Ceramfab, Inc. et al. v. Norfolk Southern Corporation et al.
| Ceramfab, INC, Ceramsource, INC., WYG Refractories, LLC and Ceramfab, Inc. |
| Norfolk Southern Corporation and Norfolk Southern Railway Company |
| 4:2023cv00509 |
| March 13, 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 |
| Plaintiff |
Docket Report
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| Filing 24 Marginal Order approving Plaintiffs' #23 Notice of Dismissal without Prejudice. Judge Benita Y. Pearson on 4/28/2023. (JLG) |
| Filing 23 Notice of Dismissal Under FRCP 41(a)(1) filed by All Plaintiffs. (Conlin, Jon) |
| Filing 22 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) |
Filing 21
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 20 Non-Appeal Transcript Order Form for proceedings held on 3/22/2023 before District Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: Copy. Transcript already on file. (N,SE) |
| 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) |
| Filing 19 Transcript of Hearing on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction held on 3/22/23 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. [33 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 3/31/2023. Redaction Request due 4/14/2023. Redacted Transcript Deadline set for 4/24/2023. Release of Transcript Restriction set for 6/22/2023. Related document(s) #17 . (U,ML) |
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Filing 18
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 17 Non-Appeal Transcript Order Form for proceedings held on 03/22/2023 before Judge Judge Benita Y. Pearson, Court Reporter: Mary Uphold. Requested completion date: 03/24/2023 filed by Norfolk Southern Corporation, Norfolk Southern Railway Company. (Clements, Scott) |
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Filing 16
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 15 Emergency Motion for Temporary Restraining Order and Motion for Preliminary Injunction with Memorandum of Law in Support filed (Motion for Preliminary Injunction WITHDRAWN - See 3/31/2023 Minutes of Proceedings [non-document]) by Plaintiffs Ceramfab, Inc., Ceramsource, Inc., and WYG Refractories, LLC. (Attachments: #1 Exhibit 1 - Original Draft of Access Agreement, #2 Exhibit 2 - Updated Draft of Access Agreement, #3 Exhibit 3 - Affidavit of Andrew D. Stahl)(Conlin, Jon). Added motion for preliminary injunction on 3/22/2023 (G,M). Modified to denote Motion for Preliminary Injunction withdrawn and termed motion event. 3/31/2023 (JLG). |
| Minutes of proceedings [non-document] before Judge Benita Y. Pearson. Hearing held via Zoom on 3/22/2023 regarding Plaintiff's Motion for Temporary Restraining Order #15 . Present were Attorneys Jon C. Conlin, F. Jerome Tapley, and R. Andrew Jones as counsel for Plaintiff CeramFab, Inc.; Attorneys J. Lawson Johnston and Scott D. Clements as counsel for Defendant; 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). The parties' positions on Plaintiff's Motion for Temporary Restraining Order #15 were heard. For the reasons set forth on the record, #15 is denied. But the Court orders Attorneys Katz, Graham, and Goldenberg to work collaboratively with Attorney Conlin, and offer him the assistance they have pledged at CeramFab, Inc.'s cost. The Court further orders that if Attorney Conlin has not already done so, he secure samples from the stormwater drains and the trench located beside CeramFab, Inc.'s building as soon as possible because litigation will be subjugated to remediation. In addition, the Court orders that Attorney Conlin consult with Attorneys Johnston and Clements about what is necessary to be done at CeramFab, Inc.'s facility, including executing an agreement similar to the updated access agreement. (Court Reporter: Mary Uphold); Time: 41 Minutes. (JLG) |
| Filing 14 Corporate Disclosure Statement identifying Corporate Parent Norfolk Southern Corporation, Other Affiliate American General Insurance Company, Other Affiliate Norfolk Southern Properties, inc., 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) |
| Filing 13 Corporate Disclosure Statement identifying Other Affiliate American General Insurance Company, Other Affiliate Norfolk Southern Properties, inc., 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) |
| Filing 12 Attorney Appearance by J. Lawson Johnston filed by on behalf of Norfolk Southern Corporation, Norfolk Southern Railway Company. (Johnston, J.) |
| Filing 11 Attorney Appearance by Scott D. Clements filed by on behalf of Norfolk Southern Corporation, Norfolk Southern Railway Company. (Clements, Scott) |
| Filing 10 Waiver of Service Returned Executed by Ceramfab, Inc., WYG Refractories, LLC, Ceramsource, Inc.. Norfolk Southern Corporation waiver sent on 3/14/2023, answer due 5/13/2023 filed on behalf of Ceramfab, Inc.; WYG Refractories, LLC; Ceramsource, Inc. (Conlin, Jon) |
| Filing 9 Waiver of Service Returned Executed by Ceramfab, Inc., WYG Refractories, LLC, Ceramsource, Inc.. Norfolk Southern Railway Company waiver sent on 3/14/2023, answer due 5/13/2023 filed on behalf of Ceramfab, Inc.; WYG Refractories, LLC; Ceramsource, Inc. (Conlin, Jon) |
| Filing 8 Corporate Disclosure Statement filed by Ceramfab, Inc. (Conlin, Jon) Modified text on 3/17/2023 (H,Ch). |
| Filing 7 Corporate Disclosure Statement filed by Ceramsource, Inc. (Conlin, Jon) Modified text on 3/17/2023 (H,Ch). |
| Filing 6 Corporate Disclosure Statement filed by WYG Refractories, LLC. (Conlin, Jon) Modified text on 3/17/2023 (H,Ch). |
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Filing 5
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 4
Order of Reassignment. This case is returned to the Clerk for reassignment to Judge Benita Y. Pearson for all further proceedings. Judge Sara Lioi on 3/15/2023. (V,A)
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| Judge Benita Y. Pearson assigned to case. Judge Sara Lioi terminated. (S,T) |
| Notice by Clerk that Ceramfab, Inc., Ceramsource, Inc. failed to file a corporate disclosure statement as required by Local Rule 3.13(b). (D,Ju) |
| Filing 3 Original Summons and Magistrate Consent Form issued to counsel for service upon Norfolk Southern Corporation c/o J. Steven Stewart, Norfolk Southern Railway Company c/o Corporation Service Company. (Attachments: #1 Magistrate Consent Form) (D,Ju) |
| Filing 2 Initial Standing Order. Judge Sara Lioi on 03/14/2023. (Attachments: #1 Appendix A-Witness List, #2 Appendix B-Exhibit List) (D,Ju) |
| Judge Sara Lioi assigned to case. (D,Ju) |
| 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. (D,Ju) |
| Filing 1 Complaint with jury demand against Norfolk Southern Corporation, Norfolk Southern Railway Company. Filing fee paid $ 402, Receipt number AOHNDC-11887309. Filed by Ceramfab, Inc., WYG Refractories, LLC, Ceramsource, Inc. (Attachments: #1 Civil Cover Sheet, #2 Summons - Norfolk Southern Corporation, #3 Summons - Norfolk Southern Railway Company) (Conlin, Jon) |
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