Jeffers et al v. B N S F Railway Co
Filing
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MEMORANDUM RULING denying 9 MOTION to Dismiss For Failure to State a Claim filed by B N S F Railway Co. Signed by Magistrate Judge Patrick J Hanna on 5/1/2014. (crt,Alexander, E)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
EDWIN JEFFERS ET AL
CIVIL ACTION NO. 14-CV-188
VERSUS
MAGISTRATE JUDGE HANNA
BNSF RAILWAY CO.
BY CONSENT OF ALL PARTIES
MEMORANDUM RULING
This case comes before this Court by consent of the parties pursuant to 28
U.S.C. §636. Pending before the Court is BNSF Railway Company’s (BNSF)
Motion to Dismiss for Failure to State a Claim [Rec. Doc. 9], which is opposed by
the plaintiffs. Based on the submissions and arguments of the parties, the Court’s
analysis of applicable law, and for the reasons set out herein, the motion is denied.
Background
The plaintiffs are the owners/inhabitants of residences or businesses in Gray
Lawn Subdivision, located north of some railroad tracks situated upon an elevated
roadbed which runs through the area. They filed a Petition for Damages in the 15th
Judicial District Court, Acadia Parish, Louisiana, which was removed. Jurisdiction
is premised on 28 U.S.C. §1331 and 1332. The plaintiffs allege that their homes
and businesses sustained damage during heavy flooding from rainstorms on
January 10-11, 2013. An investigation was undertaken in which it was determined
that the unprecedented flooding was caused by an improperly maintained drainage
culvert, estimated to be 80% obstructed, reducing the ability of the culvert to
properly drain surface water and prevent flooding in the subdivision. The
plaintiffs allege the obstructed culvert was owned by BNSF which had a duty to
maintain the culvert, but did not. The plaintiffs seek money damages for repairs,
expenses, replacement costs and other losses pursuant to provisions of
La.Civ.Code arts. 2315 and 2317.1.
BNSF contends that the plaintiffs’ claims are completely preempted by
provisions of the Interstate Commerce Commission Termination Act of 1995
[ICCTA] and/or the Federal Railroad Safety Act [FRSA], and therefore, should be
dismissed pursuant to Fed. R.Civ.P. 12(b)(6). BNSF argues the plaintiffs “seem to
allege that BNSF is liable for plaintiffs’ flood damage due to BNSF’s design,
construction or maintenance of its railroad tracks through Crowley, Louisiana,”
and therefore, the claims inherently concern subject matters that are completely
consumed and preempted by the ICCTA, FRSA, and the rules/regulations
promulgated under those Acts.
Applicable Law and Discussion
The Rule 12(b)(6) Standard:
Although federal preemption is an affirmative defense that a defendant must
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plead and prove, if the complaint itself establishes the applicability of the defense,
the issue may be properly the subject of a Rule 12(b)(6) motion. Fisher v.
Halliburton, 667 F.3d 602, 609 (5th Cir. 2012), Simmons v. Sabine River Authority
Louisiana, 732 F.3d 469, 473 (5th Cir. 2013). However, the normal rules of
evaluating a Rule 12(b)(6) motion still apply. When considering such a motion,
the court must limit itself to the contents of the pleadings, including any
attachments thereto. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000). The court must accept all well-pleaded facts as true, and it must
view them in the light most favorable to the plaintiff. In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotations
omitted), quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369
F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
Conclusory allegations and unwarranted deductions are not accepted as true, and
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007), quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct.
2932, 92 L.Ed.2d 209 (1986).
The Applicable Substantive Law:
Federal preemption occurs when Congress expressly prohibits state
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regulation and the intent of Congress to preempt state law is clear and explicit, or
when Congress pervasively occupies a field of regulation and thereby implicitly
leaves no room for state regulation, or when state law actually conflicts with
federal law. See Friberg v. Kansas City Southern Railway Company, 276 F.3d
439, 442 (5th Cir. 2001) (citing English v. General Electric Co., 496 U.S. 72, 79,
110 S.Ct. 2270, 2275, 110 L.Ed.2d 65(1990)). The preemption analysis “starts
with the assumption that the historic police powers of the States are not to be
superseded by...Federal Act unless that is the clear and manifest purpose of
Congress. Accordingly, [t]he purpose of Congress is the ultimate touchstone of
pre-emption analysis.” Cipolline v. Liggett Group, Inc., 505 U.S. 504, 516, 112
S.Ct. 2609, 2617, 120 L.3d.2d 407 (1992). The critical question in any
preemption analysis is whether Congress intended that federal regulation
supersede state law. Louisiana Public Service Commission v. Federal
Communications Commission 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90
L.Ed.2d 369 (1986). “[W]hen the text of a pre-emption clause is susceptible of
more than one plausible reading, courts ordinarily ‘accept the reading that
disfavors pre-emption.’” Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538,
543, 172 L.Ed.2d 398 (2008) (quoting Bates v. Dow Agrosciences LLC, 544 U.S.
431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687(2005)). Thus, “the presumption
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operates both to prevent and to limit preemption.” Franks Investment Company
LLC v. Union Pacific Railroad Co., 593 F.3d 404, 407 (5th Cir. 2010) (en banc).
The ICCTA provision relied upon by BNSF, 49 U.S.C. §10501, provides in
part:
(b) The jurisdiction of the Board1 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.
BNSF contends that, since the drainage structure is a part of the railroad
roadbed and structural device which holds up the trains and train tracks, the
culvert is part of the railroad ‘facility’ that comes under the ICCTA preemption
provision. BNSF asserts there are enough factual allegations on the face of the
pleadings to place the controversy squarely within ICCTA express preemption.
1
The “Board” is the Surface Transportation Board. 49 USCA 10102(1). The Board
is an agency within the United States Department of Transportation with authority to
regulate all aspects of railroad operations.
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In Franks, an en banc panel of the Fifth Circuit adopted the reasoning
expressed by the Eleventh Circuit and held for there to be express preemption
under the ICCTA, the remedies sought must be “provided under laws that have the
effect of regulating rail transportation.” Franks, 593 F.3d at 410 (emphasis in
original). In joining the Eleventh Circuit, the court pointed out a number of other
circuits have explicitly adopted the following reasoning:
Congress narrowly tailored the ICCTA pre-emption
provision to displace only ‘regulation,’ i.e., those state
laws that may reasonably be said to have the effect of
‘manag[ing]’ or ‘govern[ing]’ rail transportation, ...while
permitting the continued application of laws having a
more remote or incidental effect on rail transportation.
Id., quoting Florida E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324,
1331(11th Cir. 2001).2
The court identified the two types of state actions which are “categorically
preempted” by the ICCTA because they would directly conflict with exclusive
federal regulation of railroads and by their “very nature be ‘unreasonable
interference with interstate commerce.’” Specifically, “state or local permitting or
preclearance that, by its nature, could be used to deny a railroad the ability to
2
The other circuits identified by the Fifth Circuit are the Fourth in PCS
Phosphate Co. v. Norfolk Southern Corp. 559 F.3d 212, 218 (4th Cir. 2009); the Sixth in
Adrian & Blissfield R.R.Co. v. Village of Blissfield, 550 F.3d 533, 539 (6th Cir. 2008); and
the Third in N.Y. Susquehanna & Western Ry. Co. v. Jackson, 500 F.3d 238,252, 254 (3d
Cir. 2007)). Franks, 593 F.3d 410 FN. 2.
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conduct some part of its operations or to proceed with activities the Board has
authorized. . .[and] state or local regulation of matters directly regulated by the
Board - such as the construction, operation, and abandonment of rail lines; railroad
mergers, line acquisitions, and other forms of consolidation; and railroad rates and
services.” Franks, 593 F.3d at 410-411(quoting New Orleans & Gulf Coast Ry.
Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008)).
The plaintiffs do not allege claims based on defective design and
construction of the BNSF railroad or the railroad bed. The laws under which the
plaintiff seek a remedy in money damages are the tort laws of Louisiana found in
the Civil Code based on the failure of BNSF to properly maintain its culvert. The
plaintiffs have not sought removal or reconstruction of the culvert, they have not
sought injunctive relief, and they have not sought a court directive that BNSF take
any other action relative to the culvert, the roadbed or the rail tracks.
Consequently, since there is nothing about the plaintiff’s remedy that has the
effect of regulating rail transportation, the express preemption under the ICCTA
does not apply.
BNSF next argues that even if preemption is not applicable under provisions
of the ICCTA, the claims of the plaintiffs are nevertheless preempted by the
“sweeping express preemption clause” of the Federal Railroad Safety Act (FRSA)
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at 49 U.S.C. §20101 et seq. The FRSA vests in the Secretary of Transportation
broad powers to prescribe regulations for “every area of railroad safety.” 49 U.S.C.
§20103(a). The FRSA preemption provision found at 49 U.S.C. §20106 provides:
(a) National uniformity of regulation.--(1) Laws, regulations, and
orders related to railroad safety and laws, regulations, and orders
related to railroad security shall be nationally uniform to the extent
practicable.
(2) A State may adopt or continue in force a law, regulation, or order
related to railroad safety or security until the Secretary of
Transportation (with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect to railroad security
matters), prescribes a regulation or issues an order covering the
subject matter of the State requirement. A State may adopt or
continue in force an additional or more stringent law, regulation, or
order related to railroad safety or security when the law, regulation, or
order-(A) is necessary to eliminate or reduce an essentially local safety or
security hazard;
(B) is not incompatible with a law, regulation, or order of the United
States Government; and
(C) does not unreasonably burden interstate commerce.
Consistent with the preemption provision, BNSF notes that the Secretary of
Transportation has long regulated the construction and maintenance of railroad
tracks and roadbeds, including regulations directly aimed at ensuring proper
drainage of track areas. A specific regulation addressing drainage issues is set out
at §213.33 of the “Track Safety Standards” regulation:
Each drainage or other water carrying facility under or immediately
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adjacent to the roadbed shall be maintained and kept free of
obstruction, to accommodate expected water flow for the area
concerned.
According to BNSF, since FRSA regulations “cover” the manner in which
railroads design and construct their roadbeds and tracks, and specifically address
drainage, a state action purporting to affect how a railroad’s roadbed or track is
designed, constructed and maintained or how drainage for the roadbed is to be
designed, constructed or maintained is preempted.
BNSF acknowledges in a footnote that the FRSA was amended in 2007 to
“clarify circumstances in which FRSA preemption does not extend to bar a state
cause of action” but contends that the clarifications do not reach the issues
presented in this case. This Court disagrees and concludes the allegations bring
this claim within the scope of the savings clause of the FRSA, also at 49 U.S.C.
§20106, which provides:
(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-(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
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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.
Under this amendment, even though §213.33 may “cover” railroad safety
since it pertains to maintenance of drainage areas along a railroad bed, a plaintiff
may still bring a claim for property damage if a party has “failed to comply with
the Federal standard of care established by the regulation.” Although the plaintiffs
do not specifically allege that BNSF failed to conform to the standard set forth in
§213.33, one could infer that the regulation provides the standard of care under
which the actions of BNSF are to be judged for negligence, i.e. the railroad shall
maintain the drainage or other water carrying facility and keep it free of
obstruction, “to accommodate expected water flow for the area concerned.”
Having drawn this inference, it should not be necessary to determine whether the
regulation “covers” the plaintiffs’ claims.
The Third Circuit analyzed the effect of the amendment in Zimmerman v.
Norfolk Southern Corp., 706 F.3d 170 (3d Cir. 2013). The court set forth a twostep analysis in which it first asked “whether the defendant allegedly violated
either a federal standard of care or an internal rule that was created pursuant to a
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federal regulation. If so, the plaintiff’s claim avoids preemption. . .Otherwise we
move to the second step and ask whether any federal regulation covers the
plaintiff’s claim.” Id., at 178 (citations omitted).
In the more recent decision of MD Mall Associates, LLC v. CSX
Transportation, Inc., 715 F.3d 479 (3d Cir. 2013), cert. denied, 2014 U.S. LEXIS
530 (January 13, 2014), the court considered the application of the amendment to
the specific regulation at issue in this case, 49 C.F.R. §213.33. Applying the
second step of the analysis, the court held that a state law claim for injunctive
relief to eliminate storm water runoff from a concrete spillway that was
constructed as part of the railroad drainage system was not preempted. In a
footnote, the court drew the distinction between the types of claims that fall under
the first step of the analysis and those that fall under the second:
The universe of possible claims can be thought of as fitting within
three categories: first, those, like the ones in Zimmerman, that depend
upon the breach of a standard set by federal law (or adopted by a
railroad from federal law) as the basis of liability and are thus not
preempted; second, those that depend on state law as the basis for
liability but which are preempted because there is an applicable
FRSA regulation that entirely covers the plaintiff's claim; and, third,
those that depend on state law and are not preempted because there is
no such regulation. The first Zimmerman question seeks to discover
which claims fall within the first category, and the second
Zimmerman question brings to light the claims that fall within the
latter two categories.
MD Mall Associates LLC v. CSX Transportation, 715 F.3d at 488, fn 7.
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Applying the second part of the analysis, the MD Mall court found the
claims asserted by the plaintiff were not preempted because the regulation did not
cover the claims. Specifically, applying the presumption against preemption, the
court would not “read the silence of §213.33 on a railroad’s duties to its neighbors
when addressing track drainage as an express abrogation of state storm water
trespass law.” Id., at 491. Second, the court found the harm sought to be avoided
by §213.33 (avoiding water pooling on the railroad track) was “wholly different
than the harm alleged by MD Mall (storm water trespass).” Id. at 491-92.
This Court concludes the analysis espoused by the Third Circuit is
persuasive, and under either step, the claims of the plaintiffs against BNSF are not
preempted based on the factual allegations contained in the complaint. There is no
indication in this regulation that the Louisiana Civil Code article pertaining to
negligence claims should be preempted. The plaintiffs have not sought removal,
redesign or reconstruction of the culvert or any other form of injunctive relief.
They seek nothing which would affect the safety of rail transportation caused by
water impacting the integrity of the rail system - the harm the regulation is geared
toward. Rather, they seek monetary damages caused by the alleged failure of
BNSF to do what federal regulations require it to do. Thus, under either analysis
preemption is not applicable.
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Conclusion
Applying the requisite narrow view of preemption and its application, and
finding no clear indication of the intent by Congress to preempt the types of
negligence claims articulated by the plaintiffs, preemption is not applicable under
either ICCTA or the FRSA. Therefore, the Motion to Dismiss is DENIED.
Signed at Lafayette, Louisiana this 1st day of May, 2014.
___________________________________
Patrick J. Hanna
United States Magistrate Judge
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