Biechele v. Norfolk & Western Railway Co.

309 F. Supp. 354, 7 A.L.R. Fed. 894, 26 Ohio Misc. 139, 53 Ohio Op. 2d 230, 1969 U.S. Dist. LEXIS 13610
CourtDistrict Court, N.D. Ohio
DecidedJune 19, 1969
DocketC68-139
StatusPublished
Cited by25 cases

This text of 309 F. Supp. 354 (Biechele v. Norfolk & Western Railway Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biechele v. Norfolk & Western Railway Co., 309 F. Supp. 354, 7 A.L.R. Fed. 894, 26 Ohio Misc. 139, 53 Ohio Op. 2d 230, 1969 U.S. Dist. LEXIS 13610 (N.D. Ohio 1969).

Opinion

OPINION

DON J. YOUNG, District Judge.

This action was originally commenced in the Court of Common Pleas of Erie County, Ohio, and was removed to this Court by defendant on the ground of diversity of citizenship. The action was intended as a class action, and seeks damages and an injunction because of an alleged nuisance created by defendant in the operation of its coal storage and shipping facilities in Sandusky.

After some preliminary skirmishing the Court concluded that this was properly maintainable as a class action and that a representative class was present. Federal Rules of Civil Procedure 23(a). Actually, there are two separate and distinct class actions involved. The first and principal action is that for injunctive relief. The action is founded upon Rule 23(b) (1) and (2) of the Federal Rules of Civil Procedure. Jurisdiction for this action is based upon diversity, 28 U.S.C. § 1332, the amount in controversy being the value of the right involved. Hulsenbusch v. Davidson Rubber Co., 344 F.2d 730 (8th Cir. 1965); Pennsylvania R. R. Co. v. City of Girard, 210 F.2d 437 (6th Cir. 1954); John B. Kelly, Inc. v. Lehigh Nav. Coal Co., 151 F.2d 743 (3rd Cir. 1945); Wisconsin Electric Co. v. Dumore Co., 35 F.2d 555 (6th Cir. 1929). It appears to the Court that the right of each member of the class to live in an environment free from excessive coal dust and conversely, the right of defendant to operate its coal loading facility are both in excess of $10,000.00.

The second action is one for damages resulting from the action of defendant. This action has predominating factual questions m common with the injunctive action and requiring the same evidence as presented in that action. The damage action is properly maintainable as a class action under Rule 23(b) (3) of the Federal Rules of Civil Procedure, common questions of fact predominating. Although diversity of citizenship exists between the parties, the Court does not believe that any of the claims exceed $10,000.00. These claims cannot be aggregated to achieve the jurisdictional amount. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (March 25, 1969).

Jurisdiction properly lies in this Court under 28 U.S.C. § 1441(c). The claims are sufficiently separate to allow removal of the injunctive action alone. Therefore this Court, in the interest of judicial efficiency, will assume jurisdiction over the entire controversy. Climax Chemical Co. v. C. F. Braun & Co., 370 F.2d 616 (10th Cir. 1966); Moosbrugger v. McGraw-Edison Co., 215 F.Supp. 486 (D.Minn.1963).

Delineation of the class in the damage action through the establishment of geographical boundries was undertaken. Evidence taken at a hearing for a temporary restraining order before Senior District Judge Kloeb as to the extent and locations of the complaints together with a knowledge of the prevailing winds was employed in ascertaining the geographical boundries to be employed. Without such geographical delineation any person who felt that he had been aggrieved by defendant’s operation of its coal dock, regardless of the geographical remoteness of his claim, would have had the right to gain redress in this Court. Through this limitation the *356 Court is able to give attention to the vast body of claims for which a reasonably plausible geographical basis can be determined, avoid placing great strain on its docket with numerous actions with only nuisance value, and preserve to the truly aggrieved individual whose claim is geographically remote his right of action (since he, not being a member of the class, is not bound by the judgment) .

In furtherance of the policy of the 1966 amendment to Rule 23 to prevent one way intervention and to prevent as much as possible the solicitation of claims as well as to provide the court and the parties with some idea of the real magnitude of the controversy, the Court entered an order requiring all those desiring to present damage claims to enter an appearance in the case on or before November 8, 1968. Such orders are not unknown. Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391 (S.D.Iowa 1968); Philadelphia Electric Co. v. Anaconda American Brass, 43 F.R.D. 452 (E.D.Pa.1968); Harris v. Jones, 41 F.R.D. 70 (D.Utah 1966).

No list of the potential members of the class in the damage suit was available nor could one have been compiled. Therefore the Court determined that the best possible service would be by publication of its orders delineating the class and requiring the presentation of claims together with the notice required by Rule 23(c) (2) of the Federal Rules of Civil Procedure. It was, however, determined that the publication in the San-dusky Register would not be a standard legal notice, but would be prominently placed so that the class members would better have the attention drawn to it. See, Booth v. General Dynamics Corp., 264 F.Supp. 465 (N.D.Ill.1965). As a result of this notice, seven hundred thirty-one (731) persons joined the damage action as plaintiffs, five hundred thirty-two (532) filed declinations to participate and several thousand others took no action.

Promptly thereafter, by agreement of the parties, the case was submitted to the Court upon evidence and written argument for a determination of the question of whether or not there was an actionable nuisance, and, if there was, whether plaintiffs were entitled to an injunction, to damages, or to both. The agreement provides that if the Court finds there is an actionable nuisance entitling plaintiffs to damages, a special master will be appointed to hear the evidence as to the amount of damages suffered by each of the seven hundred thirty-one individual parties plaintiff.

Several days were required to present the evidence, and very extensive briefs were filed by the parties, as a result of which the Court has come to the findings of fact and conclusions of law that are expressed in this opinion.

The evidence shows that about 1939 the Pennsylvania Railroad Company constructed a large coal loading facility extending out into Sandusky Bay in the northwesterly portion of the City of Sandusky, Ohio.

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Bluebook (online)
309 F. Supp. 354, 7 A.L.R. Fed. 894, 26 Ohio Misc. 139, 53 Ohio Op. 2d 230, 1969 U.S. Dist. LEXIS 13610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biechele-v-norfolk-western-railway-co-ohnd-1969.