Anderson et al v. Union Pacific Railroad Company

Filing 43

RULING on diversity and federal question jurisdiction, finding that the court is without subject matter jurisdiction and remanding the suit to the 18th Judicial District Court.Signed by Magistrate Judge Docia L Dalby on September 16, 2011. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
GLORIA ANDERSON, ET AL

CIVIL ACTION

VERSUS

NUMBER 10-193-DLD

UNION PACIFIC RAILROAD COMPANY
RULING
On September 17, 2010, the court issued a sua sponte order noting the potential
insufficiency of defendant’s allegations supporting subject matter jurisdiction in this case
removed under diversity and federal question jurisdiction. The court specifically questioned
the allegations supporting the amount in controversy and complete preemption under the
Federal Railway Safety Act (rec. doc. 19). In response to the order, plaintiffs and
defendant filed memoranda addressing the court’s subject matter jurisdiction (rec. docs.
21 and 30). Shortly after the memoranda were filed, the parties notified the court that they
were in the process of settling this matter and requested that the court stay all rulings on
the pending motions. Last week during a status conference, the parties notified the court
that 17 of the 18 plaintiffs had settled their claims against defendant Union Pacific and that
the single non-settling plaintiff intended to pursue his claims. Thus, before proceeding any
further in this matter, the court must examine the asserted basis of federal subject matter
jurisdiction.
This mass tort action for personal injuries arises out of an accident which occurred
when a train owned and operated by defendant Union Pacific Railroad Company partially
derailed whiled traveling on the Plaquemine Bridge and fell onto the banks of Bayou
Plaquemine (rec. doc. 1-3).

The derailed train cars allegedly contained hazardous

substances, including molten sulfur, ammonia residue, and styrene residue. Id. As a result
of the derailment, one of the train cars allegedly leaked molten sulfur on the banks of Bayou
Plaquemine and surrounding areas causing plaintiffs to evacuate their homes and
experience various physical and emotional symptoms, including, shortness of breath, dry
skin, skin rashes, watery and/or burning eyes, headaches, high blood pressure, abnormal
sinuses, hives, heightened allergies, anxiety, distress, depression, and mental anguish. Id.
Plaintiffs allege that the accident was caused by defendant’s negligence in failing to
adequately maintain the railroad bridge crossing, operating its train in an unsafe or negligent
manner, and failing to maintain proper control of its train and take necessary actions to
prevent derailment. Id. Additionally, plaintiffs allege that defendant Union Pacific had actual
and/or constructive notice of the deficiencies in its railroad bridge and failed to take remedial
measures. Id.1
In order to maintain this removed action in federal court, defendant has alleged and
must prove that the court has subject matter jurisdiction either through diversity jurisdiction
or federal question jurisdiction. See 28 U.S.C. §1441. In order to establish diversity
jurisdiction, defendant must show that the parties are diverse and that the amount in
controversy exceeds $75,000. See Garcia v. Koch Oil Co. Of Texas, Inc., 351 F.3d 636 (5th
1

Prior to filing its memorandum in opposition to subject matter jurisdiction, plaintiffs filed a first
supplemental and amending petition for damages that added a new party, GATX Corporation, the owner and
lessor of the train cars involved in the accident at issue in this case, and XYZ Corporation, the lessee of the
train cars involved in the accident (rec. doc. 29). Plaintiff alleges in the amending petition that GATX was
negligent in failing to maintain and service its train cars prior to leasing them to customers, failing to provide
a safe car to be used on the railways at the time of lease, failing to monitor, maintain, and service its train cars
during the lease. Id. Again, plaintiffs allege that GATX had actual and/or constructive notice of the deficiencies
in its train cars, but failed to take remedial measures. Id. Plaintiffs suggest in their opposition memorandum
that their first supplemental and amending petition for damages alleges defects in the train cars as opposed
to the railroad bridge crossing and, therefore, there is no basis for preemption under the ICCTA; however,
their amending petition does not withdraw the allegations against Union Pacific regarding the maintenance
and construction of the railroad bridge crossing asserted in the original petition(rec. docs. 29 and 30).

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Cir. 2003), citing Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998).
Defendant’s allegations in the notice of removal establish that diversity of citizenship is
satisfied, and although not stated correctly, it seems that newly added defendant GATX is
also diverse. Neither party disputes diversity of citizenship. The only issue to be resolved
under diversity jurisdiction is whether the requisite amount in controversy is satisfied.
Defendant argues that the damages alleged in the petition and the August 19, 2010,
deposition testimony of Paul Washington prove that the amount in controversy is satisfied at least as to Washington. Defendant suggests that because Washington's damages
exceed $75,000, the court should exercise supplemental jurisdiction over the claims of the
other defendants (rec. doc. 3). A review of Washington’s deposition indicates that he
alleges that he suffered nausea, headaches, runny eyes, skin rash, sinus trouble,
emotional problems, and sexual problems as a result of the accident (rec. doc. 21-1,
Exhibit A). Washington sought medical treatment for the skin rash and sinus trouble, was
prescribed medication, and continues to use the sinus medication. Washington did not
seek medical attention for his emotional or sexual problems.
First, plaintiffs’ claims of damages for emotional and sexual problems do not raise
the quantum of damages very far. The Fifth Circuit has held that while testimony from a
plaintiff can help support an award for emotional harm, unless it is corroborated, nothing
more than nominal damages will be allowed for emotional harm. Patterson v. P.H.P
Healthcare, 90 F.3d 927, ftnt 11 (5th Cir.1996).
Defendant, however, cites to numerous other cases in an effort to prove that the
amount in controversy is satisfied. The injuries sustained and the damages awarded in the
cases cited by defendant, however, are not factually similar to the instant case. The cases
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cited involve varying degrees of damages, in some cases resulting in hospitalization due
to injuries, numerous physician visits and tests, and permanent injuries, which are not
present in the instant case. See e.g., In re New Orleans Train Car Leakage Fire Litigation,
795 So.2d 364, 384 (La. App. 4th Cir. 2001); Lemaire v. Ciba-Geigy, 793 So.2d 336 (La.
App. 1st Cir. 2001); Jeffery v. Thibaut Oil, 652 So.2d 1021 (La. App. 5th Cir. 1995); Wisner
v. Illinois Central Gulf R. R., 537 So.2d 740 (La. App. 1st Cir. 1988). Plaintiffs argue, and
the court agrees, that the allegations in the complaint amount to what is basically a “fear
and fright” case, with typical awards of between $3,000 and $10,000, based on the cited
case law. Based on plaintiffs’ allegations, and using the cases cited by both sides, it is
highly unlikely that plaintiffs’ damages, including those suffered by Mr. Washington, exceed
$75,000; and defendant has failed to meet its burden of proving otherwise. Thus, the court
finds that diversity jurisdiction does not exist.
Defendant also asserts federal question jurisdiction as a basis for removal. In the
notice of removal, defendant alleges that federal question exists because plaintiffs’ claims
are completely preempted by the Federal Railway Safety Act (FRSA), 49 U.S.C. §20101,
et seq.(rec. doc. 1). The FRSA contains a provision that clarifies the preemptive effect of
the FRSA by explaining that state law causes of action relating to rail safety and security
and seeking damages for personal injury, death, or property damage are not preempted
by federal law.2
2

The FRSA further provides that it does not create a federal cause of

Section 20106(b)-(c) of the FRSA provides in pertinent part as follows:

(b) Clarification regarding State law causes of action.--(1) Nothing in this section shall be
construed to preempt an action under State law seeking damages for personal injury, death,
or property damage alleging that a party-(continued...)

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action on behalf of an injured party or confer federal question jurisdiction for such state law
causes of action.3 In its memorandum in support of federal subject matter jurisdiction,
defendant abandoned its argument under the FRSA and instead focused solely on
complete preemption under the ICC Termination Act (ICCTA), 49 U.S.C. §10101, et seq.
(ICCTA) (rec. doc. 21).
Federal question jurisdiction exists if a federal question appears on the face of
plaintiffs’ well-pleaded complaint. Bernhard. v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th
Cir. 2008). Generally, there is no federal jurisdiction if the plaintiff properly pleads only a
state law cause of action, as here, where plaintiffs pled only state law negligence claims.
See Gutierrez v. Flores, 543 F.3d 248 (5th Cir. 2008), citing Bernhard v. Whitney Nat'l Bank,
523 F.3d 546, 551 (5th Cir.2008). An exception to the well-pleaded complaint rule arises,
however, when Congress “so completely preempt[s] a particular area that any civil
complaint raising this select group of claims is necessarily federal in character.” Elam v.

2

(...continued)
(A) has failed to comply with the Federal standard of care established by a regulation
or order issued by the Secretary of Transportation (with respect to railroad safety
matters), or the Secretary of Homeland Security (with respect to railroad security
matters), covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created pursuant
to a regulation or order issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible
with subsection (a)(2).

(2) This subsection shall apply to all pending State law causes of action arising from events
or activities occurring on or after January 18, 2002.
(c) Jurisdiction.--Nothing in this section creates a Federal cause of action on behalf of an
injured party or confers Federal question jurisdiction for such State law causes of action.
3

See ftnt 2.

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Kansas City Southern Ry. Co., 635 F.3d 796 (5th Cir. 2011), citing Gutierrez v. Flores, 543
F.3d at 252 (5th Cir. 2008). Defendant argues such is the situation in the instant matter.
The ICCTA contains a preemption clause, which states as follows:
(b) The jurisdiction of the Board over-(1) transportation by rail carriers, and the remedies provided in this part with
respect to rates, classifications, rules (including car service, interchange, and
other operating rules), practices, routes, services, and facilities of such
carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance
of spur, industrial, team, switching, or side tracks, or facilities, even if the
tracks are located, or intended to be located, entirely in one State, is
exclusive. Except as otherwise provided in this part, the remedies provided
under this part with respect to regulation of rail transportation are exclusive
and preempt the remedies provided under Federal or State law.
See 49 U.S.C. §10501(b).
In its memorandum in support of jurisdiction, defendant relied on the language of
the ICCTA preemption clause and the holdings in Elam v. Kansas City Southern Ry., 2009
WL 774404 (N.D. Miss. 2009) and 2010 WL 889817 (N.D. Miss. 2010), In re Katrina Canal
Breaches Consol. Litig., 2009 WL 224072 (E.D. La.2009), and Rawls v. Union Pacific R.
Co., 2010 WL 892115 (W.D. Ark. 2010), to support its position that plaintiffs’ claims
regarding the construction and maintenance of the railroad bridge crossing are completely
preempted, thus giving rise to federal question jurisdiction. After defendant filed its brief
in support of jurisdiction, however, the Fifth Circuit reversed, in part, the district court’s
decisons in Elam v. Kansas City Southern Ry., 2009 WL 774404 (N.D. Miss. 2009) and
2010 WL 889817 (N.D. Miss. 2010), which served as the foundation of defendant’s
preemption argument. The Fifth Circuit held that the ICCTA does not completely preempt

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simple negligence claims for personal injuries. See Elam v. Kansas City Southern Ry. Co.,
635 F.3d 796 (5th Cir. 2011).
In analyzing the preemptive effect of the ICCTA, the Fifth Circuit noted that
Congress was particularly concerned with state economic regulation of railroads when it
enacted the ICCTA and that prior cases have found that the ICCTA expressly preempts
state laws and state remedies that have the effect of managing or governing rail
transportation, but not state laws that have a mere “remote or incidental effect on rail
transportation.” Elam, 635 F.3d at 805. The court reasoned that “[a] typical negligence
claim seeking damages for a typical crossing accident [ ] does not directly attempt to
manage or govern a railroad’s decisions in the economic realm;” therefore, the Elam
plaintiffs’ claims were not completely preempted. Elam, 635 F.3d at 813; see also Trejo
v. Union Pacific Railroad Company, 2011 WL 309614 (E.D. Ark. 2011).
In the instant matter, plaintiffs’ claims that they suffered personal injuries as the
result of defendant’s negligent maintenance and construction of the railroad bridge
crossing do not equate to state economic regulation of railroads. Plaintiffs have pled a
simple suit for personal injury damages based on state law negligence. One of the
allegations makes a very general claim of failure to maintain and construct the railroad
bridge crossing, which was denied by defendant in its answer. There is nothing in the
petition or answer that directly or impliedly has “the effect of managing or governing rail
transportation.” The fact that defendant may have a defense to plaintiffs’ claims based

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on a federal law or regulation does not provide the basis for federal question jurisdiction
and, therefore, does not support removal of plaintiffs’ claims.4
Thus, defendant failed to carry its burden of establishing that either diversity or
federal question jurisdiction exists in this matter. This court therefore is without subject
matter jurisdiction, and this matter will be remanded to the 18th Judicial District Court.
Signed in Baton Rouge, Louisiana, on September 16, 2011.

D

MAGISTRATE JUDGE DOCIA L. DALBY

4
Even if defendant were to raise a defense under federal law, which it has not done thus far, an
anticipated defense based on federal preemption does not provide a basis for federal question jurisdiction.
See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 329 (5th Cir. 2008) (citations omitted).

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