Christensen v. BNSF Ry. Co.

• Decision Date: 16 March 2017
• Docket Number: Case No. 16–cv–02718–DDC–TJJ
• Citation: 242 F.Supp.3d 1186
• Parties: Velma Joyce CHRISTENSEN and James Calvin Cummings, Plaintiffs, v. BNSF RAILWAY COMPANY and SEMA Construction, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

242 F.Supp.3d 1186

Velma Joyce CHRISTENSEN and James Calvin Cummings, Plaintiffs,

v.BNSF RAILWAY COMPANY and SEMA Construction, Inc., Defendants.

Case No. 16–cv–02718–DDC–TJJ

United States District Court, D. Kansas.

Signed March 16, 2017

Norman E. Beal, Paola, KS, for Plaintiffs.

David T. M. Powell, Jehan Moore, Lathrop & Gage, LLP, S. Michael Thomas, Foland, Wickens, Eisfelder, Roper & Hofer, PC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Plaintiffs filed this action in the District Court of Miami County, Kansas, on September 6, 2016. Doc. 1–1 at 6. Defendant BNSF Railway Company ("BNSF") removed it to our court on October 19, 2016. Doc. 1. This matter comes before the court today on three motions: plaintiffs' Motion to Remand (Doc. 19); defendant SEMA Construction, Inc.'s Motion to Dismiss (Doc. 13); and defendant BNSF's Motion to Dismiss (Doc. 15).

Background

Plaintiff Velma Christensen owns real property in Miami County, Kansas, which she leases to plaintiff James Cummings. In 1867, the then-owner of Ms. Christensen's property granted an easement to a railroad company that would eventually become defendant BNSF. The railroad easement cut Ms. Christensen's property in half diagonally. When built, the railroad ended up being 20 feet above Ms. Christensen's land, and featured two large, rectangular tunnels (called box culverts) under the railroad so that livestock and farm equipment could pass from one side of Ms. Christensen's property to the other. The tunnels were used in this manner until recently.

In July 2015, Ms. Christensen signed an agreement granting BNSF and defendant SEMA Construction, Inc. ("SEMA") a temporary access easement so that SEMA could repair the BNSF railroad. During those repairs, BNSF and SEMA replaced the tunnels with six round pipes that are too small to accommodate livestock and farm equipment. Because of this change, plaintiffs no longer have access to both halves of the property. So, on October 27, 2015, Ms. Christensen informed BNSF that she was terminating the temporary access easement. Nonetheless, BNSF and SEMA continued to cross Ms. Christensen's property to repair the railroad. After an attempt to resolve the dispute out of court, plaintiffs filed this lawsuit.

Plaintiffs assert several claims, including claims for trespass, fraud, and breach of contract.¹ Plaintiffs also ask the court to issue an injunction requiring defendants to "reinstall an access way under the railroad sufficient to permit the movement of livestock and agricultural equipment back and forth between the west and east tracts of [Ms.] Christensen's property." Doc. 36–1 at 7.

After removing the case, defendants filed separate Motions to Dismiss plaintiffs' Complaint. And plaintiffs timely filed their Motion to Remand. BNSF's removal was improper, so the court grants plaintiffs' Motion to Remand. Because the court lacks subject matter jurisdiction, it does not decide defendants' Motions to Dismiss. Should defendants wish to still pursue their Motions to Dismiss, they must take the steps required to do so under Kansas state law once the case is remanded.

Analysis

I. Removal

Plaintiffs contend that the court must remand this case to the District Court of Miami County, Kansas, for two reasons: (1) BNSF's Notice of Removal is procedurally defective and (2) the court lacks subject matter jurisdiction over plaintiffs' claims. Because the court concludes that it lacks jurisdiction to hear this case, it only addresses plaintiffs' second argument.

A defendant may remove any state-court, civil action to federal court if the federal court has original jurisdiction over at least one of the plaintiff's claims. 28 U.S.C. § 1441(a) ; 28 U.S.C. § 1367. But, the court must remand the case to state court if it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). "The removing party has the burden to demonstrate the appropriateness of removal from state to federal court." Baby C v. Price , 138 Fed.Appx. 81, 83 (10th Cir. 2005) (citation omitted).

All of plaintiffs' claims arise under state law and no diversity jurisdiction exists in the case because Ms. Christensen, BNSF, and SEMA are all Texas residents. Nonetheless, BNSF removed the case to our court, asserting that plaintiffs' claim for an injunction is preempted by the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. § 10101 et seq. Defendants thus contend that subject matter jurisdiction exists here under 28 U.S.C. § 1331 —commonly called federal question jurisdiction. See Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1202 (10th Cir. 2012).

Under § 1331, the court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." To determine whether a claim arises under federal law, courts employ the well-pleaded complaint rule. Id. Under this rule, "a suit arises under federal law ‘only when the plaintiff's statement of his own cause of action shows that it is based’ on federal law." Id. (quoting Schmeling v. NORDAM , 97 F.3d 1336, 1339 (10th Cir. 1996) ; further citations omitted). So, a federal defense—even one based on preemption—typically cannot satisfy the well-pleaded complaint rule, and thus cannot create federal question jurisdiction. Id. ; see also Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) ("[A] defense that relies on ... the pre-emptive effect of a federal statute will not provide a basis for removal." (citations omitted)).

But, there are limits on the well-pleaded complaint rule. Devon Energy , 693 F.3d at 1203–04. One is the complete preemption doctrine. Id. Under this doctrine, "a complaint alleging only a state law cause of action may be removed to federal court on the theory that federal preemption makes the state law claim ‘necessarily federal in character.’ " Id. at 1204 (quoting Schmeling , 97 F.3d at 1339 ; further citations omitted). This is so because the federal statute so completely preempts the state-law cause of action that "a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Anderson , 539 U.S. at 8, 123 S.Ct. 2058. Defendants contend that this doctrine applies here because the ICCTA completely preempts plaintiffs' injunction claim.

The preemption required to invoke the complete preemption doctrine is not the same preemption that defendants usually rely on as a defense, i.e. , "ordinary preemption." See Devon Energy , 693 F.3d at 1203 n.4 (citations omitted); Shupp v. Reading Blue Mountain , 850 F.Supp.2d 490, 497 (M.D. Pa. 2012). "Complete preemption is a jurisdictional concept originating in Congress's intent to wholly govern a particular area of law." Shupp , 850 F.Supp.2d at 496 (citing In re U.S. Healthcare, Inc. , 193 F.3d 151, 160 (3d Cir. 1999) ). For complete preemption to exist, then, Congress must have manifested an intent for the federal statute to "wholly displace[ ]" the state-law cause of action. Aetna Health Inc. v. Davila , 542 U.S. 200, 207–08, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting Anderson , 539 U.S. at 8, 123 S.Ct. 2058 ). So, complete preemption occurs only where "a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress's intent to permit removal." Devon Energy , 693 F.3d at 1205 (quoting Schmeling , 97 F.3d at 1342 ; further citations omitted).

Because complete preemption represents such an "extraordinary pre-emptive power," it rarely applies. Id. at 1204 (quoting Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ). Indeed, "the Supreme Court has warned that complete preemption should not be ‘lightly implied,’ " and has recognized it in only three instances: "§ 301 of the Labor Management Relations Act of 1947 ("LMRA"), § 502 of the Employee Retirement Income Security Act of 1974 ("ERISA"), and actions for usury against national banks under the National Bank Act." Id. at 1204–05 (citations omitted). Here, defendants ask the court to expand this list to include the ICCTA.

To determine whether the ICCTA completely preempts plaintiffs' easement injunction claim, then, the court must answer two questions affirmatively: (1) does "the federal regulation at issue preempt[ ] the state law relied on by the plaintiff"; and (2) did Congress intend to allow removal in this case. Id. (citing Schmeling , 97 F.3d at 1342 ). Our Circuit has instructed courts to start with the second question—congressional intent. Id. at 1206.

The congressional intent inquiry in a complete preemption case is somewhat different than the one courts employ in ordinary preemption cases. See Dutcher v. Matheson , 733 F.3d 980, 986 (10th Cir. 2013) ("[C]omplete preemption is not the same as preemption." (citation omitted)). Instead of asking whether Congress intended to provide defendants with a federal defense to a state-law claim, the court must ask whether Congress intended "the federal statutes at issue [to] provide[ ] the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action." Anderson , 539 U.S. at 8, 123 S.Ct. 2058 ; see also id. at 9 n.5, 123 S.Ct. 2058 ("[T]he proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive."). So, "[t]he existence of a potential federal cause of action is critical." Dutcher , 733 F.3d at 986 (citation omitted). And, a run of the mill express preemption provision—like the one found in § 10501 of the ICCTA—is not sufficient to create complete preemption. See Griffioen v. Cedar Rapids & Iowa City Ry. Co. , 785 F.3d 1182, 1190 (8th Cir. 2015) ("The ICCTA's express preemption provision ... does not address removal or explicitly provide for federal-question jurisdiction over all preempted...