UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

CITY OF JERSEY CITY, et al., )

)

Plaintiffs, ) 

)

v. ) Civil Action No. 09-1900 (ABJ)

)

CONSOLIDATED RAIL )

CORPORATION, )

)

Defendant, )

)

and )

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212 MARIN BOULEVARD, LLC, et al., )

)

Intervenor-Defendants. )

)

and )

)

PAULA T. DOW, )

Acting Attorney General of the )

State of New Jersey, )

)

Intervenor. )

)

____________________________________)

MEMORANDUM OPINION

Pending before the Court are two motions: a motion for leave to file an amended answer 

by intervenor-defendants 212 Marin Boulevard, LLC; 247 Manila Avenue, LLC; 280 Erie Street, 

LLC; 317 Jersey Avenue, LLC; 354 Cole Street, LLC; 389 Monmouth Street, LLC; 415 

Brunswick Street, LLC; and 446 Newark Avenue, LLC,

1 [Dkt. # 86], and a renewed motion for 

summary judgment by plaintiffs City of Jersey City, Rails to Trails Conservancy, and 

Pennsylvania Railroad Harsimus Stem Embankment Preservation Coalition, [Dkt. # 79]. The 

 

1 Intervenor-Defendants will be referred to collectively as “the LLCs.”
2

Court will deny the motion to amend because the LLCs’ amended answer would alter the nature 

and scope of the litigation and would prejudice the other parties by unnecessarily delaying 

resolution of this action. It will grant the renewed motion for summary judgment because the 

parties have stipulated to the sole factual issue in this case, no genuine issues of material fact 

remain, and plaintiffs are entitled to judgment as a matter of law.

BACKGROUND

This lawsuit concerns a portion of rail property known as the Harsimus Branch, between 

CP Waldo and Luis Munoz Marin Boulevard in Jersey City, New Jersey (“Harsimus Branch”). 

Compl. [Dkt. # 1] ¶ 1. The Harsimus Branch was conveyed to defendant Consolidated Rail 

Corporation (“Conrail”) in 1976 pursuant to the Regional Railroad Reorganization Act of 1973, 

45 U.S.C. § 741; 45 U.S.C. § 1301. Id. ¶ 12. The specific question before the Court in this case 

is whether the Harsimus Branch conveyed at that time was a railroad “line” or a “spur.” Id. ¶ 6. 

This distinction matters because before a railroad can abandon or discontinue operations on a rail 

line, it must obtain authorization from the Surface Transportation Board (“STB”), formerly the 

Interstate Commerce Commission. See 49 U.S.C. § 10903 (2006). This requirement does not 

apply to spurs. Id. § 10906. In 2005, defendant Conrail purported to sell the Harsimus Branch to 

intervenor-defendants, but it did not have abandonment authorization from the STB at that time. 

Compl. ¶ 19. Since then, the Harsimus Branch has been the subject of protracted litigation.

In January 2006, plaintiffs, along with a New Jersey state assemblyman, petitioned the 

STB for an order declaring that Conrail was required to obtain authorization from the STB to 

abandon the Harsimus Branch. Consolidated Rail Corp. v. Surface Transp. Bd., 571 F.3d 13, 17 

(D.C. Cir. 2009), citing City of Jersey City – Petition for Declaratory Order, STB Fin. Docket 

No. 34818, 2007 WL 2270850 at *1 (Aug. 9, 2007) (“STB Order”), recons. denied, Docket No. 
3

34818, 2007 WL 4429517 (Dec. 19, 2007) (“STB Recons. Order”). In August 2007, the STB 

determined that the Harsimus Branch is “subject to the [STB’s] exclusive jurisdiction until 

appropriate abandonment authority is obtained.” See id., citing STB Order, 2007 WL 2270850 at 

*7. The STB subsequently denied a petition for reconsideration of that order. Consolidated Rail 

Corp., 571 F.3d at 17, citing STB Recons. Order, 2007 WL 4429517 at *6.

The STB Order was appealed to the United States Court of Appeals for the District of 

Columbia Circuit, which ruled only on the procedural ground that the STB did not have authority 

to determine whether a railroad track is a line or a spur for purposes of abandonment 

authorization. See Consolidated Rail Corp., 571 F.3d at 20. The Court of Appeals ruled that this 

court has exclusive jurisdiction to determine that issue, while the STB has exclusive jurisdiction 

to determine whether to authorize abandonment of a line. Id.

After the Court of Appeals issued that decision, the parties filed this lawsuit on October 

7, 2009, seeking a ruling on whether the Harsimus Branch was conveyed as a line subject to STB 

jurisdiction. Compl. ¶ 49. The specific question before the Court is whether the Harsimus

Branch was conveyed to Conrail as a line or a spur. Id. ¶ 6. On September 28, 2010, the court 

ruled, without reaching the merits, that plaintiffs lacked standing. City of Jersey City v. 

Consolidated Rail Corp., 741 F. Supp. 2d 131, 149 (D.D.C. 2010), rev’d, 668 F.3d 741 (D.C. 

Cir. 2012). Plaintiffs appealed and the Court of Appeals reversed, City of Jersey City v. 

Consolidated Rail Corp., 668 F.3d 741 (D.C. Cir. 2012), remanding the case back to the court on 

March 23, 2012, for further proceedings, [Dkt. # 61].

2

 The parties filed status reports with the 

 

2 On May 3, 2012, the case was reassigned to Judge Kollar-Kotelly. See Reassignment of 

Civil Case [Dkt. # 62]. It was transferred to this Court on September 20, 2013. See 

Reassignment of Civil Case [Dkt. # 96].
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court, and on June 25, 2012, the court issued an order to govern proceedings. Sched. and Procs. 

Order [Dkt. # 77].

On July 10, 2012, the parties filed a joint stipulation in which plaintiffs and intervenordefendants stipulated that the Harsimus Branch was conveyed to Conrail as a line subject to the 

STB’s abandonment jurisdiction. Joint Stipulation [Dkt. # 78] at 1. They further stipulated that 

defendant Conrail and intervenor Attorney General of New Jersey would not raise any facts or 

arguments in opposition to that stipulation. Id. In light of this, on August 15, 2012, plaintiffs 

filed a renewed motion for summary judgment. Renewed Mot. for Summ. J. [Dkt. # 79]. The 

LLCs oppose the renewed motion, Mem. of Law on Behalf of the LLCs in Opp. to Pls.’ Mot. for 

Summ. J. [Dkt. # 81], and filed a motion seeking leave to file an amended answer to add 

counterclaims and cross-claims, Mot. for Leave to File an Am. Answer [Dkt. # 86].

STANDARD OF REVIEW

I. Motion to Amend

According to Federal Rule of Civil Procedure 15(a)(2), the Court should “freely give 

leave [to amend] when justice so requires.” The decision to grant leave to file an amended 

pleading is at the discretion of the Court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 

1996). Such leave is appropriate “in the absence of undue delay, bad faith, undue prejudice to 

the opposing party, repeated failure to cure deficiencies, or futility.” Richardson v. United 

States, 193 F.3d 545, 548–49 (D.C. Cir. 1999), citing Foman v. Davis, 371 U.S. 178, 182 (1962).

II. Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party seeking summary judgment bears the “initial responsibility of informing the 
5

district court of the basis for its motion, and identifying those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat 

summary judgment, the non-moving party must “designate specific facts showing that there is a 

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual 

dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the 

non-moving party; a fact is only “material” if it is capable of affecting the outcome of the 

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In 

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the 

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 

655 (1962) (per curiam).

ANALYSIS

I. The LLCs’ Motion for Leave to File an Amended Answer

The court granted the LLCs’ motion to intervene as defendants in this action on May 10, 

2010. Minute Order (May 10, 2010). Federal Rule of Civil Procedure 13 does not distinguish 

between intervenors and other parties with respect to their ability to assert counterclaims or 

cross-claims. See, e.g., Fed. R. Civ. P. 13(g) (“A pleading may state as a crossclaim any claim 

by one party against a coparty . . . .”); see also Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 617

n.14 (1966) (“[A]n intervenor of right may assert a cross-claim without independent 

jurisdictional grounds[.]”). But it is also well-established that “one of the most usual procedural 
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rules is that an intervenor is admitted to the proceeding as it stands, and in respect of the pending 

issues, but is not permitted to enlarge those issues or compel an alteration of the nature of the 

proceeding.” Vinson v. Wash. Gas Light Co., 321 U.S. 489, 498 (1944); see also EEOC v. 

Woodmen of the World Life Ins. Soc’y, 330 F. Supp. 2d 1049, 1055 (D. Neb. 2004) (holding that 

an intervenor could not assert a cross-claim that would “improperly expand the scope of the 

proceedings before this court”); Seminole Nation v. Norton, 206 F.R.D. 1, 7 (D.D.C. 2001) 

(denying a potential intervenor’s request to intervene and present claims that fell outside of the 

scope of the litigation); Marvel Entm’t Grp., Inc. v. Hawaiian Triathlon Corp., 132 F.R.D. 143, 

146 (S.D.N.Y. 1990) (stating that an intervenor may not assert additional claims that “needlessly 

expand the scope and costs of th[e] litigation and . . . thus prejudice the rights of” the other 

parties to expeditiously resolve the action).3

 But even if one reads Federal Rule of Civil

Procedure 24 broadly to accord an intervenor the full rights of any participant in a lawsuit, a 

motion to amend any party’s pleading to add new claims is committed to the Court’s discretion 

and governed by the factors that would ordinarily pertain under Federal Rule of Civil Procedure

15. Here, the LLCs move – after entry of a joint stipulation that resolves the single issue raised 

in this case – to expand the issues in the case and alter the nature of this proceeding.

This action sought a declaratory judgment on the narrow question of how the Harsimus 

Branch was conveyed to Conrail. The LLCs assert that there is a broader dispute concerning 

property beyond the portion of rail track addressed in the complaint, and they want to amend 

 

3 In a case involving a direct petition from agency action under 28 U.S.C. § 2344, the D.C. 

Circuit stated, “Intervenors may only argue issues that have been raised by the principal parties; 

they simply lack standing to expand the scope of the case to matters not addressed by the 

petitioners in their request for review.” Nat’l Ass’n of Regulatory Util. Comm’rs v. Interstate

Commerce Comm’n, 41 F.3d 721, 729 (D.C. Cir. 1994). Although not directly applicable to this 

situation, that statement tends to support the proposition that an intervenor cannot expand the

scope of the action.
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their answer to add counterclaims and cross-claims “for a full and fair consideration of the issues 

in this case.” Mem. of Law in Supp. of Defs.-Intervenors LLCs’ Mot. for Leave to File an Am. 

Answer (“LLCs’ Mem.”) [Dkt. # 86-1] at 1. Their new claims include, among others, a claim for 

declaratory judgment about the broader disputed property, including another rail line, the Hudson 

Street Industrial Track. Id. at 3; Am. Answer [Dkt. # 87] ¶ 96. They also seek to add state law 

claims against Conrail for fraud and negligent misrepresentation related to Conrail’s conveyance 

of the Harsimus Branch to the LLCs. Am. Answer ¶¶ 115–48.

The LLCs argue that no discovery has taken place in this case and contend their motion is 

timely given the procedural history of this case. But the case they cite for their argument that 

their motion is timely is distinguishable from this case. In Harrison v. Rubin, 174 F.3d 249 

(D.C. Cir. 1999), the Court of Appeals ruled that there is no undue delay “[w]here an amendment 

would do no more than clarify legal theories or make technical corrections.” Id. at 253. But here 

the LLCs do not seek to simply change a statutory citation to clarify legal theories or make 

technical corrections, as in Harrison. They seek to expand the scope of the case beyond the 

track at issue and to add state law claims that require the Court to delve into their commercial

negotiations with Conrail. This would introduce entirely new legal and substantial factual issues 

to the case. See Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247

(D.C. Cir. 1987) (holding that the district court properly denied motion to amend complaint 

where amendment would have introduced an entirely new issue into the case). The LLCs 

acknowledge as much. LLCs’ Mem. at 20 (“The counterclaim, likewise, primarily deals with 

new legal theories. The counterclaims raise many new facts . . . .”); id. at 21 (acknowledging

that “the fraud count introduces new factual issues”).
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And the argument that no discovery has taken place does not aid the LLCs’ position. No 

discovery is needed to resolve the issue before the Court, but the LLCs’ proposed amendment 

would require extensive discovery, particularly as to the fraud and negligence claims – which the 

Court notes do not even involve all the parties in this case.

The LLCs’ new claims go significantly beyond the narrow legal question involved in this 

litigation, as they address property beyond the Harsimus Branch and numerous factual issues and 

state law claims arising out of their commercial dispute with Conrail.

4

 Allowing this amendment 

would prejudice the other parties by expanding this litigation far beyond the original question 

presented and causing substantial delay in the resolution of this case. By contrast, a denial of the 

motion to amend does not prejudice the LLCs because they are free to raise their claims in 

separate litigation. Accordingly, the Court will deny the LLCs’ motion for leave to file an 

amended answer.

II. Renewed Motion for Summary Judgment

In light of the Court’s decision to deny the LLCs’ motion to amend and the parties’ 

stipulation of July 10, 2012, this case presents no genuine issues of material fact and so may be 

properly decided on summary judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex 

Corp., 477 U.S. at 323. Again, the complaint presents one question: whether the Harsimus

Branch was conveyed to Conrail in 1976 as a line subject to the STB abandonment jurisdiction.

 

4 In its opposition to the LLCs’ motion for leave to amend, Conrail raises significant 

questions about whether this Court, sitting as the Special Court under the Regional Railroad 

Reorganization Act of 1973, has the power to exercise supplemental jurisdiction over the new 

state law claims. Conrail’s Opp. to Def.-Intervenors’ Mot. for Leave to File an Amended 

Answer [Dkt. # 89], at 19–22, citing Consolidated Rail Corp., 571 F.3d at 18 n.11. But even if it 

does, the Court would still have to determine that the issues derived from a “common nucleus of 

operative fact,” see United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), and even then, the 

exercise of jurisdiction would be discretionary. See id. at 726; 28 U.S.C. § 1367.
9

As the D.C. Circuit held in Consolidated Rail Corp., the district court has “exclusive 

jurisdiction to decide the antecedent question if it arises” of whether a track at issue “was 

conveyed . . . as ‘part of [the rail carrier’s] railroad lines’” subject to the STB’s abandonment 

jurisdiction. 571 F.3d at 20 (alteration in original), citing 49 U.S.C. § 10903(a)(1)(A). If so, 

then the STB “retains its authority under sections 10903 and 10906 to approve or deny an 

abandonment application.” Id. Given that the parties have now stipulated that the Harsimus 

Branch was conveyed to Conrail as a line and not a spur, the Court rules that the Harsimus 

Branch “was conveyed . . . as ‘part of [the rail carrier’s] railroad lines’” subject to the STB’s 

abandonment jurisdiction.

CONCLUSION

For the reasons stated above, the Court will deny the LLCs’ motion for leave to file an 

amended answer and will grant plaintiffs’ renewed motion for summary judgment. A separate 

order will issue.

 AMY BERMAN JACKSON

 United States District Judge

DATE: September 30, 2013