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Skidmore v. Norfolk Southern Railway Co.

United States District Court, S.D. West Virginia, Charleston Division

April 18, 2019

TAMMY A. SKIDMORE, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         Pending before the Court is Plaintiff Tammy Skidmore's ("Plaintiff) Motion to Remand. (ECF. No. 6.) For the reasons discussed herein, the Court DENIES the motion.

         I. BACKGROUND

         The allegations in the Amended Complaint involve a parcel of real property located at 176 Page Street, Kincaid, Fayette County, West Virginia. Plaintiff resides in a home located on the property. (ECF No. 1-1 at 5, ¶¶ 1, 6.) The eastern boundary of the property boarders Loop Creek, and Plaintiffs home faces a railroad track situated on the opposite side of the creek. (Id. ¶¶ 7, 9.) Defendant Norfolk Southern Railway Company ("NSRC") owns railroad lines that run adjacent to the creek, opposite of the property, (id. ¶ 9), and a right-of-way on a portion of Plaintiffs property, abutting Loop Creek, for rail operations.[1]

         In or around 2001, NSRC installed a culvert under its track structure. The culvert drains water from its property into Loop Creek, a short distance upstream from Plaintiff s residence. (Id. at 5-6, ¶¶11-13.) Plaintiff alleges that, from 2015 to the present, approximately three to five feet of the property abutting Loop Creek has eroded as a result of the culvert, and the "constant and continuous soil erosion" is threatening the foundation of her home. (Id. at 6-7 ¶¶ 20-21.)

         Based on these allegations, Plaintiff originally filed this action in the Circuit Court of Fayette County, West Virginia, asserting negligence, private nuisance, and trespass claims against NSRC. (Id. at 23-25 ¶¶ 26-43.) After answering the initial complaint, NSRC conducted a survey of the property. The survey established that the alleged eroded creek bank and a small portion of Plaintiff s home are located on NSRC's right-of-way. (Id. at 89-90.) On March 16, 2018, NSRC filed an amended answer to raise a legal standing defense to Plaintiffs claims. Specifically, NSRC asserts that Plaintiff lacks standing to pursue claims and damages regarding property she does not own. (Id. at 76, 81; ECF No. 1-1 at 76 (amended answer).)

         On August 23, 2018, Plaintiff filed an amended complaint, adding claims to quiet title of the subject portion of the right-of-way by adverse possession and prescriptive easement.[2] (Id. at 7-12 ¶¶ 24-59.) On September 20, 2018, NSRC filed a notice of removal invoking this Court's jurisdiction on the basis that Plaintiffs state law claims are preempted by the Interstate Commerce Commission Termination Act ("ICCTA"), 49 U.S.C. 10101, et seq. (ECF No. 1.) On October 19, 2018, Plaintiff moved to remand, arguing that NSRC's notice of removal was untimely and that the ICCTA does not apply to the present case. (ECF No. 6.) NSRC filed a response in opposition on November 2, 2018, (ECF No. 7), and on November 9, 2018, Plaintiff filed a reply in support of remanding the case, (ECF No. 10).

         II. LEGAL STANDARD

         Congress has provided a right of removal from state to federal court for any case that could have originally been brought in federal court. See 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1331, federal district courts have original jurisdiction "of all civil actions arising under the constitution, laws, or treaties of the United States." Additionally, 28 U.S.C. § 1367(a) confers federal district courts with supplemental jurisdiction over all "claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy In evaluating a party's claim to federal jurisdiction, a court should look to the circumstances as they existed at the time the notice of removal was filed. See Dennison v. Carolina Payday Loans, Inc., 549 F.3d 941, 943 (4th Cir. 2008) ("[F]ederal jurisdiction ... is fixed at the time the ... notice of removal is filed.") (citation omitted). The party asserting federal jurisdiction bears the burden of proof. Landmark Corp. v. Apogee Coal Co., 945 F.Supp. 932, 935 (S.D. W.Va. 1996). "When removal is challenged, the defendant must establish jurisdiction by a preponderance of the evidence." S. v. Marion Cty. Coal Co., No. 1:15-cv-171, 2015 WL 6964651, at *2 (N.D. W.Va. Nov. 10, 2015) (citing Strawn v. AT&T Mobility LLC, 530 F.3d 293, 297-98 (4th Cir. 2008)). Because removal of civil cases from state to federal court infringes state sovereignty, federal courts strictly construe the removal statute and resolve all doubts in favor of remanding cases to state court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); see also Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) ("Because removal jurisdiction raises significant federalism concerns, we must strictly construe removal jurisdiction.") (citation omitted).

         III. DISCUSSION

         The well-pleaded-complaint rule has long governed whether a case "arises under" federal law. See, e.g., Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 127-28 (1974). This rule "provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar v. Williams, 483 U.S. 386, 392 (1987); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (citing Gully v. First Nat'l Bank, 299 U.S. 109 (1936)). Consistent with this rule, a case generally cannot be removed to federal court based on a federal defense alone, including the defense of federal preemption. Caterpillar, 483 U.S. at 392-93.

         "One corollary of the well-pleaded complaint rule ... is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Taylor, 481 U.S. at 63-64. Complete preemption occurs whenever state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Chi. & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981) (quoting Perez v. Campbell, 402 U.S. 637, 649 (1971)). In deciding whether a federal law preempts a state claim, the court must "ascertain Congress' intent in enacting the federal statute at issue." Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 738 (1985).

         Removal jurisdiction in this case is premised on the ICCTA preemption of Plaintiff s state law claims. Prior to the enactment of the ICCTA, the primary statement of Congressional railroad policy was the Interstate Commerce Act of 1887 ("ICA"). The ICA was designed to regulate the railroad industry and has been labeled "one of the most comprehensive regulatory plans that Congress has ever undertaken." United States v. Baltimore & O. R. Co., 333 U.S. 169, 175 (1948). The ICA created the Interstate Commerce Commission ("ICC") and charged it with broad authority to implement provisions of the ICA and regulate many facets of the railroad industry.

         In 1995, Congress enacted the ICCTA, terminating the ICC altogether and transferring many of its regulatory functions to the Surface Transportation Board ("STB"). See ICC Termination Act of 1995, Pub.L. 104-88, 109 Stat. 803 (Dec. 29, 1995); 49 U.S.C. § 10501; PCS Phosphate Co., Inc. v. Norfolk S Corp.,559 F.3d 212, 218 (4th Cir. 2009). Specifically, the ICCTA grants the STB "exclusive" jurisdiction over "(1) transportation by rail carriers . . . and (2) the construction, acquisition, operation, abandonment, or discontinuance of . . . tracks, or facilities." 49 U.S.C. § 10501(b). "Transportation" by rail carriers is an expansive term and includes, in relevant part, "(A) a . . . property, facility, instrumentality, . . . related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and (B) services related to that movement... [.]" Id. at § 10102(9). The statute also broadly defines "railroad" to include "a switch, spur, track, terminal, terminal facility, and a freight depot, yard, and ground, used or necessary for transportation." Id. at § 10102(6). See also Wis. Cent. Ltd. v. City of Marshfield,160 F.Supp.2d 1009, 1015 (W.D. Wis. 2000) ...


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