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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JOSHUA WARD, and FONDA WARD,

NO. CIV. S-04-0678 FCD PAN

Plaintiffs,

MEMORANDUM AND ORDER

v.

CALIFORNIA DEPARTMENT OF

TRANSPORTATION/CALTRANS;

CALIFORNIA AMTRAK; STATE OF

CALIFORNIA; JACOB KEATING;

COUNTY OF SACRAMENTO; COUNTY

OF YOLO; CITY OF WEST

SACRAMENTO; UNION PACIFIC

RAILROAD, a business

organization of unknown

status; and DOES 1-50,

inclusive,

Defendants.

_____________________________/

----oo0oo----

This matter is before the court on motion by plaintiffs

Joshua Ward and Fonda Ward for reconsideration of the court’s

July 22, 2005 order granting summary judgment of plaintiffs’

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1 This defendant was erroneously sued as “California

Amtrak.”

2 Because oral argument will not be of material

assistance, the court orders the matter submitted on the briefs. 

E.D. Cal. Local Rule 78-230.

3 The factual background of this case is described in

detail in the court’s July 22, 2005 Memorandum and Order.

4 Although the court’s grant of summary judgment resolved

all claims against defendant Amtrak, it was not an appealable

final order. Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these

rules, includes any decrees or order from which an appeal lies.”) 

Thus, Rule 59(e) technically does not apply. Fed. R. Civ. P.

59(e) (“Motion to Alter or Amend Judgment. Any motion to alter or

amend a judgment shall be filed no later than 10 days after entry

of the judgment.”) However, the court has inherent discretion

alter or amend interlocutory order at any time before entry of

final judgment. Fed. R. Civ. P. 54(b) (“. . . any order or other

form of decision, however designated, which adjudicates fewer

than all the claims or the rights and liabilities of fewer than

all the parties shall not terminate the action as to any of the

claims or parties, and the order or other form of decision is

subject to revision at any time before the entry of judgment

adjudicating all the claims and the rights and liabilities of all

the parties.”); United States v. Martin, 226 F.3d 1042, 1048-49.

(9th Cir. 2000), cert denied, 121 S. Ct. 1671 (2001). 

2

negligence claim against the National Railroad Passenger

Corporation1 (“AMTRAK”).2, 3

Federal Rule of Civil Procedure 59(e) provides that a motion

to alter or amend a judgment shall be filed no later than 20 days

after entry of judgment.4 Fed. R. Civ. P. 59(e). Amendment or

alteration is appropriate under Rule 59(e) if the court (1) is

presented with newly discovered evidence; (2) committed clear

error or the initial decision was manifestly unjust, or (3) if

there has been an intervening change in the controlling law. See

Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

In the July 22, 2005 Memorandum and Order, the court

concluded that plaintiffs’ claim for “Negligent Train Operation”

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28 5 Formerly codified at 45 U.S.C. § 434, et seq. 

3

articulated only an excessive speed claim and that such claims

are preempted by the Federal Rail Safety Act of 1970 (“FRSA”), 49

U.S.C. § 20101, et seq.5 Plaintiffs contend that the court

should reconsider its ruling because the language of the

complaint can be construed broadly to state a claim of negligence

based on conduct separate and independent from the speed of the

train, such as failure of the train conductor to look for the

presence of pedestrians on the bridge despite his knowledge that

pedestrians frequently crossed the bridge and failure to stop the

train once he realized that there was a pedestrian on the bridge

who was not aware that a train was approaching him from behind. 

(See Pls.’ Mem. Supp. Reconsideration at 3.) 

After reviewing plaintiffs’ complaint as well as the

memoranda filed by the parties, the court concludes that

reconsideration is warranted. While inartfully drafted,

plaintiffs’ complaint can be construed liberally to state a

negligence claim based on conduct other than excessive speed,

which would not be preempted by the FRSA. On summary judgment,

the court is required to give the benefit of all favorable

inferences to the non-moving party. United States v. Diebold,

Inc., 369 U.S. 654, 655 (1962). Here, the language of the

complaint and plaintiffs’ evidence support a claim of negligence

independent of the excessive speed claim. (See e.g., Dec. of

Michael Wikman filed April 26, 2005 [concluding that Keating was

inattentive as he approached the bridge and that he actually

accelerated as he approached Mr. Ward].) Accordingly the court

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4

grants plaintiffs’ motion for reconsideration and modifies its

July 22, 2005 order as follows:

1. Defendants’ motion for summary judgment of Claim One

against Amtrak is GRANTED.

2. Defendants’ motion for summary judgment of Claim Two

against Amtrak is GRANTED to the extent plaintiffs’ negligence

claim is based on the train’s excessive speed but DENIED in all

other respects.

3. Defendants’ motion for summary judgment of Claim Three

against Amtrak is GRANTED in part and DENIED in part. The motion

is granted only as to allegations of excessive speed.

4. Defendants’ motion for summary judgment of Claims Four

and Five against Union Pacific is DENIED. 

 IT IS SO ORDERED.

DATED: August 25, 2005

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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