Chefs' Warehouse Midwest, LLC v. CSX Transportation Inc

Filing 15

ORDER denying 3 Plaintiff's Motion for Temporary Restraining Order. Within 48 hours of the filing of this Order, the parties shall meet and confer and jointly submit via email to chambers ([e-mail]) a proposed expedited discovery schedule and briefing schedule to resolve Plaintiff's motion for a preliminary and/or a permanent injunction. Signed by Judge Timothy S. Black on 9/5/17. (gs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHEFS’ WAREHOUSE MIDWEST, LLC, :
:
Plaintiff,
:
vs.
:
:
CSX TRANSPORTATION, INC. ,
:
:
Defendant.
:

Case No. 1:17-cv-555
Judge Timothy S. Black

ORDER DENYING PLAINTIFF’S MOTION
FOR TEMPORARY RESTRAINING ORDER (Doc. 3)
This case is before the Court on Plaintiff’s motion for a temporary restraining
order (Doc. 3) and the parties’ responsive memoranda (Docs. 9, 10, 13).
I.

FACTS AS ALLEGED BY PLAINTIFF

A. Background.
Plaintiff owns property at 619 Linn St., Cincinnati, OH, comprised of Hamilton
County Parcel Identification Numbers 138-4-322, 138-5-138, 138-5-206, 138-5-240, 1385-254, 138-5-262, 138-5-263, 138-5-264, and 138-5-266 (collectively, the “Chefs’
Warehouse Site”). (Doc. 2 at ¶ 5).
Plaintiff operates a food distribution business at the Chefs’ Warehouse Site. (Doc.
2. at ¶ 8). Plaintiff and its predecessors-in-title have occupied and been title owners of
the Chefs’ Warehouse Site for at least forty years. (Id. at ¶ 13). Throughout this time,
Plaintiff and its predecessors-in-title have utilized an exit to the stub end of West Sixth
Street across property over which Defendant claims ownership. (Id. at ¶ 14).

Defendant owns Hamilton County Parcel Identification Number 138-5-208 (the
“CSX Parcel”). (Doc. 2 at ¶ 17).
The Chefs’ Warehouse Site has two access points to public streets: the first is on
the northwest end of the Site on Dalton Avenue (“Dalton Avenue Exit”), and the second
is on the southeast end of the Site just north of the stub of West Sixth Street (“West Sixth
Street Exit”). (Id. at ¶ 18). The southeast vehicular access utilized by Plaintiff for egress
extends from the Chefs’ Warehouse Site, crosses a small but critical portion of the CSX
Parcel, and proceeds on a portion of right of way that is a stub to West Sixth Street. (Id.
at ¶ 19). The West Sixth Street Exit is approximately 767 square feet in area. (Id. at
¶ 22).
Plaintiff (or its predecessors-in-title) has been in open, continuous, adverse,
notorious and actual use of the West Sixth Street Exit to, among other things, provide
daily egress access from the Chefs’ Warehouse Site by its employees, customers,
vendors, distributors, delivery trucks, and any other vehicles or individuals accessing the
Chefs’ Warehouse Site. (Doc. 2 at ¶ 23). Plaintiff’s use of the West Sixth Street Exit has
been adverse to any right, title and interest of Defendant. (Id. at ¶ 23). Hundreds of
vehicles per day use the West Sixth Street Exit and have done so for at least the past forty
years. (Doc. 2 at ¶ 25). Plaintiff’s use has been “open and notorious” because the West
Sixth Street Exit contains signage and asphalt markings. (Id. at ¶ 29; Id. at 30-31).
B. Facts giving rise to this dispute.
On July 14, 2017, Defendant wrote a letter to Plaintiff, claiming that a tractor
trailer using the West Sixth Street Exit damaged Defendant’s signal cable (“Signal
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Cable”). 1 (Doc. 2 at 33). Defendant demanded that Plaintiff immediately stop using the
West Sixth Street Exit:
In connection with railroad property at or near 619 Linn St., CSXT has
sited that several unauthorized tractor trailers are currently using CSXT
property for ingress/egress to the property located at 619 Linn St. CSXT
has never authorized the use of this property. CSXT has experienced
issues with a cable being knocked down at this location due to the
unauthorized use of CSXT property. Enclosed for reference is an aerial
map detailing your unauthorized access to, and use of, the Property.
CSXT hereby demands that you immediately stop use of the property.
CSXT expressly reserves all legal, equitable, and statutory rights and
remedies with respect to your trespass and unauthorized use of the Property
and any harm resulting therefrom, including any and all applicable civil
remedies and criminal penalties.
(Id.) (emphasis in original).
On or about July 24, 2017, Defendant barricaded the West Sixth Street Exit,
preventing vehicles attempting to access the Chefs’ Warehouse Site from using the exit.
(Doc. 2 at 33).
C. Plaintiff’s alleged harm.
The building at the Chefs’ Warehouse Site is “L-Shaped,” a portion of which
extends under the West Sixth Street overpass. (Doc. 2 at ¶ 35). There are loading docks
accessing the structure at the Chefs’ Warehouse Site on the west edge, across almost the
entire length of the south end of the building, and on the east edge of the structure facing
Linn Street, closest to the West Sixth Street Exit. (Id. at ¶ 36). The eastern end of the
building houses the freezer portion of Plaintiff’s operation. (Id. at ¶ 37). Plaintiff relies

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Defendant’s Signal Cable transmits information concerning track occupancy, switch
position and signal indication to wayside signals authorizing train moves, and to remote
dispatch centers to coordinate and plan train movements. (Doc. 1-4 at ¶ 19).
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on the use and availability of all loading docks at the Chefs’ Warehouse Site to perform
its business. (Id. at ¶ 38).
The blockading of the West Sixth Street Exit by Defendant has greatly reduced
accessibility to the Chefs’ Warehouse Site. (Doc. 2 at ¶ 40). Trucks coming to and
leaving the Chefs’ Warehouse Site have an extremely difficult time turning around on the
southeast portion of the site to exit on Dalton Avenue rather than utilize the West Sixth
Street Exit. (Id. at ¶ 41). For larger vehicles, such maneuvers are unsafe and/or
impossible. (Id.)
Plaintiff’s vendors have indicated that reduced access to the Site as a result of
Defendant’s blockade is a safety hazard to their drivers which may result in their refusal
to deliver to the Chefs’ Warehouse Site without additional warning. (Id. at ¶¶ 42-43).
The evidence Plaintiff submitted in support of this allegation is the affidavit of
Casey Corbly, Assistant Transportation Manager of Dot Foods, Inc. (“Dot Foods”).
(Doc. 11-1). Corbly states that Dot Foods is the nation’s largest food redistributor and
has been a customer of Chefs’ Warehouse and its predecessors for over fifteen years. (Id.
at ¶¶ 4-5). Corbly asserts that, in late July 2017, Corbly became aware that the West
Sixth Street Exit had been obstructed, making it impossible for Dot Foods’ tractor trailers
to navigate safely. (Id. at ¶ 7). Corbly states Dot Foods “reached a workaround” in order
to continue servicing the Chefs’ Warehouse Site, though the workaround is “not ideal”
and their drivers are still required to make “risky maneuvers.” (Id. at ¶ 11). Dot Foods
does not believe the workaround to be “a long-term solution,” and is “constantly

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reevaluating the situation” and “may refuse service at any time if our driver is not
confident in the safety of himself and his equipment.” (Id. at ¶¶ 13-14).
Due to the blockading of the West Sixth Street Exit, Plaintiff’s temperature
controlled cold dock is inaccessible to many delivery trucks. (Doc. 2 at ¶ 44). As a
result, Plaintiff has had to temporarily reconfigure its operations to accommodate trucks
exiting the Site from only the northwest side, including the rapid movement of
refrigerated product through non-refrigerated portions of the building to the refrigerated
portion of the warehouse. (Id.) The operational adjustment decreases worker
productivity and places large quantities of product at risk on a daily basis. (Id.). The
inability of vehicles to exit the Chefs’ Warehouse Site via the West Sixth Street Exit is
causing substantial damage to Plaintiff’s business and operations. (Id. at ¶ 45).
II.

STANDARD OF REVIEW

Plaintiff bears the heavy burden of demonstrating his entitlement to a temporary
restraining order. An “injunction is an extraordinary remedy which should be granted
only if the movant carries his or her burden of proving that the circumstances clearly
demand it.” Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573
(6th Cir. 2002) (emphasis added).
In determining whether to grant injunctive relief, this Court must weigh four
factors: (1) whether the moving party has shown a strong likelihood of success on the
merits; (2) whether the moving party will suffer irreparable harm if the injunction is not
issued; (3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction. Id.
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These four considerations are factors to be balanced, not prerequisites that must be met.
McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997).
“Although no one factor is controlling, a finding that there is simply no likelihood of
success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam'rs, 225 F.3d
620, 625 (6th Cir. 2000).
III.

ANALYSIS

A. Plaintiff has not shown a strong likelihood of success on the merits.
Plaintiff argues that it has met the elements of a prescriptive easement, i.e., that its
use of the West Sixth Street Exit has been open, notorious, adverse, hostile and
continuous for more than 21 years. (Doc. 3 at 7-9). However, Defendant has presented
substantial evidence and case law that Plaintiff’s claim for a prescriptive easement is
preempted by the Interstate Commerce Commission Termination Act (“ICCTA”). Under
these circumstances, the Court cannot conclude that Plaintiff has a “strong likelihood” of
success on the merits.
The ICCTA grants the Surface Transportation Board (“Board”) exclusive
jurisdiction over, inter alia, “transportation by rail carriers” and “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[.]” 49 U.S.C. § 10501(b). The remedies provided in the
ICCTA in regards to the aforementioned preempt the remedies provided under Federal or
State law. Id. “Transportation” is defined as including, inter alia, all of the facilities,

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equipment, property, and instruments related to the movement of property by rail,
regardless of ownership. 49 U.S.C. § 10102(9).
The ICCTA facially preempts two types of actions: (1) any form of state or local
permitting or preclearance that, by its nature, could be used to deny a railroad the ability
to conduct some part of its operations or to proceed with activities that the Board has
authorized, and (2) state or local regulation of matters directly regulated by the Board.
CSX Transportation, Inc., Petition for Declaratory Order, Fin. Dkt. 34662, 2005 STB
Lexis 675, at * 5 (May 3, 2005).
For actions that are not facially preempted, the § 10501(b) preemption analysis
requires a factual assessment of whether that action would have the effect of preventing
or “unreasonably interfering” with railroad transportation. Id. at * 9; Franks Inv. Co.
LLC v. Union Pac. R.R. Co., 593 F.3d 404, 414 (5th Cir. 2010) (“state law actions can be
preempted as applied if they have the effect of unreasonably burdening or interfering
with rail transportation.”); City of Ozark v. Union Pac. R.R. Co., 843 F.3d 1167, 1171 (8th
Cir.).
While claims for adverse possession may be facially preempted, 2 claims for nonexclusive use of railroad property are typically analyzed under the “as applied”
framework and preempted if they unreasonably interfere with railroad transportation. See
Maumee & Western Railroad Corp. and RMW Ventures, LLC, Petition for Declaratory
Order, Fin. Dkt. No. 34354, STB LEXIS 140, at * 5 (S.T.B. Mar. 2, 2004) (“routine, non-

2

See 14500 Ltd. v. CSX Transp., Inc., No. 1:12-cv-1810, 2013 U.S. Dist. LEXIS 39806,
at * 5-13 (N.D. Ohio Mar. 14, 2013).
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conflicting uses, such as non-exclusive easements for at-grade road crossings, wire
crossings, sewer crossings, etc., are not preempted so long as they would not impede rail
operations or pose undue safety risks.”).
The question of whether a state law claim would “unreasonably interfere” with
railroad transportation requires a fact-specific determination. Franks Inv. Co., 593 F.3d
at 414, n. 2. Accordingly:
when a state or federal court determines that the railroad has made no
showing that a remedy allowing use of a particular crossing would
unreasonably interfere with rail transportation, then the court may proceed
to resolve the crossing dispute applying relevant state law contract,
property, or condemnation principles. [citation omitted]. However, if the
court concludes that a proposed crossing easement would unreasonably
interfere, then §10501(b) grants the STB exclusive jurisdiction and the
lawsuit or condemnation proceeding must be dismissed or enjoined for lack
of jurisdiction.
City of Ozark, 843 F.3d at 1171.
In this case, Plaintiff seeks a “non-exclusive easement by prescription for access to
and from the Chefs’ Warehouse Site on and over” the West Sixth Street Exit. (Doc. 2 at
9). Plaintiff’s claim for a non-exclusive easement under Ohio law is preempted if it
would “unreasonably interfere” with railroad transportation. CSX Transportation, Inc.,
2005 STB Lexis 675, at * 9; Franks Inv. Co., 593 F.3d at 414; City of Ozark, 843 F.3d at
1171.
Defendant argues Plaintiff’s use of the West Sixth Street Exit interferes with
railroad transportation in two ways. First, Defendant has presented evidence that tractor
trailers using the West Sixth Street Exit routinely come within four feet of the railroad
track and impermissibly “foul” the track as that term is defined in the applicable federal
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regulations. (Doc. 9-1 at ¶¶ 5-11; Doc. 9-2); 49 C.F.R. § 214.7 (“Fouling a track means
the placement of an individual or an item of equipment in such proximity to a track that
the individual or equipment could be struck by a moving train or on-track equipment, or
in any case is within four feet of the field side of the near running rail.”); 49 C.F.R.
§ 214.313(b) (railroad workers may not foul a track “except when necessary for the
performance of a duty.”).
Second, Defendant has presented evidence that its Signal Cable was damaged by a
tractor trailer exiting the West Sixth Street Exit on four occasions. (Doc. 9-3 at ¶¶ 9-13). 3
Defendant argues that if the Signal Cable is cut or severed, it could “cause the switch to
stop functioning, significantly limiting CSX’s trains’ ability to enter into the major
Queensgate Rail Yard.” (Doc. 1-4 at ¶ 19). Damage to the Signal Cable could further
“allow a train to move when it is not safe to do so.” (Id.)
While Defendant bears the burden to evidence the right to preemption, Defendant
has presented sufficient evidence and case law at this stage that the Court cannot
conclude that Plaintiff is substantially likely to succeed on the merits. Before the Court

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Part of Defendant’s evidence on this point is the following statement in the declaration
of Michael Myers: “An individual claiming to work for the Plaintiff later informed me
that a tractor trailer exiting the Property across the paved surface on CSXT Right of Way
had struck and damaged the Signal Cable.” (Doc. 1-4 at ¶ 10). Plaintiff argues this
statement is inadmissible hearsay. (Doc. 10 at 11). This argument fails-at this stage, the
Court “may rely on affidavits and hearsay materials which would not be admissible
evidence for a permanent injunction, if the evidence is appropriate given the character
and objectives of the injunctive proceeding.” FTC Nat’l Testing Servs., LLC, No. 3:050613, 2005 U.S. Dist. LEXIS 46485, at *5 (M.D. Tenn. Aug. 8, 2005); see also Houdini
Inc. v. Goody Baskets LLC, 166 F. App’x 946, 947 (9th Cir. 2006) (finding a district court
did not abuse its discretion in considering hearsay “because the rules of evidence do not
strictly apply to preliminary injunction proceedings.”).
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could grant Plaintiff the easement it seeks, the Court would first have to determine
whether the easement would “unreasonably interfere” with Defendant’s railroad
operations. This will require a detailed, fact-specific analysis and the weighing of
competing evidence as to, at a minimum, (1) whether tractor trailers “foul” the track
while utilizing the West Sixth Street Exit, and (2) the cause of the Signal Cable’s
damage. The fact that the parties have submitted competing affidavits and evidence on
both of these issues underscores that neither party has demonstrated a “strong likelihood”
of success.
B. Plaintiff has not demonstrated an irreparable injury.
To demonstrate irreparable injury, Plaintiff must show it “will suffer actual and
imminent harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen,
Inc., 443 F.3d 540, 552 (6th Cir. 2006). Harm is irreparable if it cannot be fully
compensated by monetary damages. Overstreet v. Lexington-Fayette Urban County
Gov’t., 305 F.3d 566, 578 (6th Cir. 2002).
Plaintiff asserts it faces two types of irreparable harm. First, Plaintiff argues that it
faces “a breakdown in efficiency and additional costs to the business[.]” (Doc. 3 at 10).
This argument fails. Additional costs resulting from a temporary breakdown in
efficiency, in the form of spoiled product or otherwise, can be sufficiently remedied by a
monetary award and is therefore not “irreparable” harm. See Overstreet, 305 F.3d at 578.
Second, Plaintiff argues that some vendors have “articulated an imminent threat of
cancelling their business with Plaintiff due to concerns of safety for their drivers.” (Doc.
3 at 10). Plaintiff’s assertion of an “imminent” threat is not supported by its own
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evidence. The transportation manager of Dot Foods—the nation’s largest food
redistributor—stated that it “reached a workaround ” to allow it to continue servicing the
Chefs’ Warehouse Site with 53’ tractor trailers. (Doc. 11-1 at ¶ 11). Dot Foods’
assertion that it is “constantly reevaluating the situation and may refuse service at any
time if our driver is not confident in the safety of himself and his equipment” 4 is
speculative and therefore insufficient to demonstrate “imminent” harm. See Lieberman v.
Husted, 900 F. Supp. 2d 767, 781 (S.D. Ohio 2012) (“it is not enough for a party seeking
injunctive relief to show a ‘possibility’ of irreparable harm; instead, it must be shown that
irreparable injury ‘is likely in the absence of an injunction.’”) (quotation omitted).
C. The threatened harm to Defendant, third parties and the public outweighs
the harm to Plaintiff.
Plaintiff argues that a temporary restraining order is in the public interest because
(1) trailers exiting on Dalton Avenue must make a difficult maneuver (Doc. 10-1 at 9),
(2) first responders typically enter the Chefs’ Warehouse Site through the West Sixth
Street Exit (Id. at ¶ 8), and (3) interruption of Plaintiff’s business could affect Cincinnati
residents’ access to food delivery (Doc. 10 at 17). The Court notes that, however
undesirable the Dalton Avenue Exit may be to the Plaintiff, there is no evidence that it
does not provide adequate access to and from the Chefs’ Warehouse Site for tractor
trailers or first responders, and Plaintiff’s concerns about the interruption of its business
are speculative and contradicted by its own evidence.

4

(Doc. 11-1 at ¶ 14) (emphasis added).
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Defendant has submitted evidence that tractor trailers have already damaged its
Signal Cable, which is responsible for transmitting critical information concerning track
occupancy, switch position and signal indication. (Doc. 1-4 at ¶¶ 11-19). Defendant has
submitted evidence that further damage to the Signal Cable could cause delays to
Defendant’s customers throughout a rail corridor spanning Richmond, Atlanta, Nashville,
Detroit, and Cincinnati, and that it may present a safety issue by allowing a train to move
when it is not safe to do so. (Id. at ¶ 19; Doc. 1-3).
In light of the gravity of the potential harm to Defendant and its customers, and
considering the general public’s interest in reliable and safe transportation, the Court
cannot find that the harm to Plaintiff outweighs the potential harms to third parties and
the general public.
IV.

CONCLUSION

For these reasons, the Court finds that Plaintiff has not established by clear and
convincing evidence its entitlement to the extraordinary remedy of a temporary
restraining order. Accordingly, Plaintiff’s motion for a temporary restraining order (Doc.
3) is DENIED.
Within 48 hours of the filing of this Order, the parties shall meet and confer and
jointly submit via email to chambers ([e-mail]) a proposed
expedited discovery schedule and briefing schedule to resolve Plaintiff’s motion for a
preliminary and/or a permanent injunction.

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IT IS SO ORDERED.

Date: 9/5/17

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

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