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Skidmore v. Norfolk Southern Railway Co.

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

December 12, 2019

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

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         Before the Court is Plaintiff Tammy Skidmore's (“Plaintiff”) motion to reconsider or, alternatively, to designate this Court's April 18, 2019, Memorandum Opinion and Order, denying Plaintiff's motion to remand, as final. (ECF No. 23.) Also pending is Defendant Norfolk Southern Railway Company's (“NSRC”) motion for judgment on the pleadings. (ECF No. 25.) For the reasons discussed below, Plaintiff's motion, (ECF No. 23), is DENIED insofar as it seeks reconsideration of this Court's decision denying remand. The motion, (ECF No. 23), is DENIED AS MOOT with respect to Plaintiff's request for this Court to designate its order as final. NSRC's motion for judgment on the pleadings, (ECF No. 25), is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The complete factual and procedural background of this case is set forth in this Court's prior Memorandum Opinion and Order and need not be repeated at length here. (See ECF No. 21 at 1-3.) The Court will outline only those facts pertinent to the present motions.

         Plaintiff owns a parcel of real property abutting Loop Creek in Kincaid, West Virginia. (ECF No. 1-1 at 5 ¶ 6 (Am. Compl.).) Plaintiff alleges that a portion of the property has eroded as a result of the installation of a culvert under NSRC's railroad structure located on the opposite side of the creek. (Id. at 6 ¶¶ 18-20.) The eroded creek bank at issue is purportedly located on NSRC's right-of-way, which extends from the center of its railroad track onto Plaintiff's property. (Id. at 9 ¶ 43.) In her amended complaint, Plaintiff alleges that she acquired this portion of the right-of-way through adverse possession and prescriptive easement and asserts claims to quiet title to the subject portion of the right-of-way. (Id. at 9-11 ¶¶ 42-55.) She also asserts state law tort claims, seeking damages for the allegedly eroded creek bank. (Id. at 7-9 ¶¶ 24-41, 11-12 ¶¶ 56-59.)

         On September 20, 2018, NSRC removed this action to this Court, asserting that the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101, et seq., preempts Plaintiff's claims to quiet title and confers this Court with federal question jurisdiction under 28 U.S.C. § 1331. (ECF No. 1.) Plaintiff subsequently moved to remand her claims to state court, arguing among other things, that the ICCTA does not apply to her claims because the subject portion of the right-of-way does not relate to rail transportation as defined under the statute. (ECF No. 6.)

         On April 18, 2019, this Court entered its decision, denying Plaintiff's motion to remand. (ECF No. 21.) The Court held that removal to federal court was appropriate because Plaintiff's claims to quiet title attempt to regulate rail transportation and, thus, are completely preempted by the ICCTA.[1] (Id. at 9-15.) On May 9, 2019, Plaintiff filed the present motion for reconsideration. (ECF No. 23.) NSRC later filed the pending motion for judgment on the pleadings on May 17, 2019. (ECF No. 25.) Each party timely responded to the respective motions, (ECF Nos. 29, 30), and filed timely replies, (ECF Nos. 31, 32). As such, the motions are fully briefed and ripe for adjudication.

         II. DISCUSSION

         A. Motion to Reconsider

         Plaintiff asks the Court to reconsider its denial of her motion to remand to correct a clear error of law for three reasons. (ECF No. 24.) First, she argues there is no federal jurisdiction in this case because the ICCTA does not completely preempt all state laws that have an impact on railroads. Second, Plaintiff contends that her state law property claims are not expressly preempted by the ICCTA because they do not attempt to economically regulate rail transportation. Third, Plaintiff argues her claims preclude a finding of implied preemption because they do not unreasonably interfere with rail transportation. NSRC, however, argues that there is no factual or legal basis for reconsideration because, as this Court recognized in its prior ruling, complete preemption under the ICCTA applies in cases, such as this, where state law directly attempts to manage or govern rail transportation. (ECF No. 29 at 1.)

         Rule 54(b) of the Federal Rules of Civil Procedure governs reconsideration of interlocutory orders and opinions. See Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir. 1991) (finding that the district court correctly considered a motion for reconsideration “of a prior interlocutory order” under Rule 54(b)). The Court's April 18, 2019, Memorandum Opinion and Order was an interlocutory order as it did not resolve all claims but simply determined whether the Court has subject matter jurisdiction over this matter. See, e.g., Saint Annes Dev. Co. v. Trabich, 443 Fed.Appx. 829, 832 (4th Cir. 2011) (“[T]he district court's summary judgment order, which did not resolve all claims against all parties, was interlocutory and thus subject to revision at any time.” (citation omitted)).

         This Court possesses “broad[] flexibility to revise interlocutory orders before final judgment as the litigation develops and new facts or arguments come to light.” Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (emphasis deleted) (citing Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003); Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)). The Court “may revise an interlocutory order under the same circumstances in which it may depart from the law of the case: (1) a subsequent trial producing substantially different evidence; (2) a change in applicable law; or (3) clear error causing manifest injustice.” Id. (alteration and internal quotation marks omitted); see Id. (“The law-of-the-case doctrine provides that in the interest of finality, ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'”). “This standard closely resembles the standard applicable to motions to reconsider final orders pursuant to [Federal Rule of Civil Procedure] 59(e), but it departs from such standard by accounting for potentially different evidence discovered during litigation as opposed to the discovery of new evidence not available at trial.” Id. (internal quotation marks omitted); see Mayfield v. NASCAR, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (“A Rule 59(e) motion may only be granted in three situations: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” (internal quotation marks omitted)).

         In opposing application of preemption under the ICCTA, Plaintiff argued in her motion to remand that there was no railroad equipment or operations on the disputed portion of the right-of-way over which ICCTA jurisdiction could attach. (ECF No. 6 at 10.) This Court considered and rejected Plaintiff's argument that her possessory claims fall outside the purview of the ICCTA because the disputed property is not utilized for rail transportation. Instead, this Court concluded that conferring Plaintiff with exclusive control and ownership over this portion of land would amount to a regulation of rail transportation within the meaning of the ICCTA.

         In reaching its decision, this Court relied on Fourth Circuit precedent which establishes that the ICCTA's preemption provision, 49 U.S.C. § 10501, expressly displaces only state laws that attempt to regulate rail transportation. (ECF No. 21 at 5-6 (citing Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150, 157 (4th Cir. 2010) (citing PCS Phosphate Co., Inc. v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir. 2009) (holding that “Congress narrowly tailored the ICCTA preemption provision to displace only regulation, i.e., those state laws that may reasonably be said to have the effect of managing or governing rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.”))).) See, e.g., Elam v. Kan. City S. Ry., 635 F.3d 796, 807 (5th Cir. 2011) (holding that the ICCTA ‚Äúcompletely preempts state laws (and remedies based on such laws) that directly attempt to manage or govern a railroad's decision in the economic ...


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