                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                           REVISED AUGUST 9, 2005
                                                                         July 26, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                                                                   Charles R. Fulbruge III
                           FOR THE FIFTH CIRCUIT                           Clerk


                                No. 04-10965



PCI TRANSPORTATION INC,

                                                         Plaintiff-Appellant

                                   versus

FORT WORTH & WESTERN RAILROAD COMPANY,

                                                          Defendant-Appellee




          On Appeal from the United States District Court
                 for the Northern District of Texas



Before HIGGINBOTHAM, WIENER and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

     Appellant     PCI   Transportation,        Inc.   (“PCI”)    appeals      the

district court’s orders denying (1) remand, and (2) a preliminary

injunction.   We affirm.

                         I. FACTS AND PROCEEDINGS

     PCI receives and distributes rail cargo in Fort Worth, Texas,

via a distribution warehouse serviced by a spur that comes off of

railroad lines of the Union Pacific Railroad (“Union Pacific”) and

the Burlington Santa Fe Railroad (“BNSF”).             Appellee Fort Worth &

Western   Railroad   Co.    (“FWWR”)   is   a    short-line      railroad    that
operates passenger and freight trains within Texas.                      FWWR operates

a switching yard that, via PCI’s spur, links its warehouse to the

Union Pacific and BNSF railroads.                 Under various agreements, Union

Pacific and BNSF deliver railcars to FWWR’s switching yard, after

which FWWR switches and delivers these cars to customers of Union

Pacific and BNSF, such as PCI, for unloading.                      After the railcars

are unloaded, FWWR returns the empty cars to the main railroads’

lines.         BNSF and Union Pacific compensate FWWR for its switching

services, but the railroads also charge FWWR for the time that it

retains the railcars at its switching yard. In turn, FWWR collects

demurrage1 fees from end-use customers such as PCI.

       In      August     2001,   after   a       dispute   had    arisen   concerning

demurrage charges imposed on PCI by FWWR, these parties entered

into       a   contract    (the   “contract”)        aimed    at    avoiding   further

conflict, a goal that the contract has obviously failed to attain.

The entire contract is a one page letter, and is self-styled with

two    different        names     ——   “Confidential         Demurrage      Contractual

Agreement” and “Confidential Contractual Agreement for Free Time.”

The language of the contract provides that (1) PCI will have four

demurrage-free days, and (2) FWWR is committed to providing PCI

with a minimum of one “switch” daily, seven days per week.                         The

contract also establishes the demurrage rate applicable after free


       1
       Demurrage is a charge assessed for detaining a freight
car, truck, or other vehicle beyond any free time stipulated for
loading or unloading.

                                              2
time expires.     (The contract was never placed in evidence before

the district court, but following oral argument on appeal, it was

submitted to us under seal.) PCI alleges that, since the execution

of the contract and in conformity with common industry practice,

FWWR has delivered cars to PCI on a first-in, first-out (“FIFO”)

basis.

      In February 2004, more than two years after execution of the

contract, a new dispute arose between PCI and FWWR concerning

demurrage charges for the month of June 2003.               PCI contends that

FWWR had engaged in several practices that resulted in improper

demurrage fees being charged to PCI, to wit: (1) FWWR varied from

its practice of delivering cars to PCI on a FIFO basis, with the

result that FWWR held cars intended for PCI’s customers for longer

than four days; (2) at times, FWWR had delivered rail cars on PCI’s

spur backwards, making it impossible for PCI to unload those cars

and requiring FWWR to move the cars out, reverse them, then bring

them back in again with the next group of cars; (3) FWWR provided

PCI   with   a   delivery    schedule   the   effect   of     which    virtually

guaranteed that some of the cars would be held in the FWWR yard for

more than four days, thereby unnecessarily incurring demurrage

costs.

      PCI filed suit in state court alleging that FWWR had breached

the contract.       PCI also claimed intentional interference with

contractual      relations    and   requested     a    TRO,     a     “temporary

injunction,” and a permanent injunction restraining FWWR for a

                                        3
period of      ten    years   from   (1)       “providing   purported   notice   of

cancellation of any agreements between PCI and FWWR”; (2) “refusing

to deliver less than ten (10) PCI-bound railroad cars with cargo

per day to PCI on its spur, to the extent such cars are available”;

(3) “delivering cars to PCI’s spur on any basis other than on the

basis of delivery of those PCI-bound cars which have been in FWWR’s

possession      the   most    number   of       days”;   and   (4)   “imposing   or

attempting to impose any demurrage charges upon PCI, or in the

alternative, imposing or attempting to impose any demurrage charges

upon PCI when timely delivery of PCI’s cars on a first-in, first-

out basis would have resulted in no demurrage charges, and in those

situations where no demurrage charges would accrue but for FWWR’s

service failures”.        The state court granted PCI’s request for a

TRO.

       FWWR then removed the case to federal court, asserting that

PCI’s state law claims were completely preempted by the Interstate

Commerce Commission Termination Act of 1995 (“ICCTA”).2                 The ICCTA

overhauled the Interstate Commerce Act (“ICA”), including the

elimination of the Interstate Commerce Commission and replacing it

with the Surface Transportation Board (“STB”).                 PCI filed a motion

for remand, arguing that the suit was outside the ambit of the

ICCTA.      The district court denied PCI’s motion, concluding that

removal was proper under the doctrine of complete preemption.


       2
           49 U.S.C. §§ 10101, et. seq.

                                           4
     PCI filed a request for a temporary injunction and hearing in

the district court, seeking essentially the same relief that it had

sought in state court. This was PCI’s second motion for injunctive

relief.   Its first motion was denied for procedural reasons.                    The

district court denied PCI’s motion without a hearing, holding that,

as a result of PCI’s failure to proffer into evidence the contract

on which it based its claims for relief, it had not demonstrated,

prima facie, that the district court, as distinguished from the

STB, had jurisdiction to entertain PCI’s requested injunctive

relief.        The   district   court     also    held   that    PCI    failed    to

demonstrate that it would suffer irreparable injury absent an

injunction.     PCI appeals the district court’s denial of its remand

motion, denial of its motion for a preliminary injunction, and

refusal   to    hold   a   hearing   on     the   motion   for    a    preliminary

injunction.

                                II. ANALYSIS

A.   Appeal of the Remand Order

     An order denying a motion to remand is not appealable as a

final decision within the meaning of 28 U.S.C. § 1291; standing

alone, such a ruling cannot be appealed unless certified by the

district court under 28 U.S.C. § 1292(b).3                      PCI nevertheless

contends that we have jurisdiction to consider its appeal of the


     3
       Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1064-65
(5th Cir. 1981); Lewis v. E.I. Du Pont De Nemours & Co., 183 F.2d
29, 31 (5th Cir. 1950).

                                        5
remand order, citing the Ninth Circuit’s decision in O’Halloran v.

University of Washington.4    The court in O’Halloran held that an

appeal from an order denying a motion to remand is reviewable prior

to final judgment when joined with an interlocutory appeal from an

order granting or denying an injunction.5

     Several other circuits have held the same, either expressly or

implicitly.6 We have not previously addressed the question whether

the denial of a remand order becomes reviewable when it is coupled

with an interlocutory appeal of an injunction order under 28 U.S.C.

1292(a)(1).    We did conclude in Texas v. Real Parties in Interest,

however, that the denial of a remand order can be reviewed in

conjunction with the interlocutory appeal of an order denying a

claim of Eleventh Amendment immunity, the latter order being

appealable under the collateral order doctrine.7   In deciding that


     4
         856 F.2d 1375 (9th Cir. 1988).
     5
         Id. at 1378.
     6
       See James v. Bellotti, 733 F.2d 989, 992 (1st Cir. 1984)
(“The denial of an injunction is an appealable interlocutory
order under 28 U.S.C. § 1292(a)(1), and the refusal to remand to
the state court, though not directly appealable by itself, is
reviewable in conjunction with the interlocutory appeal.”);
Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir.
1973) (considering interlocutory appeal of denial of remand order
along with denial of injunctive relief without discussion of why
consideration of remand was proper); Kysor Indus. Corp. v. Pet,
Inc., 459 F.2d 1010, 1011 (6th Cir. 1972) (holding that because
the case was properly before the court on interlocutory appeal of
the denial of a motion for a preliminary injunction, and the
remand issue was jurisdictional, the remand issue must be
reached).
     7
         259 F.3d 387, 391 (5th Cir. 2001).

                                  6
we could consider the order denying remand, we looked solely to

whether the Eleventh Amendment immunity issue was non-frivolous and

properly before us on appeal.8           Implicit in that decision is the

conclusion that, once appellate jurisdiction has been established,

we are compelled to address questions of federal jurisdiction.

      In the context of the collateral order doctrine, we perceive

no   difference      in   the    distinction    between   Eleventh   Amendment

immunity and remand.            We thus conclude that PCI’s appeal of the

denial of its motion for a preliminary injunction is both non-

frivolous and properly before us.              Consonant with our holding in

Real Parties in Interest, we first consider the jurisdictional

question whether the district court erred in denying PCI’s motion

to remand the case to state court.

B.    Removal and Remand

      The district court denied PCI’s motion to remand the case,

relying primarily on (1) the Northern District of Iowa’s reasoning

in   Cedarapids, Inc. v. Chicago, Central & Pacific Railroad Co.9

and (2) § 10501 of the ICCTA.           Section 10501 provides:

                (b) The jurisdiction of the Board 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

      8
          Id.
      9
          265 F. Supp.2d 1005 (N.D. Iowa 2003).

                                         7
            (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,

     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.10

PCI contends that removal was improper because the relief that PCI

requests is expressly excluded from the reach of the ICCTA by §

10709 of that act.         “We exercise plenary, de novo review of a

district court’s assumption of subject matter jurisdiction.”11

     1.     PCI’s § 10709 Argument

     FWWR establishes rates for its transportation services, as

well as rules and practices related to those services, including

specifically the rules relating to the imposition of demurrage

fees.12     The   injunctive   relief      PCI   seeks   would   regulate    the

operation    of   FWWR’s   switching    yard     and   would   therefore    fall

squarely under § 10501(b). PCI argues nonetheless that its dispute

with FWWR is purely over FWWR’s compliance with the contract, and

that, under 49 U.S.C. § 10709, such contracts are not subject to



     10
          49 U.S.C. § 10501.
     11
          Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.
2003).
     12
          49 U.S.C. § 10701.

                                       8
the ICCTA and thus not under the jurisdiction of the STB.            Section

10709 provides in relevant part:

          (a) One or more rail carriers providing
          transportation subject to the jurisdiction of
          the Board under this part may enter into a
          contract with one or more purchasers of rail
          services to provide specified services under
          specified rates and conditions.

          (b) A party to a contract entered into under
          this section shall have no duty in connection
          with services provided under such contract
          other than those duties specified by the terms
          of the contract.

          (c)(1) A contract that is authorized by this
          section,   and  transportation   under   such
          contract, shall not be subject to this part,
          and may not be subsequently challenged before
          the Board or in any court on the grounds that
          such contract violates a provision of this
          part.

          (2) The exclusive remedy for any alleged
          breach of a contract entered into under this
          section shall be an action in an appropriate
          State court or United States district court,
          unless the parties otherwise agree.

None disputes that FWWR is a rail carrier and PCI is a purchaser of

its services.13

     PCI’s   position   on   the    applicability   of   §   10709   can   be

distilled to two arguments.        First, PCI argues that the STB has no

jurisdiction to hear claims even related to agreements governed by

§ 10709, citing the language of the statute and decisions of the

     13
       “‘[R]ail carrier’ means a person providing common carrier
railroad transportation for compensation,” 49 U.S.C. § 10102(5),
and a “railroad” includes a “switch, spur, track, terminal,
terminal facility, and a freight depot, yard, and ground, used or
necessary for transportation.” § 10102(6)(C).

                                      9
STB refusing to consider such disputes.14                  We see nothing in the

statutory language that supports PCI’s “related to” argument,

however, and PCI fails to direct us to any such language.                    In fact,

§ 10709(b) specifies that a party entering into such a contract has

only “those duties specified by the terms of the contract.”                         The

decisions    of the STB cited by PCI also fail to support its

argument.    H.B. Fuller Co. v. Southern Pacific Transportation Co.15

is   inapposite    because       the   contract       at    issue    there    was     a

comprehensive one that purported to govern the entire relationship

between the litigants.            Fuller, a manufacturer, sued Southern

Pacific,    alleging    that     the   railroad   had      imposed    unreasonable

storage and demurrage charges.          The transportation in question was

subject to a “contract for carriage.”                  Fuller argued that its

claims fell     outside       that   contract   and    thus    within   the     STB’s

jurisdiction, because the contract did not explicitly address

demurrage or storage charges.           The STB rejected Fuller’s argument

and held that the claims fell outside its jurisdiction.                      Although

the contract      did   not    explicitly    address       those    areas,    it    did

incorporate by reference the “tariffs, rules and regulations which

would apply” if there was no contract to govern those areas not

covered by the contract.         Therefore, held the STB, the referenced


     14
       Reply Brief at 6. PCI did discuss the STB cases in its
initial brief, but appears to have asserted the “even related to”
argument for the first time on reply.
     15
          STB Docket No. 41510 (Aug. 20, 1997).

                                        10
tariff terms became part of the contract.                   The other two STB

decisions that PCI cites add nothing to the analysis.16

      In Cross Oil Refining & Marketing, Inc. v. Union Pacific

Railroad Co,17 a decision not cited by PCI, the STB considered

whether a series of purported contracts were the kind governed by

§ 10709.      Cross Oil argued that § 10709 did not apply because,

under the agreements in question, service and equipment were to be

provided on the same basis as those provided to other shippers.

The   STB     rejected   Cross     Oil’s     argument,      ruling    that     the

transportation at issue was provided under the contracts:                     Each

contract affirmatively stated that it was made pursuant to § 10709,

identified the origins and destinations, and specified the terms of

the contract and the rates for the commodities.              As in Fuller, the

STB held that rail contracts can incorporate tariff provisions by

reference yet still fall outside the STB’s jurisdiction.

      Unlike    the   agreements   at    issue   in   the    cited   cases,    the

contract in the instant case is very limited in scope, and does not

incorporate any tariff provisions.           As such, any relief requested




      16
       Minn. Power Inc. v. Duluth, Missabe and Iron Range Ry.
Co., STB Docket No. 42038 (July 7, 1999), merely states that
movement governed by a rail transportation contract is “beyond
our regulatory purview under 49 U.S.C. 10709(c)” without
providing any further analysis. Parrish & Heimbecker, Inc., STB
Docket No. 42031 (May 22, 2000), discusses the Staggers Act,
stating only that the statute removed contract service from the
authority of the ICC (predecessor to the STB).
      17
           STB Finance Docket No. 33582 (Oct. 19, 1998).

                                        11
by PCI that falls outside of the contract’s express coverage is not

governed by § 10709.

      The second argument made by PCI is that all relief requested

is within the contract’s coverage and therefore within the reach of

§ 10709.     In its reply to FWWR’s response to PCI’s motion to

remand, PCI contended in district court that even if the contract

does not specifically address (1) whether FWWR was required to

place cars at PCI’s spur on a FIFO basis, or (2) whether FWWR is

required to place a “full spot” of ten cars at PCI’s spur each day,

the   consistent   conduct    of   the    parties    under    the   contract

constitutes their agreed interpretation, causing those requirements

to be incorporated into the contract.         On appeal, PCI no longer

asserts that the parties’ prior conduct interpreted or supplemented

the contract, arguing instead that all requested relief is within

the language of the contract, namely that the parties’ prior

conduct, as well as the Texas railroad industry’s customs and

practices,   inform   what   the   term   “switch”   means.     PCI   relies

primarily on the deposition testimony of Charley Godsey, the

operations manager for FWWR, to establish that the term “switch”

encompasses the portion of injunctive relief that FWWR insists

falls outside of the contract.        FWWR counters that the “switch”

language in the contract was solely meant to change the number of

days per week that switching services would be provided to PCI, but

does not provide an alternative definition of “switch.”



                                    12
      Under Texas law, the primary concern of a court construing a

contract is to “ascertain the true intent of the parties as

expressed in the instrument.”18      Even when there is neither patent

nor latent ambiguity in the wording of a contract, “[e]xtrinsic

evidence may, indeed, be admissible to give the words of a contract

a   meaning   consistent   with   that   to   which   they   are   reasonably

susceptible.”19   “A specialized industry term may require extrinsic

evidence of the commonly understood meaning of that term within the

specialized industry.”20    PCI provides a string of citations to the

Godsey deposition to support its definition of “switch”.             A review

of the cited portions of the record reveals, however, that Godsey

was never asked to explain or define the meaning of providing a

“switch.”     His deposition lays out how FWWR deals with customers

and states that FWWR (1) does not impose demurrage charges when the

mistakes are its own, (2) uses a FIFO method to determine which

cars to deliver, and (3) will fill the spot available on a

customer’s spur each day.     None of this, however, is ever tied by

the deposition to the meaning of providing a “switch.”




      18
       Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 388 (5th
Cir. 2004); Mescalero Energy, Inc. v. Underwriters Indem. Gen.
Agency, Inc., 56 S.W.3d 313, 319 (Tex. App. – Houston [1st Dist.]
2001, pet. denied).
      19
       Nat’l Union Fire Ins. Co. v. CBI Indus. Inc., 907 S.W.2d
517, 521 (Tex. 1995).
      20
       Royal Maccabees Life Ins. Co. v. James, 146 S.W.3d 340,
345-46 (Tex. App. – Dallas 2004, pet. filed).

                                    13
       Even if we were to accept PCI’s broad definition of “switch,”

the injunctive relief it seeks is still broader than that which the

contract governed.         The last portion of PCI’s request seeks to

control FWWR’s ability to impose demurrage charges under any

circumstances, or in the alternative, any circumstance in which no

demurrage charges would accrue but for FWWR’s service failures, not

just those situations in which FWWR fails either to provide a full

spot of cars or to deliver the cars on a FIFO basis.           We hold that,

at the very least, a portion of FWWR’s claims are governed by the

ICCTA.

       2.      Complete Preemption

       For the district court to have removal jurisdiction, 28 U.S.C.

§ 1441 requires that “the case be one over ‘which the district

courts of the United States have original jurisdiction.’”21 Whether

a claim arises under federal law is a question determined by

reference to the plaintiff’s “well-pleaded complaint.”22               As a

defendant may remove a case only if the claims could have been

brought in federal court, “the question for removal jurisdiction

must    also     be   determined   by   reference   to   the   ‘well-pleaded

complaint.’”23        “Under the well-pleaded complaint rule, ‘federal

       21
       Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.
2000) (citation omitted).
       22
       Hoskins, 343 F.3d at 772 (citing Louisville & Nashville
R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).
       23
            Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808
(1986).

                                        14
jurisdiction exists only when a federal question is presented on

the face of plaintiff’s properly pleaded complaint.’”24            “As a

general rule, absent diversity jurisdiction, a case will not be

removable if the complaint does not affirmatively allege a federal

claim.”25     Potential   defenses,   including   a   federal   statute’s

preemptive effect, do not provide a basis for removal.26

     In Beneficial National Bank v. Anderson, the Supreme Court

recognized two exceptions to this last rule: (1) when Congress

expressly provides for removal and (2) when a federal statute

wholly displaces the state-law cause of action through complete

preemption.27   The latter exception is the one that is at issue in

the instant case.     As stated above, standard preemption does not

provide a basis for removal.     In contrast, complete preemption is

jurisdictional in nature and, as such, “authorizes removal to

federal court even if the complaint is artfully pleaded to include

solely state law claims for relief or if the federal issue is

initially raised solely as a defense.”28




     24
       Hoskins, 343 F.3d at 772 (quoting Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)).
     25
          Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
     26
       Id. (citing Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U.S. 1
(1983))(emphasis added).
     27
          Id. at 8.
     28
          Johnson, 214 F.3d at 632 (citation omitted).

                                  15
     Prior to the decision in Beneficial, we considered complete

preemption to be a narrow exception, noting that the Supreme Court

had only recognized its existence in the areas of federal labor

relations    and    the    Employee   Retirement     Security   Act      of   1974

(“ERISA”).29       Our    pre-Beneficial    test   for   complete   preemption

required the defendant to show that

     (1) the statute contains a civil enforcement provision
     that creates a cause of action that both replaces and
     protects the analogous area of state law; (2) there is a
     specific jurisdictional grant to the federal courts for
     enforcement of the right; and (3) there is a clear
     Congressional intent that claims brought under the
     federal law be removable.30

In Hoskins, however, we modified the test in response to the

Supreme Court’s Beneficial decision, in which the Court extended

the doctrine of complete preemption to the National Bank Act.                   It

reasoned that because the National Bank Act provides the exclusive

cause of action for claims of usury against a national bank, all

such claims     arise     under   federal   law    for   purposes   of   federal

jurisdiction.31     In light of the decision in Beneficial, we held in

Hoskins that the proper focus of complete preemption analysis is on




     29
       Id. (citing to Avco Corp. v. Machinists, 390 U.S. 557
(1968) and Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987)).
     30
       Id. The district court, in concluding there was complete
preemption, neither applied our circuit’s test nor looked to the
Supreme Court’s decision in Beneficial.
     31
          Beneficial Nat’l Bank, 539 U.S. at 11.

                                       16
whether Congress intended that the federal action be exclusive, as

opposed to whether Congress intended that the claim be removable.32

     In Hoskins, we considered whether there is complete preemption

of claims asserted under the Carmack Amendment to the Interstate

Commerce Act.33          As there is neither language in the statute

expressing Congress’s intent that the Carmack Amendment provide the

exclusive cause of action for claims arising out of the interstate

transportation of goods by a common carrier nor any legislative

history to be examined, we looked to our own cases and those of the

Supreme Court to determine whether Congress did indeed intend for

the Carmack Amendment to provide the exclusive cause of action,

holding that it did.34       In the instant case, the plain language of

§ 10501 supports our conclusion that Congress intended actions

regarding “rates, classifications, rules (including car service,

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

services,    and    facilities    of   such   carriers”35   to   be   governed

exclusively by the ICCTA.        The House Report on the proposed ICCTA


     32
       Hoskins, 343 F.3d at 776. Our holding in Hoskins,
reversing our prior holding that the Carmack Amendment did not
support complete preemption, reflects Justice Scalia’s conclusion
that the majority’s holding in Beneficial makes finding complete
preemption easier than existed under Taylor. Beneficial Nat’l
Bank, 539 U.S. at 16-19 (Scalia, J., dissenting).
     33
       49 U.S.C. § 14706. Section 14706 resides under the part
of the ICA governing Motor Carriers. The Carmack Amendment also
modified the Rail part of the ICA. 49 U.S.C. § 11706.
     34
          Hoskins, 343 F.3d at 776.
     35
          49 U.S.C. § 10501(b)(1).

                                       17
also supports the conclusion that the ICCTA provides the exclusive

cause of action:

       [Section 10501] replaces the railroad portion of former
       Section 10501. Conforming changes are made to reflect
       the direct and complete pre-emption of State economic
       regulation of railroads. The changes include extending
       exclusive Federal jurisdiction to matters relating to
       spur, industrial, team, switching or side tracks formerly
       reserved for State jurisdiction under former section
       10907. The former disclaimer regarding residual State
       police powers is eliminated as unnecessary, in view of
       the Federal policy of occupying the entire field of
       economic regulation of the interstate rail transportation
       system.    Although 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.36

In light of the plain language of the statute and its legislative

history, and in accordance with our holding in Hoskins, we hold

that the complete preemption doctrine applies.      And, as the ICCTA

provides the exclusive cause of action for PCI’s non-contractual

relief, we hold that those claims “‘only arise[] under federal law

and could, therefore, be removed under § 1441.’”37       The district

court’s denial of remand was thus appropriate.

C.     PCI’s Preliminary Injunction Request




       36
       H.R. REP. NO. 104-311, at 95-96 (1995). The Conference
Report emphasized that the conference version of the bill was
meant to preserve the exclusivity of federal remedies in the area
of rail regulation that existed prior to the passage of the
ICCTA. H.R. CONF. REP. NO. 104-422, at 167.
       37
            Hoskins, 343 F.3d at 778 (quoting Beneficial, 539 U.S. at
11).

                                    18
     We review the denial of a preliminary injunction for abuse of

discretion.38   “Even though ‘the ultimate decision whether to grant

or deny a preliminary injunction is reviewed only for abuse of

discretion, a decision grounded in erroneous legal principles is

reviewed de novo.’”39

     To obtain a preliminary injunction, the applicant must show

(1) a substantial likelihood that he will prevail on the merits,

(2) a substantial threat that he will suffer irreparable injury if

the injunction is not granted, (3) that his threatened injury

outweighs the threatened harm to the party whom he seeks to enjoin,

and (4) that granting the preliminary injunction will not disserve

the public interest.40      “We have cautioned repeatedly that a

preliminary injunction is an extraordinary remedy which should not

be granted unless the party seeking it has ‘clearly carried the

burden of persuasion’ on all four requirements.”41

     PCI fails to establish that there is a substantial likelihood

that it will prevail on the merits.   As the district court noted in

its denial of the injunction, PCI never submitted the contract to

the court for it to review.     Without the contract, the district


     38
       Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d
192, 195 (5th Cir. 2003).
     39
       Id. (quoting Women’s Med. Ctr. v. Bell, 248 F.3d 411, 419
(5th Cir. 2001)).
     40
          Id. at 195-96.
     41
       Id. at 196 (quoting Miss. Power & Light Co. v. United Gas
Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)).

                                 19
court could not possibly evaluate whether PCI was likely to prevail

on the merits.   In addition, PCI fails to show that it would suffer

irreparable injury if an injunction were not granted.   PCI’s doom-

and-gloom prediction that without an injunction it would lose the

use of the track and be forced out of business is not borne out by

the record and the briefs.        The only consequence of contract

cancellation appears to be a reversion to the terms and conditions

provided by the federal tariff that governs such operations.    Any

damage resulting from a shorter period before demurrage is charged

can be compensated for monetarily.42     We hold that there was no

abuse of discretion by the district court in denying the injunction

sought by PCI.

D. Failure to Conduct a Hearing

     PCI makes the additional argument that the district court

erred in failing to conduct a hearing before denying its motion for

a preliminary injunction. Federal Rule of Civil Procedure 65(a)(1)

specifies that “[n]o preliminary injunction shall be issued without

notice to the adverse party.”      “We have interpreted the notice

requirement of Rule 65(a)(1) to mean that ‘where factual disputes

are presented, the parties must be given a fair opportunity and a


     42
       See Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)
(citations and quotations omitted) (“Mere injuries, however
substantial, in terms of money, time and energy necessarily
expended in the absence of a stay, are not enough. The
possibility that adequate compensatory or other corrective relief
will be available at a later date, in the ordinary course of
litigation, weights heavily against a claim of irreparable
harm.”).

                                  20
meaningful hearing to present their differing versions of those

facts before a preliminary injunction may be granted.’”43

     PCI relies on our decision in Commerce Park as support for its

contention that, before a preliminary injunction motion can be

denied, a hearing must be held.        In Commerce Park, however, we

merely assumed for the purpose of our analysis that Rule 65

required that a hearing be held prior to the denial of a motion for

a preliminary injunction.44      The plaintiff has the burden of

introducing    sufficient   evidence   to   justify   the   grant   of   a

preliminary injunction.45 PCI’s motion for a preliminary injunction

was predicated on the breach of a contract that was never put

before the district court. PCI also failed to adduce any probative

evidence that it would suffer irreparable injury in the absence of

an injunction; its only factual offering was the conclusional

statement that the demurrage charges would be too costly for it to

remain in business.    PCI’s failure to introduce the contract into

evidence and its failure to establish the existence of a factual




     43
       Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir.
1996) (quoting Commerce Park at DFW Freeport v. Mardian Constr.
Co., 729 F.2d 334, 342 (5th Cir. 1984)).
     44
          Commerce Park, 729 F.2d at 341.
     45
       Canal Auth. of the State of Florida v. Callaway, 489 F.2d
567, 578-79 (5th Cir. 1974).

                                  21
dispute on the question whether it would suffer irreparable injury

made a hearing unnecessary.46

     The district court’s orders denying PCI’s motion for remand

and denying PCI’s motion for a preliminary injunction —— including

its refusal to conduct a hearing —— are, in all respects,

AFFIRMED.




     46
       Kaepa, Inc., 76 F.3d at 628 (“If no factual dispute is
involved . . . no oral hearing is required.”).

                                22
