UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ CONSOLIDATED RAIL : CORPORATION, : : Plaintiff, : Civil Action No.: 07-1370 (RMU) : v. : Document No.: 23 : GERARD A. RITTER and : SUSAN R. NOREK ex rel. GERARD H. : RITTER, deceased, : : Defendants. : ____________________________________:

____________________________________ CONSOLIDATED RAIL : CORPORATION, : : Plaintiff, : Civil Action No.: 07-1371 (RMU) : v. : Document No.: 14 : JOHN M. GRIBBIN, : : Defendant. : ____________________________________: MEMORANDUM OPINION G RANTING THE P LAINTIFF ’ S M OTIONS FOR R ECONSIDERATION I. INTRODUCTION The plaintiff, Consolidated Rail Corporation (“Conrail”), seeks declaratory relief proscribing successor liability fo r personal injury claims stemming from conduct prior to its formation. The defendants, who currently have personal injury claims pending in Pennsylvania state court, are former employees of Erie Lack awanna – a railroad company whose assets were transferred to Conrail pursuant to the Regiona l Rail Reorganization Act of 1973 (“Rail Act”), 45 U.S.C. §§ 701 et seq. , as amended by the Northeast Rail Service Act of 1981 (“NRSA”), 45U.S.C. §§ 1101 et seq. On March 27, 2008, the court granted the defendants’ motions to dismiss for lack of jurisdiction, prompting Conrail to f ile motions for reconsider ation. The defendants, relying almost exclusively on Consolidated Rail Corp. v. Reading Co. , 654 F. Supp. 1318 (Sp. Ct. R.R.R.A. 1987) argue that the court properly dismissed th e suit. Although the court in Reading determined that it did not have jurisdiction under the Rail Act to grant the re lief Conrail sought, the reasoning in Reading does not apply here. Therefore, this case has not reached its terminus and must proceed full steam ahead.

II. FACTUAL & PROCEDURAL BACKGROUND Congress established Conrail under the Rail Ac t of 1973 to revitalize the rail industry by creating “an economically viable system capable of providing adequa te and efficient rail service.” 45 U.S.C. § 701(b). In so doing, Congress, in conjunction with the Special Court constituted under the Rail Act, tr ansferred the assets from Erie Lackawanna and several other Northeast railroad companies to Conrail “free and clear of any liens or encumbrances.” Ritter Compl. ¶¶ 7-9 (quoting 45 U.S.C. § 743(b)(2 )); Gribbin Compl. ¶¶ 8-10 (same). The defendants allege that before the transf er and reorganization th eir former employer, Erie Lackawanna, negligently expo sed them to asbestos in viol ation of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51 et seq. Ritter Mot. to Dismiss (“Ritter Mot.”), Ex. A; Gribbin Mot. to Dismiss (“Gri bbin Mot.”), Ex. A. They, or their personal re presentatives, initiated suits in Pennsylvania state court agai nst Conrail, as Erie Lackawanna’s purported successor-in-interest, to recover for injuries or death that they contend resulted from their exposure to asbestos. Ritter Compl. ¶¶ 4-5; Gribbin Compl. ¶¶ 4-5.

2On July 27, 2007, while the defendants’ FELA suits were proceeding in Pennsylvania state court, Conrail filed complaints in this c ourt requesting declaratory relief to determine the scope of successor liability for personal injury claims under the Rail Act. Ritter Compl. ¶¶ 19- 22; Gribbin Compl. ¶¶ 21-24. The defendants subsequently filed mo tions to dismiss, asserting that their personal injury claims do not fall within the protections of the Rail Act. On March 27, 2008, the court issued a memorandum opinion granti ng the defendants’ motions to dismiss for lack of jurisdiction. Mem. Op. (Mar. 27, 2008). Conrail filed motions to reconsider that decision, and the court addresses its arguments as well as the defendants’ responses below.

III. ANALYSIS A. Legal Standard for a Rule 59(e) Motion Federal Rule of Civil Procedure 59(e) provides that a motion to alter or amend a judgment must be filed within 10 days of the entry of the judgment at issue. F ED

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. P. 59(e); see also Mashpee Wamponoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1098 (D.C. Cir. 2003) (stating that a Rule 59(e) motion “mus t be filed within 10 days of the challenged order, not including weekends, cer tain specified national holiday s (including Christmas Day and New Year’s Day), or any other da y appointed as a holiday by the President”). While the court has considerable discretion in ruling on a Rule 59(e) motion, the reconsideration and amendment of a previous order is an unusual measure. Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); McDowell v. Calderon , 197 F.3d 1253, 1255 (9th Cir. 1999). Rule 59(e) motions “need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear legal error or prevent manifest injustice.” Ciralsky v. Cent. Intelligence Agency , 355 F.3d 661, 671 (D.C. Cir.

32004) (quoting Firestone , 76 F.3d at 1208). Moreover, “[a] Ru le 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled,” New York v. United States , 880 F. Supp. 37, 38 (D.D.C. 1995), or a vehicle for presenting theories or arguments that coul d have been advanced earlier, Kattan v. District of Columbia , 995 F.2d 274, 276 (D.C. Cir. 1993); W.C. & A.N. Miller Cos. v. United States , 173 F.R.D. 1, 3 (D.D.C. 1997). B. The Court Grants the Plaint iff’s Motions for Reconsideration The Rail Act provides that “[t]he original and exclusive jurisdiction of [the District Court for the District of Columbia] shall include any ac tion . . . to interpret, alter, amend, modify, or implement any of the orders entered by such court pursuant to [§ 743(b)] of this Act.” 45 U.S.C. § 719(e)(2). On March 25, 1976, the Special Cour t created by the Rail Act issued a conveyance order transferring rail properties from various railroads to Conrail. Pl.’s Opp’n to Ritter Mot., Ex. A. Pursuant to § 743(b)(2), the Special Cour t transferred these proper ties “free and clear of any liens or encumbrances.” 45 U.S.C. § 743(b) (2). Conrail asserts that § 719(e)(2) provides jurisdiction for the court to addr ess its claims, and that § 743(b)(2) “is but part of a statutory scheme that should guide the Court in its exercise of that jurisdiction.” Pl.’s Recons. Mot. at 6. In their token responses, the de fendants, relying primarily on Reading , 654 F. Supp. at 1324-25, assert that “the Court’s jurisd iction is circumscribed by the sc ope of the Conveyance Order.” Ritter Opp’n at 1; Gribbin Opp’n at 2. The parties’ submissions relating to both th e pending motions for reconsideration and the previous motions to dismiss suffer from the same confused strategy. In both sets of documents, the parties devote extensive research and argument to the merits of the dispute: whether the Rail Act precludes successor liability. Ri tter Mot. at 7-8; Gribbin Mot. at 3-5; Pl.’s Opp’n to Ritter

4Mot. at 9-11; Pl.’s Recons. Mot. at 8-11. Indeed, the court note d in its March 27, 2008 memorandum opinion that the defendants did not di spute the court’s “exclusive jurisdiction to interpret the conveyance order i ssued on March 25, 1976; they asse rt instead that the conveyance order is inapposite to their suit for damages st emming from the asbestos exposure.” Mem. Op. (Mar. 27, 2008) at 4. But determining whethe r the conveyance order precludes successor liability for asbestos claims requires the court to interpret the liability provisions within that order. Id. at 5-8; cf. Hamilton v. AIG Life Ins. Co. , 182 F. Supp. 2d 39, 48 n.8 (D.D.C. 2002) (noting that “courts have refused to interpret the phrase ‘accidenta l means’ in insurance plans to exclude coverage for deaths caused by an intentional act”). By addressing the parties’ arguments on the scope of Conrail’s succe ssor liability under the Rail Act, the court prematurely undertook this interpretive task. Me m. Op. (Mar. 27, 2008) at 5-8. Further muddying the jurisdictional waters is the Reading case so heavily relied upon by the defendants. As the court noted in its previous memorandum opinion, in Reading , as here, Conrail sought declaratory relief barring recovery for pre-conveya nce asbestos exposure. Mem. Op. (Mar. 27, 2008) at 7. And af ter analyzing the Rail Act, the Reading court determined that it did not have jurisdiction. Reading , 654 F. Supp. at 1324-25. Not only did the facts in Reading appear analogous, but Conrail’s efforts to distinguish Reading often missed the mark. Pl.’s Opp’n to Mot. to Dismiss at 5; Pl.’s Recons. Mo t. at 7 n.5. This is because Conrail’s arguments failed to address the Reading court’s unequivocal holding that “[§ 719(e)(1)] does not confer jurisdiction over every suit requi ring an interpretation of th e Rail Act[, and] [t]he other provisions of [§ 719(e)] are ina pplicable to these cases.” Reading , 654 F. Supp. at 1324. But Reading is fundamentally different than the case at hand. The Reading court interpreted the preemptive effect of § 797h(b), whereas the Conrai l’s claims call on this court to interpret the

5conveyance order. Mem. Op. (Mar . 27, 2008) at 7-8 (citing Pl.’s Opp’ n to Mot. to Dismiss at 7). Although § 719(e) does not address the court’s jurisd iction to rule on Conrail’s claims as framed before the court in Reading , § 719(e)(2) squarely addresses the court’s jurisdiction to interpret the conveyance order. Section 719(e)(2) broadly outlines this court’ s jurisdiction to hear claims that require interpretation of conveyance orders entered pursuan t to § 743(b)(2). 45 U. S.C. § 719(e)(2). And the conveyance order at issue in this case provides that “[t]he conveyance of all properties . . . shall be subject to all appli cable terms and conditions of th e Conveyance Documents, the Rail Act and this Order.” Pl.’s Opp’n to Ritter Mot., Ex. A at 10. Thus , the court must interpret those provisions of the Rail Act such as § 743(b)(2) that govern the conveyance order at issue in this

case. Conrail v. United States , 883 F. Supp. 1565, 1571 (Sp. Ct. R.R.R.A. 1995) (determining that the court has jurisdic tion under § 719(e)(2) to inte rpret conveyance orders). Stated differently, the task of interpreting § 743(b)(2 )’s “lien” and “encumbrance” language cannot be swallowed by an inquiry into the court’s jurisdiction. See Ruhgas AG v. Marathon Oil Co. , 526 U.S. 574, 577 (1999) (warning federal courts not to “hypothesize subject- matter jurisdiction for the purpose of deciding the merits”). Having filte red out the parties’ premature arguments and distinguished the reasoning in Reading , it becomes clear that the court has jurisdiction over the Conrail’s suit, and the court, therefore, grants the moti ons for reconsideration.

6IV. CONCLUSION For the foregoing reasons the court grants Conrail’s motion for reconsideration. An Order consistent with this Memorandum Opinion is separately and contemporaneously filed this 7th day of January, 2009.

RICARDO M. URBINA United States District Judge

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