Erdos et al v. Norfolk Southern Corp. et al
| Andrew Erdos, David Anderson and Valley View MHP, LLC |
| Norfolk Southern Corp., Norfolk Southern Railway Co., John Doe(s) and ABC Corp(s) |
| 4:2023cv00268 |
| February 9, 2023 |
| US District Court for the Northern District of Ohio |
| Benita Y Pearson |
| Torts to Land |
| 28 U.S.C. § 1332 Diversity-Torts to Land |
| Both |
Docket Report
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| Filing 49 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. Related document(s) #47 . (U,ML) |
Filing 48
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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| Filing 47 Non-Appeal Transcript Order Form for proceedings held on March 31, 2023 before Judge Benita Y. Pearson, re Motion Hearing,,,,,,,. Court Reporter: Mary Uphold. Requested completion date: May 4, 2023 filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Graham, Elizabeth) |
| 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 46
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 30 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 previously emailed 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 Loyd v.Norfolk Southern Railway Co., No. 4:23CV0634. Judge Benita Y. Pearson on 3/29/2023. (G,M)
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Filing 45
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 44 Non-Appeal Transcript Order Form for proceedings held on 03/01/2023 before Judge Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: 03/24/2023 filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
| Filing 43 Non-Appeal Transcript Order Form for proceedings held on 02/27/2023 before Judge Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: 03/24/2023 filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
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Filing 42
Order Plaintiff Ceramfab, Inc.'s Motion for Temporary Restraining Order (ECF No. #15 ) in Case No. 4:23CV0509 shall come on for hearing today, 3/22/2023, at 4:00 p.m. before the undersigned via Zoom. Each side in Case No. 4:23CV0509 shall be prepared to voice its position regarding the motion. Plaintiffs' counsel in Case No. 4:23CV0509 shall immediately set up the Zoom video conference and shall send invitations to the Court (email judy_guyer@ohnd.uscourts.gov); Scott D. Clements and J. Lawson Johnston (Defense counsel in Case No. 4:23CV0509); Seth A. Katz and M. Elizabeth Graham (Plaintiffs' counsel in Case No. 4:23CV0268); and Jeffrey S. Goldenberg (Plaintiffs' counsel in Case No. 4:23CV0350). Judge Benita Y. Pearson on 3/22/2023. (JLG)
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Filing 41
Order granting Plaintiff's #40 Motion for appearance pro hac vice by attorney Caley A. DeGroote for David Anderson, Andrew Erdos and Valley View MHP, LLC. 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 3/20/2023.(G,M)
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| Filing 40 Motion for attorney Caley A. DeGroote to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11900833, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing)(Bailey, Melanie) |
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Filing 39
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 38
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 37
Order granting #34 , #35 Motions for Appearance Pro Hac Vice by Attorneys Tudor I. Farcas and Adam L. Stoltz 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 3/8/2023. (JLG)
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Filing 36
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 35 Motion for attorney Adam L Stoltz to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11877549, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing)(Bailey, Melanie) |
| Filing 34 Motion for attorney Tudor I. Farcas to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11877076, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing)(Bailey, Melanie) |
| Filing 33 Expedited Non-Appeal Transcript Copy Order Form for proceedings held on 3/1/2023 before District Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: Copy. Transcript already on file. (N,SE) |
| Filing 32 Expedited Non-Appeal Transcript Order Form for proceedings held on 2/27/2023 and 3/1/2023 before District Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: Copy. Transcripts already on file. (N,SE) |
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Filing 31
Order granting #30 Motion for Appearance Pro Hac Vice by Attorney Adam J. Gomez 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 3/2/2023. (JLG)
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| Filing 30 Motion for attorney Adam J. Gomez to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11867834, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing, #2 Exhibit Certificate of Standing)(Bailey, Melanie) |
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Filing 29
Order approving the parties' #17 Joint Notice Regarding Plaintiffs' #11 Motion for Temporary Restraining Order and Preliminary Injunction Related to Inspection and Collection of Evidence. Judge Benita Y. Pearson on 3/1/2023. (JLG)
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| Filing 28 Transcript of Status Conference held on 3/1/23 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. [20 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 3/8/2023. Redaction Request due 3/22/2023. Redacted Transcript Deadline set for 4/1/2023. Release of Transcript Restriction set for 5/30/2023. Related document(s) #27 . (U,ML) |
| Filing 27 Expedited/Daily Non-Appeal Transcript Order Form for proceedings held on 3/1/2023 before District Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: Daily/Hourly, 3/1/2023, filed by All Plaintiffs. (N,SE) |
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Filing 26
Order granting #15 Motion for Appearance Pro Hac Vice by Attorney M. Elizabeth Graham 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 3/1/2023. (JLG)
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| Filing 25 Errata correcting dates in paragraph 6(c) of Joint Notice Regarding Sampling filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. Related document(s) #24 . (Clements, Scott) |
| Filing 24 Joint Notice Regarding Sampling at the Derailment Site Following Hearing on Temporary Restraining Order filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
| Minutes of proceedings [non-document] before Judge Benita Y. Pearson. Status Conference held on 3/1/2023 via Zoomgov.com. Present were Attorneys Seth A. Katz, M. Elizabeth Graham, and Melanie. S. Bailey as counsel for Plaintiffs; and Attorneys J. Lawson Johnston and Scott D. Clements as counsel for Defendants. The Court and counsel discussed ECF Nos. #17 and #25 , the transfer of related cases to the docket of Judge Benita Y. Pearson, the status of what has and what is expected to occur at the derailment site, and a Notice, to be filed on or before 12:00 p.m. EST on 3/2/2023, regarding the resolution of Plaintiffs' Motion for Preliminary Injunction in Battaglia v. Norfolk Southern Railway Co., No. 4:23CV0303 (N.D. Ohio filed Feb. 16, 2023). Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction #11 is resolved by agreements of the parties. On or before 3/15/2023, the parties shall file a Joint Status Report suggesting next best steps for the putative class action litigation going forward. (Court Reporter: Mary Uphold); Time: 27 Minutes. (JLG) |
| Filing 23 Fourth Notice of Status of Joint Notice Regarding Sampling at the Derailment Site Following Hearing on Temporary Restraining Order filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
| Filing 22 Third Notice of Status of Joint Notice Regarding Sampling at the Derailment Site Following Hearing on Temporary Restraining Order filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
| Filing 21 Second Notice of Status of Joint Notice Regarding the Sampling at the Derailment Site Following the Hearing on the Temporary Restraining Order filed by All Plaintiffs. (Bailey, Melanie) |
| Filing 20 Transcript of Hearing on Motion for Temporary Restraining Order and Preliminary Injunction held on 2/27/23 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. [80 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 3/7/2023. Redaction Request due 3/21/2023. Redacted Transcript Deadline set for 3/31/2023. Release of Transcript Restriction set for 5/29/2023. Related document(s) #18 . (U,ML) |
| Filing 19 Notice of Status of Joint Notice Regarding the Sampling at the Derailment Site Following the Hearing on the Temporary Restraining Order filed by All Plaintiffs. (Bailey, Melanie) |
| Filing 18 Expedited/Daily/Hourly Non-Appeal Transcript Order Form for proceedings held on 2/27/2023 before District Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: Hourly/Daily (as soon as possible) filed by all Plaintiffs. (N,SE) |
| Filing 17 Joint Notice Regarding Plaintiff's #11 Motion for Temporary Restraining Order and Preliminary Injunction Related to Inspection and Collection of Evidence filed by All Plaintiffs. (Bailey, Melanie) |
| Filing 16 Notice of Status Regarding the Joint Notice Following the Hearing on the Temporary Restraining Order filed by All Plaintiffs. (Bailey, Melanie) |
| Filing 15 Motion for attorney M. Elizabeth Graham to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11860811, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing)(Bailey, Melanie) |
| Filing 14 Reply in support of #11 Motion for Temporary Restraining Order and Preliminary Injunction and Memorandum of Law in Support Thereof filed by All Plaintiffs. (Attachments: #1 Exhibit A: Email Correspondence, #2 Exhibit B: Email Correspondence)(Bailey, Melanie) |
| Minutes of proceedings [non-document] before Judge Benita Y. Pearson. Hearing on Plaintiffs' Motion for Temporary Restraining Order #11 held on 2/27/2023. Present were Attorneys Seth A. Katz, Melanie S. Bailey, Douglas J. Olcott, and Elizabeth Graham on behalf of Plaintiffs; and Attorneys Lawson Johnston and Scott D. Clements on behalf of Defendants. Also present was Defendants' representative Daniel Hunt. The parties confirmed the underlying facts of the case and informed the Court about the parties' discussions had prior to Plaintiffs filing the Motion for a Temporary Restraining Order and Preliminary Injunction. Plaintiffs argued that 2 days is insufficient for proper inspection and evidence collection by their experts. Defendants suggested, without evidence, that 2 days for inspection and evidence collection by Plaintiffs was suggested by their HAZMAT team and that the remaining 8 days, prior to 3/10/2023, is necessary to conduct a full removal and cleanup of the derailment site. In balancing the importance of Plaintiffs having the opportunity to collect the evidence necessary for litigation and the urgent need for remediation to limit the impact on the public's health and safety, the Court proposed a solution that does not extend the EPA's provided timeline for cleaning up the derailment site but, rather, focuses the allotment of time given Plaintiffs to inspect and collect evidence, while allowing Defendants sufficient time to remove the 9 remaining rail cars by 3/10/2023. The Court's proposed plan would allow Plaintiffs to inspect the 5 trains cars that contained vinyl chloride on 2/28/2023, 3/1/2023, and possibly 3/2/2023, if justified. After 3/2/2023, Defendants will be able to safely dispose of those 5 train cars. The Court's proposed plan also requires Defendants to relocate the 4 train cars that are still located at the derailment site and did not contain vinyl chloride for later inspection by Plaintiffs. Under this proposed plan, Defendants would relocate the 4 train cars without vinyl chloride to a location that would be accessible to Plaintiffs after 3/2/2023 for Plaintiffs to inspect and collect evidence as needed. The 4 cars will be moved with the goal of preserving as much evidence as possible. The cutoff date for Plaintiffs to inspect the 4 train cars without vinyl chloride will be determined on a later date. In addition to the 9 cars still at the derailment site, there are 2 cars that contain(ed) benzene that have already been relocated; those 2 cars will remain available for Plaintiffs to inspect beyond the 3/2/2023 date. The cutoff date for the inspection of those 2 cars will also be decided at later date. Plaintiffs' counsel and Defendants' counsel are hereby ordered to discuss the Court's proposed solution with their respective representatives. The Hearing on Plaintiffs' Motion for Temporary Restraining Order will reconvene telephonically this afternoon, 2/27/2023, at 4:30 p.m. Counsel for Plaintiffs shall set up the conference call and contact Chambers directly at (330) 884-7435, with all participants on the line. Counsel should notify the Court and file a joint notice on the docket if the parties are able to reach an agreement prior to the telephonic hearing. (Court Reporter: Mary Uphold); Time 1 Hour 6 Minutes. (JLG) |
| Minutes of proceedings [non-document] before Judge Benita Y. Pearson. Hearing on Plaintiffs' Motion for Temporary Restraining Order #11 continued on 2/27/2023. Present were Attorneys Seth A. Katz, Melanie S. Bailey, Douglas J. Olcott, and Elizabeth Graham on behalf of Plaintiffs; and Attorneys Lawson Johnston and Scott D. Clements on behalf of Defendants. The parties relayed their agreement on the inspection and evidence collection of the railcars, resolving the dispute raised in Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. The parties also discussed a possible dispute regarding the permission of Plaintiffs to collect soil and water samples from the derailment site. The parties are hereby ordered to file a joint notice to the Court by 8:00 p.m. ET on 2/27/2023 detailing the parties agreed upon plan for the inspection and collection of evidence. The parties are also ordered to file a joint notice informing the the Court about the progress towards resolving the permission for Plaintiffs to collect soil and water samples by 12:00 p.m. ET on 2/28/2023. A Status Conference is scheduled for 3/1/2023 at 12:00 p.m. ET via Zoomgov.com. Counsel should inform the Court if the Status Conference is no longer necessary. (Court Reporter: Mary Uphold); Time: 49 Minutes. (JLG) |
| IMPORTANT Notice [non-document]: The continued hearing on Plaintiffs' Motion for Temporary Restraining Order #11 set for 2/27/2023 at 4:30 p.m. is converted from telephonic to electronic via Zoomgov.com. The Zoomgov.com Meeting details will be distributed by the Court to counsel. (JLG) |
| Filing 13 Opposition to #11 Motion for Temporary Restraining Order and Preliminary Injunction and Memorandum of Law in Support Thereof filed by Norfolk Southern Corp., Norfolk Southern Railway Co.. (Attachments: #1 Exhibit February 24, 2023 letter directive from EPA)(Clements, Scott) |
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Filing 12
Order Take notice that on Monday, 2/27/2023, at 10:00 a.m., the Court will hear argument on whether a temporary restraining order shall issue pursuant to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. #11 ). The hearing will be conducted electronically via Zoomgov.com. All lead counsel and knowledgeable representatives for Plaintiffs and Defendants must be electronically present via Zoomgov.com. Plaintiffs' counsel is ordered to serve this Order along with its Motion on opposing counsel. Plaintiffs' counsel shall share the Zoomgov.com meeting details with Defendants' counsel. Counsel for both parties shall share the Zoomgov.com meeting details with all representatives expected to attend. Judge Benita Y. Pearson on 2/24/2023. (JLG)
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| Filing 11 Motion for Temporary Restraining Order and Preliminary Injunction and Memorandum of Law in Support Thereof filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit 1, SDC Letter to all Counsel, #2 Exhibit 2, Affidavit of T. Johnson, #3 Exhibit 3, R. Halstead)(Bailey, Melanie) |
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Filing 10
Order granting #9 Motion for Appearance Pro Hac Vice by Attorney Seth A. Katz 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 2/17/2023. (JLG)
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| Filing 9 Motion for attorney Seth A. Katz to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11846849, filed by David Anderson, Andrew Erdos, Valley View MHP, LLC. (Attachments: #1 Exhibit Certificate of Good Standing)(Bailey, Melanie) |
| Filing 8 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) |
| Filing 7 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) |
| Filing 6 Attorney Appearance by J. Lawson Johnston filed by on behalf of Norfolk Southern Corp., Norfolk Southern Railway Co.. (Johnston, J.) |
| Filing 5 Attorney Appearance by Scott D. Clements filed by on behalf of Norfolk Southern Corp., Norfolk Southern Railway Co.. (Clements, Scott) |
| Notice to Attorney Douglas J. Olcott. The Court finds no record of your being admitted to practice in the Northern District of Ohio. Pursuant to LR 83.5, an Application for Admission to Practice or a Motion to be Admitted Pro Hac Vice in this case must be filed within 10 business days. The local rules and the attorney admission application are available on the court's web site at: www.ohnd.uscourts.gov. If you are not the attorney of record in this case, a Motion to Withdraw as Attorney pursuant to LR 83.9 must be filed within 10 business days. (W,Jo) |
| Filing 4 Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Railway Co. waiver sent on 2/10/2023, answer due 4/11/2023 filed on behalf of All Plaintiffs (Bailey, Melanie) |
| Filing 3 Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Corp. waiver sent on 2/10/2023, answer due 4/11/2023 filed on behalf of All Plaintiffs (Bailey, Melanie) |
| Filing 2 Magistrate Consent Form issued. No summons issued or provided. (G,M) |
| Judge Benita Y. Pearson assigned to case. (G,M) |
| Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Amanda M. Knapp. (G,M) |
| Filing 1 Class Action Complaint with jury demand against All Defendants. Filing fee paid $ 402, Receipt number AOHNDC-11834558.. Filed by Andrew Erdos, Valley View MHP, LLC, David Anderson. (Attachments: #1 Civil Cover Sheet, #2 Exhibit Plaintiff Rule 7.1 Disclosure - Andrew Erdos, #3 Exhibit Plaintiff Rule 7.1 Disclosure - David Anderson, #4 Exhibit Plaintiff Rule 7.1 Disclosure - Valley View HMP, LLC) (Bailey, Melanie) |
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