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Waneck v. CSX Corp.

United States District Court, S.D. Mississippi, Southern Division

March 29, 2018

STARR SWEARINGEN WANECK AND JIMMY LEE WANECK PLAINTIFFS
v.
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.

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are 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. 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. RELEVANT BACKGROUND

         A. 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 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 [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. 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.

         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 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 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 Dismiss[1]

         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 [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 simply limited to maintenance of the crossing. Plaintiffs further assert that their “well-pled 18 page [Amended] ...


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