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Brown v. Illinois Central Railroad Co., Inc.

United States District Court, Southern District of Mississippi, Northern Division

May 12, 2015

TYREE W. BROWN, Individually and as the Statutory Heir and Wrongful Death Beneficiary of CHESTER BROWN and LESTER BROWN PLAINTIFF



This cause is before the Court on four pending Motions. Having considered the pleadings, [1] the attachments thereto, as well as supporting and opposing authorities, the Court finds:

Plaintiff’s “Notice of Application and Application to Set Aside Final Judgment; For Judgment on the Pleadings or Summary Adjudication on Liability on it’s Merits” is not well taken and should be denied.

Plaintiff’s “Notice of Application and Application for Injunctive Relief” should be dismissed on the grounds that this civil action is closed.

The Motions of Defendants for Rule 11 Sanctions should be granted only to the extent that Plaintiff will be barred from filing any other motions, applications, or other pleadings in this civil action without prior approval from a United States District or Magistrate Judge.

I. Factual Background and Procedural History

In 2009, Tyree W. Brown (“Brown”) filed this lawsuit claiming that he and his family had been exposed to certain chemicals, including but not limited to, dioxin, pentachlorophenol, and sodium pentachlorophenol, which had been dumped near their home in Rankin County, Mississippi. Brown further claimed that the exposure had caused him to develop prostrate cancer and psychological problems, and had caused the premature stillborn birth of his sons, Chester and Lester Brown. Brown’s lawsuit was brought against The Dow Chemical Company (“Dow Chemical”), the purported manufacturer of the chemicals, and Illinois Central Railroad Company, Inc. (“ICR”), which had allegedly transported the chemicals to the site. Brown sought damages totaling over $120, 000, 000 on Mississippi state law claims of strict liability, negligence, and wrongful death.

The matter came before the Court on motions for summary judgment. In deciding the motions, the Court held that all of Brown’s state law claims were governed by a three-year statute of limitations, which began to run on the date on which he had knowledge of the injuries about which he complained. See Opinion and Order [Docket No. 53], 16-17, 18-19. After considering the evidence, the Court found there was no dispute that “Brown had knowledge of his prostate cancer in 2003, had knowledge of his diagnoses of PTSD and schizophrenia in 2002, had knowledge of his diagnosis of depression in 1984, and had knowledge of the death of his sons in 1976.” Id. at 19-20. Applying the undisputed facts to the applicable law, the Court held:

[U]nder Mississippi law, [Brown] had three years from each of these dates to bring negligence, strict liability, and wrongful death claims. As Brown’s most recent lawsuit was not filed until August of 2009, the Court finds that all of the claims he alleges in the Complaint are time barred and, therefore, IRC and Dow Chemical are entitled to summary judgment in this case.

Id. at 20. A Final Judgment dismissing the case was entered on October 30, 2009.

The matter came back before the Court on Brown’s Motion to Alter or Amend the Final Judgment. In deciding this Motion, the Court did not consider Brown’s arguments regarding whether the applicable statute of limitations was tolled, or whether his state law claims were preempted and/or timely under Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCA”), because these arguments were raised for the first time in the rebuttal to the Motion to Alter or Amend. See Opinion and Order [Docket No. 71], 5-8 (citing Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)(explaining that motions to alter or amend under Rule 59(e) “cannot be used to raise arguments which could, and should, have been made before the judgment issued.”); LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005)(“A motion for reconsideration may not be used to rehash rejected arguments or introduce new arguments.”)). Brown’s Motion to Alter or Amend was denied on January 5, 2010. Id. On January 7, 2019, Brown filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit.

Shortly after the Notice of Appeal was filed, Brown filed a Motion for Relief from Judgment in this Court pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, which was denied. See Opinion and Order [Docket No. 78]. Brown thereafter amended his Notice of Appeal to include the denial of his Motion for Relief from Judgment. See Amended Notice [Docket No. 80]. The decisions of this Court were affirmed on appeal. See Brown v. Illinois Cent. R. Co., 480 F. App’x 753 (5th Cir. 2010). Brown’s subsequent Petition for Rehearing that he filed with the Fifth Circuit, and the Petition for Writ of Certiorari he filed with the United States Supreme Court were both denied. See Brown v. Illinois Cent. R. Co., Appeal No. 10-60016, slip. Orders (5th Cir. Jan. 19, 2011) and (5th Cir. June 28, 2011).

On or about March 31, 2015, Brown filed the Application to Set Aside Final Judgment that is presently before the Court. Brown has also moved for a Judgment on the Pleadings, for Summary Adjudication of Liability, and for injunctive relief. In addition to responding to Brown’s Motions, Dow Chemical ...

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