Waneck et al v. CSX Corporation et al

Filing 146

Memorandum Opinion and Order Granting in Part and Denying Without Prejudice in Part Defendant CSX Transportation, Inc.'s Motion 9 to Dismiss Plaintiffs' Amended Complaint [1-1], and Granting in Part and Denying Without Prejudice in Part Defendant CSX Transportation, Inc.'s Motion 16 to Dismiss Cross-Claims 3 of Defendant Louis Ambrose, Jr. Signed by District Judge Halil S. Ozerden on March 29, 2018. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
STARR SWEARINGEN WANECK
AND JIMMY LEE WANECK

PLAINTIFFS

v.

CIVIL NO. 1:17cv106-HSO-JCG

CSX CORPORATION, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING WITHOUT PREJUDICE IN PART DEFENDANT
CSX TRANSPORTATION, INC.’S MOTION [9] TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT [1-1], AND GRANTING
IN PART AND DENYING WITHOUT PREJUDICE IN PART
DEFENDANT CSX TRANSPORTATION, INC.’S MOTION [16] TO
DISMISS CROSS-CLAIMS [3] OF DEFENDANT LOUIS AMBROSE, JR.
BEFORE THE COURT are Defendant CSX Transportation, Inc.’s Motion [9]
to Dismiss Plaintiffs’ Amended Complaint [1-1] and Motion to Dismiss [16] CrossClaims [3] of Defendant Louis Ambrose, Jr.

These Motions are fully briefed.

The

Court finds that Defendant CSX Transportation, Inc.’s Motions [9] [16] should be
granted in part and denied without prejudice in part.
I.
A.

RELEVANT BACKGROUND

Relevant Factual and Procedural History
This matter arises out of a collision that occurred on March 7, 2017, when a

charter bus, in which Plaintiffs Starr Swearingen Waneck and Jimmy Lee Waneck
(“Plaintiffs”) were passengers, became wedged on a railroad crossing on Main Street
in Biloxi, Mississippi (“Main Street crossing”), and was struck by a freight train
operated by Defendant CSX Transportation, Inc. (“CSXT”). Am. Compl. [1-1] at 4446. Plaintiffs were allegedly injured in the crash, and accordingly filed a

Complaint on March 10, 2017, in the Circuit Court of Harrison County, Mississippi,
Second Judicial District, followed by an Amended Complaint on March 20, 2017.
Notice of Removal [1] at 1.
The Amended Complaint, which remains the operative pleading in this case,
advances claims against Defendants CSX Corporation (“CSXC”) and CSXT as
owners/operators of the train; Defendants Echo Transportation Solutions, LLC
(“Echo”), and TBL Group, Inc. (“TBL”), as owners and operators of the charter bus
in which Plaintiffs were passengers; Defendant Diamond Tours, Inc. (“Diamond”),
which planned and promoted the trip; and Defendant Louis Ambrose, Jr.
(“Ambrose”), an employee of Echo and the driver of the charter bus.
[1-1] at 41-46.

Am. Compl.

Plaintiffs allege that Defendants breached their respective duties to

exercise reasonable care to avoid injuring or killing members of the public, and
raise claims for negligence, gross negligence, negligence per se, willful and wanton
conduct, recklessness, intentional conduct, and reckless and intentional disregard
for the safety of the traveling public. Id. at 46-56.

The Amended Complaint seeks

an award of actual and punitive damages and costs from Defendants, jointly and
severally. Id. at 56-58.
Plaintiffs’ claims against CSXT and CSXC are for breach of their duties to
“operate a train at a speed for the then existing conditions and be prepared to slow
or stop for any hazardous conditions;” failure to inspect, repair, and report unsafe

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crossings; intentional disregard for the safety of the traveling public; and failure to
adequately man their “dispatch center” and respond to calls about the charter bus
being stuck on the Main Street crossing. Id. at 47-53.

Plaintiffs allege that CSXT

and CSXC failed to properly maintain the Main Street crossing and allowed the
roadway on both sides of the tracks to be paved and repaved, resulting in a severe
incline or “hump,” which condition was not repaired to eliminate the hazardous
condition. Id.

Defendants further failed to operate their trains in such a manner

as to accommodate this dangerous condition. Id.
With respect to Echo, Diamond, and Ambrose, the Amended Complaint
alleges these Defendants were negligent in, among other things, failing to properly
operate the charter bus, causing it to become stuck on the Main Street crossing;
failing to properly plan the route; failing to abide by and observe railroad signals;
failing to yield the right of way to the train; and failing to abide by Mississippi
traffic laws. Id. at 53-55.
On April 11, 2017, Defendants CSXC and CSXT removed the case to this
Court based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331, on
grounds that Plaintiffs’ claims arise under “the Interstate Commerce Commission
[Termination] Act of 1995 (“ICCTA”), 49 U.S.C. §§ 10101, et seq.” and “the principles
of supplemental jurisdiction, 28 U.S.C. § 1367.”

Notice of Removal [1] at 2

(emphasis in original). Subsequent to removal, Ambrose, the driver of the charter

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bus, filed an Answer and Cross-Claims [3] against CSXT and CSXC.

Ambrose

advances essentially the same claims against CSXT and CSXC as those made by
Plaintiffs. Cross-cl. [3] at 11-27.
B.

CSXT’s Motions [9] [16] to Dismiss1
CSXT moves the Court to dismiss Plaintiffs’ Amended Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), Mot. to Dismiss [9], arguing that Plaintiffs’
purported tort claims are premised upon the rail crossing’s configuration,
maintenance, and operation such that they are completely preempted by the
ICCTA.

See CSXT Mem. in Supp. [10] at 1.

CSXT contends that the claims as to

train operations and CSXT’s obligations over rail crossings are preempted by the
Federal Railroad Safety Act of 1970 (“FRSA”), as amended, 49 U.S.C. §§ 20101, et
seq.

See id. In addition, CSXT takes the position that the Amended Complaint is

subject to dismissal because it does not state any facially plausible claims under
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See id. at 12-13. CSXT has also filed
a Motion [16] to Dismiss Cross-Claims of Defendant Ambrose, incorporating by
reference its Motion [9] to Dismiss Plaintiffs’ claims and supporting Memorandum

CSXC filed a separate Motion [7] to Dismiss the Amended Complaint and a
separate Motion [17] to Dismiss the Cross-Claims based upon lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). On September
21, 2017, the Court denied these Motions [7] [17], without prejudice to CSXC’s right
to reurge them upon completion of jurisdictional discovery, which is ongoing.
1

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[10] and arguing that Ambrose’s Cross-Claims should be dismissed for the same
reasons. Mot. to Dismiss [16] at 1-2. CSXT characterizes Plaintiffs’ and
Ambrose’s claims against it as follows:
The [amended] complaint takes aim at the Main Street crossing—
specifically, at CSXT’s configuration, care and maintenance of the
crossing. Plaintiffs contend that this rail crossing is “dangerous and
severely inclined or ‘humped,’” [Am. Compl.] ¶ 25; that the crossing is
“dangerous” due to “automated CSX railroad maintenance practices,”
id.; and that “[t]he Collision described in this Complaint is a direct and
proximate result of the negligence of the Defendant Railroad” in creating
a “severe incline or ‘hump,’” id. ¶ 44.
The complaint adds a series of alleged safety-related duties that
CSXT is said to have violated: supposed duties regarding train
operations, (id. ¶¶ 36-39); failure to inspect and repair unsafe crossing,
(id. ¶¶ 40-43); and failure to report unsafe conditions, (id. ¶¶ 51-54).
The complaint asserts common law claims of negligence, gross
negligence, (id. ¶¶ 35-54) and “Intentional Disregard For Public Safety,”
(id. ¶¶ 60-64) and seeks compensatory and punitive damages.
CSXT Mem. in Supp. [10] at 2-3 (footnote omitted).
Plaintiffs’ and Ambrose’s respective Responses [33] [19] in Opposition to
CSXT’s Motions are essentially identical and maintain that their claims against
CSXT are not preempted because they are “grounded in negligence or intentional
tort, both of which are time-honored creatures of Mississippi common law.”

Pls.

Resp. in Opp’n [33] at 1-2; Pls. Mem. in Opp’n [34] at 2; Ambrose’s Mem. in Opp’n.
[20] at 7-8.

They dispute that their claims concerning the Main Street crossing

relate in any way to its design or construction and insist their allegations are

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simply limited to maintenance of the crossing.

Plaintiffs further assert that their

“well-pled 18 page [Amended] Complaint set[s] forth specific, factual allegations
regarding CSXT’s duties and its violations thereof,” satisfying the requirements of
Federal Rule of Civil Procedure 8.
II. DISCUSSION
A.

Relevant Legal Standard
In considering a motion to dismiss under Rule 12(b)(6), the “[C]ourt accepts

‘all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (citation omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

Specifically, a plaintiff must plead “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.”

Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490, 498 (5th Cir.

2015).
The purpose of this requirement is “to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed.
2d 80 (1957)). The factual allegations in the complaint need only “be
enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. (footnote and citations omitted). “[D]etailed
factual allegations” are not required, but the pleading must present
“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173
L. Ed. 2d 868 (2009).
Id. (footnote omitted).
B.

Preemption under the ICCTA and the FRSA
CSXT contends that Plaintiffs’ and Ambrose’s claims relating to the

maintenance of the Main Street crossing are in fact claims pertaining to the design
and construction of the crossing such that they are completely preempted by federal
law.

CSXT Mem. in Supp. [10] at 8.

With respect to the claims that relate to the

configuration, operation, and maintenance of the Main Street crossing and related
rail structures, CSXT contends that Plaintiffs are attempting to interfere with
CSXT’s decisions on how to run “crossing-related aspects of its rail operations”
which is preempted by the ICCTA and/or FRSA. Id. at 7-8.

CSXT further

maintains that FRSA preempts the claims concerning train operations, the failure
to inspect and repair an unsafe crossing, unsafe crossing conditions, and the failure
to report unsafe conditions. Id. at 10.

Plaintiffs and Ambrose counter that they

have only raised state law causes of action sounding in tort and that CSXT is
attempting to rewrite their claims in order for them to be preempted.

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1.

The Doctrine of Preemption

Generally, “a plaintiff is the master of his complaint and may allege only
state law causes of action, even when federal remedies might also exist.” Elam v
Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011) (citing Bernhard v. Whitney
Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008)). Under the well-pleaded complaint
rule, a federal court does not have federal question jurisdiction unless a federal
question appears on the face of the plaintiff’s well-pleaded complaint. Id.
Accordingly, “there is no federal [question] jurisdiction if the plaintiff properly
pleads only a state law cause of action.” Gutierrez v. Flores, 543 F.3d 248, 252 (5th
Cir. 2008) (quoting Bernhard, 523 F.3d at 551).
The United States Court of Appeals for the Fifth Circuit has held that
[a]n exception to the well-pleaded complaint rule arises when
Congress “so completely preempt[s] a particular area that any civil
complaint raising this select group of claims is necessarily federal in
character.” Gutierrez, 543 F.3d at 252 (quoting Johnson v. Baylor
Univ., 214 F.3d 630, 632 (5th Cir. 2000)). Under the “complete
preemption” doctrine, “what otherwise appears as merely a state law
claim is converted to a claim ‘arising under’ federal law for jurisdictional
purposes because the federal statute so forcibly and completely displaces
state law that the plaintiff’s cause of action is either wholly federal or
nothing at all.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d
321, 330 (5th Cir. 2008) (internal quotation marks and brackets
omitted); see also Franks [Inv. Co, LLC v. Union Pac. R.R. Co.], 593 F.3d
[404,] at 407 (5th Cir. 2010)]. “The question in complete preemption
analysis is whether Congress intended the federal cause of action to be
the exclusive cause of action for the particular claims asserted under
state law.” Barrois, 533 F.3d at 331; see also Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 8, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003).

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Elam, 635 F.3d at 803.
Complete preemption must be distinguished from “defensive preemption”
(i.e., “conflict preemption” or “ordinary preemption”) which does not create federal
jurisdiction and simply “declares the primacy of federal law, regardless of the forum
or the claim.” Barrois, 533 F.3d at 331. Generally speaking, complete preemption
is less common and more extraordinary than defensive or ordinary preemption, and
it is therefore a narrow exception to the well-pleaded complaint rule. Elam, 635
F.3d at 803 (citation omitted). The party raising preemption bears the burden of
persuasion.
2.

Id. at 802 (citations omitted).
The ICCTA preempts Plaintiffs’ and Ambrose’s claims concerning the
physical characteristics and maintenance of the Main Street crossing
and related rail structures.

CSXT argues that Plaintiffs’ and Ambrose’s “improper maintenance claims”
are in actuality claims concerning the physical characteristics of the Main Street
crossing, including the configuration, operation, and maintenance of the crossing
and related rail structures.

CSXT Mem. in Supp. [10] at 1, 5-8.

As such, these

claims constitute an attempt to interfere with CSXT’s decisions on how to run
“crossing-related aspects of its rail operations” and are completely preempted by the
ICCTA. Id.
In Elam, the Fifth Circuit addressed a somewhat similar situation in which
the plaintiffs suffered injuries when their vehicle collided with a stalled train

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blocking a crossing. Elam, 635 F.3d at 801-02.

Plaintiffs in that case advanced

claims against the railroad for negligence per se under Mississippi’s antiblocking
statute, Mississippi Code § 77-9-235. Id. at 802.

In finding that such claims were

preempted, the Fifth Circuit held that
Effective January 1, 1996, the ICCTA abolished the Interstate
Commerce Commission (ICC) and created a new Surface Transportation
Board (STB) to regulate, inter alia, rail transportation in the United
States. 49 U.S.C. § 10501(a)(1); Friberg, 267 F.3d at 442. The purpose
of the ICCTA is to “build[] on the deregulatory policies that have
promoted growth and stability in the surface transportation sector.”
H.R. Rep. No. 104-311, at 93 (1995), reprinted in 1995 U.S.C.C.A.N. 793,
805.
With respect to rail transportation, the ICCTA seeks to
implement a “[f]ederal scheme of minimal regulation for this
intrinsically interstate form of transportation,” and to retain only
regulations “that are necessary to maintain a ‘safety net’ or ‘backstop’ of
remedies to address problems of rates, access to facilities, and industry
restructuring.” Id. at 93, 96; see also 49 U.S.C. § 10101(2).
The ICCTA creates exclusive federal regulatory jurisdiction and
exclusive federal remedies. Specifically, the ICCTA provides:
The jurisdiction of the [STB] 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

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transportation are exclusive and preempt the remedies
provided under Federal or State law.
49 U.S.C. § 10501(b).
Elam, 635 F.3d at 804-05; see also Franks Inv. Co, LLC v. Union Pac. R.R. Co., 593
F.3d 404, at 406-07 (5th Cir. 2010).
“Put another way, when a plaintiff’s tort claim directly attempts to manage
or govern a railroad’s decisions in the economic realm, that claim ‘is either wholly
federal or nothing at all.’”

Elam, 635 F.3d at 807 (quoting Barrois, 533 F.3d at

330). Elam concluded that by attempting to regulate in areas such as “switching
operations, and even a train’s length or speed, or how long a train may occupy a
crossing,” Mississippi’s antiblocking statute interfered with interstate commerce
and constituted a direct attempt to manage or govern a railroad’s decisions in the
economic realm. Id.
preempted.2
2001).

Plaintiffs’ negligence per se claims were therefore completely

Id.; see also Friberg v. Kan. City S. Ry., 267 F.3d 439, 442-44 (5th Cir.

The Fifth Circuit has subsequently determined that, just as a local attempt

to regulate the construction of rail lines is preempted, a city’s attempts to regulate
“the slope or other features of the embankments for the railroad tracks themselves

Elam remanded plaintiffs’ simple negligence claims to the district court for
further proceedings because they were not adequately briefed. Elam, 635 F.3d at
813-15.
2

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are expressly preempted.”

Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669

F.3d 525, 533 (5th Cir. 2012).
In this case, the Amended Complaint and the Cross-Claims assert that CSXT
was negligent in its maintenance of the Main Street crossing by adding layer after
layer of asphalt patches which ultimately resulted in a dangerous and severely
“humped” crossing, and that it was negligent in its operation of its trains over the
crossing. Am. Compl. [1-1] at 45, 47-53. CSXT argues that this is tantamount to
a claim regarding the design and construction of the crossing, making it subject to
preemption under the ICCTA.

The Court agrees. It is readily apparent that the

resolution of Plaintiffs’ and Ambrose’s claims against CSXT for negligence arising
out of the alleged “improper maintenance” of the Main Street crossing rests entirely
upon underlying issues of the crossing’s design, construction, and configuration.
These are the sort of claims Congress intended the ICCTA to preempt, namely state
law claims that directly attempt to manage or govern a railroad’s decisions in the
economic realm such as the construction and operation of tracks, scheduling, a
train’s length or speed, or how long a train may occupy a crossing. See Elam, 635
F.3d at 807; Friberg, 267 F.3d at 442-44.
The Court finds that Plaintiffs’ and Ambrose’s claims for “improper
maintenance” of the Main Street crossing are in substance and reality claims
arising out of the “design and construction” of the crossing, making them completely

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preempted by the ICCTA. Because permitting such claims to proceed would
“stand[] as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress” in enacting ICCTA, these claims should be dismissed.
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981)
(citation and internal quotation marks omitted).
3.

CSXT has not met its burden of establishing that the claims for
negligence such as the failure to slow the train, to apply the brakes, or
to be prepared to stop, are preempted by FRSA.

In 1970, Congress enacted the FRSA “to promote safety in all areas of
railroad operations and to reduce railroad-related accidents and incidents.” Ill.
Cent. R.R. Co. v. Cryogenic Transp, Inc., 901 F. Supp. 2d 790, 794 (S.D. Miss. 2012)
(quoting Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 347 (2000) (citing
Title 49 U.S.C. § 20101)).

“The FRSA grants the Secretary of Transportation

authority to ‘prescribe regulations and issue orders for every area of railroad safety,’
§ 20103(a), and directs the Secretary to ‘maintain a coordinated effort to develop
and carry out solutions to the railroad grade crossing problem,’ § 20134(a).”
Shanklin, 529 U.S. at 347.

Congress amended FRSA’s preemption provision in

2007 to clarify, in pertinent part, that FRSA does not preempt state tort claims for
“personal injury, death, or property damage” if a railroad defendant has failed to
comply with the federal standard of care, the railroad’s own plan or rules, or with a
state law that is not incompatible with the FRSA.

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Cryogenic, 901 F. Supp. 2d at

795-96 (citing § 20106).

The FRSA does, however, preempt state laws concerning

the maximum operating speeds for trains based upon the nature of the track on
which they operate as well as laws concerning the warnings required at that track’s
crossings. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 673-76 (1993).
Although FRSA preempts “excessive speed claims,” the duty to slow or stop a
train to avoid a specific, individualized hazard in order to avoid a collision has not
been held to be preempted. Hensling v. CSX Transp., Inc., 396 F.3d 632, 640 (5th
Cir. 2005) (quotations omitted) (citing Easterwood, 507 U.S. at 675).

The United

States District Court for the Southern District of Mississippi has affirmatively held
that, whether a train engineer breached a duty to respond appropriately to avoid a
collision where a vehicle was sitting on the tracks is not preempted because it does
not “impose a specific limit on the train’s operating speed, but rests on factual
issues to be decided by a jury as to whether the engineer’s efforts to avoid the
collision were sufficient.” Cryogenic, 901 F. Supp. 2d at 804.
Here, at this stage of the proceedings the Court is unable to say that
Plaintiffs’ and Ambrose’s negligence claims regarding CSXT’s duty to “operate a
train at a speed for the then existing conditions and be prepared to slow or stop for
any hazardous conditions,” CSXT’s alleged intentional disregard for the safety of
the traveling public, and CSXT’s purported failure to adequately man their
“dispatch center” and respond to calls about the charter bus being stuck on the

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Main Street crossing, are necessarily preempted by FRSA.3 Dismissal of these
claims pursuant to Rule 12(b)(6) would not be appropriate at this time. CSXT’s
Motions should be denied without prejudice in this respect.
III.

CONCLUSION

To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the outcome.

The

Court finds that CSXT’s Motions [9] [16] to Dismiss Plaintiff’s and Ambrose’s claims
of “improper maintenance” of the Main Street crossing should be granted and those
claims will be dismissed with prejudice. At this stage in the litigation, the Court
finds that Plaintiffs’ and Ambrose’s claims regarding CSXT’s duty to “operate a
train at a speed for the then existing conditions and be prepared to slow or stop for
any hazardous conditions,” CSXT’s alleged intentional disregard for the safety of
the traveling public, and CSXT’s purported failure to adequately man their
“dispatch center” and respond to calls about the charter bus being stuck on the
Main Street crossing, should not be dismissed.

CSXT’s Motions will be denied

without prejudice as to those claims.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant CSX
Transportation, Inc.’s Motion [9] to Dismiss Plaintiffs’ Amended Complaint [1-1]

The Court expresses no view on whether some of these claims may later be subject
to dismissal on a more developed record following the completion of discovery.
3

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and Motion to Dismiss [16] Cross-Claims [3] of Defendant Louis Ambrose, Jr., as
to Plaintiff’s and Ambrose’s claims for any “improper maintenance” of the Main
Street crossing are GRANTED and those claims are DISMISSED WITH
PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendant CSX
Transportation, Inc.’s Motion [9] to Dismiss Plaintiffs’ Amended Complaint [1-1]
and Motion to Dismiss [16] Cross-Claims [3] of Defendant Louis Ambrose, Jr., as to
Plaintiffs’ and Ambrose’s claims regarding CSXT’s duty to “operate a train at a
speed for the then existing conditions and be prepared to slow or stop for any
hazardous conditions,” CSXT’s alleged intentional disregard for the safety of the
traveling public, and CSXT’s purported failure to adequately man their “dispatch
center” and respond to calls about the charter bus being stuck on the Main Street
crossing, are DENIED WITHOUT PREJUDICE.
SO ORDERED AND ADJUDGED, this the 29th day of March, 2018.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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