Melton Properties, LLC et al v. Illinois Central Railroad Company et al

Filing 93

ORDER granting 80 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Debra M. Brown on 11/14/19. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MELTON PROPERTIES, LLC., et al.

PLAINTIFFS

V.

NO. 4:18-CV-79-DMB-JMV

ILLINOIS CENTRAL RAILROAD
COMPANY, et al.

DEFENDANTS

ORDER
Before the Court is Canadian National Railway’s motion to dismiss for lack of personal
jurisdiction or, alternatively, for failure to state a claim. Doc. #80.
I
Procedural History
On March 27, 2018, Melton Properties, LLC; Floyd M. Melton, Jr.; Floyd M. Melton III;
Moss B. Melton (collectively, “Melton Plaintiffs”); McMillan Acres; Danny Hargett; Jane Hart
McMillan Hargett; and David Hargett filed this action in the United States District Court for the
Northern District of Mississippi against Illinois Central Railroad Company; Canadian National
Railway; Union Tank Car Company, Inc.; and certain fictitious parties. Doc. #1. The complaint,
as amended,1 asserts state and federal claims arising from a toxic spill caused by a March 30, 2015,
derailment of a railcar owned by Union Tank, which was being transported by “Illinois Central
and/or Canadian National” on tracks “owned by Illinois Central and/or Canadian National.” Doc.
#92 at ¶¶ 14–15, 36–114. The plaintiffs, all property owners near the site of the spill in Leflore
County, Mississippi (known as the Minter City site), also assert claims related to the remediation
of the spill. Id. at ¶¶ 69–72.

1

On November 6, 2019, the Court directed the plaintiffs to file an amended complaint to correct deficiencies in the
jurisdictional allegations. Doc. #91. The plaintiffs filed the amended complaint two days later. Doc. #92. But for
the corrections to the jurisdictional allegations, the two pleadings are identical.

On August 23, 2018, Canadian National filed a motion to dismiss for lack of personal
jurisdiction or, alternatively, for failure to state a claim. Doc. #31. Approximately a month later,
United States Magistrate Judge Jane M. Virden, on the plaintiffs’ motion, authorized the following
jurisdiction-related discovery:
Plaintiffs will be allowed to propound up to 20 Interrogatories, 20 Requests for
Production, and 20 Requests for Admission to each Defendant, and the Defendants
shall respond thereto within thirty (30) days, in accordance with the Federal Rules
of Civil Procedure. Should it desire to do so, Canadian National Railway Company
may propound a similar number of written discovery items in compliance with the
provisions of this paragraph.
The Plaintiffs will also be allowed to depose under Rule 30(b)(6), Fed.R.Civ.P., the
corporate representative(s) of Illinois Central Railroad Company (Illinois Central”)
and Canadian National Railway Company during the discovery period.
Prior to taking a Rule 30(b)(6) deposition of Canadian National Railway Company
and/or Illinois Central, Plaintiffs may depose, and/or subpoena documents as may
be necessary from the following individuals: Nathan Judice, Anthony Dale, David
Smith, Charles Brown, and Patrick Waldron. Based upon Canadian National
Railway Company’s discovery responses and/or the depositions or subpoena
responses of all or some of the above-named individuals and/or Canadian National
Railway Company and/or Illinois Central, Plaintiffs and Defendants may agree to
additional discovery within the discovery period. However, if no agreement is
possible, Plaintiffs may seek relief from the Court by motion.
Defendant Canadian National Railway Company will be allowed to depose at its
discretion Floyd Melton, III during the 60-day discovery period, since he submitted
an Affidavit in Opposition to the Motion to Dismiss. The parties may obtain
documents from third parties by subpoena as deemed necessary.
Doc. #40 at 3–4. Due to the ongoing jurisdictional discovery, this Court denied without prejudice
Canadian National’s motion to dismiss. Doc. #51.
On March 26, 2019, after the close of jurisdictional discovery, Canadian National filed a
motion to dismiss for lack of personal jurisdiction or, alternatively, for failure to state a claim.

2

Doc. #80. The motion has been fully briefed. See Docs. #81, #83, #90.2
II
Personal Jurisdiction Standard3
To defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff, in the absence
of an “evidentiary hearing,” “bears the burden of establishing only a prima facie case of personal
jurisdiction.” Carmona v. Leo Ship Mgmt., Inc., 924 F.3d 190, 193 (5th Cir. 2019). In making
this determination, a court must “accept the plaintiff’s uncontroverted, nonconclusional factual
allegations as true and resolve all controverted allegations in the plaintiff’s favor.” Id. When there
has been an evidentiary hearing, the plaintiff must establish jurisdiction by a preponderance of the
evidence. Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241–42 (5th
Cir. 2008). A party receives an evidentiary hearing when it is “allowed to submit affidavits and to
employ all forms of discovery, subject to the district court’s discretion and as long as the discovery
pertains to the personal-jurisdiction issue,” and when a hearing with live testimony is provided if
warranted and “requested.” Id.; see In re Chinese-Manufactured Drywall Prods. Liab. Litig., 742
F.3d 576, 583 n.7 (5th Cir. 2014) (affirming district court “determin[ation] that it had held an
evidentiary hearing on discovery because it relied on discovery evidence, including depositions”);
see generally SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 356 (6th Cir. 2014) (“When …
the district court allows discovery on the motion, the court should consider the facts offered by
both parties and rule according to the preponderance of the evidence.”). Live testimony is
warranted if it “would help resolve factual disputes dispositive of the jurisdictional question ….”
Walk Haydel, 517 F.3d at 242.

2
Canadian National was directed to re-file its reply brief in compliance with Local Rule 7(b)(5)’s page limit
requirements. See Doc. #89.
3

A court should resolve a motion to dismiss for lack of personal jurisdiction before addressing a motion to dismiss
for failure to state a claim. Pervasive Software Inc. v. Lexware GmbH & Co. Kg, 688 F.3d 214, 232 (5th Cir. 2012).

3

Here, the parties were granted substantial and largely unfettered jurisdictional discovery
over a two-month period, which included the right to conduct Rule 30(b)(6) depositions and to
issue twenty requests for admission, twenty interrogatories, and twenty requests for
production. Jurisdictional discovery was conducted within the allowed parameters during that
two-month period and beyond.4 No party has objected to the adequacy of this discovery or has
requested a live evidentiary hearing. Furthermore, the record as presented reveals no disputed
dispositive issue of fact which live testimony would help resolve. Accordingly, under these
circumstances, the Court concludes that an evidentiary hearing was afforded and that, therefore,
the preponderance of evidence standard applies.
III
Jurisdictional Facts
As discussed below, jurisdiction over Canadian National involves two factual inquiries:
(1) Canadian National’s corporate structure and general involvement in Illinois Central’s
operations and (2) Canadian National’s specific involvement in the cleanup of the spill at issue
here.
A. Corporate Structure and Operation
Canadian National is a Canadian corporation operating as a railroad in Canada which
maintains its principal place of business in Montreal, Canada. Doc. #80-1 at ¶¶ 3–4. The entity is
not registered to do business in Mississippi, has no employees in Mississippi, owns no land or
tracks in Mississippi, and does not maintain an agent for service in Mississippi. Id.
Illinois Central is an Illinois corporation with its principal place of business in Illinois. Id.
at ¶ 5. Illinois Central is connected to Canadian National through the following corporate

4

See Docs. ##41–47, #49, #50, ##52–56, #77, #78.

4

structure: (1) Illinois Central is a wholly-owned subsidiary of Illinois Central Corporation; (2)
Illinois Central Corporation is a wholly-owned subsidiary of CN Financial Services VIII LLC; (3)
CN Financial is a wholly-owned subsidiary of Grand Trunk Corporation; (4) Grand Trunk is a
wholly-owned subsidiary of North American Railways, Inc.; (5) North American Railways is a
wholly-owned subsidiary of Canadian National. Id. at ¶ 6.
From approximately 1998 until July of 2004, Illinois Central did business under the names
“Canadian National/Illinois Central Railroad” or “CN/IC.” Id. at ¶ 8. It does, however, use and
operate under the trade name “CN” and utilize a “CN” logo. Id. Notwithstanding utilization of
the CN trade name, Illinois Central maintains its own articles of incorporation and corporate
records, conducts meetings with its board of directors, and makes required corporate filings. Id.
at ¶ 10.
Canadian National and its wholly owned subsidiaries (collectively, “CN Entities”) together
operate rail operations in Canada and the United States “as one business segment.” Doc. #83-14
at 13. To this end, the CN Entities utilize a shared “Safety Management System (SMS).” Doc.
#83-15 at 113. As a part of the shared operations, which are conducted under the CN name, the
CN Entities employ “Wi-Tronix,” “a locomotive telemetry system” which transmits train
information to a shared regional operations center in Homewood, Illinois. Id. at 28; Doc. #83-16
at 22. In addition to SMS, the CN Entities maintain a CN portal website,5 owned and operated by
Canadian National, which allows customers to access services provided by the CN Entities as a
whole. Doc. #83-17 at 1; Doc. #83-18 at 4; Doc. #83-16 at 12. Although it appears various
subsidiaries employ their own police forces, “administrative responsibility for oversight” of the

5

Illinois Central employees also appear to use the Canadian National domain for their e-mail addresses. See Doc.
#83-1 at ¶ 5.

5

police force rests with a Canadian National employee.6 Doc. #83-16 at 12–14.
B. Case-Specific Facts
It is undisputed that the railroad tracks and railroad right-of-way at the location of the
derailment are owned by Illinois Central. Doc. #80-2. It is also undisputed that none of the ten
railroad cars involved in the derailment were owned by Canadian National. Doc. #80-3. Further,
it is undisputed that Canadian National did not operate the train involved in the derailment. Doc.
#80-1 at ¶ 4.
During the relevant time period, primary responsibility for “emergency response and
remediation actions” at the derailment site rested with three Illinois Central environmental
managers—Charles Brown, Robert Strong, and Joe Phelps. Doc. #80-18 at 1–2. These employees
were managed by Devin Sprinkle, Illinois Central’s Regional Manager – Environment. Id.
In his role as regional manager, Sprinkle made “day to day decisions with regard to the …
Derailment usually after consultation” with Brown, Strong, and Phelps. Id. at 2. Sprinkle was
also responsible for liaising with Normand Pellerin, Canadian National’s Assistant Vice President
– Environment, on the remediation efforts. Id. According to Sprinkle, it was (and remains)
necessary to keep Pellerin, who Sprinkle referred to as his “supervisor,”7 advised as to Illinois
Central’s “intended remediation actions in order to administer a budget and to secure approval of

6

In opposition to the motion to dismiss, the plaintiffs contend that “CNRC personnel … regularly visited Mississippi
to direct and/or assist with responses to derailments and other emergencies” and that “it was standard operating
procedure … that CNRC personnel would make final decisions regarding the companies’ course of action after
emergencies ….” Doc. #83 at 9. As support for these assertions, the plaintiffs submitted an affidavit of James Matthew
Hudson, an inspector with Illinois Central’s Mississippi operations from 2004 until 2012. See Doc. #83-22 at ¶ 1.
Canadian National argues the affidavit is “false” because “[w]hile Hudson swears that numerous unnamed CNRC
employees were on site and directed response and remediation efforts at prior events, Hudson identifies only two (2)
of these CNRC employees,” one of whom was actually employed by Illinois Central during the relevant time period.
Doc. #90 at 11–12. While the Court does not believe that a failure to recall names or the misidentification of an
employee renders the affidavit false as a whole, the document, as explained below, is of limited value.

7

Doc. #83-5.

6

the funding of such a major project.” Id.
Throughout the course of remediation efforts, Brown made initial decisions regarding costs
for mediation. Doc. #80-9 at 23–24. These decisions were reviewed by Sprinkle, who would
make “technical adjustment[s],” and then forwarded to Pellerin and Stella Karnis8 for ultimate
approval. Id. at 23–25. For example, Pellerin was asked to authorize overtime for Illinois Central
employees;9 and to authorize soil purchases at the derailment site.10 In this regard, Pellerin
received updates on the remediation plans for the derailment site,11 and inquired about the viability
of potential courses of action.12 When vendors submitted invoices over budget, Pellerin demanded
explanations from Sprinkle.13 Doc. #83-11; Doc. #80-18 at 5. However, according to Brown,
neither Pellerin nor Canadian National as a company “made decisions or issued directives
concerning remediation efforts or future remediation efforts.”14 Doc. #90-1 at 2. Indeed, despite

8
Stella Karnis “manages the … financial aspects” of the “Minter City Project.” Doc. #80-9 at 19, 23–25. It is unclear
whether she is an employee of Canadian National or Illinois Central.
9

Doc. #83-6.

10

See Docs. #83-12, #83-13, #80-18 at 5.

11

See Docs. #83-9, #83-4, #83-8, #83-10.

12

See Doc. #83-7.

13

The plaintiffs have submitted an e-mail chain in which (1) Canadian National’s Accounts Payable office e-mailed
Robert Strong stating, “Can you please get the approval from your Senior Manager to have this vendor [Enhanced
Environmental & Emergency Response Services] created. All new vendor request [sic] under Operations now need to
be approved by the Senior Manager;” (2) Strong e-mailed Sprinkle stating, “This was for the carbon setup at Minter
City. Please handle for approval;” and (3) Sprinkle e-mailed Craig Williston (an employee whose position is unclear),
with Pellerin and Strong copied stating, “I hereby approve the use of this vendor. I’ve copied Normand. Please advise
if the approval must gone [sic] from his level.” Doc. #83-3. The plaintiffs contend “[t]his email … illustrates
Sprinkle’s understanding that CNRC personnel had input into the selection of specific vendors.” Doc. #83 at 2–3.
The e-mail chain does not illustrate this point. Sprinkle submitted an affidavit stating that the e-mail did not refer to
selection of a vendor but rather “concerned getting this company, who was new to the CN system, set up in the
computer system such that it could submit its invoices….” Doc. #80-18 at 3. This assertion is supported by the text
of the e-mail chain, which specifically refers to the creation of the vendor.
14

The plaintiffs argue the evidence shows a greater degree of control because on numerous occasions, Brown referred
to business decisions, including decisions related to remediation, being made in “Montreal.” Doc. #83 at 2–3 (citing
Doc. #83-1 at 1–2). In response, Brown submitted an affidavit stating that his references to Montreal “concerned the
fact that it is one of Devin Sprinkle’s duties to keep the parent corporation advised” and that it was necessary to keep
Montreal informed “in order to secure … budgetary authority for remediation activities ….” Doc. #90-1 at 2. Brown’s
explanation for the “Montreal” references is consistent with the weight of evidence, which shows that Canadian
National’s involvement was limited to budgetary decisions.

7

his budgetary concerns, Pellerin never rejected a proposed expenditure from the Illinois Central
employees. Doc. #80-9 at 24.
IV
Personal Jurisdiction
“Generally, a federal court may assert personal jurisdiction if the state long-arm statute
permits jurisdiction and the exercise of such jurisdiction would not violate due process.” Conn
Appliances, Inc. v. Williams, 936 F.3d 345, 347 (5th Cir. 2019).
A. Long-Arm Statute
Under the personal jurisdiction analysis, a court must “first examine whether [a]
defendant[] [is] amenable to suit under the Mississippi long-arm statute.” ITL Int’l Inc. v.
Constenla, S.A., 669 F.3d 493, 496–97 (5th Cir. 2012).
Mississippi’s long arm statute provides in relevant part:
Any nonresident person, firm, general or limited partnership, or any foreign or other
corporation not qualified under the Constitution and laws of this state as to doing
business herein, who shall make a contract with a resident of this state to be
performed in whole or in part by any party in this state, or who shall commit a tort
in whole or in part in this state against a resident or nonresident of this state, or who
shall do any business or perform any character of work or service in this state, shall
by such act or acts be deemed to be doing business in Mississippi and shall thereby
be subjected to the jurisdiction of the courts of this state.
Miss. Code Ann. § 13–3–57. “The three prongs of the long-arm statute are commonly referred to
as the contract prong, the tort prong, and the doing-business prong.” ITL Int’l, 669 F.3d at 497.
The plaintiffs assert jurisdiction under the tort prong and the doing-business prong. See Doc. #83
at 12–14.
1. Tort prong
“Under the tort prong of the Mississippi long-arm statute, personal jurisdiction is proper if
any element of the tort (or any part of any element) takes place in Mississippi.” Allred v. Moore
8

& Peterson, 117 F.3d 278, 282 (5th Cir. 1997). The “long-arm statute contains no requirement
that the part of the tort which causes the injury be committed in Mississippi. Rather, … a tort is
committed in Mississippi when the injury results in this State.” Horne v. Mobile Area Water &
Sewer Sys., 897 So. 2d 973, 977 (Miss. 2004) (citation omitted). However, the statute requires the
existence of an actual tortious act.

See Mortensen Constr. & Util., Inc. v. Grinnell Mut.

Reinsurance Co., 718 F. Supp. 2d 781, 784 (S.D. Miss. 2010) (“Even assuming it could be fairly
said that some part of Grinnell's investigation of AT&T’s claim occurred in Mississippi, that would
not support an exercise of personal jurisdiction under the tort prong of the long-arm statute, as
Mortensen has not alleged that Grinnell committed any tort in connection with its investigation.”).
The tortious act must be attributable to the defendant. See Canadian Nat’l Ry. Co. v. Waltman, 94
So. 3d 1111, 1119–20 (Miss. 2012) (no personal jurisdiction over parent for acts of subsidiary).
The plaintiffs assert jurisdiction under the tort prong because “[t]he complaint alleges that
CNRC committed a tort in Mississippi when CNRC, by its participation in the decision-making
process, caused or contributed to the emergency response and/or remediation being performed
below industry standards, and/or in a grossly negligent fashion, leaving the property contaminated
rather than in its pre-accident condition.” Doc. #83 at 12.
Ordinarily, a parent corporation may be said to act only if it acted on its own. See Janssen
Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 63 (Miss. 2004) (direct liability for parent when
parent “actively participated” in the alleged wrongful conduct). However, courts have held that
“parents may be ‘directly’ liable for their subsidiaries’ actions when the ‘alleged wrong can
seemingly be traced to the parent through the conduit of its own personnel and management,’ and
the parent has interfered with the subsidiary’s operations in a way that surpasses the control
exercised by a parent as an incident of ownership.” Pearson v. Component Tech. Corp., 247 F.3d
9

471, 471 (3d Cir. 2001) (quoting United States v. Bestfoods, 524 U.S. 51, 64 (1998)). To invoke
this exception, the parent must have “forced the subsidiary to take the complained-of action, in
disregard of the subsidiary’s distinct legal personality.” Id. Activities “consistent with the parent’s
investor status, such as monitoring of the subsidiary’s performance, supervision of the subsidiary’s
finance and capital budget decisions, and articulation of general policies and procedures, should
not give rise to direct liability.” Bestfoods, 524 U.S. at 72.
Here, the plaintiffs have offered no evidence of a specific tortious act taken by Canadian
National itself. To the contrary, the evidence shows that remediation efforts which form the
subject of the claims asserted against Canadian National were formally undertaken by Illinois
Central. See Doc. #90-1 at 2–3. However, the plaintiffs, citing Forsythe v. Clark USA, Inc., 864
N.E. 2d 227, 237 (Ill. 2007), authority not binding on this Court, argue that Canadian National’s
involvement in Illinois Central’s decision-making renders it directly liable. Doc. #83 at 16–17.
In Forsythe, the estates of mechanics killed in a refinery accident sought to impose liability
against the refinery owner’s parent corporation on the theory that the parent, through specific
budget policies, “demanded [the subsidiary] operate its refinery pursuant to an overall business
strategy that it knew would adversely affect safety by forcing reductions in training and
maintenance.” 864 N.E. 2d at 232. In considering this argument, the Illinois Supreme Court,
relying on Bestfoods and other authorities, held:
Where there is evidence sufficient to prove that a parent company mandated an
overall business and budgetary strategy and carried that strategy out by its own
specific direction or authorization, surpassing the control exercised as a normal
incident of ownership in disregard for the interests of the subsidiary, that parent
company could face liability. The key elements to the application of direct
participant liability, then, are a parent’s specific direction or authorization of the
manner in which an activity is undertaken and foreseeability. If a parent company
specifically directs an activity, where injury is foreseeable, that parent could be held
liable. Similarly, if a parent company mandates an overall course of action and then
authorizes the manner in which specific activities contributing to that course of
10

action are undertaken, it can be liable for foreseeable injuries.
864 N.E. 2d at 237. Applying this standard, the Forsythe court held that if the parent’s officer
“directed or authorized the manner in which the budget cuts at issue were taken, knowing that
safety at the … refinery would be compromised, and did so superseding the discretion and interest
of [the subsidiary], direct participant liability could attach.” Id. at 240. Thus, to establish a directliability basis for liability under Forsythe, a plaintiff must show that (1) the parent company
mandated a particular strategy; and (2) the parent company implemented the strategy by specific
direction or authorization which surpassed “the control exercised as a normal incident of
ownership in disregard for the interests of the subsidiary.” Assuming such a basis exists, the
relevant conduct must be tortious. See id. at 237 (liability based on foreseeability of injury).
Assuming without deciding that Mississippi would recognize the forced-action theory of
parent liability, the plaintiffs have failed to establish by a preponderance of the evidence the facts
necessary for such liability. First, there is absolutely no evidence that Canadian National mandated
a strategy to Illinois Central. Even if it had, there is no evidence such a strategy was specifically
directed or authorized in a manner which exceeded the normal incident of ownership for a parent
corporation. Indeed, it appears that all decisions made by Canadian National related to Illinois
Central’s expenditures and that Canadian National never rejected a proposed expense. See
Bestfoods, 524 U.S. at 72 (listing “supervision of the subsidiary’s finance and capital budget
decisions” as activities “consistent with the parent’s investor status”). Finally, the plaintiffs have
not argued how the claimed injuries in this case were foreseeable from such conduct. In the
absence of such evidence, the tort prong does not apply in this case.
2. Doing-business prong
The doing-business prong, “by its plain terms, applies to any person or corporation
11

performing any character of work in th[e] state.” Estate of Jones v. Phillips ex rel. Phillips, 992
So. 2d 1131, 1139 (Miss. 2008). In invoking the doing-business prong, the plaintiffs argue:
CNRC’s business model, telemetry data system, CN Portal, CN Police, CN Logo,
and participation in past ICRR emergency responses all illustrate that CNRC
regularly does business in Mississippi. Combined with the evidence of CNRC’s
direct participation in the emergency response and remediation of the subject
derailment and spill, these factors illustrate that CNRC is subject to Mississippi’s
long-arm statute under the “doing business” prong ….
Doc. #83 at 14. Beyond citing the general standard for the doing-business prong, that quoted above
represents the plaintiffs’ entire argument on this point. In light of this cursory briefing, the Court
declines to consider the issue. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to … put flesh on its bones.”).
B. Due Process
Having found no jurisdiction under the tort and doing-business prongs of Mississippi’s
long-arm statute, the Court need not reach the issue of due process. See Cycles, Ltd. v. W.J. Digby,
Inc., 889 F.2d 612, 621 (5th Cir. 1989) (“There being no basis for jurisdiction under Mississippi
law as to any of the defendants in this case, we do not reach the question whether jurisdiction may
be asserted consistent with the due process clause of the fourteenth amendment to the United States
Constitution ….”). The Court, however, will address due process out of an abundance of caution.
“Due process requires that the defendant have minimum contacts with the forum state (i.e.,
that the defendant has purposely availed himself of the privilege of conducting activities within
the forum state) and that exercising jurisdiction is consistent with traditional notions of fair play
and substantial justice.” Sangha v. Navig8 ShipManagement Private Ltd., 882 F.3d 97, 101 (5th
Cir. 2018) (quotation marks omitted) (emphasis omitted). “Minimum contacts can give rise to
12

either specific jurisdiction or general jurisdiction.” Id. (quotation marks omitted). “Once a
plaintiff establishes minimum contacts between the defendant and the forum state, the burden of
proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable.”
Id. at 102.
1. General jurisdiction
General jurisdiction requires “continuous and systematic forum contacts and allows for
jurisdiction over all claims against the defendant, no matter their connection to the forum.” In re
DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 778 (5th Cir.
2018) (quotation marks omitted). “Establishing general jurisdiction is difficult and requires
extensive contacts between a defendant and a forum.” Sangha, 882 F.3d at 101–02 (quotation
marks omitted).
The plaintiffs argue Canadian National is subject to general jurisdiction in Mississippi
based on Canadian National’s (1) operation of the CN web portal; (2) use of the CN logo; (3)
purported “standard operating procedure” directing response activities; and (4) invoking “the
benefits and protections of the State of Mississippi by operating a private police force, whose
Mississippi-based officers are ultimately supervised by [Canadian National] Chief of Police and
Chief Security Officer Stephen Covey.” Doc. #83 at 19–20. The plaintiffs contend exercise of
jurisdiction based on the police force is particularly appropriate because railroad police “officers
in Mississippi are granted police powers pursuant to Mississippi statute.” Id. at 19 (citing Miss.
Code Ann. § 77-9-501, et seq.).15
First, “the Fifth Circuit has rejected the argument that a defendant’s internet presence

15

Despite suggesting the businesses are intertwined, the plaintiffs do not seek to impute Illinois Central’s contacts to
Canadian National.

13

within a forum state supports general jurisdiction.” Head v. Las Vegas Sands, L.L.C., 760 F. App’x
281, 284 n.3 (5th Cir. 2019) (citing Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir.
2014)).
Second, while presenting a “unified image to the public” may be relevant to the alter-ego
theory of general jurisdiction,16 the plaintiffs have not advanced such an argument. In the absence
of alter ego evidence, courts have declined to find sufficient contacts based on a shared use of a
trademark or logo. See, e.g., Herman v. YellowPages.com, LLC, 780 F. Supp. 2d 1028, 1034 (S.D.
Cal. 2011) (shared use of AT&T logo insufficient for general jurisdiction); U.S. ex rel Banigan v.
Organon USA Inc., No. 07-12153, 2012 WL 1190826, at *6 (D. Mass. Apr. 9, 2012) (“Relators
cite no relevant authority to support their claim that owning a trademark or logo is a ‘continuous
and systematic contact’ for general jurisdiction purposes. To find otherwise on these facts would
be to subject a parent company to potential liability whenever one of its subsidiaries uses the
parent’s mark or logo.”) (footnote omitted).
Third, the plaintiffs have failed to introduce sufficient evidence regarding Canadian
National’s involvement in clean-up actions. “General jurisdiction can be assessed by evaluating
contacts of the defendant with the forum over a reasonable number of years, up to the date the suit
was filed.” Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 716 (5th Cir. 1999).
This period is ordinarily approximately six years. See id. (considering time period between 1990
and 1996). The only evidence offered by the plaintiffs regarding Canadian National’s clean-up
involvement is an affidavit of James Matthew Hudson. To the extent Hudson left his employment
in 2012, the bulk of his experience is irrelevant to the general jurisdiction inquiry. More important,
while the affidavit refers to the general practice regarding Canadian National’s involvement in

16

See Hoffman v. United Telecomms., Inc., 575 F. Supp. 1463, 1472 (D. Kan. 1983).

14

remediation activities, it offers no evidence as to the frequency of such contacts. Without such
evidence, the affidavit is of little evidentiary value. See generally Johnston v. Multidata Sys. Int’l
Corp., 523 F.3d 602, 610 (5th Cir. 2008) (“[V]ague and overgeneralized assertions that give no
indication as to the extent, duration, or frequency of contacts are insufficient to support general
jurisdiction.”).
Fourth, while the plaintiffs have established evidence that Canadian National had
“administrative oversight” over Illinois Central’s police force in Mississippi, they have introduced
no evidence as to what this oversight entailed. As with the clean-up efforts, this failure to show
the extent of the contacts at issue precludes a finding of general jurisdiction.
In sum, the plaintiffs have introduced evidence showing some level of contacts between
Canadian National and Mississippi. This evidence, however, falls far short of the standard for
establishing general jurisdiction.
2. Specific jurisdiction
Specific jurisdiction requires only that the defendant have “purposefully direct[ed] his
activities toward the state” and that the plaintiff’s claim “arises out of or is related to the
defendant’s forum contacts.” DePuy, 888 F.3d at 778 (quotation marks and alterations omitted).
“In this circuit, specific personal jurisdiction is a claim-specific inquiry” such that “[a] plaintiff
bringing multiple claims that arise out of different forum contacts of the defendant must establish
specific jurisdiction for each claim.” McFadin v. Gerber, 587 F.3d 753, 759 (5th Cir. 2009).
In arguing specific jurisdiction, the plaintiffs rely on the Bestfoods/Forsythe theory of
direct liability, discussed above, to assert claims against Canadian National based on the
remediation efforts. Doc. #83 at 16–18. For the reasons above, the Court finds no specific
jurisdiction over such claims.
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V
Failure to State a Claim
Having found no personal jurisdiction over Canadian National, the Court declines to
address Canadian National’s alternative arguments related to the merits of the plaintiffs’ claims
against it. See Pervasive Software, 688 at 232 (“[W]e see no error in the district court’s decision
to dispose of the personal jurisdiction issue first and in not proceeding further after concluding that
it lacked personal jurisdiction over Lexware.”).
VI
Conclusion
Canadian National’s motion to dismiss [80] is GRANTED.
SO ORDERED, this 14th day of November, 2019.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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