Policaro et al. v. Norfolk Southern Corporation et al.
Plaintiff: Frank Policaro, Carol Policaro, Robert Difonzo, Rondo Difonzo, Matthew Difonzo, Ryan McKenzie and Doug Sheppard
Defendant: Norfolk Southern Corporation and Norfolk Southern Railway Company
Case Number: 4:2023cv00495
Filed: March 11, 2023
Court: US District Court for the Northern District of Ohio
Presiding Judge: Benita Y Pearson
Nature of Suit: Torts to Land
Cause of Action: 28 U.S.C. ยง 1332 Diversity-Torts to Land
Jury Demanded By: Plaintiff
Docket Report

This docket was last retrieved on April 6, 2023. A more recent docket listing may be available from PACER.

Date Filed Document Text
April 6, 2023 Filing 16 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)
April 5, 2023 Opinion or Order Filing 15 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)
March 31, 2023 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)
March 24, 2023 Opinion or Order Filing 14 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)
March 17, 2023 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 Company filed by Norfolk Southern Railway Company. (Clements, Scott)
March 17, 2023 Filing 12 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 Corporation filed by Norfolk Southern Corporation. (Clements, Scott)
March 17, 2023 Filing 11 Attorney Appearance by J. Lawson Johnston filed by on behalf of Norfolk Southern Corporation, Norfolk Southern Railway Company. (Johnston, J.)
March 17, 2023 Filing 10 Attorney Appearance by Scott D. Clements filed by on behalf of Norfolk Southern Corporation, Norfolk Southern Railway Company. (Clements, Scott)
March 15, 2023 Opinion or Order Filing 9 Order granting #6 , #7 , #8 Motions for Appearance Pro Hac Vice by Attorneys Andrew D. Schlichter, Sean E. Soyars, and Victoria C. St Jean 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)
March 15, 2023 Filing 8 Motion for attorney Victoria St. Jean to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11894841, filed by Matthew Difonzo, Robert Difonzo, Rondo Difonzo, Ryan McKenzie, Carol Policaro, Frank Policaro, Doug Sheppard. (Attachments: #1 Exhibit Declaration of Victoria St. Jean in Support of Motion)(Lenox, Bryce)
March 15, 2023 Filing 7 Motion for attorney Sean Soyars to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11894786, filed by Matthew Difonzo, Robert Difonzo, Rondo Difonzo, Ryan McKenzie, Carol Policaro, Frank Policaro, Doug Sheppard. (Attachments: #1 Exhibit Declaration of Sean Soyars in Support of Motion)(Lenox, Bryce)
March 15, 2023 Filing 6 Motion for attorney Andrew Schlicter to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-11894613, filed by Matthew Difonzo, Robert Difonzo, Rondo Difonzo, Ryan McKenzie, Carol Policaro, Frank Policaro, Doug Sheppard. (Attachments: #1 Exhibit Declaration of Andrew Schlicter)(Lenox, Bryce)
March 15, 2023 Filing 5 Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Railway Company waiver sent on 3/14/2023, answer due 5/13/2023 filed on behalf of All Plaintiffs (Lenox, Bryce)
March 15, 2023 Filing 4 Waiver of Service Returned Executed by All Plaintiffs. Norfolk Southern Corporation waiver sent on 3/14/2023, answer due 5/13/2023 filed on behalf of All Plaintiffs (Lenox, Bryce)
March 14, 2023 Opinion or Order Filing 3 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)
March 13, 2023 Filing 2 Magistrate Consent Form issued. No summons provided, no summons issued. (D,Ju)
March 13, 2023 Judge Benita Y. Pearson assigned to case. (D,Ju)
March 13, 2023 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. (D,Ju)
March 11, 2023 Filing 1 Complaint with jury demand against All Defendants. Filing fee paid $ 402, Receipt number BOHNDC-11884613. Plaintiff has indicated that case may be related to pending civil action 4:23cv242. Filed by Ryan McKenzie, Robert Difonzo, Doug Sheppard, Carol Policaro, Rondo Difonzo, Frank Policaro, Matthew Difonzo. (Attachments: #1 Civil Cover Sheet) (Lenox, Bryce)

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Search for this case: Policaro et al. v. Norfolk Southern Corporation et al.
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Plaintiff: Frank Policaro
Represented By: Bryce A. Lenox
Represented By: Sean E. Soyars
Represented By: Victoria C. St Jean
Represented By: Andrew D. Schlichter
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Plaintiff: Carol Policaro
Represented By: Bryce A. Lenox
Represented By: Sean E. Soyars
Represented By: Andrew D. Schlichter
Represented By: Victoria C. St Jean
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Plaintiff: Robert Difonzo
Represented By: Bryce A. Lenox
Represented By: Sean E. Soyars
Represented By: Victoria C. St Jean
Represented By: Andrew D. Schlichter
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Plaintiff: Rondo Difonzo
Represented By: Bryce A. Lenox
Represented By: Sean E. Soyars
Represented By: Victoria C. St Jean
Represented By: Andrew D. Schlichter
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Plaintiff: Matthew Difonzo
Represented By: Bryce A. Lenox
Represented By: Andrew D. Schlichter
Represented By: Sean E. Soyars
Represented By: Victoria C. St Jean
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Plaintiff: Ryan McKenzie
Represented By: Bryce A. Lenox
Represented By: Andrew D. Schlichter
Represented By: Victoria C. St Jean
Represented By: Sean E. Soyars
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Plaintiff: Doug Sheppard
Represented By: Bryce A. Lenox
Represented By: Andrew D. Schlichter
Represented By: Sean E. Soyars
Represented By: Victoria C. St Jean
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Defendant: Norfolk Southern Corporation
Represented By: Scott D. Clements
Represented By: J. Lawson Johnston
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Defendant: Norfolk Southern Railway Company
Represented By: Scott D. Clements
Represented By: J. Lawson Johnston
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