United States District Court, S.D. Mississippi, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING WITHOUT
PREJUDICE IN PART DEFENDANT CSX
TRANSPORTATION, INC.'S MOTION  TO DISMISS
PLAINTIFFS' AMENDED COMPLAINT [1-1], AND
GRANTING IN PART AND DENYING WITHOUT
PREJUDICE IN PART DEFENDANT CSX
TRANSPORTATION, INC.'S MOTION  TO
DISMISS CROSS-CLAIMS  OF DEFENDANT LOUIS AMBROSE,
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT are Defendant CSX Transportation, Inc.'s Motion
 to Dismiss Plaintiffs' Amended Complaint [1-1] and
Motion to Dismiss  Cross-Claims  of Defendant Louis
Ambrose, Jr. These Motions are fully briefed. The Court finds
that Defendant CSX Transportation, Inc.'s Motions 
 should be granted in part and denied without prejudice
Relevant Factual and Procedural History
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 44-46. 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  at
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. Am. Compl. [1-1] at 41-46. 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.
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 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.
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.
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  at 2 (emphasis in
original). Subsequent to removal, Ambrose, the driver of the
charter bus, filed an Answer and Cross-Claims  against
CSXT and CSXC. Ambrose advances essentially the same claims
against CSXT and CSXC as those made by Plaintiffs. Cross-cl.
 at 11-27.
CSXT's Motions   to Dismiss
moves the Court to dismiss Plaintiffs' Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), Mot. to
Dismiss , 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.  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  to
Dismiss Cross-Claims of Defendant Ambrose, incorporating by
reference its Motion  to Dismiss Plaintiffs' claims
and supporting Memorandum  and arguing that Ambrose's
Cross-Claims should be dismissed for the same reasons. Mot.
to Dismiss  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
CSXT Mem. in Supp.  at 2-3 (footnote omitted).
and Ambrose's respective Responses   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  at 1-2; Pls.
Mem. in Opp'n  at 2; Ambrose's Mem. in Opp'n.
 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 simply limited
to maintenance of the crossing. Plaintiffs further assert
that their “well-pled 18 page [Amended] ...