Milesco v. Norfolk Southern Corp.

• Decision Date: 06 September 2011
• Docket Number: No. 1:09–cv–01233.,1:09–cv–01233.
• Citation: 807 F.Supp.2d 214
• Parties: Tyler Z. MILESCO, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company; and ACF Industries, LLC, Defendants/Third–Party Plaintiffs, v. Joy Technologies, Inc., f/k/a Joy Mining Machinery; and Amsted Rail Company, f/k/a ASF–Keystone, Inc., Third–Party Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

807 F.Supp.2d 214

Tyler Z. MILESCO, Plaintiff,

v.NORFOLK SOUTHERN CORPORATION, Norfolk Southern Railway Company; and ACF Industries, LLC, Defendants/Third–Party Plaintiffs,

v.Joy Technologies, Inc., f/k/a Joy Mining Machinery; and Amsted Rail Company, f/k/a ASF–Keystone, Inc., Third–Party Defendants.

No. 1:09–cv–01233.

United States District Court, M.D. Pennsylvania.

Sept. 6, 2011.

Richard A. Sadlock, Neil J. Rovner, Angino & Rovner, Harrisburg, PA, for Plaintiff.

Craig J. Staudenmaier, Joshua D. Bonn, Nauman, Smith, Shissler & Hall, LLP, Harrisburg, PA, John Ehmann, John C. McMeekin, II, Rawle & Henderson, LLP, Philadelphia, PA, for Defendants/Third–Party Plaintiffs.

Edward M. Koch, James J. Donohue, Thomas Justin Chapman, White and Williams, LLP, Philadelphia, PA, for Third–Party Defendants.

MEMORANDUM & ORDER

JOHN E. JONES III, District Judge.

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendant/Third–Party Plaintiff ACF Industries, LLC's Motion to Dismiss Plaintiff's Claims for Lack Subject Matter Jurisdiction (Federal Preemption). (Doc. 127). For the following reasons, we shall deny the pending motion.

I. PROCEDURAL HISTORY and FACTUAL BACKGROUND

On June 5, 2009, Plaintiff filed suit against ACF Industries, LLC, (“ACF”), Norfolk Southern Corporation, and Norfolk Southern Railway Company (collectively the “Norfolk Defendants”) for negligence and products liability in connection with his June 29, 2007 accident stemming from an ACF 20B gas return cushion unit (the “cushion unit”). (Doc. 1 at Ex. A). On June 29, 2009, the Defendants removed the lawsuit to federal court. (Doc. 1). On July 6, 2009, ACF filed a motion to dismiss Plaintiff's complaint, (Doc. 7), which we ultimately granted in part and denied in part on January 5, 2010, 2010 WL 55331. (Doc. 20). A day earlier, on January 4, 2010, ACF filed a third-party complaint against Amsted and Joy. (Doc. 19). ACF amended that pleading on January 20, 2010. (Doc. 22). On January 28, 2010, Plaintiff filed an amended complaint against ACF and the Norfolk Defendants. (Doc. 24). On February 16, 2010, the Defendants filed a third-party complaint against Amsted and Joy. (Doc. 34).

ACF filed a motion to dismiss Plaintiff's amended complaint on February 11, 2010. (Doc. 29). Amsted filed its motion to dismiss the third-party complaints of ACF and the Norfolk Defendants on March 8, 2010, (Doc. 44), and Joy did the same on March 8, 2010 and April 19, 2010, respectively. (Docs. 46, 63). On August 18, 2010, we issued a memorandum and order denying ACF's motion to dismiss as to Plaintiff's negligence claim, and granting it in all other respects. (Doc. 76 at 47). As to the Amsted motion, we denied the motion to the extent it was related to the contribution claims of ACF and Norfolk insofar as those claims were based upon a theory of negligent training/instruction, and granted it in all other respects. ( Id. at 47–48). Finally, regarding the Joy motions, we granted them in their entirety. ( Id.). In that order, we also granted ACF and the Norfolk Defendants leave to amend their third-party complaints to correct technical deficiencies identified in our memorandum. ( Id. at 48). ACF and the Norfolk Defendants subsequently filed amended third party complaints against Amsted on September 15, 2010. (Docs. 85, 87).

Thereafter, on September 21, 2010, Liberty Mutual/Peerless Insurance Company filed a Motion to Intervene, (Doc. 88), which we granted on January 31, 2011. (Doc. 106). On October 5, 2010, Amsted filed answers to the third party complaints of ACF and the Norfolk Defendants. (Docs. 95, 96). The Norfolk Defendants and ACF filed motions for summary judgment, (Docs. 111, 112), on May 2, 2011, as well as briefs in support thereof. (Docs. 114, 116). Subsequently, ACF filed the instant motion to dismiss for lack of subject matter jurisdiction, (Doc. 127), on June 23, 2011, and a brief in support thereof. (Doc. 128). Plaintiff filed a response and brief in opposition on July 7, 2011. (Docs. 136, 137). The Norfolk Defendants also filed a response and brief in opposition on July 7, 2011. (Docs. 138, 139). On July 20, 2011, ACF filed a reply brief in further support of its motion to dismiss. (Doc. 146). Therefore, the pending motion has been fully briefed and is ripe for disposition.

II. DISCUSSION

At the outset, we note that the doctrine of preemption is grounded in the Supremacy Clause of Article VI of the U.S. Constitution, which states that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof, ... shall be the supreme Law of the Land....” U.S. Const. Art. VI, cl. 2. As the Third Circuit noted in Kurns v. A.W. Chesterton Incorporated, there are three types of federal preemption, express preemption, implied conflict preemption, and field preemption. 620 F.3d 392, 395 (3d Cir.2010). As its name suggests, express preemption occurs when Congress creates a federal law with language explicitly providing for the preemption of a contrary state law. Id. (citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001)). On the other hand, implied conflict preemption exists when it is either “impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (citing English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Finally field preemption, the type the Court is presented with here, results when a “state law or regulation intrudes upon a field reserved for federal regulation.” Id. (citing United States v. Locke, 529 U.S. 89, 111, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000)).

ACF, in its capacity as Defendant, moves to dismiss Plaintiff's claims on grounds that the same are state common law claims preempted by federal law. (Doc. 128 at 6). It cites the Boiler Inspection Act (“BIA” also known as the “Locomotive Inspection Act” (“LIA”)), which states that “a railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances,—(1) are in proper condition and safe to operate without unnecessary danger of personal injury.” 49 U.S.C. § 20701. In addition, it contends that Federal Rail Safety Act (“FRSA”) and the Safety Appliance Act (“SAA”) are also federal statutory schemes that preempt state common law claims. (Doc. 128 at 7).

ACF argues that in this case, the BIA preempts state law on the basis of implied preemption and accordingly, the entire field is preempted. ( Id. (citing Bell v. Illinois Central R.R. Co., 236 F.Supp.2d 882, 888 (N.D.Ill.2001))). It relies on the Supreme Court's decision in Napier v. Atlantic Coast Line Railroad Company for the proposition that Congress' intent in enacting the BIA was to broadly regulate the “equipment of locomotives.” ( Id. at 8 (citing 272 U.S. 605, 611–13, 47 S.Ct. 207, 71 L.Ed. 432 (1926))). ACF claims that “because a damages award can act as a ‘potent method of governing conduct and controlling policy,’ federal statutes that occupy a field—like the BIA in the field of locomotive safety—serve to preempt both state statutory enactments and state common-law tort remedies.” ( Id. (citing D'Amico v. Garlock Sealing Techs., L.L.C., 2007 WL 2702774, *6, 2007 U.S. Dist. LEXIS 67664, *15 (E.D.Pa. Sept. 12, 2007))).

ACF also cites the Ninth Circuit's decision in Forrester v. American Dieselelectric, Incorporated where the court stated that “the purpose of the Act is not necessarily limited to protecting railroad employees but embraces the safety of the public as well....” ( Id. at 9 (citing 255 F.3d 1205, 1209–10 (9th Cir.2001))). It also asserts that the D'Amico court, in construing the Napier decision, found that a plaintiff's state tort claims against his employer alleging that he contracted mesothelioma were preempted because Napier preempted any state actions concerning “the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.” ( Id. (citing D'Amico, 2007 WL 2702774, at *6, 2007 U.S. Dist. LEXIS 67664 at *15)).

Regarding the FRSA, ACF argues that this statute supports the BIA's preemption of state law claims by outlining a series of regulations governing railcars. ( Id. at 10). It contends that the BIA's preemptive effect has been unaltered by the FRSA. Citing a Sixth Circuit case, Plaintiff argues that “the preemptive effect of the BIA on state regulation of locomotive equipment was not affected or modified by the Federal Railroad Safety Act (‘FRSA’) which was enacted in 1970.” ( Id. (citing Springston v. Consolidated Rail Corp., 130 F.3d 241, 245 (6th Cir.1997))).

As a result, ACF maintains, Plaintiff's state law claims regarding the cushion unit used on Norfolk railcars are preempted by the BIA. (Doc. 128 at 11). It also argues that in construing the BIA phrase “parts and appurtenances” the Supreme Court in Southern Railway Company v. Lunsford held that “whatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the Interstate Commerce Commission, are within the statute.” ( Id. (citing 297 U.S. 398, 402, 56 S.Ct. 504, 80 L.Ed. 740 (1936))). ACF contends that to understand the meaning of the term “appurtenance” in the statute, it is necessary understand what this word meant at the time the statute was enacted, in 1911. ( Id. at 11). Citing a version of Webster's dictionary published in 1913, it asserts that at that time “appurtenance” meant “that which belongs to something else; an adjunct; an appendage; an accessory; something annexed to another thing more worthy; in common parlance and legal acceptation, something belonging to another thing as principal, and which passes as incident to it, as a right of way, or other...