New Orleans & Gulf Coast Ry. Co. v. Barrois

Decision Date25 June 2008
Docket NumberNo. 06-31142.,06-31142.
Citation533 F.3d 321
PartiesNEW ORLEANS & GULF COAST RAILWAY COMPANY, Plaintiff-Appellant, v. Angel Marinovich BARROIS; Darren J. Barrois; Becky Hingle Kaliszeski; Jason C. Kaliszeski; Brady J. Miller; Tracy Windham Miller; Betty St. Germain Nelson; Kevin A. Nelson; Jerry J. Rayborn, Sr.; Lawrence Joseph Tillotson; Patricia Lerille Tillotson; Furniture Mart—Real Estate Holdings, LLC; Carol Plaisance Gainey; Leonard Jourdan, Jr.; Bruce Kennair; Tammy L. Kennair; Ann Frost Koen; Earl Herman Koen, Jr.; Sandra R. Rabalias; Martha Riddle; Winnie L. Soule; Marie Verdin Soulet; Rene Soulet; Dawn P. Treadway; John W. Treadway; Carl Steven Woodall; Robin Meyer Woodall, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Lawrence J. Ernst, Mary Beth Meyer (argued), Christovich & Kearney, New Orleans, LA, for Plaintiff-Appellant.

Stephen O. Scandurro, Scandurro & Layrisson, New Orleans, LA, W. Eric Lundin, III, Belle Chasse, LA, for Angel and Darren Barrois, and Bruce and Tammy Kennair.

Joe M. Inabnett (argued), New Orleans, LA, Larry Bruce Feldman, Jr. (argued), McGlinchey Stafford, New Orleans, LA, for Brady and Tracy Miller, Rayborn and Gainey.

Michael R. Delesdernier, Metairie, LA, for Betty and Kevin Nelson, Ann and Earl Koen, Riddle, Dawn and John Treadway and Carl and Robin Woodall.

Marc Christopher Dougherty, Sr., Gretna, LA, for Lawrence and Patricia Tillotson.

Michael Quirk Walshe, Jr. (argued), Stephen G. Bullock, Mary Stanfield Bubbett Jackson, Stone, Pigman, Walther & Wittmann, Jason Matthew Bilbe, Entergy Corp., New Orleans, LA, for Furniture Mart — Real Estate Holdings, LLC.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, SMITH and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The plaintiff-appellant New Orleans & Gulf Coast Railway Company ("NOGCR" or the "Railroad") brought this action to prevent the defendants-appellees, a collection of Louisiana property owners (the "Landowners"), from installing or using private, at-grade railroad crossings, which the Railroad has not authorized, but which Louisiana state property law allegedly has. The district court dismissed the case for lack of subject matter jurisdiction. We AFFIRM.


NOGCR is a short-line railroad company that operates in Louisiana. The Landowners are the owners of enclosed estates, a group of Louisiana property owners whose only access from their estates to any public road is blocked by the Railroad's tracks. This dispute involves the right of the Landowners to cross the Railroad's tracks to reach these public roads.

Article 689 of the Louisiana Civil Code permits the owner of an estate with no access to a public road to claim a right of passage over neighboring property to the nearest public road in exchange for indemnity. LA. CIV.CODE art. 689. With this Louisiana authority as background, the Landowners have built private, at-grade1 railroad crossings of various types and quality over the Railroad's tracks.2

The Railroad seeks to regulate these private crossings and has attempted to require the Landowners to obtain Railroad-issued permits, at some cost, to construct and operate the crossings. According to the Railroad, these private crossings impose substantial burdens on the Railroad in terms of both cost and safety. The crossings supposedly make it more difficult and thus more costly for the Railroad to upgrade, maintain, and monitor its tracks. The Railroad claims that it has incurred expense in correcting and improving the substandard workmanship of some of these crossings and repairing damage to the tracks caused by these crossings. The crossings also allegedly make it difficult for the Railroad to comply with various federal regulations governing railroad operation and safety. In short, these private crossings increase the Railroad's operating costs, imposing what the Railroad characterizes in its complaint as "onerous economic requirements on NOGCR's railroad operations."

As a result, the Railroad brought this action in federal court seeking injunctive and declaratory relief either to prohibit or regulate these private crossings, which the Railroad allegedly has not permitted. In its complaint, the Railroad sought a permanent injunction ordering the Landowners to "cease and desist from their continuing trespass and intrusion upon its right-of-way and interference with railroad operations by use of unauthorized and substandard crossings." Further, as part of its prayer for relief, the Railroad sought to prohibit private railroad crossings "without [its] express written permission." The Railroad also sought a declaratory judgment that, in short, its right-of-way in the Railroad vis-à-vis Louisiana state law was superior to any claimed right of passage by the Landowners. Moreover, the Railroad sought a declaration that Louisiana Civil Code Article 689, the basis for the Landowners' claimed right of passage, was preempted by federal law, specifically the Interstate Commerce Commission Termination Act ("ICCTA"), the Federal Railroad Safety Act ("FRSA"), and the Commerce Clause.

Some time after the Railroad filed its declaratory judgment action, one of the defendants in the case, Jerry J. Rayborn Sr., filed an action against the Railroad in Louisiana state court seeking a temporary restraining order, a preliminary injunction, and a permanent injunction to prevent the Railroad from interfering with the private railroad crossings located on Rayborn's property. The Louisiana state court granted a temporary restraining order that prevented the Railroad from barricading or removing Rayborn's two existing private crossings, which provided the Rayborn property with access to a public road. The order also required Rayborn to post a $2,500 bond. The Railroad removed Rayborn's case to federal court, where the case was consolidated with the Railroad's declaratory judgment action, while the temporary restraining order remained in effect.

Before the district court, the Railroad asserted jurisdiction based both on the presence of a federal question and diversity, 28 U.S.C. §§ 1331 and 1332. Regarding federal question jurisdiction, the Railroad claimed that the case was one "arising under" the Constitution and laws of the United States because two federal statutes, the ICCTA and the FRSA, and the Constitution's Commerce Clause preempted the inconsistent Louisiana state law authorizing the railroad crossings. The district court rejected these claims, dismissing the Railroad's declaratory judgment action for lack of subject matter jurisdiction and, for the same reason, remanding the Rayborn action to the Louisiana state court.

The Railroad now appeals. The Railroad does not, however, appeal the district court's Commerce Clause or diversity jurisdiction rulings. Rather, the Railroad's appeal focuses on its claim that federal jurisdiction is proper under 28 U.S.C. § 1331 because it seeks injunctive relief based on a federal statute, because of the completely preemptive force of the ICCTA and the FRSA, and because the case otherwise presents a substantial federal question.


We review a district court's determination of subject matter jurisdiction de novo. PCI Transp., Inc. v. Forth Worth & W. R.R. Co., 418 F.3d 535, 540 (5th Cir.2005) (quoting Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003)). The district court "has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Jurisdictional findings of fact are reviewed for clear error. Krim v., Inc., 402 F.3d 489, 494 (5th Cir.2005). The party seeking to assert federal jurisdiction, in this case the Railroad, has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001); Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).

However, pursuant to 28 U.S.C. § 1447(d), we lack jurisdiction to entertain an appeal of a district court's remand order when that order is based on, among other things, lack of subject matter jurisdiction. Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995); Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir.2004); see also Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) ("[T]o prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court." (citation omitted)).

Therefore, under § 1447(d), we lack jurisdiction to consider the district court's remand order for lack of subject matter jurisdiction, and we DISMISS that portion of the appeal challenging the district court's decision to remand the Rayborn action to state court.


Turning to the declaratory judgment action, the Railroad presents four arguments why the district court erred in dismissing its case for lack of subject matter jurisdiction. First, the Railroad argues that federal question jurisdiction is established because it seeks injunctive relief against an allegedly preempted state law or regulation. Second, relying on the complete preemption doctrine, the Railroad argues that the ICCTA preempts any state law claim to a right of passage over the Railroad's tracks, rendering such a claim either wholly federal or nothing at all. Third, the Railroad argues that the FRSA also completely preempts any state law claim to a right of passage. Fourth, the Railroad...

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