United States District Court, S.D. West Virginia, Charleston Division
TAMMY A. SKIDMORE, Plaintiff,
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
before the Court is Plaintiff Tammy Skidmore's
("Plaintiff) Motion to Remand. (ECF. No. 6.) For the
reasons discussed herein, the Court DENIES
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
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.)
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
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. (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).
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).
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.
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).
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.
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) ...