Skidmore v. Norfolk S. Ry. Co.

• Citation: 1 F.4th 206
• Decision Date: 14 June 2021
• Docket Number: No. 19-2482,19-2482
• Parties: Tammy A. SKIDMORE, Plaintiff - Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia corporation, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F.4th 206

Tammy A. SKIDMORE, Plaintiff - Appellant,

v.NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia corporation, Defendant – Appellee.

No. 19-2482

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2021

Decided: June 14, 2021

ARGUED: Jason Patrick Foster, THE SEGAL LAW FIRM, Charleston, West Virginia, for Appellant. Raymond A. Atkins, SIDLEY AUSTIN LLP, Washington, D.C., for Appellee. ON BRIEF: Scott S. Segal, Robin Jean Davis, THE SEGAL LAW FIRM, Charleston, West Virginia, for Appellant. John H. Mahaney, II, Ellen M. Jones, William C. Brown, III, DINSMORE & SHOHL LLP, Huntington, West Virginia, for Appellee.

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

DIAZ, Circuit Judge:

This case pits two important interests against one another: Tammy Skidmore's interest in preventing her home's foundation from eroding into the creek next to her property, and Norfolk Southern Railway Company's (and, indeed, the nation's) interest in protecting land within the national railway corridor against those who wish to adversely possess it. At this junction, however, we need only resolve whether state or federal courts must decide whose interest prevails. As we explain, the district court correctly rejected Skidmore's attempt to litigate in state court because federal law completely preempts two of Skidmore's state-law claims. But the court was wrong to then dismiss the case on the ground that it lacked subject matter jurisdiction over the claims. So we vacate the district court's judgment and remand for further proceedings.

I.

Tammy Skidmore owns a home in Kincaid, West Virginia. About 70 to 80 feet east of her home lies a set of railroad tracks owned and operated by Norfolk Southern Railway Company, which transports goods by rail throughout much of the United States. Loop Creek, a tributary of the Kanawha River, runs in between Skidmore's home and Norfolk Southern's tracks.

In 2001, Norfolk Southern secured permission from local authorities to install a culvert to drain surface water from its tracks into Loop Creek near Skidmore's home. It built the culvert to drain the water at an angle perpendicular to the direction of Loop Creek's natural flow. According to Skidmore, the water streaming from the culvert caused "bars" to form in Loop Creek's riverbed, J.A. 23, which diverted the creek's flow into the bank on her side of the creek. She claims that the "constant and continuous" soil erosion caused by the creek's altered flow has washed away three to five feet of the creek bed on her side of the water. That erosion has begun "threaten[ing] the foundation of her home." J.A. 24.

Skidmore sued Norfolk Southern in West Virginia state court in March 2017, initially alleging only state-law claims for negligence, private nuisance, and trespass. In response to the suit, Norfolk Southern obtained the relevant property deeds and conducted a survey of the land on both sides of Loop Creek. The survey and deeds revealed that, in 1903, Norfolk Southern obtained a right of way extending 75 feet from the center of its tracks, across Loop Creek, and over a portion of the land on the other side. A portion of Skidmore's house now sits atop the land over which the right of way runs.¹

After learning about the right of way, Norfolk Southern amended its answer on March 16, 2018 to include as an affirmative defense that Skidmore lacked standing to pursue her state-law claims because she had no right to exclude Norfolk Southern from the land. In response, Skidmore amended her complaint on August 23, 2018 to include new claims for adverse possession and prescriptive easement (the "quiet title claims"), both of which asserted that she was the exclusive owner of the land at issue by operation of West Virginia law.² On September 20, 2018—28 days later—Norfolk Southern removed the case to federal court under the theory that the Interstate Commerce Commission Termination Act completely preempts the quiet title claims. See Lontz v. Tharp , 413 F.3d 435, 439–40 (4th Cir. 2005) (describing the complete preemption doctrine's jurisdictional implications).

Skidmore moved to remand, arguing that Norfolk Southern's removal was untimely and that the district court lacked subject matter jurisdiction because Skidmore completed her takeover of the land before Congress passed the Termination Act. The district court rejected both arguments.

Skidmore then moved the court to reconsider its jurisdictional ruling because, she argued, the Termination Act doesn't completely preempt her quiet title claims. Shortly thereafter, Norfolk Southern filed a motion for judgment on the pleadings, contending that the Termination Act does, in fact, completely preempt Skidmore's claims and require their dismissal.

The district court resolved both motions in a joint order. It held that Norfolk Southern had an ownership interest in the land at issue and that the Termination Act completely preempts Skidmore's quiet title claims. Based on those conclusions, the court decided that it "lack[ed] subject matter jurisdiction" over the quiet title claims, J.A. 163, that Skidmore "does not own the property she claims eroded," J.A. 164, and that she "lack[ed] standing to pursue" her other state-law claims, id .

This appeal followed.

II.

On appeal, Skidmore renews her arguments that (1) Norfolk Southern's removal was untimely, and (2) the district court lacked jurisdiction over the case (and shouldn't have granted Norfolk Southern's motion for judgment on the pleadings) because the Termination Act doesn't completely preempt her quiet title claims.³ We begin with the timeliness argument.

A.

Because the district court's denial of Skidmore's motion to remand was a jurisdictional ruling, we review it de novo. Elliott v. Am. States Ins. Co. , 883 F.3d 384, 390 (4th Cir. 2018).

The rules governing removal to federal court provide that a defendant "shall have 30 days after receipt by or service ... of the initial pleading or summons ... to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B). If "the case stated by the initial pleading is not removable," however, a defendant may remove the action "within 30 days after receipt ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." Id. at § (b)(3). Under either scenario, a defendant's 30-day removal clock doesn't begin until the basis for removal jurisdiction becomes "apparent within the four corners of the initial pleading or subsequent paper." Lovern v. Gen. Motors Corp. , 121 F.3d 160, 162 (4th Cir. 1997) ; see also Hurley v. CBS Corp. , 648 F. App'x 299, 304 (4th Cir. 2016) ("[U]ntil the defendant receives some indicia of removability, the 30-day clock does not begin to run.").

Norfolk Southern contends that its removal was timely because it filed its notice of removal 28 days after Skidmore filed her amended complaint, which plainly stated her quiet title claims for the first time. Skidmore, on the other hand, claims that the 30-day clock should have started when she filed her original complaint or, at the latest, when Norfolk Southern moved to amend its answer to include Skidmore's lack of standing as an affirmative defense. We agree with Norfolk Southern.

While Skidmore alleged in her original complaint that she owned the land at issue, she did so without relying on adverse possession or prescriptive easement theories and without knowledge of Norfolk Southern's right of way. Indeed, Skidmore didn't become aware of Norfolk Southern's possessory interest in the land until the railroad conducted its land survey and reviewed the relevant deeds after she filed suit. So Skidmore had no need to include the quiet title claims in her original pleading because, as she understood the facts, she owned the land free and clear of any encumbrances. As a result, there was no quiet title claim apparent in Skidmore's original complaint.

In West Virginia, a plaintiff seeking to adversely possess a right of way granted by deed must show that her possession was "hostile at its inception, adverse, actual, visible, open, notorious, exclusive, under claim of ownership and continuous for [10 years]." White v. Lambert , 175 W.Va. 253, 332 S.E.2d 266, 268 (1985).

The elements of a prescriptive easement claim in West Virginia are similar:

(1) the adverse use of another's land; (2) that the adverse use was continuous and uninterrupted for at least ten years; (3) that the adverse use was actually known to the owner of the land, or so open, notorious and visible that a reasonable owner of the land would have noticed the use; and (4) the reasonably identified starting point, ending point, line, and width of the land that was adversely used, and the manner or purpose for which the land was adversely used.

Weatherholt v. Weatherholt , 234 W.Va. 722, 769 S.E.2d 872, 880 (2015) (cleaned up).

Nothing in the original complaint would have alerted Norfolk Southern that Skidmore was attempting to quiet title of the land under either of those two theories. The complaint contained no allegations about, for example, Skidmore's hostile and uninterrupted use of the land for at least ten years or Norfolk Southern's knowledge of that use. By comparison, her amended complaint makes her quiet title claims crystal clear. Thus, Norfolk Southern's removal clock didn't start when Skidmore filed her original complaint.

Nor did it start when Norfolk Southern amended its answer. The purpose of that amendment was to assert that Skidmore lacked standing to pursue negligence, trespass, and nuisance claims to protect land she didn't own exclusively. We see no reason—and Skidmore provides none—to conclude that Norfolk Southern's amendment was a tacit sign that it anticipated a future quiet title claim.

To the contrary, the quiet title claims didn't become ...