Bradford v. Union Pacific R.R. Co.

• Decision Date: 07 June 2007
• Docket Number: No. 05-CV-4075.,05-CV-4075.
• Citation: 491 F.Supp.2d 831
• Parties: Gloria BRADFORD, Individually and as Class Representative on Behalf of All Similarly Situated Persons; Ned Burnett, Jr., Individually and as Class Representative on Behalf of All Similarly Situated Persons; Samuel Alexander, Individually and as Class Representative on Behalf of All Similarly Situated Persons; Books Etc., by and through Gloria Bradford, Class Representative on Behalf of All Those Similarly Situated; and Stella Patricia Smith, Individually and as Class Representative on Behalf of All Similarly Situated Persons, Plaintiffs v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

491 F.Supp.2d 831

Gloria BRADFORD, Individually and as Class Representative on Behalf of All Similarly Situated Persons; Ned Burnett, Jr., Individually and as Class Representative on Behalf of All Similarly Situated Persons; Samuel Alexander, Individually and as Class Representative on Behalf of All Similarly Situated Persons; Books Etc., by and through Gloria Bradford, Class Representative on Behalf of All Those Similarly Situated; and Stella Patricia Smith, Individually and as Class Representative on Behalf of All Similarly Situated Persons, Plaintiffs v. UNION PACIFIC RAILROAD COMPANY, Defendant.

No. 05-CV-4075.

United States District Court, W.D. Arkansas, Texarkana Division.

June 7, 2007.

COPYRIGHT MATERIAL OMITTED

Matthew David Karnas, Bellovin Karnas P.C., Tucson, AZ, R. Gary Nutter, Dunn, Nutter & Morgan, L.L.P., Texarkana, AR, Roger W. Orlando, The Orlando Firm, P.C., Decatur, GA, Barry G. Reed, Bradley Howard Astrowsky, Zimmerman & Reed, PLLP, Scottsdale, AZ, for Plaintiffs.

George L. McWilliams, Leisa B. Pearlman, Sean F. Rommel, Patton, Roberts, McWilliams, Greer & Capshaw, L.L.P., Texarkana, TX, William H. Howard, III, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, Eugene Joseph Podesta, Jr., Baker, Donelson, Bearman, Caldwell and Berkowitz, Memphis, TN, Jack T. Patterson, II, Patton Roberts McWilliams Capshaw LLP, Little Rock, AR, for Defendant.

MEMORANDUM OPINION

BARNES, District Judge.

Before the Court is a Motion to Dismiss Plaintiffs' Fourth Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6), filed on behalf of Defendant Union Pacific Railroad Company ("Union Pacific"). (Doc. 48). Union Pacific seeks dismissal of Plaintiffs' claims en toto based on preemption by federal regulations. Plaintiffs have responded. (Doc. 67). Union Pacific has replied to Plaintiffs' response. (Doc. 71). The Court held a hearing on the Motion to Dismiss on January 5, 2007. (Doc. 98). The matter is ripe for consideration.

I. BACKGROUND

Just before 5:00 a.m., October 15, 2005, two Union Pacific trains collided just east of Hobo Jungle Park, within the city limits of Texarkana, Arkansas. The collision resulted in the derailment of several train cars, including a tank car filled with pressurized liquid propylene. Other tank cars involved in the derailment contained vinyl acetate and chlorine. The tank car containing propylene was severely damaged as a result of the derailment, and pressurized propylene gas began to escape. The escaping propylene migrated under pressure to the south and east of the derailment site into a residential neighborhood where it encountered an ignition source. Upon ignition, the vapor trail turned into a fireball that followed in reverse its originating path from the residential neighborhood to the propylene tank car, which, in turn, exploded, burned and caused additional devastating fires. Either the explosion or the resulting fires damaged three houses, seven vehicles, a semi-tractor trailer, and a trailer. Sadly, the initial explosion incinerated one victim in her home. Local emergency personnel were forced to evacuate a number of residents living near the derailment.

Within days of the derailment, Plaintiffs filed the instant lawsuit against Union Pacific in Miller County Circuit Court, alleging nuisance, trespass, negligence, negligence per se and strict liability causes of action. Union Pacific removed the case to this Court on October 26, 2005. (Doc. 1). In the Motion to Dismiss, Union Pacific argues that the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20101, et seq., and the Hazardous Material Transportation Act ("HMTA"), 49 U.S.C. § 5101, et seq., and regulations promulgated thereunder preempt the whole of Plaintiffs' claims.

II. MOTION TO DISMISS STANDARD

In reviewing Union Pacific's Motion to Dismiss, the Court assumes as true all factual allegations of the complaint. Abels v. Farmers Commodities Corp., 259 F.3d 910, 914 (8th Cir.2001). "However, the complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claim to avoid dismissal." DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir.2002). "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Thus, this Court will dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

III. FEDERAL PREEMPTION DOCTRINE

Union Pacific seeks dismissal based on alleged federal preemption of Plaintiffs' claims. Federal preemption derives from the Supremacy Clause of the United States Constitution. The Supremacy Clause provides that the laws of the United States "shall be the supreme law of the land." U.S. Const. Art VI, cl. 2. It is well-established that Congress possesses the power to preempt state law. A federal agency acting within the scope of its congressionally delegated authority may also preempt state law. Louisiana Pub. Serv. Comm. v. Fed. Communications Comm., 476 U.S. 355, 369, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).

Congress enacted the FRSA in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101; Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). The FRSA gives the Secretary of Transportation broad powers to prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety. 49 U.S.C. § 20103(a); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 662, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The Secretary delegated the authority to "[c]arry out the functions vested in the Secretary by the [FRSA]" to the Federal Railroad Administration ("FRA"). Mehl v. Canadian Pacific Ry., Ltd., 417 F.Supp.2d 1104, 1108 (D.N.D.2006). The FRSA includes an express savings and preemption clause:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106 (2005). The United States Supreme Court has held that state common law falls within the scope of the broad category of "law, rule, regulation, order, or standard relating to railroad safety." Easterwood, 507 U.S. at 664, 113 S.Ct. 1732.

When a federal statute contains an express preemption clause, as does the FRSA, the Court must focus on the plain wording of the clause, which contains the best evidence of the scope of Congress' preemptive intent. Easterwood, 507 U.S. at 664, 113 S.Ct. 1732. Courts have been faced with interpreting the preemptive force of the Federal Railroad Safety Act on numerous occasions. "The language of the FRSA's preemption provision dictates that, to preempt state law, the federal regulation must `cover' the same subject matter, and not merely `touch upon' or `relate to that subject matter.'" Shanklin, 529 U.S. at 351, 120 S.Ct. 1467. To prevail on the claim that the regulations have preemptive effect, Union Pacific must establish more than that they "touch upon" or "relate to" that subject matter, for "covering" is a more restrictive term which indicates that preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. Easterwood, 507 U.S. at 664, 113 S.Ct. 1732. Allow the Court to be perfectly clear on this point: the determination of whether state law is preempted by federal law does not concern an examination of the compliance with or the adequacy of the federal regulation. See Shanklin, 529 U.S. at 357-58, 120 S.Ct. 1467; see also CSX Trans., Inc. v. Williams, 406 F.3d 667, 672 (D.C.Cir. 2005); Kalan Enter. L.L.C. v. BNSF Ry. Co., 415 F.Supp.2d 977, 980-81 (D.Minn. 2006); Ouellette v. Union Tank Car Co., 902 F.Supp. 5, 10 (D.Mass.1995) (finding the FRSA's preemption language does not differentiate between instances of compliance and noncompliance). Nor does it involve an inquiry into the purpose of the regulation. Easterwood, 507 U.S. at 675, 113 S.Ct. 1732. Once a regulation substantially subsumes the subject matter of the state law claim, neither "reluctance" nor "considerable solicitude for state law" apply. The subject matter of plaintiffs cause of action is either preempted or it is not. See Easterwood, 507 U.S. at 664-65, 113 S.Ct. 1732; Rayner v. Smirl, 873 F.2d 60, 66 (4th Cir.1989). This is the case even where factual disputes exist. In re Derailment Cases, 416 F.3d 787, 794 (8th Cir. 2005).

Courts have held that several provisions of the FRSA preempt state law. See e.g., Shanklin, 529 U.S. at 347, 120 S.Ct. 1467 (holding that 49 C.F.R. §§ 646.214(b)(3) and (4) covered the subject matter of the adequacy of warning devices installed with the participation of federal funds); Easterwood, 507 U.S. at 676, 113 S.Ct. 1732 (holding that 49 C.F.R. § 213.9 covered the subject matter of claims alleging excessive speed); Ouellette, 902 F.Supp. at 10 (finding that 49 C.F.R. § 231.7 covered the subject matter of claims relating to the design and placement of handrails on tank cars leaving no room for a private action based upon state law theories); Lundeen v. Canadian Pacific Railway Co., 447...