                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0475n.06

                                        Case No. 14-3791                          FILED
                                                                             Jun 26, 2015
                           UNITED STATES COURT OF APPEALS                DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


CHARLES JOHN BYRNE and CODY                            )
BYRNE,                                                 )
                                                       )
       Plaintiffs-Appellants,                          )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
v.                                                     )   THE NORTHERN DISTRICT OF
                                                       )   OHIO
CSX TRANSPORTATION, INC., GERALD                       )
R. HORN, JOHN DOES 2-10, and                           )
ALPHONSE DUCRE, III,                                   )
                                                       )
       Defendants-Appellees.

BEFORE: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. This action, arising from a collision between a

CSX train and a vehicle driven by Charles Byrne, returns to this court after remand and the

district court’s second grant of summary judgment to CSX1 dismissing Plaintiffs’ state-law

inadequate-warning-devices claims as preempted. We affirm.

                                                  I.

       In the late morning of May 19, 2008, Charles Byrne was traveling westbound on Ulsh

Road in Caledonia, Ohio, with his son Cody Byrne, towards a railroad crossing. Byrne v. CSX

Transp., Inc., 541 F. App’x 672, 673 (6th Cir. 2013). As Byrne was crossing the tracks, a CSX

train struck his vehicle on the rear passenger side and caused it to flip over. Cody Byrne

       1
           We refer to all Defendants as “CSX.”
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sustained minor injuries, but Charles Byrne suffered permanent, disabling injuries, including

traumatic brain injury.

       The Byrnes filed this action in state court, alleging common-law negligence against CSX

for failing to comply with applicable federal and state audibility requirements for warning of a

train’s approach, failing to exercise reasonable care in operating the train, failing to warn its crew

and members of the public of the hazardous nature of the grade crossing, and failing to properly

maintain the grade crossing. The Byrnes also asserted common-law negligence claims against

the CSX engineer and conductor. PID 1684–85. Defendants removed the case on the basis of

diversity of citizenship. Byrne, 541 F. App’x at 673–74.

       The district court granted Defendants summary judgment on the Byrnes’s state-law

inadequate-warning-devices claims, finding them preempted. On the Byrnes’s first appeal, this

court reversed because Defendants had failed to file the sole document supporting their defense

of federal preemption, the ”Kirkland affidavit,” and then had produced different versions of that

affidavit on appeal.      Id. at 675–77.   We reversed and remanded to the district court “for

consideration of the issue of federal preemption.” Id. at 677.

       On remand to the district court, Defendants renewed their motion for summary judgment

submitting for the first time 1) another version of Kirkland’s affidavit, 2) an affidavit of Mathew

Downs, a former administrator of payroll and federal accounting at the Ohio Department of

Transportation (ODOT), and 3) approximately 60 pages of exhibits not previously filed. PID

2815-2969. The Byrnes moved to strike the Downs affidavit and supporting exhibits, as well as

the other newly filed exhibits attached to Kirkland’s affidavit, on the ground that they exceeded

this court’s mandate. The Byrnes alternatively argued that, if the district court intended “to

honor the new Kirkland affidavit,” it should extend the discovery deadline so that they “may


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conduct discovery concerning the federal funding of the Ulsh Rd. crossing.” PID 2991. The

district court denied the Byrnes’s motion to strike the Downs affidavit and granted their motion

for additional time to conduct further discovery. PID 2993-96. After deposing Kirkland and

Downs, the Byrnes responded to Defendants’ renewed motion for summary judgment. The

district court again dismissed the claims as preempted, PID 3489-99, and the Byrnes appeal for

the second time.

                                               II.

       The Byrnes first argue that the district court exceeded this court’s mandate on remand by

considering evidence submitted by Defendants in support of their preemption defense that was

available when they initially filed their motion, but which they submitted for the first time on

remand.

       We review de novo the district court’s interpretation of our mandate. United States v.

Parks, 700 F.3d 775, 777 (6th Cir. 2012); see also Kindle v. City of Jeffersontown, Ky., 589 F.

App’x 747, 753 (6th Cir 2014). The mandate rule requires lower courts to adhere to directives of

a superior court; it is a complement to the doctrine of law of the case, under which findings made

at one point in the litigation become the law of the case for subsequent stages of that same

litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994).

       In the first appeal, this court’s introductory paragraph reversed the grant of summary

judgment on the issue of federal preemption, and remanded for “the district court to consider the

issue of federal preemption in light of the evidence properly placed on the record.” Byrne, 541

F. App’x at 673. In addressing why it declined to permit Defendants to supplement the record on

appeal with the proffered missing affidavit, the panel explained that there were several versions

of the affidavit and that Defendants’ asserted inadvertence appeared to be “anything but


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inadvertent.” Id. at 677. The panel then stated that it “is the district court’s choice whether to

wade through this confusion.” Id. The final conclusion states that the decision is reversed and

the matter is remanded for consideration of the issue of federal preemption. Id. at 678. The

district court rejected Plaintiffs’ restricted view of the remand, explaining that it considered the

new evidence Defendants submitted because, “as the Sixth Circuit noted, the record was

heretofore devoid of any preemption evidence – be it the Kirkland affidavit or otherwise – the

Sixth Circuit’s mandate necessarily contemplates consideration of new evidence.” PID 2994-95.

We find no error in the district court’s interpretation of the mandate, given that there was no

evidence properly placed on the record at the time of the remand. We do not understand our

remand order as restricting the evidence the district court would be permitted to consider on

remand.

                                                III.

       The Byrnes next argue that, even considering the newly submitted evidence, the district

court erred in finding their claims preempted. Effectively conceding that preemption applies if

federal funds were used to improve the Ulsh Road crossing, the Byrnes argue that genuine

factual questions remained, given the inadequate foundation for the evidence and conclusions

submitted by Defendants in support of their motion. Plaintiffs assert that Kirkland’s affidavit

fails the personal-knowledge requirement of Fed. R. Civ. P. 56 because she could not confirm

that the Conrail invoices attached to her affidavit either went through her office or were received

by the State of Ohio, and she could not attest that the Conrail invoices were kept in the course of

a regularly conducted activity when there was no chain of custody in the record. We review the

district court’s evidentiary rulings for abuse of discretion. United States v. Dixon, 413 F.3d 540,

544 (6th Cir. 2005).


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        Kirkland’s 2014 affidavit2 states that she was employed as Manager of the Rail Highway

Safety Section of the Ohio Rail Development Corporation (ORDC) from 1994 until 2012.

Before ORDC was created in 1994, she held the same position at the Ohio Department of

Transportation (ODOT) beginning in 1989. At ODOT she reported to Jeff Honefanger, Deputy

Director at the Division of Rail Transportation.      Kirkland states her duties “included the

administration and management of railroad safety programs and the responsibility for federally

funded programs to improve grade crossings.”         PID 2824.     Kirkland, her staff, and her

department administered the federally funded Ohio Buckeye Crossbuck Program. Kirkland

worked on a day-to-day basis with the implementation of the Crossbuck Program and further

attested:

        7. I have personal knowledge that [Conrail] entered into an agreement with the
        State of Ohio to participate in the Ohio Buckeye Crossbuck Program, and to
        install experimental Buckeye Crossbucks and upgraded Standard Crossbucks at
        approximately 960 of its passively guarded grade crossings in the State of Ohio.
        The project was assigned State Project Number 131883 and Federal-Aid Project
        Numbers RRPG-000S (326) and STP-000S(326).

        8. Although my duties as administrator of the Ohio Buckeye Crossbuck Program
        did not include the actual handling of funds, as the administrator of the Program,
        my staff and I developed the program, established the agreements with the
        railroads, set up the projects with the Federal Highway Administration [FHA],
        and approved and processed railroad invoices and I would have been alerted had
        federal funds not been approved and received by the State of Ohio to fund the
        Ohio Buckeye Crossbuck Program. I received no notice of any failure of the
        federal government to fund the Ohio Buckeye Crossbuck Program.

        9. I have personal knowledge that [Conrail] participated in the Ohio Buckeye
        Crossbuck Program and from that fact I can conclude that the approval,
        authorization, and expenditure of federal funds to pay for the installation of
        Buckeye Crossbucks and Standard Crossbucks at [Conrail’s] passively guarded
        grade-crossings took place because the Program would not have proceeded
        otherwise.


        2
         The district court’s order granting Defendants summary judgment on remand cites only
the 2014 Kirkland affidavit.
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        10. Pursuant to the agreement for the Buckeye Crossbuck Program, bills for the
        installation of crossbucks were to be submitted to Mr. Honefanger for my review
        and acceptance. Buckeye Crossbuck installation sheets were to be completed and
        submitted with the bills. Once the crossings were inspected and found to meet
        standards, the invoice was approved by me, processed by my staff to ODOT, and
        then payment was made by the Treasurer of State.

PID 2827, 2828. A form titled “Ohio Buckeye Crossbuck Program” stating that on May 11,

1993 two standard crossbucks were installed on Ulsh Road under “AARDOT # 262061N” is

attached to Kirkland’s affidavit. PID 2890. Also attached to Kirkland’s affidavit are seven

“Progress Bills” on Conrail letterhead addressed to Jeff Honefanger, Kirkland’s boss at ODOT,

and totaling $892,124.00. PID 2892-2959.

        Downs was employed as ODOT’s Administrator, Payroll and Federal Accounting, and

his office maintained “the records for the handling of funds from the Ohio Buckeye Crossbuck

Program in the 1990s, which provided improvements to railroad grade-crossing warning

devices,” and used the designations Project No. 000S(326) and prefixes RRPG and STPG in

association with that program.” Further:

   3.    I recognize the following documents as official records of the State of Ohio
        dealing with the Ohio Buckeye Crossbuck Program, including the funding of such
        improvements:
        ....
        E. Final Voucher from FHWA [Federal Highway Administration] to Ohio
        regarding Project No. 000S(326) detailing the final amount of federal funds
        provided to Ohio of $475,983.05 for appropriation code 139 and $479,755.10 for
        appropriation code 33A;

        F. Records for requests for reimbursement to FHWA, which include details of
        payments made to Conrail from ODOT . . . .

        G. Details of 100% federal reimbursement received by ODOT for construction
        engineering costs . . . on Project No. 000S(326), prefix RRPG, totaling
        $50,072.61.

   4. Based upon my review of the records above, I can attest that FHWA, through the
      United States Highway Department Trust Fund . . . provided federal funds totaling
      $955,738.15 to ODOT for Project No. 000S(326).

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   5. Of that $955,738.15 . . . ODOT received reimbursement for several payments:

      Reimbursement for payments made to Conrail totaling $892,124.00;
      Reimbursements for payments made to Northern Ohio & Western Railroad totaling
       $13,541.54; and
    Reimbursement for construction engineering work performed by ODOT employees
       totaling $50,072.61
   ....
    8. Based upon my review of the records described above, under the Ohio Buckeye
    Crossbuck Program, the State of Ohio made nine payments to Conrail totaling
    $892,124.00, all of which were 100% reimbursed with federal funds received from the
    FHWA.

PID 2961-63.

       We agree with the district court that the Kirkland and Down affidavits and deposition

testimony establish that federal funds were used to improve the Ulsh Road crossing, and that the

Byrnes have not established a genuine factual issue. As the district court observed, the total of

the seven Conrail Progress Bills equaled the total payment made by the Federal Highway

Administration to ODOT. Although Kirkland could not attest that the Conrail invoices were

submitted to her office at ODOT or approved for payment by ODOT, Downs testified that the

seven invoices were paid, and Kirkland testified that only approved bills were paid. And, though

the chain of custody of the Conrail invoices is unclear from the record, the invoices bear Conrail

logos and so the district court could properly determine them to be self-authenticating under Fed.

R. Evid. 902(7). See Alexander v. CareSource, 576 F.3d 551, 561 (6th Cir. 2009) (document on

letterhead “contains a trade inscription indicating the source of origin of the document, and it is

self-authenticated under Federal Rule of Evidence 902(7).”) Any defect in the chain of custody




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of the Conrail invoices would go to the weight of the evidence, not its admissibility. See United

States v. Allen, 946 F.2d 896, 897 (6th Cir. 1991) (table).3

       For these reasons, we AFFIRM the district court’s grant of summary judgment in

Defendants’ favor.




       3
          We note that we find CSX’s failure to establish the source of the records, through an
affidavit, testimony, or attorney representation on the record, as inexplicable as the first panel
found CSX’s failure to file the affidavit and the appearance of multiple affidavits. Simple
attention to detail and procedure would have avoided much of the proceedings. Nevertheless, the
district court was free to accept that the Conrail bills were self-authenticating.
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