Rushing v. Kansas City Southern Ry. Co., No. CIV.A. 99-CV-185.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtBarbour
Citation194 F.Supp.2d 493
PartiesWillard R. RUSHING and Patricia Ann Rushing Plaintiffs v. KANSAS CITY SOUTHERN RAILWAY COMPANY Defendant
Decision Date22 May 2001
Docket NumberNo. CIV.A. 99-CV-185.
194 F.Supp.2d 493
Willard R. RUSHING and Patricia Ann Rushing Plaintiffs
v.
KANSAS CITY SOUTHERN RAILWAY COMPANY Defendant
No. CIV.A. 99-CV-185.
United States District Court, S.D. Mississippi, Jackson Division.
May 22, 2001.

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COPYRIGHT MATERIAL OMITTED

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Thomas W. Prewitt, Thomas W. Prewitt, Attorney, Ridgeland, for Willard R. Rushing, Patricia Ann Rushing, plaintiffs.

Charles E. Ross, Chad M. Knight, Wise, Carter, Child & Caraway, Jackson, for Kansas City Southern Railway Company, defendants.

OPINION AND ORDER

BARBOUR, District Judge.


This cause is before the Court on the Motion of the Defendant to Dismiss for lack of federal subject matter jurisdiction. In the alternative, the Defendant seeks partial summary judgment on the Plaintiffs' common law claim of nuisance. The

Page 496

Court has considered the motion, response, rebuttal, attachments to each and supporting and opposing authority and finds that the Motion to Dismiss should be granted in part and denied in part.

I. Factual Background and Procedural History

The subject of this cause of action relates to the operation by the Defendant, Kansas City Southern Railway Company ("Kansas City") of its switching station located in close proximity to the Plaintiffs' home at 1845 Twin Pine Drive, Rankin County, Mississippi. On June 4, 1997, the Plaintiffs filed a lawsuit in the Circuit Court of Rankin County, Mississippi, (Rushing I) alleging that the Defendant was operating its trains and switching yard in a manner which created a private nuisance. See Motion to Dismiss, Exhibit B. Specifically, the acts taken by the Defendant about which the Plaintiffs complain include: (1) the creation of "unbearable levels of noise caused by trains switching, brakes screeching, and horn blowing at all hours of the day and night," (2) the creation of vibrations from railroad cars which are allowed "to roll down an incline and collide with other cars at the lower end," and (3) damage to their property because of pooling rainwater they allege results from an approximately twelve-foot high earthen berm that was erected by the Defendant adjacent to their property.1 Through their complaint, the Plaintiffs seek $70,000.00 in compensatory damages related to the diminution in value of their real property, $250,000.00 in special damages related to the mental anguish, inconvenience, and medical bills they have incurred, and (3) $20,000.00 for each Plaintiff related to the loss of conjugal rights secondary to the alleged nuisance.

The Defendant timely removed the case to this Court. For the purpose of diversity analysis, the Plaintiffs are citizens of the State of Mississippi, the Defendant is a corporate citizen of the State of Missouri, and the amount in controversy exceeds the jurisdictional amount. The Court, therefore, has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332 unless preempted under federal law.

The Defendant, in Rushing I, moved for partial summary judgment alleging that the Plaintiffs' state law claim of nuisance, as it related to the level of noise emanating from the switch yard, was preempted under the Noise Control Act of 1972, codified at 42 U.S.C. § 4916 et seq. The decision of this Court which granted partial summary judgment to the Defendant was reversed by the United States Court of Appeals for the Fifth Circuit. See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496 (5th Cir. 1999). The case was then remanded back to this Court for further proceedings.

While Rushing I was pending appeal, the Plaintiffs filed a second lawsuit in the Chancery Court of Rankin County, Mississippi, on February 23, 1999 (Rushing II). See Motion to Dismiss, Exhibit B. In their second complaint, the Plaintiffs allege that the Defendant negligently operated its switch yard by: (1) conducting switching activities primarily at night thereby disrupting their ability to sleep, (2) allowing train engineers to blow the train horns and whistles at unnecessary high levels and for long intervals when backing-up in the switch yard, (3) switching railroad cars by rolling them down an incline where they collide with other cars, (4) operating its switching operations in a manner which causes the brakes on the train to squeal and screech unnecessarily, and (5) allowing

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railroad cars to crash together during switch yard operations. The Plaintiffs allege that these negligent acts have created unbearable noise levels and vibrations which in turn have caused damage to their real property and resulted in physical, mental and emotional health problems. The Plaintiffs also again allege that the Defendant was negligent in the manner in which it constructed the earthen berm adjacent to their property. Through their second complaint, the Plaintiffs seek compensatory damages in the amount of $60,000.00, and injunctive relief. The Plaintiffs seek to have the Defendant enjoined from operating its switch yard in a manner that produces noise levels exceeding the permissible limits. The Plaintiffs also seek a court order requiring the Defendant to (1) eliminate the damaging vibrations caused by operations at the switch yard and (2) correct the conditions on its property, specifically the earthen berm, that have altered the natural flow and drainage of rainwater from their property.

The Defendant removed Rushing II to this Court and, by an Order of April 18, 2000, Rushing I and Rushing II were consolidated. The Defendant has now moved to have the consolidated action dismissed for lack of federal subject matter jurisdiction. The Defendant contends that under the Interstate Commerce Commission Termination Act ("ICCTA"), codified at 49 U.S.C. § 10101 et seq., the Surface Transportation Board ("STB") has exclusive jurisdiction to hear claims related to switching operations conducted by railroads. The Defendant also argues that in the event this Court has concurrent jurisdiction with the STB on the Plaintiffs' claims, the matter should nevertheless be referred to the STB under the doctrine of primary jurisdiction.

II. Analysis

Pursuant to 49 U.S.C. § 10501(b)(2):

The jurisdiction of the [STB] over—

the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

The issue before the Court is whether Congress intended the preemptive effect of this statute to apply to the case sub judice.

Under the basic principles of preemption, "the Laws of the United States ... shall be the Supreme Law of the Land ... any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. Federal law displaces state law when (1) Congress has acted to expressly preempt state or local law, (2) the intent of Congress to preempt state or local law may be inferred from the existence of a pervasive regulatory scheme, or (3) state or local law conflicts with federal law or otherwise frustrates the accomplishment of a federal objective. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 n. 1 (5th Cir.1995) (citing Hillsborough County, Fla. v. Automated Med. Lab., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985)).

It is well settled that Congress, under the Commerce Clause, has the authority to regulate railroads. See e.g. Pittsburgh & Lake Erie RR v. Railway Labor Executives Ass'n, 491 U.S. 490, 510, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989); Houston E & W Tex. Ry. v. United States, 234 U.S. 342, 350-52, 34 S.Ct. 833, 58 L.Ed. 1341 (1914). Further, "the [United States] Supreme Court repeatedly has recognized

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the preclusive effect of federal...

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32 practice notes
  • Bd. of Selectmen of the Town of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • U.S. District Court — District of Massachusetts
    • 22 Mayo 2013
    ...337 F. Supp. 2d 233, 240 (D. Mass. 2004) ("STB has exclusive jurisdiction over construction projects."); Rushing v. K.C. S. Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) ("[T]he clear and manifest purpose of Congress when it enacted [Section 10501] was to place certain areas of railro......
  • Home of Economy v. Burlington Northern, No. 20040267.
    • United States
    • United States State Supreme Court of North Dakota
    • 6 Abril 2005
    ...(9th Cir.1998) (holding plain language of ICCTA preempted state and local environmental land use laws); Rushing v. Kansas City S. Ry., 194 F.Supp.2d 493, 499-501 (S.D.Miss.2001) (holding ICCTA preempted state nuisance and negligence action to enjoin railroad from operation of switch yard); ......
  • Diehl v. CSX Transp., Inc., Case No. 3:18-cv-122
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 1 Octubre 2018
    ...utilize state law to control noise produced by railroad operations to be preempted by the ICCTA."); Rushing v. Kan. City S. Ry. Co. , 194 F.Supp.2d 493 (S.D. Miss. 2001) ("[A]lthough the relevant Mississippi laws of negligence and nuisance may be construed as a [sic] exercise of the police ......
  • Bd. of Selectmen of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 17 Mayo 2013
    ...337 F. Supp. 2d 233, 240 (D. Mass. 2004) ("STB has exclusive jurisdiction over construction projects"); Rushing v. K.C. S. Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) ("[T]he clear and manifest purpose of Congress when it enacted [Section 10501] was to place certain areas of railroa......
  • Request a trial to view additional results
32 cases
  • Bd. of Selectmen of the Town of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • U.S. District Court — District of Massachusetts
    • 22 Mayo 2013
    ...337 F. Supp. 2d 233, 240 (D. Mass. 2004) ("STB has exclusive jurisdiction over construction projects."); Rushing v. K.C. S. Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) ("[T]he clear and manifest purpose of Congress when it enacted [Section 10501] was to place certain areas of railro......
  • Home of Economy v. Burlington Northern, No. 20040267.
    • United States
    • United States State Supreme Court of North Dakota
    • 6 Abril 2005
    ...(9th Cir.1998) (holding plain language of ICCTA preempted state and local environmental land use laws); Rushing v. Kansas City S. Ry., 194 F.Supp.2d 493, 499-501 (S.D.Miss.2001) (holding ICCTA preempted state nuisance and negligence action to enjoin railroad from operation of switch yard); ......
  • Diehl v. CSX Transp., Inc., Case No. 3:18-cv-122
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 1 Octubre 2018
    ...utilize state law to control noise produced by railroad operations to be preempted by the ICCTA."); Rushing v. Kan. City S. Ry. Co. , 194 F.Supp.2d 493 (S.D. Miss. 2001) ("[A]lthough the relevant Mississippi laws of negligence and nuisance may be construed as a [sic] exercise of the police ......
  • Bd. of Selectmen of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 17 Mayo 2013
    ...337 F. Supp. 2d 233, 240 (D. Mass. 2004) ("STB has exclusive jurisdiction over construction projects"); Rushing v. K.C. S. Ry. Co., 194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) ("[T]he clear and manifest purpose of Congress when it enacted [Section 10501] was to place certain areas of railroa......
  • Request a trial to view additional results

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