IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

KNOXVILLE DIVISION

SAM HALL, CHRISTOPHER D. MORGAN, DUSTIN L. STEVENSON, NATHAN PAYNE, BRAD BUTLER, DUSTIN COOK, JOSEPH BEASLEY, JUSTIN VANDERGRIFF, DANIEL BROOKS, and MARK TATE,

Plaintiffs,

v. CSX TRANSPORTATION, INC., and UNION TANK CAR COMPANY,

Defendants.

)))))))))))))) ) )

Civil Action No. 3:15-cv-00346 Chief Judge Thomas A. Varlan Magistrate Judge C. Clifford Shirley

__________________________________________________________________________

MEMORANDUM IN SUPPORT OF DEFENDANT CSX TRANSPORTATION, INC.’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

________________________________________________________________________

Barbara Harding, admitted pro hac vice William G. Laxton, Jr., admitted pro hac vice JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001 Office: (202) 879-3939 Fax: (202) 626-1700 E-mail: [email protected] E-mail: [email protected]

John W. Baker, Jr., TN BPR #001261 Emily L. Hennan-Thompson, TN BPR #021518 BAKER, O’KANE, ATKINS & THOMPSON, PLLP 2607 Kingston Pike, Suite 200 PO Box 1708 Knoxville, TN 37901-1708 Office: (865) 637-5600 Fax: (865) 637-5608 E-Mail: [email protected] E-Mail: [email protected]

Counsel for CSX Transportation, Inc.

Case 3:15-cv-00346-TAV-CCS Document 28 Filed 10/05/15 of 19 PageID #: 128

1

INTRODUCTION

Plaintiffs are police officers and Sheriff’s deputies who were dispatched by their

respective law-enforcement agencies to assist in evacuating residents following a train

derailment in Maryville, Tennessee on July 1, 2015. According to Plaintiffs, in carrying out their

law-enforcement duties, Plaintiffs were exposed to smoke and vapors containing toxic chemicals.

Seeking to recover for injuries allegedly resulting from that exposure, Plaintiffs have filed this

action against CSX Transportation, Inc. (“CSXT”), claiming that CSXT was negligent in

designing, maintaining, operating, and repairing the train cars and railroad tracks.

To start, CSXT holds law-enforcement and emergency-response officers in the highest

regard. The CSXT emergency-response team worked hand in hand with the police officers,

Sheriff’s deputies and other emergency-response team members who responded to this incident.

And as always, the individuals who make up the CSXT corporation are thankful and appreciative

of the demanding and often dangerous work of public-safety officers.

But this does not change the law of Tennessee, which precludes the lawsuit filed by

Plaintiffs. To begin with, Plaintiffs’ sole cause of action for negligence is barred by Tennessee’s

well-established policemen and firemen’s rule, which precludes law-enforcement officers like

Plaintiffs from recovering damages for injuries that arise from risks “peculiar to their

employment.” Plaintiffs’ claim is based on their allegations that they were exposed to chemicals

“[w]hile performing their emergency service to the community.” Plaintiffs thus seek damages

for injuries arising out of risks peculiar to their employment as providers of emergency services

in Blount County—the exact type of damages that the policemen and firemen’s rule precludes.

Preemption doctrines under federal law independently require dismissal of Plaintiffs’

claims. No fewer than three extensive statutory schemes control railroad operation—the

Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101, et seq.


2

(“ICCTA”), the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”), and the

Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq. (“HMTA”)—each of which

includes express statutory preemption of state-law causes of action. Yet, Plaintiffs’ Complaint

provides little beyond an allegation that an accident occurred and a recitation of the elements of

the stated claim. Therefore, the Complaint provides no plausible basis to conclude that their

claims are not preempted.

Plaintiffs’ claim must be dismissed for the additional reason that Plaintiffs fail to satisfy

their burden under Rule 8 and the Supreme Court’s application of that rule in Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). In attempting to

plead negligence, Plaintiffs allege only that CSXT had a duty to design, operate, inspect,

maintain, and repair its trains and railroad tracks and that CSXT breached that duty in violation

of unspecified “federal and state regulations,” and Plaintiffs then merely recite the elements of

negligence per se, ordinary negligence, and res ipsa loquitur. Plaintiffs’ “formulaic recitation of

the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Indeed, Plaintiffs’

allegations constitute the quintessential violation of the Supreme Court’s prohibition on

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.” Iqbal, 556 U.S. at 678.

For these reasons, Plaintiffs’ Complaint must be dismissed.

BACKGROUND

Late at night on July 1, 2015, a tank car derailed in Maryville, Tennessee. (Compl. ¶ 17,

ECF No. 1.) The tank car was damaged, and its cargo of acrylonitrile1 leaked and caught fire.

1 Acrylonitrile is “a chemical used in large quantities in making acrylic fibers, plastics,

dyes, pharmaceutical chemicals, and other intermediate and final goods.” Ind. Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1175, 1182 (7th Cir. 1990); see also 49 C.F.R. §


3

(Id.) The Blount County Sheriff’s Department and the City of Alcoa Police Department, among

other emergency response departments in the area, dispatched its deputies and officers, including

Plaintiffs, to evacuate nearby residents. (See id. ¶ 25.)

Immediately following the derailment—prior to a determination and irrespective of actual

or legal fault—CSXT established a Community Outreach Center to compensate individuals who

claimed to have experienced inconvenience, required medical treatment, or suffered financial

setbacks as a result of the derailment. As part of this program, CSXT has reimbursed individuals

for costs they believe they incurred as a result of the derailment, including costs of hotel

accommodations, lost wages during the evacuation, and medical expenses. CSXT also has made

donations to area schools and to groups that assisted in the evacuation effort. In addition, CSXT

has provided food, bottled water, transportation, and animal-care services to those affected by the

derailment. To date, CSXT has paid more than $3.5 million to community organizations,

medical providers, and individuals. And CSXT currently is in the process of reimbursing the

cities of Maryville and Alcoa for costs each incurred in responding to the derailment.

Approximately one month after the derailment, Plaintiffs sued CSXT, seeking damages

for injuries they allegedly incurred when they were “dispatched by the Blount County Sheriff’s

Department and the City of Alcoa Police Department to the area of the Train Derailment to

evacuate residents and businesses.” (Compl. ¶ 25.) “While performing their emergency service

to the community,” Plaintiffs allegedly “were exposed to smoke and vapors containing toxic

(continued…)

172.101, Table; id. § 173.2(a) (listing acrylonitrile as a Class 3 hazardous material on the Department of Transportation’s nine-class classification of transportable materials, where Class 1 is the most hazardous). Federal law mandates that rail carriers transport hazardous materials like acrylonitrile. See 49 U.S.C. § 11101 (“rail carrier providing transportation or service . . . shall provide the transportation or service on reasonable request”).


4

chemicals” and suffered injuries. (Id. ¶ 1.) According to Plaintiffs, when dispatched, they “were

not informed about the identity or toxicity of the chemical” and were not provided “breathing

protection equipment in their vehicles, nor were they informed they needed any.” (Id. ¶ 28.)

Plaintiffs’ sole theory of negligence, however, has nothing to do with these factual

allegations. Instead, it is that CSXT purportedly breached its duty to design, operate, inspect,

maintain, and repair its trains and railroad tracks, causing the train to derail. (Id. ¶¶ 35-36.) And

while their negligence claim centers on CSXT’s conduct allegedly leading to the derailment,

Plaintiffs plead little more than a derailment and a fire in support of that claim. There is no

explanation, for example, of how the accident allegedly occurred or what Defendants allegedly

did wrong. Nor is there any attempt to explain how or why Plaintiffs’ claims are not barred by

the well established policemen and firemen’s rule in Tennessee.

LEGAL STANDARD

Federal Rules of Civil Procedure 8 and 12(b)(6) require a plaintiff “to provide . . . more

than labels and conclusions” to survive a motion to dismiss. Twombly, 550 U.S. at 555. While a

court accepts well-pled factual allegations as true for purposes of a motion to dismiss, “a

formulaic recitation of the elements of a cause of action will not do.” Id. A plaintiff must

present “a claim to relief that is plausible on its face,” id. at 570, which demands more than

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” Iqbal, 556 U.S. at 678; see also In re Travel Agent Comm’n Antitrust Litig., 583

F.3d 896, 903 (6th Cir. 2009) (plaintiff must present “either direct or inferential allegations

respecting all material elements” of each cause of action) (emphasis added). “Conclusory

allegations or legal conclusions masquerading as factual allegations will not suffice.” Eidson v.

Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). “Rule 8 . . . demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.


5

Sitting in diversity, Tennessee substantive law applies. See Hollon v. N. Park Hosp., Inc.,

944 F.2d 904, at *2 (6th Cir. 1991) (per curiam). Plaintiffs thus must allege facts that support a

theory of recovery under Tennessee law. For the reasons stated below, Plaintiffs fail to do so.

ARGUMENT

I. PLAINTIFFS’ NEGLIGENCE CLAIM IS BARRED BY TENNESSEE’S POLICEMEN AND FIREMEN’S RULE.

Plaintiffs’ claim must be dismissed because it is barred by the policemen and firemen’s

rule. In Tennessee, “[t]he policemen and firemen’s rule precludes firefighters and police officers

from recovering damages for injuries arising out of risks peculiar to their employment.” Carson

v. Headrick, 900 S.W.2d 685, 687 (Tenn. 1995). “Situations requiring the presence of police”

are “routinely dangerous.” Id. And therefore strong “[p]ublic policy considerations . . . militate

against allowing police officers to institute tort actions” for injuries “sustained by police in the

line of duty.” Id.

Plaintiffs’ claim fall squarely within the policemen and firemen’s rule. Plaintiffs assert

that they were exposed to the chemicals allegedly causing their claimed injuries “while

performing emergency services to their community” (Compl. ¶ 1) after being “dispatched by the

Blount County Sheriff’s Department and the City of Alcoa Police Department to the area of the

Train Derailment” (id. ¶ 25). Plaintiffs, then, seek “damages for injuries arising out of risks

peculiar to their employment” as providers of emergency services in Blount County—the exact

type of damages that the policemen and firemen’s rule preclude law-enforcement officers from

recovering from CSXT here. See Carson, 900 S.W.2d at 687.

Indeed, courts have applied the rule to preclude claims by law-enforcement personnel

seeking damages for injuries allegedly sustained in responding to a train derailment. In

Clabough v. Norfolk Southern Railway Co., for example, a train derailed, releasing sulfuric acid


6

into the atmosphere. The plaintiff, an officer with the Knox County Sheriff’s Department,

responded to the derailment, providing traffic control and assisting in the evacuation. She sued

for injuries based on alleged exposure to sulfuric acid while performing these duties. The

defendants moved for partial summary judgment on the negligence claim based on Tennessee’s

policemen and firemen’s rule. Revised Mem. of Law in Supp. of Mot. for Partial Summ. J. on

Behalf of Defs., No. 2-567-03 at 1 (Knox Cty. Cir. Ct. Nov. 2, 2006) (attached as Ex. A.). The

Tennessee circuit court granted the motion for partial summary judgment, dismissing the

plaintiff’s claim with prejudice due to Tennessee’s policemen and firemen’s rule. Order, No. 2-

567-03 (Knox Cty. Cir. Ct. Nov. 13, 2006) (attached as Ex. B). Similarly, in Fletcher v. Illinois

Central Gulf Railroad Co., a state trooper “was called to the area of the derailment to assist in

evacuating the residents . . . and apparently inhaled vinyl chloride fumes,” sustaining “serious

personal injuries.” 679 S.W.2d 240, 242 (Ky. Ct. App. 1984). The state trooper sued the

railroad for negligence. Id. The court of appeals affirmed dismissal, concluding that the

fireman’s rule “dictate[s] that [the trooper] be denied a recovery for damages for any negligence

of [the railroad] which caused its train to derail and the contents of its tank cars to escape and

injure him. As a police officer, [the trooper] was expected to assist in the evacuation of the

residents . . . and to be on duty in the dangerous area to prevent other persons from entering

it . . . . He must be deemed to have assumed the personal risk inherent in dealing with the

emergency.” Id. at 243; see also Butler v. Union Pac. R.R., 68 F.3d 378, 379 (10th Cir. 1995)

(affirming grant of railroad’s motion to dismiss statutory-negligence claim arising from a fire

fighter’s death “in the process of fighting a fire alongside the Railroad’s tracks” based on

Kansas’s fireman’s rule); Erickson v. Toledo, Peoria & W. R.R., 315 N.E.2d 912, 913-14 (Ill.

App. Ct. 1974) (affirming dismissal of firefighter’s claims against railroad for alleged negligence

in causing a derailment, fire, and explosion of a propane car, which injured the plaintiff); Wilson


7

v. Fla. Processing Co., 368 So. 2d 609, 610-11 (Fla. Dist. Ct. App. 1979) (barring police

officer’s negligence claim against plant for inhalation injuries the officer sustained while

evacuating citizens from area where a cloud of chlorine gas escaped the plant).

To be sure, the policemen and firemen’s rule does not bar claims based on “intentional,

malicious, or reckless acts.” Carson, 900 S.W.2d at 690-91. But that exception is inapplicable

here. Nowhere do Plaintiffs allege that their claimed injuries resulted from intentional, malicious,

or reckless misconduct, nor could they. To the contrary, Plaintiffs allege that they “suffered and

continue to suffer injuries . . . as a result of defendants’ negligence.” (Compl. ¶ 1 (emphasis

added); see also id. ¶ 44 (alleging that “Defendants’ negligence is the proximate cause of

[Plaintiffs’] damages”) (emphasis added).) Plaintiffs therefore cannot avoid application of the

policemen and firemen’s rule here.

Because the policemen and firemen’s rule precludes Plaintiffs from recovering from

CSXT for injuries allegedly sustained while responding to the train derailment, the sole basis for

Plaintiffs’ claim here, Plaintiffs’ negligence claim must be dismissed.

II. FEDERAL LAW PREEMPTS PLAINTIFFS’ NEGLIGENCE CLAIM AS PLED.

Plaintiffs’ state negligence claim must be dismissed for the additional and separate reason

that it is preempted by federal law. “Because federal law is the supreme law of the land, it

preempts state laws that ‘interfere with, or are contrary to, federal law.’” Boomer v. AT&T Corp.,

309 F.3d 404, 417 (7th Cir. 2002) (quoting Hillsborough Cty. v. Automated Med. Labs., Inc., 471

U.S. 707, 712 (1985)). And state common-law tort claims, like Plaintiffs’ negligence claim here,

are state laws to which preemption applies. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504,

521-22 (1992).

The 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.


8

1998). There are three separate federal law sources of preemption applicable to railroads. The

Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101, et seq.

(“ICCTA”), the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”), and the

Hazardous Materials Transportation Act, 49 U.S.C. § 5101, et seq. (“HMTA”), each provide

extensive federal regulations, including several provisions that expressly preempt state law.

Plaintiffs’ failure to explain the basis for their allegations against CSXT makes their claim

indistinguishable from any of those that plainly would be preempted under federal law.

Accordingly, Plaintiffs’ negligence claim—whether couched as negligence per se, negligence, or

res ipsa loquitur—should be dismissed.

A. The ICCTA Broadly Preempts State Regulation of the Construction and Operation of Railways.

With its enactment of ICCTA, Congress intended to “significantly reduce state and local

regulation of railroads.” Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 839 (E.D. Ky.

2004). In that law, Congress established the Surface Transportation Board (“STB”), granting it

authority to regulate all aspects of railroad operations. See 49 U.S.C. §§ 701(a), 702.

ICCTA Section 10501 reserves for the STB, and only the STB, jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) 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,…

49 U.S.C. § 10501(b). Indeed, § 10501 concludes that the STB’s jurisdiction over this broad

sweep of rail operations is “exclusive” and “preempt[s] the remedies provided under Federal or

State law.” Id. (emphasis added).


9

Courts have long recognized the broad reach of ICCTA preemption. “It is clear that the

ICCTA has preempted all state efforts to regulate railroad transportation.” Wis. Cent. Ltd. v. City

of Marshfield, 160 F. Supp. 2d 1009, 1013 (W.D. Wis. 2000) (emphasis added). “The

preemptive effect of [ICCTA] has been examined by several federal circuit and district courts

which have consistently held that the ICCTA preempts state common law claims with respect to

railroad operations.” Maynard, 360 F. Supp. 2d at 840 (collecting cases). And courts have

applied the ICCTA to preempt state regulation of rail transportation in a wide variety of settings,

covering the broadest array of attempts at state regulation. E.g., Friberg v. Kan. City S. Ry. Co.,

267 F.3d 439, 443 (5th Cir. 2001) (preempting common-law negligence claim).

Plaintiffs allege fault in CSXT’s operation of its railroad without specifying which

aspects of operation it finds at fault. The most specificity Plaintiffs provide is to broadly

challenge the manner in which CSXT “design[ed], operate[d], inspect[ed], maintain[ed], and/or

repair[ed] its train and railroad tracks.” (Id. ¶ 36.) Plaintiffs entirely fail to specify the aspect of

rail transportation to which their claim actually relates. In any event, virtually any such activity

is regulated extensively under the ICCTA, with corresponding express preemption of state-law

tort claims. See, e.g., Maynard, 360 F. Supp. at 843 (ICCTA preempts negligence claims

premised on “construction and/or maintenance of the tracks and crossings”); In re Katrina Canal

Breaches Consol. Litig., No. 05-4182, 2009 WL 224072, at *6-*7 (E.D. La. Jan. 26, 2009)

(ICCTA preempts negligence claims relating to design and construction of track and roadbed).

By bringing such a broad and conclusory claim, Plaintiffs effectively seek to dictate through

Tennessee tort law how CSXT should operate (and should have operated) its railroad. That is

not permitted.


10

B. The FRSA Broadly Preempts State Regulation of Railroad Safety.

The FRSA was enacted by Congress “to promote safety in every area of railroad

operations and reduce railroad-related accidents and incidents,” 49 U.S.C. § 20101, and grants

the Secretary of Transportation broad powers to prescribe regulations for “every area of railroad

safety,” id. § 20103(a) (emphasis added). With the FRSA, Congress sought nationwide

uniformity in the area of rail safety: “Laws, regulations, and orders related to railroad safety and

laws, regulations, and orders related to railroad security shall be nationally uniform to the extent

practicable.” Id. § 20106(a)(1).

Reflecting this goal of nationwide uniformity, the FRSA “permits state regulation related

to railroad safety only if: (1) the Secretary of Transportation has not yet regulated the subject

matter of the state regulation (the first savings clause), or (2) the regulation (a) is necessary to

eliminate an essentially local hazard, (b) does not conflict with federal law, and (c) does not

unreasonably burden interstate commerce (the second savings clause).” CSX Transp., Inc. v.

City of Plymouth, 283 F.3d 812, 815 (6th Cir. 2002) (emphasis added). Thus, with two limited

exceptions, the FRSA preempts a state law or lawsuit when the Act’s implementing regulations

“cover” or “substantially subsume” the subject matter of the state law or lawsuit, unless plaintiff

sufficiently alleges failure to comply with those regulations. See, e.g., CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 661, 675 (1993) (maximum railroad-speed regulations “cover” the

subject matter of train speed and therefore preempt jury verdict that train was traveling at an

excessive speed); Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426, 430-431 (6th Cir. 2009)

(federal regulation “substantially subsumes the issue of ballast size” and thus preempts claim

based on injury allegedly caused by walking on oversized track ballast); In re Derailment Cases,

416 F.3d 787, 794 (8th Cir. 2005) (negligent-train-inspection claim preempted).


11

Here, Plaintiffs’ Complaint deals entirely with how CSXT designed, operated,

maintained, inspected, and repaired its “train and railroad tracks.” (Compl. ¶¶ 35-36.) Plaintiffs’

claim thus fails if implementing regulations “cover” or “substantially subsume” Plaintiffs’

generalized allegations related to the operation, maintenance, inspection, and repair of CSXT’s

train and railroad tracks. Clearly, they do.

For example, tracks are extensively regulated under FRSA regulations. 49 C.F.R. Part

213, Subpart D prescribes, among other things, minimum requirements for “ballast, crossties,

track assembly fittings, and the physical conditions of rails,” 49 C.F.R. § 213.101, while Subpart

F “prescribes requirements for the frequency and manner of inspecting track,” id. § 213.231.

There are also regulations dictating track inspections: “Each inspection shall be made on foot or

by riding over the track in a vehicle at a speed that allows the person making the inspection to

visually inspect the track for compliance with this part.” Id. § 213.233(b). Finally, the operation

of trains and railroad tracks are regulated extensively in a myriad of ways throughout the FRSA.

In light of the exceptionally broad preemptive scope of these federal laws and regulations,

Plaintiffs’ claim as pled—whatever they actually believe it to be—run afoul of the FRSA. See,

e.g., Kalan Enters., LLC v. BNSF Ry. Co., 415 F. Supp. 2d 977, 982 (D. Minn. 2006) (“catch-all”

negligence claim preempted because plaintiff did not show that “undiscovered claims lie beyond

the ambit of the FRSA’s broad regulatory support system”). Plaintiffs’ failure to explain their

allegations prevents both CSXT and this Court from understanding how their vague assertions

might coexist with the FRSA, as does their failure to allege violation of any specific FRSA

regulations or any other applicable law or regulation. In the face of express Congressional intent

to create a nationally uniform set of railroad safety standards, Plaintiffs offer nothing that

suggests that their state negligence claim should be allowed.


12

C. The HMTA Broadly Preempts State Regulation of Hazardous Material Transport.

Just as it has regulated railroad construction and operation through ICCTA and safety

through the FRSA, Congress has regulated extensively the transportation of hazardous material

by rail. The HMTA authorizes the Secretary of Transportation to “protect against the risks to life,

property, and the environment that are inherent in the transportation of hazardous material in

intrastate, interstate, and foreign commerce,” 49 U.S.C. § 5101, and to “prescribe regulations for

the safe transportation, including security, of hazardous material in intrastate, interstate, and

foreign commerce, id. § 5103(b); see, e.g., 49 C.F.R. §§ 171-74, 179 (hazardous material

regulations promulgated under this congressional directive).

As with ICCTA and the FRSA, Congress in enacting the HMTA sought to preempt state

attempts to regulate hazardous-material transportation that are inconsistent with federal law or

regulations. 49 U.S.C. § 5125(a). Relevant here, the HMTA expressly preempts any state

regulation that relates to or is about “the designing, manufacturing, fabricating . . . maintaining,

reconditioning, [or] repairing [of] . . . a . . . container . . . that is represented, marked, certified, or

sold as qualified for use in transporting hazardous materials in commerce.” 49 U.S.C. § 5125(b).

Pursuant to the HMTA’s preemption provision, “federal power to regulate transportation of

hazardous materials is absolute; state power is limited.” CSX Transp. Inc. v. Pub. Utils. Comm’n

of Ohio, 901 F.2d 497, 502 (6th Cir. 1990).

Against this backdrop, Plaintiffs allege no more than that CSXT was transporting toxic

chemicals. (Compl. ¶¶ 1, 16, 17, 21, 35.) They never specify how these assertions connect with

their legal theory of negligence. And to the extent Plaintiffs’ allegations even raise a claim based

on transport of hazardous materials, Plaintiffs provide nothing to indicate that such a claim can

be reconciled with the HMTA.


13

III. PLAINTIFFS FAIL TO PLEAD FACTS SATISFYING THE ELEMENTS OF THEIR NEGLIGENCE CLAIM SUFFICIENT TO COMPLY WITH RULE 8.

Independently requiring dismissal of Plaintiffs’ claim, Plaintiffs’ allegations fail to satisfy

Rule 8. Indeed, Plaintiffs’ allegations constitute the quintessential violation of Iqbal’s

prohibition on “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements.” 556 U.S. at 678.

Plaintiffs claim (with little more than assertion) that CSXT owed and breached a duty of

care to “design, operate, inspect, maintain, and repair” its trains and tracks “so as to prevent

derailments.” (Compl. ¶¶ 35-36.) Then, in less than a page, Plaintiffs set out the cursory legal

elements of three separate ways of proving their negligence claim—negligence per se (id. ¶ 41),

ordinary negligence (id. ¶ 42), and res ipsa loquitur (id. ¶ 43). Plaintiffs’ negligence allegations

fall short of the pleading burden under Rule 8, Iqbal, and Twombly.

First, Plaintiffs assert that CSXT was negligent by failing “to comply with all applicable

federal and state regulations and industry safety standards.” (Compl. ¶¶ 35, 37.) While

Tennessee law recognizes negligence per se as a subset of negligence, Rains v. Bend of the River,

124 S.W.3d 580, 589 (Tenn. Ct. App. 2003), negligence per se requires a “violation of a statute,”

Whaley v. Perkins, 197 S.W.3d 665, 672 (Tenn. 2006); Lewis v. Norfolk S. Ry. Co., 618 F. Supp.

2d 833, 844 (W.D. Tenn 2008) (under Tennessee law, negligence per se plaintiff “must show

that the defendant violated a statute that imposes a duty or prohibits an act for the benefit of a

person or the public”) (footnotes and citations omitted). Plaintiffs, however, wholly fail to

identify any statute or regulation that they believe was violated here. Indeed, they do not even

identify whether it was a federal or state law. (See Compl. ¶ 41.) These omissions demand

dismissal. See, e.g., Rivera v. Recontrust Co., No. 2:11-cv-01695, 2012 WL 2190710, at *3 n.1

(D. Nev. June 14, 2012) (dismissing negligence per se claim where plaintiff “fail[ed] to identify


14

a specific statute which imposes a specific standard of conduct upon Defendants”); Roberson v.

Novartis Pharms. Corp., No. 11-2035, 2011 WL 1740137, at *2 (N.D. Ill. May 5, 2011)

(“negligence per se claim is dismissed because [plaintiff] failed to identify a specific statute in

the complaint that [defendant] allegedly violated”).

Second, Plaintiffs fail to plausibly allege ordinary negligence. The elements of

negligence under Tennessee law are duty, breach, causation, and damages. Burton v. Warren

Farmers Coop., 129 S.W.3d 513, 522 (Tenn. Ct. App. 2002). Plaintiffs’ negligence claim is

based on Plaintiffs’ allegation that CSXT “owes a duty of care to plaintiffs . . . to design, operate,

inspect, maintain, and repair its trains and railroad tracks . . . so as to prevent derailments” and

that it breached that duty. (Compl. ¶¶ 35-36.) But Plaintiffs offer no explanation of how a

breach purportedly occurred or what particular conduct amounted to the alleged breach.

Plaintiffs’ conclusory assertions fail “to establish the relevant who, what, where, when, how or

why,” and therefore are not sufficient to “survive a motion to dismiss.” N.H. ex rel. Hernandez v.

Sequoyah Council, Inc., No. 2:11-CV-171, 2012 WL 2126863, at *3 (E.D. Tenn. Apr. 30, 2012)

(quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012)). Nor are Plaintiffs

assisted in their assertion that, “[i]f defendants’ violations of statutes and regulations do not

constitute negligence per se, they are strong evidence of negligence.” (Compl. ¶ 42.) That is

nothing more than an attempt to re-cast Plaintiffs’ deficient negligence per se claim as ordinary

negligence. That attempt fails for reasons explained above.

Third, Plaintiffs appear to make a passing res ipsa loquitur assertion.2 (Compl. ¶ 43.)

That too fails to state a claim for negligence. Res ipsa loquitur requires a plaintiff to “establish

2 Res ipsa loquitur is distinct from strict liability, but to the extent that Plaintiffs actually

mean to raise a strict liability claim, they fail entirely to plead that CSXT was engaged in a predicate abnormally dangerous activity or that the harm they suffered was of the kind that


15

three things.” Burton, 129 S.W.3d at 524. “First, the plaintiff must identify how the injury

occurred.” Id. “Second, the plaintiff must demonstrate that the event causing the injury is of a

kind which does not ordinarily occur in the absence of negligence.” Id. at 525. “Third, . . . the

plaintiff must demonstrate that he or she was injured by an instrumentality that was within the

defendant’s exclusive control.” Id. (citation omitted). Yet Plaintiffs at a minimum fail to allege

any facts supporting the first and third elements.

As to the first, identifying how the injury occurred, Plaintiffs allege only that there was a

train derailment and fire. (Compl. ¶ 43.) But “res ipsa loquitur cannot be invoked when ‘the act

which caused the injury . . . must be inferred from the accident itself.’” Burton, 129 S.W.3d at

524 n.7; see also De Glopper v. Nashville Ry. & Light Co., 134 S.W. 609, 612-13 (Tenn. 1910)

(bystander hit in eye by rock thrown from under the wheels of a street car could not invoke res

ipsa loquitur; even though accident occurred when the street car’s wheels slipped on the tracks

while climbing a steep grade, “[i]t is not proven that the car was overloaded, or carelessly

loaded, or that the power was negligently or improperly applied”). Plaintiffs instead must plead

(continued…)

makes the activity abnormally dangerous. See Shipwash v. United Airlines, Inc., 28 F. Supp. 3d 740, 748 (E.D. Tenn. 2014) (Varlan, J.) (dismissing strict liability claim under Tennessee law, applying the Restatement (Second) of Torts § 519(a)). In any event, Plaintiffs cannot state a strict liability claim because CSXT is a common carrier required by federal law to carry hazardous material. See 49 U.S.C. § 11101 (“rail carrier providing transportation or service . . . shall provide the transportation or service on reasonable request”). And as a matter of black-letter law, this federal-law requirement bars strict liability completely. See, e.g., Restatement (Second) of Torts § 521 (Am. Law Inst. 1979) (“[t]he rules as to strict liability for abnormally dangerous activities do not apply if the activity is carried on in pursuance of a public duty imposed upon the actor . . . as a common carrier”); see also Ind. Harbor Belt R. Co., 916 F.2d at 1180 (“usual view is that common carriers are not subject to strict liability for the carriage of materials that make the transportation of them abnormally dangerous, because a common carrier cannot refuse service to a shipper of a lawful commodity”) (citing Restatement § 521); In re Paulsboro Derailment Cases, No. 13-cv-3724, 2013 WL 5530048, at *3-5 (D.N.J. Oct. 4, 2013) (same).


16

facts that, if true, would permit “a fact finder [to] reasonably conclude that the negligence of

[CSXT] is the only cause of their . . . injury.” Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d

860, 865 (Tenn. Ct. App. 2001). Plaintiffs fail to do so here. Indeed, their own pleading

references “the train,” “the UTLX car,” and “the tracks” as possible sources of the injury.

(Compl. ¶ 43.)

Plaintiffs likewise fail to plead any facts plausibly suggesting that CSXT had exclusive

control, the third element. In fact, Plaintiffs’ allegation that “defendants”—i.e., CSXT and

UTLX—“were in control of the train . . . and tracks” (Compl. ¶ 43) is self-defeating—it is

inconsistent with an allegation that CSXT had exclusive control, a prerequisite for invoking res

ipsa loquitur, Burton, 129 S.W.3d at 524.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Complaint should be dismissed.


17

Dated: October 5, 2015

Respectfully submitted, s/ John W. Baker, Jr., TN BPR #001261 s/ Emily L. Hennan-Thompson, TN BPR #021518 BAKER, O’KANE, ATKINS & THOMPSON, PLLP 2607 Kingston Pike, Suite 200 PO Box 1708 Knoxville, TN 37901-1708 Office: (865) 637-5600 Fax: (865) 637-5608 E-Mail: [email protected] E-Mail: [email protected] Barbara Harding, admitted pro hac vice s/ William G. Laxton, Jr., admitted pro hac vice JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001 Office: (202) 879-3939 Fax: (202) 626-1700 E-mail: [email protected] E-mail: [email protected] ATTORNEYS FOR CSX TRANSPORTATION, INC.


18

CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2015, a copy of the foregoing was filed electronically.

Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties

indicated on the electronic receipt. All other parties will be served by regular U.S. mail. Parties

may access this filing through the Court’s electronic filing system.

s/ William G. Laxton, Jr., admitted pro hac vice

JONES DAY 51 Louisiana Avenue N.W. Washington, D.C. 20001 Office: (202) 879-3939 Fax: (202) 626-1700 E-mail: [email protected] Counsel for CSX Transportation, Inc.


Exhibit A

Case 3:15-cv-00346-TAV-CCS Document 28-1 Filed 10/05/15 Page 1 of 16 PageID #: 147

Exhibit B


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...

Documents

Transcript of IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...