Garza v. Nat'l R.R. Passenger Corp.

• Decision Date: 01 October 2019
• Docket Number: CASE NO. C18-5106 BHS
• Citation: 418 F.Supp.3d 644
• Parties: Madeleine GARZA, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION d/b/a Amtrak, Defendant.
• Court: U.S. District Court — Western District of Washington

418 F.Supp.3d 644

Madeleine GARZA, Plaintiff,

v.NATIONAL RAILROAD PASSENGER CORPORATION d/b/a Amtrak, Defendant.

CASE NO. C18-5106 BHS

United States District Court, W.D. Washington, at Tacoma.

Signed October 1, 2019

Christopher Eric Love, Thomas Brian Vertetis, Nicholas B. Douglas, Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, WA, Dustin J. Dailey, Kathryn Nicole Potvin, Kim Rolofson Putnam, Putnam Lieb Potvin, Olympia, WA, for Plaintiff.

Andrew Gordon Yates, Warren E. Babb, Jr., Rachel Greenlee, Katie Bass, Tim D. Wackerbarth, Lane Powell PC, Seattle, WA, John A. Bonventre, Pro Hac Vice, Landman Corsi Ballaine & Ford, Newark, NJ, Mark S. Landman, Pro Hac Vice, Landman Corsi Ballaine & Ford, New York, NY, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on Defendant National Railroad Passenger Corporation d/b/a Amtrak's ("Amtrak") motion for summary judgment on punitive damages and consumer protection act claim, Dkt. 21, and supplement re: motion for summary judgment on punitive damages and consumer protection act claim, Dkt. 30. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On February 13, 2018, Plaintiff Madeleine Garza ("Garza") filed a complaint against Amtrak for damages sustained when Amtrak Train 501 derailed near DuPont, Washington. Dkt. 1. Garza asserts a negligence claim and a claim for violation of Washington's Consumer Protection Act ("CPA"), RCW Chapter 19.86, and requests actual damages, punitive damages, and injunctive relief. Id.

On July 31, 2019, the deadline for filing dispositive motions, Amtrak filed a motion for summary judgment on Garza's request for punitive damages and on her CPA claim. Dkt. 21.

On August 9, 2019, the Court granted Amtrak's motion for summary judgment on punitive damages in a related case, Wilmotte v. Nat'l R.R. Passenger Corp. , C18-0086BHS, 2019 WL 3767133 (W.D. Wash. Aug. 9, 2019) (" Wilmotte "), and granted in part and denied in part Amtrak's motion for summary judgment on a CPA claim in another related case, Harris v. Nat'l R.R. Passenger Corp. , C18-134BHS, 2019 WL 3767140 (W.D. Wash. Aug. 9, 2019).

On August 16, 2019, the last business day before Garza's response was due, Amtrak renoted its motion for consideration on September 6, 2019. Dkt. 27. On August 22, 2019, Amtrak renoted its motion for consideration on September 20, 2019. Dkt. 29. On August 27, 2019, Amtrak filed a supplemental brief in support of its motion. Dkt. 30. On September 16, 2019, Garza responded to the motion and the supplement. Dkts. 32, 33. On September 20, 2019, Amtrak submitted two replies. Dkts. 36, 38.

II. FACTUAL BACKGROUND

The majority of the facts relevant to this motion are undisputed. The Amtrak Cascades line operates from Eugene, Oregon to Vancouver, British Columbia. On December 18, 2017, Amtrak began service on a new section of track on the Cascades line, which bypassed Point Defiance ("Point Defiance Bypass"). This section of track is approximately 20 miles and runs from Olympia to Tacoma, Washington. A part of the section is commonly referred to as the Lakewood Subdivision. Sound Transit is a public transit authority serving the nearby communities which owns the Lakewood Subdivision and operates as a host railroad for Amtrak.

In response to an Amtrak derailment outside of Philadelphia in 2015, Congress passed the Fixing America's Surface Transportation Act ("FAST Act"), PL 114-94, 129 Stat. 1312. In certain situations, the FAST Act required railroad carriers to "identify each main track location where there is a reduction of more than 20 miles per hour from the approach speed to a curve, bridge, or tunnel." § 11406, 129 Stat. at 1684–85. Railroad carriers were required to develop speed limit action plans including "increased crew communication" to prevent overspeed derailments at the identified track locations. Id. Importantly, the carrier, in this case Amtrak, was responsible for meeting the requirements of the FAST Act and not the host railroad, Sound Transit. Id.

It is undisputed that Amtrak failed to comply with the FAST Act's requirements for the inaugural run on the Point Defiance Bypass. At milepost 19.8 ("MP 19.8") of the Lakewood Subdivision, there is a 49 mile per hour ("mph") speed reduction curve where trains must reduce their speed from 79 mph to 30 mph. Neither Amtrak's regional safety office, located in Seattle, Washington, nor Amtrak's national safety office, located in Wilmington, Delaware, included any warning of the MP 19.8 speed reduction curve in its General Order for the territory covering the Point Defiance Bypass. The General Order provides the instructions for all Amtrak employees operating in the specific geographic area. Dkt. 34-2 at 7–10. The order is intended to include a list of all FAST Act locations, and the order instructs the conductor to verbally remind the locomotive engineer of the upcoming speed reduction location.

The parties dispute which office is to blame for failing to include the speed reduction curve at MP 19.8 in the General Order. Although the parties have each submitted voluminous evidence in support of their respective positions, the Court declines to summarize this evidence because the evidence supports a conclusion that Amtrak employees in both Seattle and Delaware were negligent by omission regarding this speed reduction curve. For the purposes of the instant motion, the Court will give Garza the benefit of the doubt in finding that Amtrak's Delaware employees were more negligent than the Seattle employees, which is itself a dubious conclusion.¹

On December 17, 2018, the inaugural run, Amtrak 501, left the Amtrak station at Tacoma, Washington heading toward MP 19.8. As the train approached the curve, the conductor failed to verbally remind the engineer of the need to reduce the train's speed to 30 mph. The train entered the curve at a high rate of speed, derailed, and resulted in a horrible accident killing three passengers and injuring numerous others.

III. DISCUSSION

A. Procedural Issues

Garza moves to strike Amtrak's supplemental brief as an untimely dispositive motion and argues that Amtrak waived its defense of preemption. Dkt. 32 at 3–6. Regarding the first issue, Amtrak cleverly used the local rules to renote its timely motion for summary judgment and then titled its second motion as a "supplement." It even realized that there could be an issue with this litigation tactic by addressing prejudice to Garza in the introduction to its supplement. Despite this questionable tactic, the Court denies Garza's motion to strike because (1) Garza was afforded sufficient notice and opportunity to be heard and (2) the Court prefers resolving all issues of law before trial.

Regarding waiver, it is undisputed that Amtrak should have included the affirmative defense of preemption in its answer. See Metropolitan Life Ins. Co. v. Taylor , 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ("Federal pre-emption is ordinarily a federal defense to the plaintiff's suit."); Sickle v. Torres Advanced Enter. Sols., LLC , 884 F.3d 338, 345 (D.C. Cir. 2018) ("Preemption ordinarily is an affirmative defense forfeitable by the party entitled to its benefit."); Fed. R. Civ. P. 8(c) (affirmative defenses must be made in defendant's responsive pleading). "In the absence of a showing of prejudice, however, an affirmative defense may be raised for the first time at summary judgment." Camarillo v. McCarthy , 998 F.2d 638, 639 (9th Cir. 1993). Here, Garza argues that Amtrak "has no conceivable excuse for failing to raise a defense based on a statute literally titled ‘The Amtrak Act’ that repeatedly references Amtrak." Dkt. 32 at 5–6. While the Court agrees with Garza on this point, Garza has failed to establish prejudice from Amtrak's untimely assertion of its affirmative defense. In the absence of prejudice, the Court concludes that Amtrak did not waive this defense.

B. Summary Judgment

1. Standard

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson , 477 U.S. at 254, 106 S.Ct. 2505 ; T.W. Elec. Serv., Inc. , 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the...