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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CSX TRANSPORTATION, INC., 

 Plaintiff, 

 Case No. 15-10976 

v. 

 HON.DENISE PAGE HOOD 

FIBER TECHNOLOGIES NETWORKS, 

LLC, EAGLE 1 RESOURCES, LLC, and 

UNDERGROUND CONTRACTORS, INC., 

 

 Defendants. 

_________________________________/ 

ORDER DENYING MOTION TO DISMISS [Docket No. 12] 

I. INTRODUCTION 

 Before the Court is a Motion to Dismiss for Lack of Diversity Jurisdiction 

filed by Eagle 1 Resources, LLC (“Eagle 1”) and Fiber Technologies Technologies 

Networks, L.L.C. (“Fibertech”) [Docket No. 12, filed April 7, 2015]. Plaintiff 

CSX Transportation, Inc. (“Plaintiff”) filed a Response in Opposition to 

Defendants’ Motion [Docket No. 24, filed April 22, 2015]. Defendants filed a 

Reply to the Response [Docket No. 27, filed May 6, 2015]. The Court held a 

hearing on the Motion to Dismiss on June 17, 2015. 

II. BACKGROUND 

 Plaintiff filed a four-count Complaint against Fibertech, Eagle 1, and 

Underground Contractors, Inc. (“UCI”) (collectively, the “Defendants”). All four 

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claims are rooted in state law: (1) Count I – Common Law Trespass against all 

Defendants; (2) Count II - Common Law Ejectment against Fibertech and UCI; (3) 

Count III – Unjust Enrichment against Fibertech and UCI; and (4) Count IV – 

Determination of Interests in Land under MCL 600.2932. 

 Plaintiff alleges that it owns and operates a Plymouth, Michigan, rail yard 

(the “Railroad Property”), and Defendants trespassed upon the Railroad Property 

for the purpose of installing fiber optic cables and other material. Plaintiff has 

standard policies and permitting requirements for outside parties seeking to install 

utilities on, under, or over the Railroad Property. After Eagle 1 notified Plaintiff of 

the proposed installation by Fibertech, Plaintiff objected to the installation unless 

there was prior authorization and consent. 

 Plaintiff alleges that, on December 26, 2014, “Fibertech’s contractor, UCI, 

or UCI’s subcontractor knowingly and voluntarily entered upon Plaintiff’s 

Railroad Property to attempt the unauthorized fiber optic cable installation and 

boring,” without any such authorization or consent from Plaintiff. [Docket No. 1, 

Compl. ¶ 30] When a Plaintiff employee discovered the Fibertech/UCI crew, he 

notified one of Plaintiff’s signal managers. The signal manager ordered the 

Fibertech/UCI crew to stop installation and leave the property, and the 

Fibertech/UCI crew complied. None of the Defendants have been on the Railroad 

Property since December 26, 2014. 

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 Plaintiff filed its Complaint on March 16, 2015, and it filed a motion for 

preliminary injunction the same day. Shortly after the Court held a hearing on the 

motion for preliminary injunction on April 22, 2015, the Court entered an order the 

parties stipulated to that resolved the motion for preliminary injunction. The April 

29, 2015 Stipulated Order provided that the Defendants “and all other entities 

acting under their control or in concert therewith are prohibited from entering [the 

Railroad Property] and from undertaking any boring or other activities on, above or 

under that property without [Plaintiff]’s prior, express authorization and consent.” 

[Docket No. 25, PgID 531] 

III. LEGAL STANDARD 

A. Rule 12(b)(1) Motion 

 A Federal Rule of Civil Procedure 12(b)(1) motion to dismiss for lack of 

subject matter jurisdiction places the burden on the plaintiff to demonstrate that 

jurisdiction is proper. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 

269 (6th Cir.1990).

 Motions to dismiss for lack of subject matter jurisdiction fall 

into two general categories: facial attacks and factual attacks. A facial

attack is a challenge to the sufficiency of the pleading itself. On such a 

motion, the court must take the material allegations of the petition as 

true and construed in the light most favorable to the nonmoving party. 

See Scheuer v. Rhodes, 416 U.S. 232, 235–37, 94 S.Ct. 1683, 1686–

87, 40 L.Ed.2d 90 (1974). A factual attack, on the other hand, is not a 

challenge to the sufficiency of the pleading’s allegations, but a 

challenge to the factual existence of subject matter jurisdiction. On 

such a motion, no presumptive truthfulness applies to the factual 

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allegations, see Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 

320, 325 (6th Cir.1990), and the court is free to weigh the evidence 

and satisfy itself as to the existence of its power to hear the case. 

United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (emphasis in original). 

See also Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 

(6th Cir. 2007). If at any point the court determines that it does not have subject 

matter jurisdiction, it must dismiss the case. See Fed.R.Civ.P. 12(h) (3). 

B. Diversity Jurisdiction - 28 U.S.C. § 1332 

 To satisfy diversity jurisdiction pursuant to 28 U.S.C. § 1332, the district 

court must be satisfied that the amount in controversy exceeds $75,000 and “each

defendant is a citizen of a different State from each plaintiff.” Owen Equipment & 

Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) 

(emphasis in original). “The amount in controversy for federal diversity 

jurisdiction purposes is determined as of the time the action is commenced. 

Subsequent actions cannot divest the court of jurisdiction, once it has been 

acquired.” Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997 (6th Cir. 1976). 

The burden is on Plaintiff to demonstrate that subject matter jurisdiction is proper 

at the time the Complaint was filed. Moir, 895 F.2d at 269; Worthams, 533 F.2d at 

997. 

IV. ANALYSIS 

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Fibertech and Eagle 1 argue that Plaintiff’s cause of action should be 

dismissed for failure to satisfy the jurisdictional requirements of diversity 

jurisdiction. In this case, it is undisputed that there is complete diversity of parties, 

but Fibertech and Eagle 1 contend that Plaintiff failed to set forth allegations in the 

Complaint to support a finding that damages exceeded $75,000 at the time the 

Complaint was filed. 

 In the Complaint, the only direct allegations pertaining to actual damages 

are: (1) Paragraph 14, where Plaintiff states that the “Court has original subject 

matter jurisdiction over this civil action under 28 U.S.C. § 1332(a) because the 

matter in controversy exceeds the value of $75,000.00, exclusive of interests and 

costs, and is wholly between citizens of different States,” (2) Paragraph 42, where 

Plainitff states that, as a “result of Defendants’ knowing, intentional, and 

continuing trespass of [the] Railroad Property, [Plaintiff] has been damaged in the 

form of loss or impaired use of the [Railroad] Property; attorneys’ fees; litigation 

expenses; court costs; and other damages and expenses in an amount to be proved 

at trial,” and (3) Paragraph 52, where Plaintiff alleges that it “is presumptively 

entitled to recover nominal damages as a matter of law as well as any actual 

damages caused by Defefendants’ trespass proved at trial.” 

 As Fibertech and Eagle 1 argue, the allegations in the Complaint do not 

facially demonstrate that the amount of actual damages is substantial or begins to 

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approach $75,000.00. Nor has Plaintiff demonstrated that facts exist to support a 

finding that the actual damages are significant or exceed $75,000. As it relates to 

actual damages, Plaintiff alleges that Defendants began installing underground 

conduit on December 26, 2014 on the Railroad Property until their work was 

stopped by a CXST employee. The damages caused by the installation of the 

underground conduit (and leaving the conduit on Railroad Property) appear to be 

the only actual damages alleged by Plaintiff. Plaintiff has not claimed that the 

Defendants’ trespass resulted in the Railroad Property being diminished and/or that 

the cost to repair or remediate the Railroad Property will be substantial or exceed 

$75,000.00. As Plaintiff seems to acknowledge, the actual damages at this time 

may be “nominal.” [Docket No. 1, Compl., ¶ 52] 

 The crux of Plaintiff’s Complaint, however, is not the actual damages it had 

incurred at the time the Complaint was filed. Rather, Plaintiff primarily filed this 

action to obtain injunctive relief, as the caption demonstrates (“Complaint for 

Injunctive Relief and Damages”). [Docket No. 1, PgID 1] The allegations of the 

Complaint similarly demonstrate that Plaintiff is seeking injunctive relief. For 

example, Plaintiff alleges in the Complaint that: 

a. Defendants’ dangerous and unauthorized conduct “poses hazards to 

[Plaintiff]’s vital equipment and facilities that could jeopardize the safety 

of rail operations and the integrity of Plaintiff’s track structure, which 

could lead to injuries to [Plaintiff]’s equipment, personnel or the public.” 

Compl. ¶ 41. 

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b. “Defendants invasion of [Plaintiff]’s property rights is an injury in itself 

that is not capable of purely monetary compensation.” Compl. ¶ 49. 

c. Defendants’ activities on the Railroad Property “create a substantial 

danger that [Plaintiff] will suffer catastrophic harms to its signal and 

communications systems and to continued safe and efficient railroad 

operations.” Compl. ¶ 50. 

d. Defendants’ “actions also threaten to harm [the] public by disrupting 

[Plaintiff]’s service as a common carrier and by undermining the safety 

of [Plaintiff]’s rail operations.” Compl. ¶ 51. 

 As it relates to the amount in controversy regarding the injunctive nature of 

this case, this Court applies the “either viewpoint” rule. See, e.g., In re Cardizem 

CD Antitrust Litig., 90 F.Supp.2d 819, 834 (E.D. Mich. 1999) (Edmunds, J.). In In 

re Cardizem, the Court explained the “either viewpoint” rule: 

This rule serves the purpose of a jurisdictional amount in controversy 

requirement to keep trivial cases away from the federal court system. 

Because the jurisdictional amount was enacted primarily to measure 

substantiality of the suit, the question of whether the controversy is 

substantial should not be answered unqualifiedly by looking only to 

the value of that which the plaintiff stands to gain or lose. Under this 

“either viewpoint” approach, the Court considers the pecuniary result 

to either party and considers both the value to the plaintiff of 

conducting his personal affairs free from the activity sought to be 

enjoined and the costs of compliance the defendant will incur if the 

injunction is granted. 

Id. at 834-835 (internal quotes and citations omitted). 

 Fibertech and Eagle 1 argue that Plaintiff cannot rely on the injunctive 

nature of relief in this case because there is no evidence that Defendants did or 

would go on the Railroad Property after being told to leave – and leaving – the 

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Railroad Property, without argument, on December 26, 2014. Fibertech and Eagle 

1 argue: (1) they did not go on the Railroad Property between December 26, 2014 

and March 16, 2015, when Plaintiff filed this action; (2) as John B. Messenger 

stated in his Declaration, on January 9, 2015 (two months before the Complaint 

was filed), he “made clear that Fibertech and its contractors would take no action 

to return to the [Railroad Property] or do any work on the site until the necessary 

permit was obtained” [Docket No. 11-3, PgID 230-31, ¶ 20]; and (3) Plaintiff’s 

motion for preliminary injunction was resolved by the parties, without a decision 

by the Court, because Defendants stipulated to the injunctive relief Plaintiff sought. 

 The Court finds, however, that at the time the Complaint was filed, the 

injunctive relief Plaintiff sought was not resolved or moot. First, Defendants’ 

stipulation that they would not enter upon the Railroad Property after Plaintiff filed 

the Complaint is irrelevant to the amount in controversy requirement, which is 

determined at the time the Complaint is filed. See Klepper v. First Am. Bank, 916 

F.2d 337, 340 (6th Cir. 1990). Second, although Defendants did not go on the 

Railroad Property between December 26, 2014 and March 16, 2015, when Plaintiff 

filed the Complaint, and Mr. Messenger represents that he told Plaintiff that 

Defendants would not go on the Railroad Property without a permit, there was no 

written commitment or agreement to that effect (e.g., an email from a Defendant 

representative, a stipulation, etc.) prior to the Complaint being filed. Third, it is 

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undisputed that Defendants previously had entered and begun work on the Railroad 

Property on December 26, 2014, even though Defendants had been advised by 

Plaintiff, in writing, that Defendants would have to go through Plaintiff’s 

permitting process before doing so. For these reasons, the Court finds that Plaintiff 

could have believed, in good faith, that it was necessary to file a lawsuit seeking 

injunctive relief. 

 The Court now considers whether the value of the injunctive relief sought by 

Plaintiff would exceed $75,000. As Plaintiff notes, “[i]n actions seeking 

declaratory or injunctive relief, it is well established that the amount in controversy 

is measured by the value of the object of the litigation.” Cleveland Housing 

Renewal Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 560 (6th Cir. 2010). 

Plaintiff alleges that Defendants’ dangerous and unauthorized conduct “poses 

hazards to [Plaintiff]’s vital equipment and facilities that could jeopardize the 

safety of rail operations and the integrity of Plaintiff’s track structure, which could 

lead to injuries to [Plaintiff]’s equipment, personnel or the public.” [Docket No. 1, 

Compl. ¶ 41] Plaintiff alleges that Defendants’ conduct “create[s] a substantial 

danger that [Plaintiff] will suffer catastrophic harms to its signal and 

communications systems and to continued safe and efficient railroad operations.” 

[Docket No. 1, Compl. ¶ 50]. See also Docket No. 1, Compl. ¶¶ 49, 51. The Court 

concludes that these allegations (which the Court must assume are true when 

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analyzing the allegations in the Complaint on their face) are sufficient to establish 

that the value of enjoining the Defendants’ activities exceeds $75,000, such that 

the Court has subject matter jurisdiction. See Gentek, 491 F.3d at 330. 

The Court also finds that Plaintiff has supplied sufficient factual evidence 

that Defendants’ actions could jeopardize Plaintiff’s signal network and could 

cause: (a) disruptions across the network; (b) damage to Plaintiff’s trains and other 

equipment; (c) structural damage to Plaintiff’s tracks; (d) disruptions to rail traffic; 

and (e) injuries to Plaintiff’s personnel, Defendants’ contractors, and the public at 

large, each of which alone could result in more than $75,000 in harm. [Docket No. 

6-4, at ¶¶ 5, 11, 14; Docket No. 6-2, at ¶¶ 24, 26–27; Docket No. 24-2, at ¶ 9] Such 

a disruption could cause damage to D.E. 6-2 ¶¶ 26–27; D.E. 6-4 ¶¶ 11, 14. The 

Court further finds that, in the event of damage to the Railraod Property (including 

trains or structural damage or disruptions to rail traffic), Plaintiff’s business 

reputation could be damaged in a substantial and, perhaps, incalculable manner. 

[Docket No. 6-4, at ¶ 6] See Ill. Cent. R.R. Co. v. Bhd. of Maint. of Way Emps., 

2015 WL 518677, at *6 (N.D. Ill. Feb. 5, 2015) (describing the “irreparable loss of 

goodwill and . . . future business” that “[e]ven a temporary shutdown” to a railroad 

would cause); Brotherhood of Maint. of Way Emps. v. BNSF Ry. Co., 2003 WL 

22844242, at *5 (N.D. Ill. Nov. 26, 2003). The Court concludes there is a factual 

basis for finding that the value to Plaintiff of obtaining the injunction exceeds 

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$75,000, such that the Court has subject matter jurisdiction. See Gentek, 491 F.3d 

at 330. 

V. CONCLUSION 

For the reasons stated above, 

IT IS ORDERED that the Motion to Dismiss for Lack of Diversity 

Jurisdiction filed by Eagle 1 Resources, LLC and Fiber Technologies Technologies 

Networks, L.L.C.’s [Docket No. 12] is DENIED. 

s/Denise Page Hood 

 DENISE PAGE HOOD 

 Chief Judge, United States District Court 

DATED: March 28, 2016 

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