Farrow v. BNSF Railway Company et al

Filing 24

ORDER granting 16 Motion to Remand to State Court. This action is remanded to the District Court of Oklahoma County. Signed by Honorable David L. Russell on 12/22/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DONALD E. FARROW,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
ET AL.,
Defendants.

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CIV-16-1122-R

ORDER
Plaintiff filed a Motion to Remand (Doc. No. 16) to which Defendant CDL Electric
filed the sole response in opposition. Having considered the parties’ submissions, the Court
finds as follows.
In the Amended Petition Plaintiff alleges that despite his best efforts he was unable
to avoid a collision between the Mack truck he was operating and a train operated by
Defendant BNSF in March 2012, because the flashing lights at the crossing were not
operating. Plaintiff alleged in the Amended Petition, filed in the District Court of Oklahoma
County, that Defendants failed to comply with certain standards of care established by
federal statutes, regulations or orders of the Secretary of Transportation and the Secretary
of Homeland Security which provided the standard of care for Plaintiff’s state law
negligence claims. See e.g. Amended Petition ¶ 25 (citing 49 C.F.R. § 229.129 with regard
to Defendant BNSF’s failure to ensure horn audible per federal standards), id. at ¶ 31
(railroads failed to comply with visual requirements set forth in 49 C.F.R. § 229.125), id.

at ¶ 39 (violation of speed restrictions contained in federal regulations); id. at ¶ 49 (setting
forth alleged violation of federal regulations by Defendants WATCO/Stillwater
Central/CDL Electric). Defendant contends that this reliance by Plaintiff confers federal
question jurisdiction upon the Court and thus its removal was proper.
“Federal courts are courts of limited jurisdiction; they must have a statutory basis
for their jurisdiction.” Dutcher v. Matheson, 733 F.3d 908, 984 (10th Cir. 2013) (quoting
Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1274 (10th Cir. 2012)). In
addition to diversity jurisdiction, which is admittedly absent here, a federal court has
jurisdiction over a claim if it is one “arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. “Most directly, a case arises under federal law when
federal law creates the cause of action asserted.” See Gunn v. Minton, ––– U.S. ––––, 133
S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013). This is not, however, the situation here. Rather,
Defendant contends Plaintiff’s claims fall into the “special and small category” identified
by Gunn where federal question jurisdiction lies over state-law claims.
The Supreme Court in Gunn enunciated a four part test, “federal jurisdiction over a
state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable of resolution without disrupting the federal-state balance
approved by Congress.” See id. at 1065 (citing Grable & Sons Metal Prods., Inc. v. Darue
Eng'g and Mfg., 545 U.S. 308, 313–14, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005)). Given
that the category of cases that fall under this umbrella is described by the Supreme Court
as “slim,” assessment of the factors “rarely results in a finding of federal jurisdiction.”
Evergreen Square v. Wisconsin Housing & Econ. Dev. Auth., 776 F.3d 463, 466 (7th
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Cir.2015). The Tenth Circuit identified principles to mark the “narrow boundaries” of this
basis for federal jurisdiction:
[T]he recognition of substantial question jurisdiction does not disturb the
long-settled understanding that the mere presence of a federal issue in a state
cause of action does not automatically confer federal-question jurisdiction.
Nor can federal question jurisdiction depend solely on a federal defense, even
if the defense is anticipated in the plaintiff's complaint, and even if both
parties concede that the federal defense is the only question truly at issue.
Finally, if a claim does not present a nearly pure issue of law, one that could
be settled once and for all and thereafter would govern numerous cases, but
rather is fact-bound and situation-specific, then federal question jurisdiction
will generally be inappropriate.
Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation, 770 F.3d 944, 947–48
(10th Cir.2014) (internal quotations and citations omitted).
In this case Defendant relies upon the theory that Plaintiff’s state claims are
premised on federal statutes and regulations regulating railways, and therefore, there is a
federal question that is both “contested and substantial.” The United States Court of
Appeals for the Fifth Circuit addressed a similar claim in Hampton v. Corman, 683 F.3d
708 (6th Cir. 2012). The Hampton court, on appeal from an order granting summary
judgment in favor of the defendant, sua sponte addressed federal court jurisdiction, and
concluded that there was no jurisdiction over the plaintiff’s claims. Hampton’s claims, like
those of the Plaintiff herein, were state law tort claims that relied upon federal law as
establishing the minimum standard of care. Hampton alleged “‘Defendants . . . failed to
comply’ with two federal statutes−‘the Federal Railroad Safety Act of 1970, 45 U.S.C. §
431, et Seq. [sic]’ and 49 U.S.C. § 20134−and with one federal regulation, 23 C.F.R. §

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646.214.” Id. at 711. The court concluded that federal court jurisdiction was lacking,
because the federal issue was not substantial.
The “commonsense notion [is] that a federal court ought to be able to
hear claims recognized under state law that nonetheless turn on substantial
questions of federal law.” Id. Nonetheless, federal-question jurisdiction
“demands not only a contested federal issue, but a substantial one.” Id. at
313, 125 S.Ct. 2363.
Hampton, 683 F.3d at 712 (quoting Grable 545 U.S. at 312). The Hampton court concluded
that the state law claims premised on federal railway standards were functionally identical
to the claims in Merrell Dow, the position espoused by Plaintiff herein. The court rejected
the contention upon which Defendant’s herein rely, that Grable & Sons dictates a contrary
result.
Hampton’s claim is a garden-variety state tort claim; she alleges that RJC
violated federal statutes and regulations and thus was presumptively
negligent under Kentucky law. Finding a state-law negligence claim
removable on the sole basis that the violation of a federal statute creates a
presumption of negligence under state law would “flout, or at least
undermine, congressional intent,” Merrell Dow, 478 U.S. at 812, 106 S.Ct.
3229, and would “herald[ ] a potentially enormous shift of traditionally state
cases into federal courts.”
Id. at 712-13. Although Defendants’ compliance with federal law, or lack thereof, will be
litigated in this case and relevant to the outcome, the issues are not significant to the federal
system as a whole. Furthermore, contrary to the Tenth Circuit requirement in Becker, the
issues herein will be largely factual and not pure issues of law, and thus of limited
significance to the system. .
[I]t is not enough that the federal issue be significant to the particular parties
in the immediate suit; that will always be true when the state claim
“necessarily raise[s]” a disputed issue.... The substantiality inquiry... looks
instead to the importance of the issue to the federal system as a whole.
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Gunn, 133 S.Ct. 1959. As explained by the Supreme Court in Merrell Dow and Grable,
plaintiff's reliance on federal law as the source of a duty under state law is insufficient to
create federal question jurisdiction. See Fuller v. BNSF Ry. Co. 472 F.Supp.2d 1088, 1095
(S.D.Ill. 2007).
For the reasons set forth above, the Court finds that Defendant CDL Electric, Inc.
has not met its burden of establishing this Court’s jurisdiction. The Court hereby GRANTS
Plaintiff’s Motion to Remand for want of jurisdiction. The Clerk shall remand this action
to the District Court of Oklahoma County.
IT IS SO ORDERED this 22nd day of December, 2016.

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