Rushing v. Kansas City Southern Ry. Co., CIV.A. 99-CV-185.

• Decision Date: 22 May 2001
• Docket Number: No. CIV.A. 99-CV-185.,CIV.A. 99-CV-185.
• Citation: 194 F.Supp.2d 493
• Parties: Willard R. RUSHING and Patricia Ann Rushing Plaintiffs v. KANSAS CITY SOUTHERN RAILWAY COMPANY Defendant
• Court: U.S. District Court — Southern District of Mississippi

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.

COPYRIGHT MATERIAL OMITTED

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 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 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 the preclusive effect of federal legislation" in the area of railroad regulation. City of Auburn v. United States, 154 F.3d 1025, 1029 (9th Cir.1998) (citations omitted). Congress initially asserted federal authority over the railroad industry by enacting the Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887), which, as amended, continues to govern federal regulation of that industry, and has been recognized as "among the most pervasive and comprehensive of federal regulatory schemes." Id. (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 318, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981)). Federal regulation of the railroad industry was expanded in 1995 when Congress enacted the ICCTA. See H.R. Rep. No. 104-311, at 95-96 (1995), reprinted in 1995 U.S.C.C.A.N. 807-08 (indicating the Congress enacted changes to the jurisdictional provision of the ICCTA "to reflect the direct and complete preemption of State economic regulation of railroads. The changes include extending exclusive Federal jurisdiction to matters relating to spur, industrial, team, switching or side tracks formerly reserved for State jurisdiction.").

Under the principles of federalism, preemption does not lie unless preemption is "the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). The United States Supreme Court has found that "in the absence of a clearly expressed legislative intention to the contrary, the language of the statute itself must ordinarily be regarded as exclusive." Burlington N. R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987). Therefore, the "starting point in statutory interpretation is the language [of the statute] itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Statutory interpretation is guided by two principles:

First, there is a presumption, especially in fields where states have traditionally reigned, that "the historic police powers of the State were not to be superceded by the Federal Act unless...