Charles Byrne, et al v. CSX Transportation, Inc., et al

Filing

OPINION filed : We AFFIRM the district court's grant of summary judgment in Defendants' favor, decision not for publication. Danny J. Boggs, Circuit Judge; Richard F. Suhrheinrich, Circuit Judge and Helene N. White, (Authoring) Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0475n.06

FILED

Case No. 14-3791
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CHARLES JOHN BYRNE and CODY
BYRNE,

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Plaintiffs-Appellants,
v.
CSX TRANSPORTATION, INC., GERALD
R. HORN, JOHN DOES 2-10, and
ALPHONSE DUCRE, III,

Jun 26, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

Defendants-Appellees.
BEFORE: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. This action, arising from a collision between a
CSX train and a vehicle driven by Charles Byrne, returns to this court after remand and the
district court’s second grant of summary judgment to CSX1 dismissing Plaintiffs’ state-law
inadequate-warning-devices claims as preempted. We affirm.
I.
In the late morning of May 19, 2008, Charles Byrne was traveling westbound on Ulsh
Road in Caledonia, Ohio, with his son Cody Byrne, towards a railroad crossing. Byrne v. CSX
Transp., Inc., 541 F. App’x 672, 673 (6th Cir. 2013). As Byrne was crossing the tracks, a CSX
train struck his vehicle on the rear passenger side and caused it to flip over. Cody Byrne
1

We refer to all Defendants as “CSX.”

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sustained minor injuries, but Charles Byrne suffered permanent, disabling injuries, including
traumatic brain injury.
The Byrnes filed this action in state court, alleging common-law negligence against CSX
for failing to comply with applicable federal and state audibility requirements for warning of a
train’s approach, failing to exercise reasonable care in operating the train, failing to warn its crew
and members of the public of the hazardous nature of the grade crossing, and failing to properly
maintain the grade crossing. The Byrnes also asserted common-law negligence claims against
the CSX engineer and conductor. PID 1684–85. Defendants removed the case on the basis of
diversity of citizenship. Byrne, 541 F. App’x at 673–74.
The district court granted Defendants summary judgment on the Byrnes’s state-law
inadequate-warning-devices claims, finding them preempted. On the Byrnes’s first appeal, this
court reversed because Defendants had failed to file the sole document supporting their defense
of federal preemption, the ”Kirkland affidavit,” and then had produced different versions of that
affidavit on appeal.

Id. at 675–77.

We reversed and remanded to the district court “for

consideration of the issue of federal preemption.” Id. at 677.
On remand to the district court, Defendants renewed their motion for summary judgment
submitting for the first time 1) another version of Kirkland’s affidavit, 2) an affidavit of Mathew
Downs, a former administrator of payroll and federal accounting at the Ohio Department of
Transportation (ODOT), and 3) approximately 60 pages of exhibits not previously filed. PID
2815-2969. The Byrnes moved to strike the Downs affidavit and supporting exhibits, as well as
the other newly filed exhibits attached to Kirkland’s affidavit, on the ground that they exceeded
this court’s mandate. The Byrnes alternatively argued that, if the district court intended “to
honor the new Kirkland affidavit,” it should extend the discovery deadline so that they “may

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conduct discovery concerning the federal funding of the Ulsh Rd. crossing.” PID 2991. The
district court denied the Byrnes’s motion to strike the Downs affidavit and granted their motion
for additional time to conduct further discovery. PID 2993-96. After deposing Kirkland and
Downs, the Byrnes responded to Defendants’ renewed motion for summary judgment. The
district court again dismissed the claims as preempted, PID 3489-99, and the Byrnes appeal for
the second time.
II.
The Byrnes first argue that the district court exceeded this court’s mandate on remand by
considering evidence submitted by Defendants in support of their preemption defense that was
available when they initially filed their motion, but which they submitted for the first time on
remand.
We review de novo the district court’s interpretation of our mandate. United States v.
Parks, 700 F.3d 775, 777 (6th Cir. 2012); see also Kindle v. City of Jeffersontown, Ky., 589 F.
App’x 747, 753 (6th Cir 2014). The mandate rule requires lower courts to adhere to directives of
a superior court; it is a complement to the doctrine of law of the case, under which findings made
at one point in the litigation become the law of the case for subsequent stages of that same
litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994).
In the first appeal, this court’s introductory paragraph reversed the grant of summary
judgment on the issue of federal preemption, and remanded for “the district court to consider the
issue of federal preemption in light of the evidence properly placed on the record.” Byrne, 541
F. App’x at 673. In addressing why it declined to permit Defendants to supplement the record on
appeal with the proffered missing affidavit, the panel explained that there were several versions
of the affidavit and that Defendants’ asserted inadvertence appeared to be “anything but

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inadvertent.” Id. at 677. The panel then stated that it “is the district court’s choice whether to
wade through this confusion.” Id. The final conclusion states that the decision is reversed and
the matter is remanded for consideration of the issue of federal preemption. Id. at 678. The
district court rejected Plaintiffs’ restricted view of the remand, explaining that it considered the
new evidence Defendants submitted because, “as the Sixth Circuit noted, the record was
heretofore devoid of any preemption evidence – be it the Kirkland affidavit or otherwise – the
Sixth Circuit’s mandate necessarily contemplates consideration of new evidence.” PID 2994-95.
We find no error in the district court’s interpretation of the mandate, given that there was no
evidence properly placed on the record at the time of the remand. We do not understand our
remand order as restricting the evidence the district court would be permitted to consider on
remand.
III.
The Byrnes next argue that, even considering the newly submitted evidence, the district
court erred in finding their claims preempted. Effectively conceding that preemption applies if
federal funds were used to improve the Ulsh Road crossing, the Byrnes argue that genuine
factual questions remained, given the inadequate foundation for the evidence and conclusions
submitted by Defendants in support of their motion. Plaintiffs assert that Kirkland’s affidavit
fails the personal-knowledge requirement of Fed. R. Civ. P. 56 because she could not confirm
that the Conrail invoices attached to her affidavit either went through her office or were received
by the State of Ohio, and she could not attest that the Conrail invoices were kept in the course of
a regularly conducted activity when there was no chain of custody in the record. We review the
district court’s evidentiary rulings for abuse of discretion. United States v. Dixon, 413 F.3d 540,
544 (6th Cir. 2005).

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Kirkland’s 2014 affidavit2 states that she was employed as Manager of the Rail Highway
Safety Section of the Ohio Rail Development Corporation (ORDC) from 1994 until 2012.
Before ORDC was created in 1994, she held the same position at the Ohio Department of
Transportation (ODOT) beginning in 1989. At ODOT she reported to Jeff Honefanger, Deputy
Director at the Division of Rail Transportation.

Kirkland states her duties “included the

administration and management of railroad safety programs and the responsibility for federally
funded programs to improve grade crossings.”

PID 2824.

Kirkland, her staff, and her

department administered the federally funded Ohio Buckeye Crossbuck Program. Kirkland
worked on a day-to-day basis with the implementation of the Crossbuck Program and further
attested:
7. I have personal knowledge that [Conrail] entered into an agreement with the
State of Ohio to participate in the Ohio Buckeye Crossbuck Program, and to
install experimental Buckeye Crossbucks and upgraded Standard Crossbucks at
approximately 960 of its passively guarded grade crossings in the State of Ohio.
The project was assigned State Project Number 131883 and Federal-Aid Project
Numbers RRPG-000S (326) and STP-000S(326).
8. Although my duties as administrator of the Ohio Buckeye Crossbuck Program
did not include the actual handling of funds, as the administrator of the Program,
my staff and I developed the program, established the agreements with the
railroads, set up the projects with the Federal Highway Administration [FHA],
and approved and processed railroad invoices and I would have been alerted had
federal funds not been approved and received by the State of Ohio to fund the
Ohio Buckeye Crossbuck Program. I received no notice of any failure of the
federal government to fund the Ohio Buckeye Crossbuck Program.
9. I have personal knowledge that [Conrail] participated in the Ohio Buckeye
Crossbuck Program and from that fact I can conclude that the approval,
authorization, and expenditure of federal funds to pay for the installation of
Buckeye Crossbucks and Standard Crossbucks at [Conrail’s] passively guarded
grade-crossings took place because the Program would not have proceeded
otherwise.

2

The district court’s order granting Defendants summary judgment on remand cites only
the 2014 Kirkland affidavit.
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10. Pursuant to the agreement for the Buckeye Crossbuck Program, bills for the
installation of crossbucks were to be submitted to Mr. Honefanger for my review
and acceptance. Buckeye Crossbuck installation sheets were to be completed and
submitted with the bills. Once the crossings were inspected and found to meet
standards, the invoice was approved by me, processed by my staff to ODOT, and
then payment was made by the Treasurer of State.
PID 2827, 2828. A form titled “Ohio Buckeye Crossbuck Program” stating that on May 11,
1993 two standard crossbucks were installed on Ulsh Road under “AARDOT # 262061N” is
attached to Kirkland’s affidavit. PID 2890. Also attached to Kirkland’s affidavit are seven
“Progress Bills” on Conrail letterhead addressed to Jeff Honefanger, Kirkland’s boss at ODOT,
and totaling $892,124.00. PID 2892-2959.
Downs was employed as ODOT’s Administrator, Payroll and Federal Accounting, and
his office maintained “the records for the handling of funds from the Ohio Buckeye Crossbuck
Program in the 1990s, which provided improvements to railroad grade-crossing warning
devices,” and used the designations Project No. 000S(326) and prefixes RRPG and STPG in
association with that program.” Further:
3.

I recognize the following documents as official records of the State of Ohio
dealing with the Ohio Buckeye Crossbuck Program, including the funding of such
improvements:
....
E. Final Voucher from FHWA [Federal Highway Administration] to Ohio
regarding Project No. 000S(326) detailing the final amount of federal funds
provided to Ohio of $475,983.05 for appropriation code 139 and $479,755.10 for
appropriation code 33A;
F. Records for requests for reimbursement to FHWA, which include details of
payments made to Conrail from ODOT . . . .
G. Details of 100% federal reimbursement received by ODOT for construction
engineering costs . . . on Project No. 000S(326), prefix RRPG, totaling
$50,072.61.

4. Based upon my review of the records above, I can attest that FHWA, through the
United States Highway Department Trust Fund . . . provided federal funds totaling
$955,738.15 to ODOT for Project No. 000S(326).
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5. Of that $955,738.15 . . . ODOT received reimbursement for several payments:



Reimbursement for payments made to Conrail totaling $892,124.00;
Reimbursements for payments made to Northern Ohio & Western Railroad totaling
$13,541.54; and
 Reimbursement for construction engineering work performed by ODOT employees
totaling $50,072.61
....
8. Based upon my review of the records described above, under the Ohio Buckeye
Crossbuck Program, the State of Ohio made nine payments to Conrail totaling
$892,124.00, all of which were 100% reimbursed with federal funds received from the
FHWA.
PID 2961-63.
We agree with the district court that the Kirkland and Down affidavits and deposition
testimony establish that federal funds were used to improve the Ulsh Road crossing, and that the
Byrnes have not established a genuine factual issue. As the district court observed, the total of
the seven Conrail Progress Bills equaled the total payment made by the Federal Highway
Administration to ODOT. Although Kirkland could not attest that the Conrail invoices were
submitted to her office at ODOT or approved for payment by ODOT, Downs testified that the
seven invoices were paid, and Kirkland testified that only approved bills were paid. And, though
the chain of custody of the Conrail invoices is unclear from the record, the invoices bear Conrail
logos and so the district court could properly determine them to be self-authenticating under Fed.
R. Evid. 902(7). See Alexander v. CareSource, 576 F.3d 551, 561 (6th Cir. 2009) (document on
letterhead “contains a trade inscription indicating the source of origin of the document, and it is
self-authenticated under Federal Rule of Evidence 902(7).”) Any defect in the chain of custody

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of the Conrail invoices would go to the weight of the evidence, not its admissibility. See United
States v. Allen, 946 F.2d 896, 897 (6th Cir. 1991) (table).3
For these reasons, we AFFIRM the district court’s grant of summary judgment in
Defendants’ favor.

3

We note that we find CSX’s failure to establish the source of the records, through an
affidavit, testimony, or attorney representation on the record, as inexplicable as the first panel
found CSX’s failure to file the affidavit and the appearance of multiple affidavits. Simple
attention to detail and procedure would have avoided much of the proceedings. Nevertheless, the
district court was free to accept that the Conrail bills were self-authenticating.
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