### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60731

DONALD C. GUILD; SHARRON M. GUILD, Plaintiffs-Appellants,
v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

Appeal from the United States District Court f or the Southern District of Mississippi U.S.D.C. No. 3:11-cv-642

Before STEWART, Chief Judge, and KING and PRADO, Circuit Judges. PER CURIAM: * Plaintiffs-Appellants, Dr. Donal d C

. G u ild and Sharron M. Guild (“the Guilds”), filed the instant suit agains t D e f endant-Appellee, the Kansas City Southern Railway C ompany (“KCSRC”), seeking i njunctive and monetary relief. Finding the Guilds’ c laims preempted by the Interstate Commerce C ommission Termination Act (“ICCTA”), the distr i ct court granted summary judgment

w ithout prejudice in favor o f KCSRC. We affirm in part and we v a c a t e a n d remand in part. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60731 Document: 00512366534 Page: 1 Date Filed: 09/09/2013No. 12-60731 I. I n 1967, I nternational Paper Company (“IPC”) owned a piece o f land in Brandon, M ississipp i t h a t it used as a wood-yard near a railroad track, which

was operated by I llinois Central Railroad Company (“Illinois C entral”). IPC and Illinois Central ente r e d into an a greement wherein Illinois Central agreed to construct a nd maintain a spur or sidetrack (hereinafter, “th e s pur track”) on IPC’s property that would be connected t o the m ain railroad track. IPC used the
spur track in its wood-yard for the shipping operations of it s business. The spur track was c onnected to the main track by a switch that c ould be flipped to divert railroad cars off the main track and onto the spur track or from the spur track onto the main track. The a gr eement between IPC and Illinois Central p rovided that Illinois Central was the owner o f “that portion o f the T rack from point of switch to right of w ay li ne.” The agreement also stated that I llinois Central retained “the right at any time to remove that portion of the Track owned b y it upon giving to [IPC] written notice of [Illinois C e ntral’s] intention to remove the same thirty (30) days before such removal shall be commenced.” Later, Meridian S p eedway, L.L.C. (“Meridian”) became the owne r of the main track, which is now named the Meridian Spee d w a y , and K C SRC began operating a nd maintaining the track. In June 2006, the Guilds purchased the property from IPC and used it for their business of maintaining a caboose

museum. At that time, the switch connecting the spur track to the m ain track

was still connected and functioning. According to D r. Guild, he obtained through h i s s o n - in-law, George Trihoulis, assurances from KCSRC that the s pur track attached to the main track would be kept open and operational. Then, in late 2006, Meridian began working to upgrade the main track to allow for increased traffic and train speed. D uring the upgrade process, KCSRC obtained Dr. Guild’s p ermission to temporarily u se h is property and spur track

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for various needs associated with upgrading the main track such as parking railroad cars, w ork vehicles, crews, equipment, e tc. According to Dr. Guild, his
spur track was damaged a s a r esul t of KCSRC’s temporary use during its process of upgrading the main track. Once the u pgrading process was complete, KCSRC determined that the switch leading to the s p ur track was n o lon g e r c o m p a tible with the u pgraded

ma i n track because it was not o f sufficient weight o r quality to safely accommodate the i n c reases in train speed and volume. C onsequently, in May 2008, KCSRC sent a letter to Dr. Guild informing him that the switch would be removed in thirty days due to its incompatibility with the main track. KCSRC also stated in its letter t h at the costs of u pgrading the switch c o uld not be justified in light of the insufficient traffic generated b y D r . Guild’s caboose

museum business. T wo y ears later, in October 2010, K CSRC re m oved the switch from the main track. In August 2010, the G uilds filed s uit in the Chancery Court of Rankin County, Mississippi seeking an order c o mpelling KCSRC to install an u pgraded switch on the main track and to reopen and maintain access to the spur track. The Guilds also asserted claims of negligence seeking m o n e tary relief on the grounds that KCSRC damaged the spur track by par k i n g r a i lroad cars of excessive weight on the track during the upgrade operations in 2006. KCSRC removed the action and subsequently filed for s ummary judgment seeking dismissal of the Guilds’ claims on the grounds of preemp t i o n by the ICCTA. In August 2012, the district court granted w ithout p r ejudice K CSRC’s motion to dismiss. During the summary j udgment hearing, the district judge stated that the G uilds’ c laims were preempted b y the I CCTA. Accordingly, they

were required to file a complaint with the Surface Transportation Board (“STB”) prior to initiating any court proceedings. The district court clarified that its

s ummary judgment in f avor of KCSRC granting the motion to dismis s w a s

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without prejudice should the Guilds choose to appeal the S TB’s decision on their claims in the f

uture. The Guilds a pp eal the district court’s grant of summary judgment. 1 II. This court reviews a district court’s grant of summary judgment de novo. Nat’l Cas. Co. v. W

. World Ins. Co. , 669 F.3d 608, 612 ( 5 t h C i r . 2 0 12) (citation omitted). The preemptive effect of a f ederal statute is a question of law that we also review de novo. F ranks Inv. Co. LLC v. Union Pac. R.R. C o., 593 F.3d 404, 407 (5th Cir. 2010) (en banc) (citing Friberg v. Kan. City S. Ry. Co. , 267 F.3d 439, 442 (5th Cir. 2001)). I II. “In determining the existenc e a n d r e a ch o f p r e e m p tio n , C o n gr e s s ’ s purpose is ‘the ultimate touchstone’ to use.” Franks , 593 F .3d at 407 (citation omitted). Congres s c a n “i n dic at e p r e - e m p tiv e i nt e nt th rough a statute’s e xpress language.” Id

. (citation o m i t t e d). Congress may also “impliedly preempt s tate law ‘if the
scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between s tate and federal law.’” Id . (citations omitted). The ICCTA expressly states: (b) The jurisdiction of the [STB] over -- (1) transpo r tation by r ail carriers, a nd the remedies provided in this part with respect to r ates, c l a s s if ic ati o n s , rul e s (including car s ervice , i nt e rch a n ge , and other operating rules), prac t ices, routes, services, and facilities of such carriers; and ( 2 ) t h e c o n s t r u c t i o n , a c q u i s i t i o n , o p e r a t i o n , a b a n d o n m e n t , o r d i s c o n t i n u a n c e of s p u r ,

1 The d is trict court d id not i s s u e a w r i tten op inion to accom p any its f inal s um m ary jud gm ent in f

avor of KCSRC. 4 Case: 12-60731 Document: 00512366534 Page: 4 Date Filed: 09/09/2013No. 12-60731 industrial, team, switching , o r s ide tracks , or faciliti e s , even if the tracks are located, or intended to be located, entirely in one State, is exclusive. Except a s otherwise provided in this p art, th e remedies provided u nder this part with respect to regulation of rail transportation are exclusive a nd preempt the remedies provided under Federal or State law. See 49 U.S.C. § 10501(b) (emphasis added). The Guilds argue that the district court’s determination that their claims against the KCSRC are preempted by the ICCTA is inconsistent with this court’s en banc opinion in Franks . We disagree. In Franks , we determined that a possessory action brought by a property

owner s eeking to enjoin the railroad from rem o v i n g two private crossings was neither expressly n or impliedly preempted by the ICCTA. 593 F.3d at 415. We explained that, “[f]or a state court action to be expressly preempted under the ICCTA, it must seek to r e g u l a te the operations of r ail transportation.” Id

. at 413. We concluded that the property owner’s possessory action, which i nvolved

a private servitude of passage over the railroad tr ack, i nvoked l a w s which merely incidentally affected rail transportation, and thus, did n ot manage or govern rail transportation. I d

. at 411. Moreover , w e declined to accept the railroad’s argument that railroad crossings were encompassed in t he ICCTA’s definition of “transportation,” which would have resulted in federal preemption of the claims if that were the case. I d . at 409. Consequently, we held that the property owner’s claims i nvolving private crossings over the r ailroad track were not expressly preempted b y the ICCTA. I d

. at 413. A dditionally, we found no evidence in the record that the privat e crossings c r eated an “unusual interference w ith the rai l r oad,” which would have r esulted in implied preemption. Id . at 415. The Guilds switch c laim, however, is distinguishable from the claims advanced by the p roperty owner in Franks

. The Guilds s eek t o compel KCSRC 5 Case: 12-60731 Document: 00512366534 Page: 5 Date Filed: 09/09/2013No. 12-60731

to replace the switch connected to the spur track on the G uilds’ property with an upgraded switch, a nd to open and maintain the switch so t h a t it can function
p r o p erly with the m ain track. Unlike the possessory claim in Franks relating to private crossings, the Guilds’ switch claim is expressly preempted by the plain wording of the statute, which provides that “the construc tion, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching,

or s i d e tracks” is within the exclusive jurisdiction of the STB. 49 U.S.C. § 10501(b)(2). Additionally, it cannot be disputed that the Guilds’ att e m p t t o compel KCSRC to add a switch connecting a s pur track to the railroad’s main track is

a claim seeking “to r egulate the operations of rail transportation.” Franks , 593 F.3d at 413. KCSRC Roadmaster employee, Gregory R. Evans, attested to the following in his affidavit:

In order to operate the spur track, i.e. , move cars back and forth between the mainline and the spur track, th e swit c h m u s t b e lined so that cars cannot pass on th e mainline, but i nstead are routed onto the industry sp ur. This process requires the train to operate in a slow, stop and go manner, and the mainline is usually completely bl o c k ed and impassable f or the duration o f th e switching operations. The p resence o f a switch on th e mainline also presents the potential for safety issues because if the switch is not pro p e r l y lined, a train o n the mainline could be derailed.
It is apparent from Mr. Evans’ statements that the switch connecting the spur track not only interferes with the operation o f the rail cars on the main track but also c hanges and/or re-directs their g eneral direction. This is a far cry f rom the passive presence of a private c rossing over a railroad track, which d o es nothing to change, re-direct or inhibit the direction o f the rail cars or to regulate their operation. Because it is clear that the Guilds’ switch claim is one seeking “to

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regulate the operations of rail transportation,” w e hold this claim to be preempted by the ICCTA. 2 See Franks , 593 F.3d at 413. IV. The Guilds’ also assert a negligence c laim seeking compensation for the alleged damage that resulted from KCSR C ’ s temporary u se of the spur track during u pgrade operations. In their n eglig e n c e claim, the Guilds allege that KCSRC damaged the spur track b y parki n g r ail cars of excessive weight on it. As we p reviously have explained in cases analogous to this one, “only laws that have t he effect of managing or governing rail transportation will be expressly preempted.” Franks , 593 F.3d at 410; see also Fla. E. Coast R y. Co. v. City of W. Palm Beach , 2 66 F.3d 1324, 1331 (11th Cir. 2001) (“Congress narrowly tailored the ICCTA preemption provision to displace o nly ‘regulation,’ i.e. , those state l aws that may reasonably be s aid to h ave the effect of ‘m a n a g [ing]’ or ‘govern[ing]’ rail transportation,

. . . while permitting the c ontinued application of laws having a m ore remo t e o r incidental effect on rail transportation.” (alterations in o riginal)). Here, the Guilds’ claim pertaining to their damaged
spur track sounds in tort. Consequently, t h e law to be applied to that claim, absent preemption, is that which M ississippi a pplies to negligence actions. See Franks , 593 F.3d at 408. The purpose of Mississippi’s negligence law i s not to manage or govern rail transportation. Cf. Elam v. K an. City S

. R

y . Co . , 635 F.3d 796, 8 07 (5th Cir. 2011) (noting, in contrast, that a Mississippi anti-b l o cking statute was preempted by the I CCTA because the l a w had “no application except with respect to the o peration of railroads at r a i l c rossings”). Rather, “the effects of state negligence law on r ail operations ar e m e r e l y i n cidental.” Id. at 813; see

2 The p roced ure f

or the ap p lication of a s w itch connection and the s ubs equent rem ed y f or a rail carrier’s f

ailure to ins tall th e s w itch as reques ted in the ap p lication is exp res s ly p rovid ed in the statute. See 49 U

. S. C. § 11103. 7 Case: 12-60731 Document: 00512366534 Page: 7 Date Filed: 09/09/2013No. 12-60731

also F ranks , 593 F.3d at 411 (“This suit is governed b y Louisiana property law and rules o f civil procedure that have nothi n g t o d o w i th railroad crossings.

. .

. These p roperty laws are n ot meant to r e gulate railroad transportation, though at times they may have an incidental e f f e c t o n railroad transportation.”). Accordingly, we conclude that the ICCTA does not e xpressly p r eempt the Guilds’ negligence claim. Of course, “[i]f a state law is not expressly preempted by the ICCTA, it still
may be impliedly preempted.” Elam , 635 F.3d at 805. In considering whether Mississippi’s negligence law is impliedly preempted in th e instant case, we must

assess whether, as applied to the facts of this c a s e, the law “would have the effect of unreasonably burdening or i nterfering with rail transportation.” Franks , 593 F.3d at 4 14 (emphasis added) (int e rn al qu o t ati o n m arks and citation omitted); s ee also Elam , 635 F.3d at 813. We previously have observed that “economic regulation is at the c o re of ICCTA preemption.” Elam , 635 F.3d at 8 0 5 ; s ee also Friberg , 267 F .3d at 443 (“[I]t appears m anifest that Congre s s intended the ICCTA to further that exclusively f ederal [regulatory] effort, at least in th e e c o n omic realm.”). We thus have held that state and local restrictions are preempted by the ICCTA when they directly “reach into the area of economic regulation of railroads,” including by attempting to regulate “in such

areas as train speed, length and scheduling.” F riberg , 2 6 7 F

. 3 d at 443. In contrast, we h ave hel d t hat simple negligence claims, such as the failure to p r o vide adequate w arning signs of a train’s crossing, are not p reempte d

. Se e Elam , 635 F.3d at 814. Here, as the party asserting federal preemption, K CSRC bears the burden of persuasion. Id. at 8 02. KCSRC cannot satis f y t h i s b u r d en with general evidence or assertions that the Guilds’ negligence claim would somehow affect rail transportation. Id. at 813. Rather, it “must come forward with evidence of

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the specific burdens imposed.” Id. We are n o t c o nvinced that KCSRC has met this burden. KCSRC contends that if it were “subject to ordinary state law negligence claims for the weight of its r ailcars, [it] would be forced to make adjustments to that weight to avoid liability, as b est it could.” KCSRC offers no support for this argument. It does not follow, however, that recompensing the Guilds for the damage that occurred to their private spur track, when they allowed KCSRC to

s t o re its equipment there without charge, would affect KCSRC’s decision s regarding car weight on its mainline tracks. In d e e d , i n advancing their negligence claim for damag e c a u s e d to the spur track, the Guilds are not attempting in any way to undertake economic regulat i o n o f r a ilroads. To the contrary, this p articular claim involves a simple negligence claim, similar to the

one we held not to b e p reempted in Elam

. 635 F.3d at 8 14. Accordingly, we hold that, b ased on the record before us, KCSRC has not demonstrated that allowing the spur track damage claim to proceed would have the effect of unre a s o n a b l y burdening or interfering with KCSRC’s operations. Franks , 593 F.3d at 414. V. For the foregoing r easons, we AFFIRM the district co u r t ’s summary judgment pertaining to the G uilds’ switch claim. We V ACATE the district court’s summary j udgment with respect to the G uilds’ spur track n egligence claim and REMAND for further proceedings.

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