IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-60462 Summary Calendar _____________________

PHYLLIS BODY McKEE,

Plaintiff-Appellant,

versus

KANSAS CITY SOUTHERN RAILWAY CO.; ERIC W. ROBINSON; ROBERT E. EVERETT; C. L. DUETT; CITY OF FOREST; MISSISSIPPI DEPARTMENT OF TRANSPORTATION,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (3:99-CV-393-WS) _________________________________________________________________ November 23, 2001

Before JOLLY, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM:*

Phyllis McKee was a passenger in a vehicle that was struck by

a freight train at a crossing in Forest, Mississippi. She filed an

action in Mississippi state court against the railroad, the

engineers, the conductor, the City of Forest, and the Mississippi

Department of Transportation (MDOT), asserting various claims of

negligence. McKee and all of the defendants except the railroad

are Mississippi residents.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. The railroad defendants removed the action to federal court,

maintaining that the district court had diversity jurisdiction

because all of the defendants except the railroad had been

fraudulently joined. The district court agreed and, on March 30,

2000, denied McKee’s motion to remand. McKee filed a motion for

reconsideration and a supplemental motion to remand, which the

district court denied on March 19, 2001.

McKee filed a petition for permission to appeal the

interlocutory orders denying remand and reconsideration pursuant to

(b) and Federal Rule of Civil Procedure 54(b). The

City of Forest and MDOT moved for entry of final judgment pursuant

to Rule 54(b). On May 31, 2001, the district court granted the

Rule 54(b) certification requested by the City of Forest and MDOT.

Although the district court had not yet ruled on her petition for

permission to appeal the orders denying remand and reconsideration,

McKee filed a notice of appeal from those orders as well as the

final judgment in favor of the City of Forest and MDOT.

On appeal, McKee contends that the district court erred by

failing to remand the case to state court. McKee does not

challenge on appeal the district court’s ruling that her claims

against the City of Forest and MDOT for inadequate signalization at

the crossing are preempted by federal law. She argues, however,

that the City of Forest and MDOT are liable under Mississippi law

for their failure to keep the right of way along the road

approaching the railroad crossing clear of overgrown vegetation

2 which obstructed the view of motorists. She also argues that the

engineers and conductor were not fraudulently joined, because the

train crew admitted that the engineer did not keep a proper lookout

and there were competing affidavits on whether the train properly

sounded its horn, bell, and whistle.

The district court did not make any Rule 54(b) or § 1292(b)

certification as to its order denying remand. Accordingly, that

order is not appealable. See DeMelo v. Woolsey Marine Industries,

Inc.,

, 1035 n.12 (5th Cir. 1982). We therefore do

not have jurisdiction over the district court’s ruling that the

engineers and conductor were fraudulently joined. We have

jurisdiction only as to the Rule 54(b) dismissal of McKee’s claims

against the City of Forest and MDOT.

The district court correctly held that, under Mississippi law,

the City of Forest and MDOT had no duty to keep the railroad’s

right-of-way approaching the crossing clear of vegetation which

might obstruct the view of motorists. See Mississippi Central R.

Co. v. Alexander,

(Miss. 1934) (municipality has

no duty to maintain railroad crossing); Felter v. Texas Co.,

, 873 (Miss. 1956) (municipality has no duty to maintain

walkway located on private property). We therefore hold that the

district court did not err by dismissing McKee’s claims against the

City of Forest and MDOT.

A F F I R M E D.

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