WEST VIRGINIA RECORD

CHARLESTON – A federal judge has entered a settlement that says a Charleston woman will stop calling Norfolk Southern Railway Company to complain about the noise of its rail yard.

U.S. District Judge Joseph Goodwin, of the Southern District of West Virginia, on Feb. 5 approved a settlement that grants Norfolk Southern’s request for a permanent injunction against Kelly Morris, a Powellton woman who says she can’t sleep because of the noise and vibrations caused at a rail yard across a river.

Norfolk Southern says it first took Morris’ complaints seriously and conducted an investigation, but after it decided Morris could not hear the rail yard, she began harassing employees.

“(B)eginning in November 2010, Defendant began a pattern and practice of routine calls to NSRC’s chief dispatcher office in Bluefield… complaining about the locomotives running in NSRC’s rail yard,” the company’s complaint says.

“Defendant’s calls continued and (became) more adamant that NSRC cease operations at the rail yard in question. Defendant’s calls and complaints occur at all hours of the day and night and have occurred at all levels of NSRC’s management.

“Defendant’s phone calls and complaints are causing delays in NSRC’s operations, are interfering with train dispatchers and their job duties and are interfering with NSRC’s employees in the performance of their duties.”

Morris first complained in 2005 that train noise and vibration were causing her and her husband to lose sleep. The company met with the couple and interviewed neighbors to see if a noise problem existed.

Morris was unsatisfied with Norfolk Southern’s determination that there was no noise problem. The company wrote that her calls eventually became more threatening and violent.

“(O)n or about Nov. 15, 2011, the defendant called the NSRC’s Division Offices complaining about locomotives parked on the south side of Alloy Yard,” the company wrote.

“The defendant made threats that she is going to embarrass employees and that they ‘are going to hell.’”

The two sides submitted a settlement in the form of an agreed order on Nov. 2. It prevented Morris from: Entering property owned, operated or leased by Norfolk Southern without permission; placing harassing telephone calls or sending harassing letters to Norfolk Southern; entering property owned or leased by an employee, agent, representative, officer or stockholder of Norfolk Southern; placing telephone calls to any employee, agent, representative, officer or stockholder of Norfolk Southern.

In return, Norfolk Southern agreed to drop the lawsuit against Morris and not seek attorneys fees from her.

However, Goodwin rejected the agreement. He said Norfolk Southern was negotiating for an injunction, which it could then ask the court to enforce if Morris didn’t follow it. This would keep Norfolk Southern from having to pursue a breach of contract claim through the settlement agreement, Goodwin said.

“A private settlement which does not include obtaining an injunction order from the court therefore does not include all of the substantive terms that were agreed upon by the parties when they filed the original agreed order,” Goodwin wrote.

“Accordingly, there is no ‘meeting of the minds’ as to all of the substantive terms of the modified settlement agreement proposed by Defendant’s counsel.”

The final agreed order was worded in a way that it imposed the injunction Goodwin says the company was seeking.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.