). See Fed. R. Civ. P. 23(g). The motion shall include in a single document the views of all counsel for Plaintiffs in the 22 cases now pending on the docket of the undersigned. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the motion and Attorney Jayne Conroy shall file the motion. The motion and any briefing regarding it shall not be filed in any of the other pending cases. Further, on or before 3/15/2023, counsel for Plaintiffs in Ceramfab, Inc. shall participate in the preparation of a Joint Status Report to be filed only in Case No. 4:23CV0242 setting forth their views and the views of defense counsel regarding (1) the potential consolidation of the 22 cases, pursuant to Fed. R. Civ. P. 42(a), (2) the filing of a Master Consolidated Amended Complaint in Case No. 4:23CV0242, and (3) the timing of Defendants' responsive filing. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the Joint Status Report and Attorney Jayne Conroy shall file it. The Joint Status Report and any briefing regarding it shall not be filed in any of the other pending cases. Judge Benita Y. Pearson on 3/15/2023. (JLG)
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Filing 23
Order granting #21 Motion for Appearance Pro Hac Vice by Attorney Sarah Steffen Burns for Plaintiffs. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. Judge Benita Y. Pearson on 3/15/2023. (JLG)
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Filing 22
Order On 3/8/2023, the Court entered an Order in each of the 18 cases then pending on the docket of the undersigned. Since that time, 3 new cases have been filed. See Irizarry v. Norfolk Southern Corp., No. 4:23CV0479 (N.D. Ohio filed March 9, 2023); Policaro v. Norfolk Southern Corp., No. 4:23CV0495 (N.D. Ohio filed March 11, 2023); Barnhouse v. Norfolk Southern Corp., No. 4:23CV0510 (N.D. Ohio filed March 13, 2023). On or before 3/15/2023, counsel for Plaintiffs in Irizarry, Policaro, and Barnhouse shall join in the filing in Case No. 4:23CV0242 (i.e. the first-filed case) of the motion proposing a class counsel organizational structure, including, if necessary, a competing structure(s). See Fed. R. Civ. P. 23(g). The motion shall include in a single document the views of all counsel for Plaintiffs in the 21 cases now pending on the docket of the undersigned. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the motion and Attorney Jayne Conroy shall file the motion. The motion and any briefing regarding it shall not be filed in any of the other pending cases. Further, on or before 3/15/2023, counsel for Plaintiffs in Irizarry, Policaro, and Barnhouse shall join in the filing in Case No. 4:23CV0242 of the Joint Status Report setting forth their views and the views of defense counsel regarding (1) the potential consolidation of the 21 cases, pursuant to Fed. R. Civ. P. 42(a), (2) the filing of a Master Consolidated Amended Complaint in Case No. 4:23CV0242, and (3) the timing of Defendants' responsive filing. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the Joint Status Report and Attorney Jayne Conroy shall file it. The Joint Status Report and any briefing regarding it shall not be filed in any of the other pending cases. Judge Benita Y. Pearson on 3/14/2023. (JLG)
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Filing 21
Motion for attorney Sarah Burns to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11892001, filed by Harold R. Feezle, Marilyn Figley, Rollerena Auto Sales, LLC, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Exhibit Certificate of Good Standing, #2 Affidavit Declaration of Sarah Burns, #3 Proposed Order)(Thompson, Andrew) Modified on 3/15/2023 (Mc,K).
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Filing 20
Order On or before 3/15/2023, counsel for Plaintiffs in the above-captioned cases shall file in Case No. 4:23CV0242 (i.e. the first-filed case) a motion proposing a class counsel organizational structure, including, if necessary, a competing structure(s). See Fed. R. Civ. P. 23(g). The motion shall include in a single document the views of all counsel for Plaintiffs in the 18 cases now pending on the docket of the undersigned. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the motion and Attorney Jayne Conroy shall file the motion. The motion and any briefing regarding it shall not be filed in any of the other pending cases. Further, on or before 3/15/2023, counsel for Plaintiffs in the above-captioned cases shall file in Case No. 4:23CV0242 a Joint Status Report setting forth their views and the views of defense counsel regarding (1) the potential consolidation of the 18 cases, pursuant to Fed. R. Civ. P. 42(a), (2) the filing of a Master Consolidated Amended Complaint in Case No. 4:23CV0242, and (3) the timing of Defendants' responsive filing. Attorneys Seth A. Katz and M. Elizabeth Graham are responsible for coordinating the final version of the Joint Status Report and Attorney Jayne Conroy shall file it. The Joint Status Report and any briefing regarding it shall not be filed in any of the other pending cases. Benita Y. Pearson on 3/8/2023. (R,Li)
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Filing 19
Emergency Notice of Inspection for Purposes of Testing filed by All Plaintiffs. (Attachments: #1 Exhibit A- Letter re Inspection)(Conroy, Jayne)
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Filing 18
Order granting #16 Motion for Appearance Pro Hac Vice by Attorney Jo Anna Pollock for Plaintiffs. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. Judge Benita Y. Pearson on 2/22/2023. (JLG)
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Filing 17
First Amended Class Action Complaint; Jury Demand Endorsed Hereon against All Defendants and adding new party plaintiff(s) Rollerena Auto Sales, LLC, Marilyn Figley. Filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Thompson, Andrew)
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Filing 16
Motion for attorney Jo Anna Pollock to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11847756, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of Jo Anna Pollock, #2 Proposed Order Proposed Order for Admission PHV)(Thompson, Andrew)
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Filing 15
Order granting #8 , #9 Motions for Appearance Pro Hac Vice by Attorneys Gary DiMuzio and John Wetmore for Plaintiffs. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. Judge Benita Y. Pearson on 2/16/2023. (JLG)
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Filing 14
Corporate Disclosure Statement identifying Other Affiliate Norfolk Southern Properties, inc., Other Affiliate General American Insurance Company, Other Affiliate NS Fiber Optics, Inc., Other Affiliate Thoroughbred Technology & Telecommunications, LLC, Other Affiliate Norfolk Southern Railway Company for Norfolk Southern Corp. filed by Norfolk Southern Corp.. (Clements, Scott)
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Filing 13
Corporate Disclosure Statement identifying Corporate Parent Norfolk Southern Corporation, Other Affiliate Norfolk Southern Properties, Inc., Other Affiliate General American Insurance Company, Other Affiliate NS Fiber Optics, Inc., Other Affiliate Thoroughbred Technology & Telecommunications, LLC for Norfolk Southern Railway Co. filed by Norfolk Southern Railway Co.. (Clements, Scott)
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Filing 12
Order granting #5 , #6 , #7 Motions for Appearance Pro Hac Vice by Attorneys Jayne Conroy, Thien An Vinh Truong, and Justin Presnal for Plaintiffs. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. Judge Benita Y. Pearson on 2/16/2023. (JLG)
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Filing 11
Attorney Appearance by J. Lawson Johnston filed by on behalf of Norfolk Southern Corp., Norfolk Southern Railway Co.. (Johnston, J.)
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Filing 10
Attorney Appearance by Scott D. Clements filed by on behalf of Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott)
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Filing 9
Motion for attorney John Wetmore to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11844350, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of John Wetmore and Certificate of Good Standing, #2 Proposed Order for Admission Pro Hac Vice)(Thompson, Andrew) Modified on 2/16/2023 (Mc,K).
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Filing 8
Motion for attorney Gary DiMuzio to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11844322, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of Gary DiMuzio and Certificate of Good Standing, #2 Proposed Order for Admission Pro Hac Vice)(Thompson, Andrew) Modified on 2/16/2023 (Mc,K).
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Filing 7
Motion for attorney Justin Presnal to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11841320, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of Justin Presnal and Certificate of Good Standing, #2 Proposed Order Proposed Order for Admission PHV)(Thompson, Andrew)
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Filing 6
Motion for attorney An Vinh Truong to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11841319, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of An Vinh Truong and Certificate of Good Standing, #2 Proposed Order Proposed Order for Admission PHV)(Thompson, Andrew)
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Filing 5
Motion for attorney Jayne Conroy to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11841316, filed by Harold R. Feezle, David J. Scheufele, Susan E Scheufele. (Attachments: #1 Affidavit Declaration of Jayne Conroy and Certificate of Good Standing, #2 Proposed Order Proposed Order for Admission PHV)(Thompson, Andrew)
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Filing 4
Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Corp. waiver sent on 2/9/2023, answer due 4/10/2023 filed on behalf of All Plaintiffs (Thompson, Andrew)
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Filing 3
Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Railway Co. waiver sent on 2/9/2023, answer due 4/10/2023 filed on behalf of All Plaintiffs (Thompson, Andrew)
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Filing 2
Original Summons and Magistrate Consent Form issued to counsel for service upon Norfolk Southern Corp., and Norfolk Southern Railway Co. c/o Statutory Agent, Corporation Service Company. (Attachments: #1 Magistrate Consent Form) (G,M)
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Judge Benita Y. Pearson assigned to case. (G,M)
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Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Carmen E. Henderson. (G,M)
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Filing 1
Complaint with jury demand against All Defendants. Filing fee paid $ 402, Receipt number AOHNDC-11829695. Filed by Harold R. Feezle, Susan E Scheufele, and David J. Scheufele. (Attachments: #1 Civil Cover Sheet, #2 Summons to Norfolk Southern Railroad Co., #3 Summons to Norfolk Southern Corp.) (Thompson, Andrew)
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