Rushing v. Kansas City S. Ry. Co.

• Decision Date: 30 August 1999
• Docket Number: No. 98-60590,98-60590
• Citation: 1999 WL 615161,185 F.3d 496
• Parties: (5th Cir. 1999) WILLARD RUSHING and PATRICIA RUSHING, Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 496

185 F.3d 496 (5th Cir. 1999)

WILLARD RUSHING and PATRICIA RUSHING, Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

No. 98-60590

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 30, 1999

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[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Mississippi

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Willard and Patricia Rushing appeal the dismissal of their nuisance action brought against Kansas City Southern Railway Company ("KCS"). Concluding that the district court took an over-expansive view of federal preemption and overlooked genuine issues of material fact in entering summary judgment for KCS, we reverse and remand for further proceedings.

I.

According to the summary judgment record, the Rushings purchased their home along KCS's "main line" railroad track, where trains passed by only a couple of times each day. In 1996, however, KCS built a switching yard located about fifty-five feet from the Rushings' property. The yard, a vital part of KCS's successful operations, serves as a "hub" for attaching and detaching rail cars to position them in sequence to travel to various sites around the country. Allegedly, the switching operations necessarily, and perhaps excessively, produce various noise and vibration emissions. Specifically, the noise and vibrations come from (1) cars colliding together to couple, (2) rail cars in motion, (3) stationary and passing locomotives, and (4) locomotive whistles.¹

As part of the switchyard project, KCS built a large earthen berm, topped with an acoustical noise barrier, to mitigate the noise emissions that might disturb area residents. The Rushings allege that the berm has failed to eliminate the noise and does nothing to stop the vibrations. After KCS began using the switchyard, they claim to have experienced "physical symptoms, anxiety, deteriorating health, etc., resulting from the constant vibration, exceedingly high noise, and violent shocks coming from the rail yard." The shocks and vibrations also allegedly have caused their home to shift and crack.

II.

The Rushings sued suit in state court, alleging a common law claim that the switchyard was a private nuisance.² KCS removed to federal court on the basis of diversity jurisdiction. In an amended answer, KCS pleaded the affirmative defense of preemption.

In its initial pre-discovery disclosure, KCS indicated that Dr. Michael Seidemann was an industrial audiologist, expected to testify on sound measurements, taken both in the past and possibly in the future, of noise levels at the switchyard, to establish that the sound emissions originating in the yard complied with federal regulations promulgated pursuant to the Noise Control Act ("NCA"), 42 U.S.C. 4901 et seq. The regulations promulgated under the NCA, codified at 40 C.F.R 201.1 et seq., set maximum decibel ("dB") levels for train operations and provide the procedures to follow in conducting sound-level testing to establish NCA compliance.

Over the Rushings' objection, the magistrate judge granted KCS's motion to allow Seidemann to measure sound levels on the Rushings' property, to determine whether they complied with the federal regulations central to the preemption defense. Seidemann conducted his tests in conformity with NCA regulations during one evening, in the Rushings' presence. KCS timely designated Seidemann as an expert witness and served the Rushings with a copy of his "Expert Witness Report" pursuant to FED. R. CIV. P. 26(a)(2)(B). The report detailed the testing conducted, the methods employed, and the results.

KCS moved for partial summary judgment on the claims for excessive noise and vibrations. It asserted that the NCA preempted the noise claim stemming from rail car coupling activity; that the Federal Rail Safety Act of 1970 ("FRSA"), 49 U.S.C. 20101 et seq., preempted the claim based on whistle blowing; and that, per Mississippi tort law, the noise and vibrations complaints were not actionable under a private nuisance theory, because KCS's operation of the switching yard is a public function.

KCS supported the NCA preemption claim with an affidavit from Seidemann, describing himself as "a forensic audiologist, licensed in audiology by the Mississippi Council of Advisors in Speech Pathology and Audiology." The affidavit also attested that Seidemann had conducted his tests from points on the Rushings' property with the prescribed equipment, properly calibrated to ensure accuracy.

Seidemann conducted his tests in two-hour shifts and measured a minimum of thirty car couplings during each shift, as required by the regulations. The affidavit explained that he tested noise emissions originating from (1) rail cars in motion, (2) car couplings, (3) stationary locomotives, and (4) passing locomotives. He concluded that the noise emissions fell within the decibel limits established by the NCA regulations.

In response, the Rushings filed a document entitled "Material Facts in Issue." They claimed factual disputes existed related to Seidemann's qualifications to make the "assertions" contained in his affidavit, the conditions under which he tested, and his conclusion that the noise and vibrations fell within the NCA's limits.

As evidence, the Rushings submitted only affidavits executed by them in which they both claimed that the noise levels and activity on the night Seidemann took his measurements were much lower than normal. They also attested that the trains operated in a different manner than usual that night, such as not getting running starts and not coupling multiple cars at the same time. In addition, they claimed that the trains usually sounded their whistles excessively, and often with no apparent purpose.

Twelve and fourteen days later, respectively, without seeking or securing the court's permission, KCS filed two "supplements" to its summary judgment motion. The first contained a copy of Seidemann's FED. R. CIV. P. 26 report that it previously had sent to the Rushings. Accompanying the report was Seidemann's curriculum vitae ("CV"). The second included another copy of his CV and an affidavit in which Seidemann emphasized his qualifications. KCS refers to these submissions as rebuttal evidence.

A month later, the Rushings moved to supplement their response with an affidavit from an employee of Employment Health Services ("EHS"), a company with expertise in environmental noise, explaining the results of their own tests. EHS measured sound levels inside the house at a weighted sound level of 105dB, easily exceeding the 92dB permitted by the NCA regulations for coupling activities. See 40 C.F.R. 201.15.

The motion explained that the Rushings were not wealthy, and the testing was rather expensive. "It was not until they read the Railroad's position that relied upon Seidemann's measurements that did not comport with the conditions in which they lived, that they decided that they would spend the money to employ someone to perform similar measurements of the noise levels that exist under conditions consistent with those in which they actually lived." The motion indicated that supporting affidavits could be filed and that the supplementation would not delay the trial that was over one hundred days away. KCS opposed the motion, arguing that the supplementation was untimely and that the Rushings had failed to designate an expert witness within the ordered time.

The court granted KCS's motion for partial summary judgment based on its affirmative defenses, reasoning that the NCA preempts the nuisance claim insofar as it is based on noise related to the switching activities, relying on Seidemann's affidavit attesting that the noise levels he measured fell within the applicable regulatory maximums. The court also held that the NCA preempts the claim related to vibrations, because there is a direct correlation between the vibrations and the noise, and they stem from the same regulated sourcecoupling activities. After noting that the FRSA might occupy the field of locomotive warning devices and railroad safety regulation, the court found that it preempted the nuisance claim based on excessive whistling because the trains whistled "in the interest of safety" as they approached a grade crossing and before moving backwards. Finally, the court refused to grant the Rushings' motion to supplement their response with EHS's findings, because they had failed timely to designate their expert and had not moved for leave to designate out of time.³

The Rushings moved for reconsideration of the summary judgment, offering deposition testimony from their neighbors that KCS had obtained just days before the ruling. They posited that they had not interviewed the affiants prior to the depositions but included them in their disclosure simply because they listed everyone who might have knowledge of the situation.

KCS opposed reconsideration, because the motion did not present "newly discovered evidence." The court agreed and also refused to reconsider its exclusion of EHS's testimony, referring again to the failure timely to designate the witness. The court concluded that the motion merely reargued the merits of summary judgment, which is inappropriate for a motion to reconsider.

III.

We review a summary judgment de novo, applying the same standards as the district court. See Webb v. Cardiothoracic Surgery Assocs., P.A., 139 F.3d 532, 536 (5th Cir. 1998); Figgie Int'l, Inc. v. Bailey, 23 F.3d 1267, 1269 (5th Cir. 1994). Summary judgment is appropriate if the evidence on record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The admissibility of evidence is subject...