IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60227

BARBARA ELAM; BOBBY ELAM,

Plaintiffs - Appellants

v.

THE KANSAS CITY SOUTHERN RAILWAY COMPANY; RONALD L.

MICHAEL,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Plaintiff-Appellant Barbara Elam allegedly suffered injuries when she

drove her automobile into the side of a train. Elam and her husband brought

this state law tort action against the train’s owner and its engineer in

Mississippi state court. The Elams claim the defendants were negligent per se

in violating Mississippi’s antiblocking statute, which purports to regulate the

amount of time a train may occupy a crossing. The Elams also claim the

defendants negligently failed to maintain adequate warnings of the train’s

presence at the crossing. The case was removed to federal district court. The

district court held the Interstate Commerce Commission Termination Act

(ICCTA) completely preempted the Elams’ negligence per se claim and

preempted their simple negligence claim. We hold the ICCTA completely

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2011

Lyle W. Cayce

Clerk

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preempts the Elams’ negligence per se claim but does not preempt their simple

negligence claim.

I. BACKGROUND

On November 18, 2006, plaintiff Barbara Elam drove her automobile into

the side of a train owned by defendant Kansas City Southern Railway Company

(KCSR) and operated by defendant Ronald L. Michael, the train’s engineer

(together KCSR, unless otherwise indicated). The train was performing

switching operations at the Pine Crest Road crossing in Corinth, Mississippi,

and was stopped at the time of the accident. Elam allegedly suffered injuries,

and she and her husband, Bobby Elam, brought this state law tort action against

KCSR in Mississippi state court. The Elams assert KCSR was negligent per se

in violating Mississippi’s antiblocking statute, Mississippi Code § 77-9-235,

which limits the amount of time a train may occupy a road crossing. The Elams

also assert KCSR negligently failed to provide adequate warnings of the train’s

presence at the crossing. The Elams seek actual and punitive damages.

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KCSR removed this action to the Northern District of Mississippi.

Although both Michael and the Elams are residents of Mississippi, KCSR

invoked the district court’s diversity jurisdiction on the ground that Michael was

not a proper party. KCSR also invoked federal question jurisdiction on the

ground that the ICCTA completely preempted the Elams’ state law claims.

The Elams moved to remand for lack of subject matter jurisdiction. The

district court found it lacked diversity jurisdiction, but nonetheless exercised

removal jurisdiction on the ground that the ICCTA completely preempted the

Bobby Elam additionally asserts a claim of tortious interference with spousal 1

relationship, but this claim is based on “the combined and concurrent negligence of the

defendants.” The claim thus rises or falls with the Elams’ negligence claim.

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Elams’ claims. The Elams moved for clarification as to whether the ICCTA

preempted all their claims or only their negligence per se claim. The district

court issued a second order specifying that the ICCTA expressly and completely

preempted the Elams’ negligence per se claim and impliedly preempted their

simple negligence claim. The district court then sua sponte dismissed the action

without prejudice so it could be refiled with the Surface Transportation Board,

the federal agency that implements the ICCTA. The Elams appealed.

II. STANDARDS

Federal subject matter jurisdiction is limited and must be conferred by

Congress within the bounds of the Constitution. See, e.g., U.S. CONST. art. III,

§ 2; Cary v. Curtis, 44 U.S. 236, 245 (1845); Marbury v. Madison, 5 U.S. (1

Cranch) 137, 176, 179 (1803). Litigants cannot bestow subject matter

jurisdiction on federal courts by waiver or consent. See, e.g., Mitchell v. Maurer,

293 U.S. 237, 244 (1934). We may examine the district court’s subject matter

jurisdiction, sua sponte if necessary. See, e.g., United States v. Corrick, 298 U.S.

435, 440 (1936); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541

(1986). Legal questions concerning federal jurisdiction are reviewed de novo.

Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).

The preemptive effect of a federal statute is a question of law we review

de novo. Franks Inv. Co. LLC v. Union Pacific R.R. Co., 593 F.3d 404, 407 (5th

Cir. 2010) (en banc); Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 442 (5th Cir.

2001). The party asserting federal preemption has the burden of persuasion.

AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th Cir. 2004)

(citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984)).

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III. DISCUSSION

We hold the district court had removal jurisdiction over this action because

the ICCTA completely preempts the Elams’ negligence per se claim. We next

hold the ICCTA does not preempt the Elams’ simple negligence claim, at least

on the current record.

A. Federal jurisdiction and the Elams’ negligence per se claim

A federal district court has removal jurisdiction over an action if the

district court could have exercised original jurisdiction over it. 28 U.S.C.

§ 1441(a). We hold the district court could have exercised original federal

question (and supplemental) jurisdiction over this action because the ICCTA

completely preempts the Elams’ negligence per se claim.

1. Principles of federal preemption

A plaintiff is the master of his complaint and may allege only state law

causes of action, even when federal remedies might also exist. Bernhard v.

Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008). Under the well-pleaded

complaint rule, a federal court does not have federal question jurisdiction unless

a federal question appears on the face of the plaintiff’s well-pleaded complaint.

Id. Accordingly, “there is no federal [question] jurisdiction if the plaintiff

properly pleads only a state law cause of action.” Gutierrez v. Flores, 543 F.3d

248, 252 (5th Cir. 2008) (quoting Bernhard, 523 F.3d at 551). That federal law

might provide a defense to a state law cause of action does not create federal

question jurisdiction. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808

(1986).

An exception to the well-pleaded complaint rule arises when Congress “so

completely preempt[s] a particular area that any civil complaint raising this

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select group of claims is necessarily federal in character.” Gutierrez, 543 F.3d

at 252 (quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000)).

Under the “complete preemption” doctrine, “what otherwise appears as merely

a state law claim is converted to a claim ‘arising under’ federal law for

jurisdictional purposes because the federal statute so forcibly and completely

displaces state law that the plaintiff’s cause of action is either wholly federal or

nothing at all.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330

(5th Cir. 2008) (internal quotation marks and brackets omitted); see also Franks,

593 F.3d at 407. “The question in complete preemption analysis is whether

Congress intended the federal cause of action to be the exclusive cause of action

for the particular claims asserted under state law.” Barrois, 533 F.3d at 331; see

also Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).

Complete preemption must be distinguished from “defensive preemption”

(i.e., “conflict preemption” or “ordinary preemption”). Barrois, 533 F.3d at 331.

Defensive preemption does not create federal jurisdiction and simply “declares

the primacy of federal law, regardless of the forum or the claim.” Id. “As a

general matter, complete preemption is less common and more extraordinary

than defensive or ordinary preemption.” Id. Indeed, complete preemption is a

“narrow” exception to the well-pleaded complaint rule. Beneficial, 539 U.S. at

5.

In determining the nature and reach of federal preemption, Congress’s

intent is the “ultimate touchstone.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996). Congress can indicate its preemptive intent either expressly through a

statute’s plain language, or impliedly through a statute’s “structure and

purpose.” Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008). Regardless of

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how Congress indicates its intent, we begin “with the assumption that the

historic police powers of the States are not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress.” Id. (internal

quotation marks and citation omitted); Franks, 593 F.3d at 407. This

assumption applies with “particular force” when Congress legislates in a field

traditionally occupied by state law. Altria, 129 S. Ct. at 543. On the other hand,

the assumption applies with less force when Congress legislates in a field with

“a history of significant federal presence.” United States v. Locke, 529 U.S. 89,

108 (2000). “Historically, federal regulation of railroads has been extensive . . . .”

Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir. 2008).

The Elams’ well-pleaded complaint asserts only state law claims of

negligence and negligence per se. Ordinarily, these state law claims would not

support original federal question jurisdiction. The issue is whether any of these

claims is completely preempted by federal law.

2. The state and federal statutes at issue

The Elams assert KCSR was negligent per se in violating Mississippi’s

antiblocking statute. The Elams specifically allege KCSR “failed to uncouple

2

Mississippi’s antiblocking statute provides: 2

Every railroad company, upon stopping any train at a place where such railroad shall

cross a highway, shall so uncouple its cars as not to obstruct travel upon such highway

for a longer period than five (5) minutes. Every railroad company shall, upon stopping

a train at a place where the railroad is crossed by a street, so uncouple the cars as not

to obstruct travel thereon for a longer period than shall be prescribed by ordinance of

the city, town or village. A failure to observe this section shall cause a railroad

company to be liable to a fine of Fifty Dollars ($50.00) for each offense.

MISS. CODE § 77-9-235.

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its cars so as not to obstruct traffic on Pine Crest Road” and obstructed the Pine

Crest Road crossing “for a period in excess of five minutes” at the time of the

accident.

Effective January 1, 1996, the ICCTA abolished the Interstate Commerce

Commission (ICC) and created a new Surface Transportation Board (STB) to

regulate, inter alia, rail transportation in the United States. 49 U.S.C.

§ 10501(a)(1); Friberg, 267 F.3d at 442. The purpose of the ICCTA is to “build[]

on the deregulatory policies that have promoted growth and stability in the

surface transportation sector.” H.R. Rep. No. 104-311, at 93 (1995), reprinted in

1995 U.S.C.C.A.N. 793, 805. With respect to rail transportation, the ICCTA

seeks to implement a “[f]ederal scheme of minimal regulation for this

intrinsically interstate form of transportation,” and to retain only regulations

“that are necessary to maintain a ‘safety net’ or ‘backstop’ of remedies to address

problems of rates, access to facilities, and industry restructuring.” Id. at 93, 96;

see also 49 U.S.C. § 10101(2).

The ICCTA creates exclusive federal regulatory jurisdiction and exclusive

federal remedies. Specifically, the ICCTA provides:

The jurisdiction of the [STB] over–

(1) transportation by rail carriers, and the remedies provided in

this part with respect to rates, classifications, rules (including car

service, interchange, and other operating rules), practices, routes,

services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or

discontinuance of spur, industrial, team, switching, or side tracks,

or facilities, even if the tracks are located, or intended to be located,

entirely in one State,

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is exclusive. Except as otherwise provided in this part, the remedies

provided under this part with respect to regulation of rail

transportation are exclusive and preempt the remedies provided

under Federal or State law.

49 U.S.C. § 10501(b).

Section 10501(b) thus has two sentences: the first “defining the authority

of the STB in dealing with the fundamental aspects of railroad regulation, and

barring others from interfering with those decisions by making the jurisdiction

exclusive”; and the second providing that the “remedies available at the STB

dealing with ‘rates, classifications, rules, . . . practices, routes, services, and

facilities of such carriers,’ are exclusive.” Franks, 593 F.3d at 409-10. We refer

to these two sentences as the exclusive-jurisdiction provision and the exclusiveremedies provision, respectively. The exclusive-remedies provision is “the

relevant part of Section 10501(b)” for determining the scope of the ICCTA’s

preemption of state law. Id. at 410. Focusing on the word “regulation” in the

exclusive-remedies provision, we have held that § 10501(b) expressly preempts

“only laws that have the effect of managing or governing rail transportation.”

Id. (emphasis added). Similarly, “[t]o the extent remedies are provided under

3

laws that have the effect of regulating [i.e., managing or governing] rail

See also PCS Phosphate Co., Inc. v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir. 2009) 3

(quoting Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001)

(“Congress narrowly tailored the ICCTA preemption provision to displace only ‘regulation,’ i.e.,

those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’ rail

transportation, while permitting the continued application of laws having a more remote or

incidental effect on rail transportation.”)); Adrian & Blissfield R.R. Co. v. Vill. of Blissfield,

550 F.3d 533, 539 (6th Cir. 2008) (same).

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transportation,” they too are expressly preempted. Id. On the other hand,

4

§ 10501(b) does not expressly preempt generally applicable state laws that have

a mere “remote or incidental effect on rail transportation.” Id. If a state law is

5

not expressly preempted by the ICCTA, it still may be impliedly preempted if,

as applied to a particular case, it has “the effect of unreasonably burdening or

interfering with rail transportation.” Id. at 414.

As a final matter, we observe Congress was particularly concerned about

state economic regulation of railroads when it enacted the ICCTA. The House

Report on the ICCTA states that § 10501(b) reflects a “[f]ederal policy of

occupying the entire field of economic regulation of the interstate rail

transportation system” and establishes “the direct and complete pre-emption of

State economic regulation of railroads.” H.R. Rep. No. 104-311, at 95-96. The

House Report explains:

[a]lthough States retain the police powers reserved by the

Constitution, the Federal scheme of economic regulation and

deregulation is intended to address and encompass all such

regulation and to be completely exclusive. Any other construction

would undermine the uniformity of Federal standards and risk the

balkanization and subversion of the Federal scheme of minimal

regulation . . . .

See also Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010) (finding that 4

states may not circumvent ICCTA with tort remedies).

See also Ass’n of Am. R.R. v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 5

(9th Cir. 2010) (recognizing that ICCTA permits the “continued application of laws having a

more remote or incidental effect on rail transportation”); PCS Phosphate, 559 F.3d at 218

(same); H.R. Conf. Rep. No. 104-422, at 167 (1995), reprinted in 1995 U.S.C.C.A.N. 850, 853

(stating that “exclusivity is limited to remedies with respect to rail regulation – not State and

Federal law generally”).

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Id. at 96. The preemptive effect of § 10501(b) may not be limited to state

economic regulation, but economic regulation is at the core of ICCTA

6

preemption. See Friberg, 267 F.3d at 443 (“[I]t appears manifest that Congress

intended the ICCTA to further that exclusively federal [regulatory] effort, at

least in the economic realm.”); see also Fayus Enters. v. BNSF Ry. Co., 602 F.3d

444, 451 (D.C. Cir. 2010) (recognizing that “the core of ICCTA preemption is

‘economic regulation’”); PCS Phosphate Co., Inc. v. Norfolk S. Corp., 559 F.3d

212, 219 (4th Cir. 2009) (observing that voluntary agreements “do not fall into

the core of economic regulation that the ICCTA was intended to preempt”).

3. The ICCTA completely preempts the Elams’ negligence per se claim.

In Friberg v. Kansas City Southern Railway, we held the ICCTA at least

defensively preempted a negligence per se claim based on a state antiblocking

statute substantially identical to the Mississippi statute at issue in this case.

7

267 F.3d at 444. We reasoned that the ICCTA does not permit states to directly

regulate “a railroad’s economic decisions such as those pertaining to train length,

speed or scheduling.” Id. at 444. Sitting en banc, we confirmed this holding in

Franks Investment v. Union Pacific Railroad. 593 F.3d at 411. The only issue

here is whether Friberg applies to the context of complete preemption.

See, e.g., Ass’n of Am. R.R., 622 F.3d at 1098 (rejecting argument that “ICCTA 6

preempts only economic regulation”); Fayus Enters. v. BNSF Ry. Co., 602 F.3d 444, 451 (D.C.

Cir. 2010) (“Several of the cases, in addressing these environmental regulations, note that the

ICCTA ‘does not preempt only explicit economic regulation.’”).

Friberg did not address whether the ICCTA completely or merely defensively 7

preempted Texas’s antiblocking statute. Texas’s antiblocking statute “prohibited railroad

officers, agents, servants or receivers from wilfully allowing a standing train to block a street,

highway or railroad crossing for more than five minutes.” Friberg, 267 F.3d at 441 n.2.

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We have already held the ICCTA completely preempts state law tort

actions that “fall squarely” under § 10501(b). PCI Transp. Inc. v. Fort Worth &

W. R.R. Co., 418 F.3d 535, 540 (5th Cir. 2005); Barrois, 533 F.3d at 331. We

8

have not yet defined what it means to “fall squarely” under § 10501(b), but our

cases provide some guidance. First, as discussed above, § 10501(b) expressly

preempts only state laws that “manage or govern” rail transportation. Franks,

593 F.3d at 411; see also H.R. Conf. Rep. No. 104-422, at 167 (1995), reprinted

in 1995 U.S.C.C.A.N. 850, 853 (stating that “exclusivity is limited to remedies

with respect to rail regulation – not State and Federal law generally”). This

suggests a state law does not “fall squarely” under § 10501(b) unless it attempts

to manage or govern rail transportation. Second, we have recognized the core

purpose of § 10501(b) is to prevent states from regulating rail transportation in

the “economic realm.” Friberg, 267 F.3d at 443; see also Fayus, 602 F.3d at 451.

This recognition is consistent with Congress’s intent regarding the completely

preemptive effect of § 10501(b). See H.R. Rep. No. 104-311, at 95-96 (asserting

“the direct and complete pre-emption of State economic regulation of railroads.”).

This suggests a state law does not “fall squarely” under § 10501(b) unless it

attempts to manage or govern rail transportation in the economic realm. Lastly,

we have specifically determined that a state law tort remedy that would directly

regulate a railroad’s switching rates and services falls squarely under

§ 10501(b). PCI, 418 F.3d at 540; see also Port City Props. v. Union Pac. R.R.

Co., 518 F.3d 1186, 1188 (10th Cir. 2008) (citing PCI and finding state law tort

remedy targeting delivery services on rail spur completely preempted). Implicit

In PCI, we held the ICCTA completely preempted a claim of intentional interference 8

with contractual relations that sought injunctive relief imposing a variety of restrictions on

a rail operator’s fees and delivery practices. 418 F.3d at 538.

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in our determination was a recognition that a rail operator’s decisions about

switching rates and services are economic decisions. See Friberg, 267 F.3d at

444 (finding that a railroad’s economic decisions include “those pertaining to

train length, speed or scheduling”).

We read these cases together as establishing that § 10501(b) completely

preempts state laws (and remedies based on such laws) that directly attempt to

manage or govern a railroad’s decisions in the economic realm. Put another

9

way, when a plaintiff’s tort claim directly attempts to manage or govern a

railroad’s decisions in the economic realm, that claim “is either wholly federal

or nothing at all.” Barrois, 533 F.3d at 330.

The Elams’ negligence per se claim fits this mold. Mississippi’s

antiblocking statute directly attempts to manage KCSR’s switching operations,

including KCSR’s decisions as to train speed, length, and scheduling. The

statute thus “reach[es] into the area of economic regulation,” Friberg, 267 F.3d

at 443-44, “in a direct way.” Franks, 593 F.3.d at 411. Because Mississippi’s

antiblocking statute is a direct attempt to manage KSCR’s decisions in the

economic realm, the statute is completely preempted by the ICCTA. And

because the Elams’ negligence per se claim is based solely on Mississippi’s

antiblocking statute, it too is completely preempted.

We note the economic effects of Mississippi’s antiblocking statute are not

merely incidental to an otherwise valid state law. See Franks, 593 F.3d at 411.

Unlike generally applicable state property laws and rules of civil procedure that

on their face “have nothing to do with railroad crossings,” id., Mississippi’s

We need not define the contours of the “economic realm.” Wherever they lie, we have 9

held they include antiblocking statutes like the one at issue in this case. See Friberg, 267

F.3d at 444. 

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antiblocking statute homes in on “railroad compan[ies]” and rail “cross[ings].”

MISS. CODE § 77-9-235. Indeed, the statute has no application except with

respect to the operation of railroads at rail crossings.

The Elams point out that their negligence per se claim, unlike the

negligence per se claim at issue in Friberg, involves “safety issues.” But focusing

on the Elams’ particular reason for enforcing Mississippi’s antiblocking statute

misses the point. Regardless of why the Elams brought their negligence per se

claim, the effect of the claim is to economically regulate KCSR’s switching

operations. To be sure, not every state law targeting rail operations is

completely preempted by the ICCTA. Under the standards we have discussed,

the ICCTA will not completely preempt valid exercises of a state’s police powers

in most cases. See Fayus, 602 F.3d at 451 (distinguishing economic regulations

from public health, safety, and environmental regulations). Indeed, the

10

Federal Railroad Safety Act (FRSA) expressly provides that states may enact

(and citizens may enforce) rail safety laws in certain circumstances. See 49

U.S.C. § 20106(a)(2), (b)(1); see also Tyrrell v. Norfolk S. Ry. Co., 248 F.3d 517,

523 (6th Cir. 2001) (“[T]he ICCTA and its legislative history contain no evidence

that Congress intended for the STB to supplant the FRA’s authority over rail

safety.”). But we have already determined that a state antiblocking statute like

the one at issue in this case does not pertain to “traditionally state-controlled

 See also Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 160 (4th Cir. 2010) 10

(same); Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1133 (10th Cir. 2007) (same); Green

Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 643 (2d Cir. 2005) (same); H.R. Rep. No. 104-

311, at 95-96 (stating that states retain police powers); H.R. Conf. Rep. No. 104-422, at 167

(stating that “exclusivity is limited to remedies with respect to rail regulation – not State and

Federal law generally”).

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safety issues.” Friberg, 267 F.3d at 444 n.18. The statute therefore is

incompatible with the ICCTA and not saved by the FRSA.

11

We emphasize our holding so far is not broad. We do not anticipate many

state law claims will be completely preempted (and thus removable to federal

court) under the standards we have discussed. Complete preemption applies

only when a plaintiff’s claim directly attempts to manage or govern a railroad’s

decisions in the economic realm. A negligence per se claim based on

Mississippi’s antiblocking statute happens to be one such claim.

4. The district court would have original jurisdiction over the Elams’

negligence per se claim.

The Elams approach the complete preemption issue from yet another

perspective. The Elams contend the district court could not have exercised

original (and hence removal) jurisdiction over their negligence per se claim

because the STB has “exclusive” jurisdiction over claims under the ICCTA. See

49 U.S.C. § 10501(b)(1) (providing that STB has “exclusive” jurisdiction over

remedies provided in ICCTA). The Elams point to the Second Circuit’s decision

in Sullivan v. American Airlines, which held that the Railway Labor Act (RLA)

does not completely preempt state-law-based minor disputes because minor

disputes under the RLA cannot be filed in the first instance in federal court. 424

F.3d 267, 276 (2d Cir. 2005). The Elams’ argument is unpersuasive in the

context of the ICCTA for several reasons.

The FRSA provides that certain state safety laws and personal injury actions are not 11

preempted as long as, inter alia, they are “not incompatible” with other federal laws. See 49

U.S.C.§ 20106(a)(2)(B), (b)(1)(B) (emphasis added).

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First, we have already held the ICCTA may completely preempt at least

some state law tort claims. See PCI, 418 F.3d at 540. This alone prevents us

from adopting Sullivan’s reasoning in this context.

Second, the district court would have had original jurisdiction over the

Elams’ negligence per se claim under 28 U.S.C. §§ 1331 and 1337. Section 1337

authorizes “original jurisdiction of any civil action or proceeding arising under

any Act of Congress regulating commerce or protecting trade and commerce

against restraints and monopolies . . . .” 28 U.S.C. § 1337(a); see also 28 U.S.C.

§ 1331 (authorizing original jurisdiction of all civil actions arising under federal

laws). For the reasons already discussed, the Elams’ negligence per se claim

arises under the ICCTA, a federal statute protecting interstate rail

transportation against state regulation and restraints. See CSX Transp. Co. v.

Novolog Bucks Cnty., 502 F.3d 247, 252 (3d Cir. 2007) (recognizing original

“federal question jurisdiction under 28 U.S.C. § 1337 over cause of action arising

under the Interstate Commerce Act”); Fla. E. Coast Ry., 266 F.3d at 1326 (same);

cf. Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 533-34

(1983) (per curiam) (recognizing federal question jurisdiction and § 1337

jurisdiction over claim arising under Interstate Commerce Act); Louisville &

N.R. Co. v. Rice, 247 U.S. 201, 202-03 (1918) (same).

Third, the plain text of the ICCTA contemplates civil actions against rail

carriers. Section 11704(c)(1) provides “[a] person may file a complaint with the

Board under section 11701(b) of this title or bring a civil action under subsection

(b) of this section to enforce liability against a rail carrier providing

transportation subject to the jurisdiction of the Board under this part.” 49

U.S.C. § 11704(c)(1). Subsection (b) states “[a] rail carrier providing

transportation subject to the jurisdiction of the Board under this part is liable

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for damages sustained by a person as a result of an act or omission of that

carrier in violation of this part.” 49 U.S.C. § 11704(b). As the First Circuit has

correctly observed, “[t]he most natural reading of this language is that it

authorizes a person who has suffered damages as a result of a rail carrier’s

violation of the ICCTA either to file a complaint with the STB or to bring a civil

action.” Pejepscot Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 202

(2000); see also I.C.C. v. Atl. Coast Line R.R. Co., 383 U.S. 576, 579-80 (1966)

(stating that under former Interstate Commerce Act, a “complainant is given the

alternatives of seeking such damages by complaint to the Commission . . . or of

bringing suit in a federal district court”).

Fourth, courts have repeatedly applied the judicial doctrine of “primary

jurisdiction” in the context of both the ICCTA and its predecessor statute, the

Interstate Commerce Act (ICA). See, e.g., Atl. Coast Line, 383 U.S. at 579-80

(ICA); United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64 (1956) (same);

Hansen v. Norfolk & W. Ry. Co., 689 F.2d 707, 710 (7th Cir. 1982) (same);

Novolog, 502 F.3d at 252 (ICCTA); Pejepscot, 215 F.3d at 202 (same). The

doctrine of primary jurisdiction attempts to maintain “proper relationships

between the courts and administrative agencies” by suspending judicial process

pending the “referral” of certain issues to an administrative agency for its views.

W. Pac., 352 U.S. at 63-64; see also 28 U.S.C. § 1336(b) (providing district court

may refer action to STB for determination). Despite its name, the doctrine of

primary jurisdiction “is not related to the subject matter jurisdiction of the

district court over the underlying action.” S. New Eng. Tel. Co. v. Global NAPs

Inc., 624 F.3d 123, 136 (2d Cir. 2010); see also Reiter v. Cooper, 507 U.S. 258, 268

(1993) (“Referral of the issue to the administrative agency does not deprive the

court of jurisdiction . . . .”). Indeed, the doctrine of primary jurisdiction presumes

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original federal subject matter jurisdiction. See W. Pac., 352 U.S. at 63-64

(stating that doctrine of primary jurisdiction “applies where a claim is originally

cognizable in the courts” (emphasis added)); Ill. Bell Tel. Co., Inc. v. Global NAPs

Ill., Inc., 551 F.3d 587, 595 (7th Cir. 2008) (“Despite the term primary

jurisdiction, the reference of a case to an agency pursuant to that doctrine,

rather than denying the jurisdiction of the court over the case, presupposes that

jurisdiction.”). Thus, when courts have applied the doctrine of primary

jurisdiction to claims under the ICA and the ICCTA, they have also implicitly

acknowledged the claims were properly filed in federal court.

To the extent §§ 11501(b)(1) and 11704(c)(1) are in tension, we must

attempt to read the provisions “together to produce a harmonious whole.” Doe

v. KPMG, LLP, 398 F.3d 686, 688 (5th Cir. 2005); see also Gustafson v. Alloyd

Co., Inc., 513 U.S. 561, 570 (1995) (stating acts of Congress “should not be read

as a series of unrelated and isolated provisions”). In fact, we think the doctrine

of primary jurisdiction provides the best way to reconcile §§ 10501(b) and

11704(c)(1). Under the ICA, the ICC had “exclusive primary jurisdiction” to

decide certain matters affecting transportation policy. W. Pac., 352 U.S. at 63.

Viewed in this light, § 10501(b) also may be interpreted as vesting the STB with

“exclusive” primary jurisdiction over the remedies provided in the ICCTA. 49

U.S.C. § 10501(b)(1). When a civil action in federal court arises under the

ICCTA, the action ordinarily should be stayed and the relevant claims referred

to the STB. But recognizing the STB’s primary jurisdiction does not divest the

district court of its original subject matter jurisdiction. Reiter, 507 U.S. at 268.

Thus interpreted, § 10501(b) and the doctrine of primary jurisdiction ensure both

that the STB remains the primary policy maker on matters arising under the

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ICCTA, and also that matters falling squarely under the ICCTA do not languish

in state courts for lack of federal removal jurisdiction.

Furthermore, when the text of a statute is susceptible of more than one

reasonable meaning, we may look to legislative history to discern legislative

intent. See United States v. Valle, 538 F.3d 341, 345 (5th Cir. 2008). Here,

legislative history suggests Congress did not intend § 10501(b) to preclude

original (or removal) federal jurisdiction over claims arising under the ICCTA.

For one, Congress was clear that § 10501(b) establishes the “complete preemption” of state economic regulation of railroads. H.R. Rep. No. 104-311, at 95-

96. Complete preemption and removal jurisdiction are simply two sides of the

same coin: a finding of complete preemption “represents a conclusion that all

claims on the topic arise under federal law, so that 28 U.S.C. § 1441 permits

removal.” Pollitt v. Health Care Serv. Corp., 558 F.3d 615, 616 (7th Cir. 2009);

see also Barrois, 533 F.3d at 661 (“Complete preemption is a ‘jurisdictional

doctrine . . . .’”). In expressing its intent to completely preempt state economic

regulation of railroads, Congress also was expressing its intent that claims

attempting to enforce such state regulations would be removable. As the First

Circuit recognized in Pejepscot, the basic purpose of the ICCTA is to federalize

the regulation of rail transportation, not deprive the federal courts of

jurisdiction. 215 F.3d at 204-05.

Moreover, legislative history indicates that current § 11704(c)(1) was

intended to “reenact[] the applicable rail portions of former section 11705” of the

ICA. H.R. Conf. Rep. No. 104-422, at 195 (emphasis added). Current

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§ 11704(c)(1) is almost identical to former § 11705(c)(1), and “civil actions

12

against rail carriers under [former § 11705] were routinely brought in federal

district court.” Pejepscot, 215 F.3d at 203; see also Atl. Coast Line, 383 U.S. at

579-80 (recognizing ICA gives complainant choice of “bringing suit in a federal

district court”); S. Pac. Transp. Co. v. San Antonio, Tex. by and through City

Pub. Serv. Bd., 748 F.2d 266, 271 n.11 (5th Cir. 1984) (“Although the notion of

exclusive jurisdiction in the I.C.C. may once have found voice in the Supreme

Court . . . subsequent cases have established that reasonableness claims may be

brought in federal court.”). Notably, courts found original federal jurisdiction

under the ICA even though the ICC’s jurisdiction, like the STB’s jurisdiction,

was described as “exclusive.” See 49 U.S.C. § 10501(d) (1994). We will not

presume Congress intended § 10501(b) to withdraw original federal jurisdiction

over claims arising under the ICCTA, particularly when such jurisdiction was

commonly exercised under the similarly worded ICA. See Verizon Md., Inc. v.

Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 (2002) (declining to presume

Congress intended to withdraw federal question jurisdiction); Cannon v. Univ.

of Chi., 441 U.S. 667, 696-98 (1979) (presuming Congress was aware of judicial

interpretations of earlier statute).

For the reasons stated, the Elams’ negligence per se claim arises under the

ICCTA, and the district court would have had original jurisdiction over the claim

under 28 U.S.C. §§ 1331 and 1337. The district court therefore had removal

jurisdiction under 28 U.S.C. § 1441. Moreover, the district court had

Under the ICA, § 11705 provided: “A person may file a complaint with the [ICC] 12

under section 11701(b) of this title or bring a civil action under subsection (b)(1) or (2) of this

section to enforce liability against a common carrier providing transportation subject to the

jurisdiction of the [ICC] . . . .” 49 U.S.C. § 11705(c)(1) (1994).

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supplemental jurisdiction over the Elams’ other state law claims because they

all arise out of the same common nucleus of operative fact, namely, the accident

at the Pine Crest Road crossing. See 28 U.S.C. § 1367(a); Giles v. NYL Care

Health Plans, Inc., 172 F.3d 332, 337-38 (5th Cir. 1999) (“When a complaint

raises both completely-preempted claims and arguably conflict-preempted

claims, the court may exercise removal jurisdiction over the

completely-preempted claims and supplemental jurisdiction . . . over the

remaining claims.”). Accordingly, we hold the district court properly exercised

jurisdiction over this action.

5. Referral to the STB was not required.

The Supreme Court has stated “[n]o fixed formula exists for applying the

doctrine of primary jurisdiction.” W. Pac., 352 U.S. at 64. We have recognized

agency referral is favored when (a) it will promote even-handed treatment and

uniformity in a highly regulated area, or when sporadic action by federal courts

would disrupt an agency’s delicate regulatory scheme; or (b) the agency

possesses expertise in a specialized area with which the courts are relatively

unfamiliar. Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1092 (5th Cir.

1973). A district court “has discretion either to retain jurisdiction [while the

action is refereed to the agency] or, if the parties would not be unfairly

disadvantaged, to dismiss the case without prejudice.” Reiter, 507 U.S. at 268-

69. In any event, “the doctrine of primary jurisdiction is not a doctrine of

futility; it does not require resort to ‘an expensive and merely delaying

administrative proceeding’” when there are no substantial issues for the agency

to decide. Local Union No. 189 v. Jewel Tea Co., 381 U.S. 676, 686 (1965)

(quoting Fed. Mar. Bd. v. Isbrandtsen Co., 356 U.S. 481, 521 (Frankfurter, J.,

dissenting); Skaw v. United States, 740 F.2d 932, 938 (Fed. Cir. 1984).

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Here, the district court did not abuse its discretion in dismissing without

prejudice the Elams’ negligence per se claim. The ICCTA establishes liability

“for damages sustained by a person as a result of an act or omission of that

carrier in violation of this part.” 49 U.S.C. § 11704(b). The Elams allege they

sustained damages because KCSR blocked the Pine Crest Road crossing for more

than five minutes, but the Elams do not contend blocking a road crossing for

more than five minutes violates any provision of the ICCTA or the STB’s

regulations. Indeed, we held in Friberg that “nothing in the ICCTA” provides

authority for imposing operating limitations on a railroad like those imposed by

Mississippi’s antiblocking statute. 267 F.3d at 444. Because the Elams have not

identified any substantial claim or issue requiring resolution by the STB, it

would be futile to refer their negligence per se claim to the STB. The district

court properly dismissed this claim.

For the reasons stated, we AFFIRM the dismissal of the Elams’ negligence

per se claim.

6. Diversity Jurisdiction

A federal district court may exercise original diversity jurisdiction under

28 U.S.C. § 1332 only if the plaintiffs and the defendants are completely diverse.

See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

“In a case with multiple plaintiffs and multiple defendants, the presence in the

action of a single plaintiff from the same State as a single defendant deprives the

district court of original diversity jurisdiction over the entire action.” Id.

Although both Michael and the Elams are residents of Mississippi, KCSR

contends the district court could have exercised diversity jurisdiction over this

action because Michael is an improper party. The district court properly rejected

this contention.

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We have recognized two ways for a defendant to show improper joinder for

purposes of federal diversity jurisdiction: (1) actual fraud in the pleading of

jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action

against the nondiverse party in state court. Smallwood v. Ill. Cent. R.R. Co., 385

F.3d 568, 573 (5th Cir. 2004) (en banc). Only the second way is relevant to this

case, and thus the test for improper joinder is whether KCSR has demonstrated

there is “no reasonable basis for the district court to predict that the plaintiff

might be able to recover against” Michael. Id. We resolve “all contested factual

issues and ambiguities of state law in favor of” the Elams. Gasch v. Hartford

Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007).

Our decision in Travis v. Irby is closely on point. In Travis, a train struck

an automobile at a rail crossing. 326 F.3d 644, 646 (5th Cir. 2003). The driver’s

mother sued the owner of the train and the train’s engineer in state court. Id.

Although both the plaintiff and the engineer resided in Mississippi, the

defendants attempted to remove the action based on federal diversity

jurisdiction. Id. The district court denied the plaintiff’s motion to remand,

finding the engineer was improperly joined because the plaintiff did not at the

time have evidence to support her claims against the engineer. Id. at 649. We

reversed, observing that “[u]nder Mississippi law, [the engineer] owed a duty to

exercise reasonable care to avoid injuring [the driver] at the railroad crossing.”

Id. (citing New Orleans & N.R. Co. v. Lewis, 58 So. 2d 486, 490 (1952)). We also

observed the engineer “can be held personally responsible for negligent acts

committed within the scope of his employment.” Id. (citing Harrison v. Ill. C.

R.R. Co., 219 Miss. 401, 69 So.2d 218, 222 (1954)). We concluded that “simply

pointing to the plaintiff's lack of evidence at this stage of the case is insufficient

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to show that there is no possibility for [the plaintiff] to establish [the engineer]’s

liability at trial.” Id. at 650-51.

Here, as in Travis, the Elams allege facts providing at least a reasonable

basis to predict Michael was negligent. The Elams allege Michael blocked “the

crossing without giving any warning or signal indicating the locomotive engine

and freight cars were present.” The Elams also allege Michael failed to

“maintain warning devices, bells, lights, flashing signals, or other reasonable

warning devices calculated to warn approaching motorists of the stationary

locomotive engine and train.” KCSR, of course, disputes these allegations.

KCSR asserts “Michael did in fact blow the train’s whistle and ring its bell as it

approached the Crossing and continued to sound these warnings in compliance

with Kansas City Southern’s rules and Mississippi law until the train had fully

occupied the Crossing.” Mississippi law, however, appears to require that a “bell

shall be kept ringing continuously or the whistle or horn shall be kept blowing

at repeated intervals until said crossing is passed.” MISS. CODE § 77-9-225

(emphasis added). KCSR also relies on Mississippi’s “occupied crossing rule,”

which provides that “a train legitimately stopped or standing over a public

crossing because of its tremendous size is all the warning the traveling public is

entitled to.” King v. Ill. Central R.R., 337 F.3d 550, 553 (5th Cir. 2003). The

Elams, however, invoke the “peculiar environment or hazardous condition”

exception to the occupied crossing rule. See id.

In short, there are contested issues of fact and ambiguities of state law

that must, at this jurisdictional stage, be resolved in the Elams’ favor. Gasch,

491 F.3d at 281. Accordingly, we find Michael is not an improper party to this

action, and the district court therefore would not have diversity jurisdiction over

this action.

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B. The Elams’ simple negligence claim

Having established federal jurisdiction, we now turn to whether the

ICCTA preempts the Elam’s simple negligence claim. We conclude it does not,

at least on the current record.

A typical negligence claim seeking damages for a typical crossing accident

(such as the Elams’ simple negligence claim) does not directly attempt to manage

or govern a railroad’s decisions in the economic realm. Like state property laws

and rules of civil procedure that generally “have nothing to do with railroad

crossings,” the effects of state negligence law on rail operations are merely

incidental. Franks, 593 F.3d at 411. Accordingly, we conclude the ICCTA does

not expressly or completely preempt the Elams’ simple negligence claim.

Because the ICCTA does not completely preempt the Elams’ simple

negligence claim, our inquiry is whether Mississippi’s negligence law, as applied

to the facts of this case, would “have the effect of unreasonably burdening or

interfering with” KCSR’s operations. Id. at 414. Our inquiry is “fact-based,” and

KCSR must come forward with evidence of the specific burdens imposed. Id. at

415. General evidence that rail crossings affect rail transportation is

insufficient. Id. Moreover, we begin with the assumption that Congress did not

intend to supersede the historic police powers of the states “to protect the health

and safety of their citizens.” Medtronic, 518 U.S. at 475; Demahy v. Actavis, Inc.,

593 F.3d 428, 435 (5th Cir. 2010). As this Court recognized in Barrois, “the care

of grade crossings is peculiarly within the police power of the states.” 533 F.3d

at 333 (citing Lehigh Valley R.R. Co. v. Bd. of Publ. Util. Comm’rs 278 U.S. 24,

35 (1928)); H.R. Rep. No. 104-311, at 96 (stating “States retain the police powers

reserved by the Constitution . . . .”).

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The Elams assert several theories of negligence. In essence, the theories

all allege that KCSR failed to provide adequate warnings of the train’s presence

at the Pine Crest Road crossing. The issue is whether KCSR has demonstrated

13

that providing such warnings would unreasonably burden or interfere with its

switching operations.

KCSR has produced an affidavit asserting:

[l]imiting the amount of time KCS[R] can block a crossing, including

the crossing in question, or otherwise regulating how KCS[R] uses

the tracks in switching, will directly impact KCS[R]’[s] operation,

and will necessitate changes in switching, train length, and crew

operations. Such would, in turn, adversely impact KCS[R]

economically since such would affect how and when KCS[R] trains

arrive and depart, and the number of separate trains KCS[R] must

operate.

This affidavit does not defeat the Elams’ simple negligence claim for two

reasons. First, although the affidavit addresses the burdens of Mississippi’s

antiblocking statute, it does not address the burdens of providing adequate

warnings of the train’s presence at the Pine Crest Road crossing. We see no

apparent reason why providing such warnings would require changes in KCSR’s

switching, train length, and crew operations. Second, in any event, the affidavit

does not demonstrate that providing adequate warnings at the Pine Crest Road

crossing would unreasonably burden or interfere with KCSR’s operations. In the

absence of such evidence, we presume Congress did not intend to preempt this

To the extent the Elams allege KCSR was negligent solely because it blocked the 13

Pine Crest Road crossing, that claim is impliedly preempted. For the reasons already

discussed, any liability arising from such a claim would “have the effect of unreasonably

burdening or interfering with” KCSR’s decisions in the economic realm. Franks, 593 F.3d 411;

Friberg, 267 F.3d at 443.

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“typical dispute[]” concerning the safety of a “typical crossing[].” Franks, 593

F.3d at 415.

KCSR has not met its burden of showing that the Elams’ simple negligence

claim is preempted. Because preemption was the sole basis for the district

court’s sua sponte dismissal of this claim, we reverse and remand to the district

court for further proceedings. The district court will need to determine whether

the Elams’ simple negligence claim in turn should be remanded to Mississippi

state court. See 28 U.S.C. §§ 1367(c), 1441(c); Barrois, 533 F.3d at 333

(recognizing that routine “crossing cases are typically resolved in state courts”).

As a final matter, KCSR asserts we should uphold the dismissal of the

Elams’ simple negligence claim on the merits. We do not reach the merits

because they were not adequately briefed to either the district court or this

Court. Indeed, because the district court sua sponte dismissed the Elams’ claims

on a motion to remand, KCSR has not yet even filed a motion to dismiss. See,

e.g., Bogy v. Ford Motor Co., 538 F.3d 352, 355 (5th Cir. 2008) (“Although we

have the authority to consider grounds presented to but not ruled upon by the

district court, we decline to do so because the plaintiffs did not address the

various other grounds in their briefing, and we think the better course is for the

district court to address those issues in the first instance.”); Betzel v. State Farm

Lloyds, 480 F.3d 704, 709 (5th Cir. 2007) (declining to consider in first instance

question of state law that was not fully briefed by parties).

IV. CONCLUSION

For the reasons stated, we affirm in part, reverse in part, and remand to

the district court for further proceedings.

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