     Case: 16-60409   Document: 00514096225     Page: 1   Date Filed: 07/31/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                 No. 16-60409                         FILED
                                                                  July 31, 2017

SHAWN T. EZELL,                                                  Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellant

v.

KANSAS CITY SOUTHERN RAILWAY COMPANY,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiff-Appellant Shawn Ezell drove his car into a stationary train that
was blocking a traffic crossing. Ezell sued the train’s operator, Defendant-
Appellee Kansas City Southern Railway (KCSR), asserting various Mississippi
common law negligence claims based on his allegations that the train blocked
the crossing for an impermissible amount of time and the train’s crew failed to
adequately warn approaching drivers of the obstructed crossing. KCSR filed a
motion for summary judgment, which the district court granted. We affirm.
                                       I
      In the early morning hours of July 12, 2011, a train operated by KCSR
temporarily stopped in West Point, Mississippi, so the crew could perform a
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                                      No. 16-60409
switching operation. 1 The operation required the train to fully occupy and
block three West Point traffic crossings. Ezell’s expert estimates that the train
was stopped in West Point for approximately 24 minutes.
       While the crew was performing its switching operation, Ezell approached
one of the blocked crossings in his car. He passed a reflectorized advanced
warning sign, a reflectorized railroad crossing sign, and a yield sign. Although
Ezell testified at his deposition that he does not recall seeing the signs on the
night of the accident, he acknowledged that knew they were there because he
had passed through the crossing many times and was familiar with it. Ezell
also testified that the night was dark and “kind of . . . foggy.” He described the
road as having “a little dip” and then an incline leading to the tracks, which
were elevated in comparison to the approaching road. Because of the incline in
the road and the position of the black train car on the track, Ezell says his
headlights shone under the train as he approached and that he could see
beneath the stationary train car to the road on the other side.
       According to Ezell, he did not see the train blocking his path until it was
too late to stop. He crashed into its side, his car lodging beneath the train car
he struck. Ezell was airlifted to a medical center for treatment and
rehabilitation. He suffered horrific injuries and remained hospitalized for two
months followed by a long rehabilitation process. As a result of the accident,
Ezell is an “incomplete quadriplegic,” meaning he suffers from severe paralysis
throughout his body, but is not completely paralyzed and is able to walk with
a walker, though not for long periods of time.



       1 “Switching” is the process of removing cars from the train to move them from the
main line to an industry track or side track. “Side tracks are used to park a train going one
direction on a main line while a train going the opposite direction passes. They can also be
used as a detour to circumvent places on the main line where the tracks become unusable
due to washouts, accidents, maintenance, etc.” Friberg v. Ks. City S. Ry. Co., 267 F.3d 439,
440 n.1 (5th Cir. 2001).
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       Ezell filed a lawsuit in Mississippi state court against KCSR, seeking
damages based on various Mississippi common law negligence theories. Ezell
alleges that the KCSR train crew “was careless, negligent and partially at
fault” because the crew: (1) blocked the crossing for longer than permitted by
Mississippi law; (2) blocked the crossing for longer than permitted by KCSR’s
internal operating rules; and (3) failed to adequately warn approaching drivers
of the obstructed crossing.
       KCSR removed the case to federal court based on federal question
jurisdiction, arguing that Ezell’s two blocking claims were completely
preempted by the federal ICC Termination Act (ICCTA). 2 KCSR then moved
for summary judgment on all of Ezell’s claims. In addition to urging that Ezell’s
two blocking claims are preempted, KCSR argued that Ezell’s failure to warn
claim is barred by Mississippi’s Occupied Crossing Rule. The district court
granted KCSR’s motion, and Ezell timely appealed.




       2 Ordinarily, “[u]nder 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.” Elam v. Ks. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). As a
result, there is generally “no federal [question] jurisdiction if the plaintiff properly pleads
only a state law cause of action.” Id. (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.
2008) (alteration in original)). However, “[a]n exception to the well-pleaded complaint rule,”
complete preemption doctrine, “arises when Congress ‘so completely preempt[s] a particular
area that any civil complaint raising this select group of claims is necessarily federal in
character.’” Id. (quoting Gutierrez, 543 F.3d at 252). 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 Inv. Co. v. Union Pacific R.R. Co.,
593 F.3d 404, 407–08 (5th Cir. 2010) (en banc) (“[Complete] preemption actually creates
federal jurisdiction by its domination of the arena.”). As explained in greater depth below,
we have previously determined that state law tort claims arising out of the Mississippi
statute relied on by Ezell for his first blocking claim are completely preempted, such that
those claims give rise to federal question jurisdiction. Elam, 635 F.3d at 802 (“We hold the
district court had removal jurisdiction over this action because the ICCTA completely
preempts the [plaintiffs’] negligence per se claim.”).
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                                             II
       We review a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court. Robinson v. Orient
Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is only
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Any reasonable inferences are to be drawn in favor of the non-
moving party. Robinson, 505 F.3d at 366.
       “Whether a state statute or common law cause of action is preempted by
federal law is a question of law we review de novo.” Friberg, 267 F.3d at 442;
accord Elam, 635 F.3d at 802; Franks, 593 F.3d at 407. “The party asserting
federal preemption has the burden of persuasion.” Elam, 635 F.3d at 802
(citing AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th Cir.
2004)).
                                            III
       Two of Ezell’s negligence claims are based solely on the allegation that
KCSR’s train blocked the three crossings for an impermissible amount of time.
The first is a negligence per se claim based on KCSR’s alleged violation of
Mississippi’s Anti-Blocking Statute, which prohibits trains from blocking
crossings for longer than five minutes. 3 The second is a Mississippi common
law negligence claim premised on KCSR’s violation of its own internal
operating rules, specifically General Code of Operating Rules 6.32.4, which
directs crews to avoid blocking crossings in excess of ten minutes “when




       3 The statute provides in relevant part: “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.” Miss. Code.
Ann. § 77-9-235.
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practical.” The district court held that both claims are preempted by the
ICCTA. We agree.
      The ICCTA, 49 U.S.C. § 10101, et seq., overhauled federal railroad
regulatory policy and established the Surface Transportation Board (STB),
which is tasked with regulating rail transportation throughout the United
States. PCI Trans., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 538 (5th
Cir. 2005). “The purpose of the ICCTA is to ‘build[] on the deregulatory policies
that have promoted growth and stability in the surface transportation sector,’”
and, specifically, “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.’”
Elam, 635 F.3d at 804 (quoting H.R. Rep. No. 104-311, at 93, 96 (1995); 1995
U.S.C.C.A.N. 793, 805, 808).
      Section 10501(b) of the ICCTA “defin[es] the authority of the STB in
dealing with the fundamental aspects of railroad regulation, and bar[s] others
from interfering with those decisions by making the jurisdiction exclusive.”
Franks, 593 F.3d at 410. Section 10501(b) additionally makes clear that the
“remedies available at the STB dealing with ‘rates, classification, rules, . . .
practices, routes, services, and facilities of such carriers,’ are exclusive.” Id. at
409; accord Elam, 635 F.3d at 805. We have observed that “[t]he language of
the statute could not be more precise, and it is beyond peradventure that
regulation of . . . train operations, as well as the construction and operation of
. . . side tracks, is under the exclusive jurisdiction of the STB unless some other
provision of the ICCTA provides otherwise.” Friberg, 267 F.3d at 443. Thus, we
have held that § 10501(b) expressly preempts “laws that have the effect of
managing or governing rail transportation[.]” Franks, 593 F.3d at 410.
Further, “‘[t]o the extent remedies are provided under laws that have the effect
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                                       No. 16-60409
of regulating [i.e., managing or governing] train transportation,’ they too are
expressly preempted.” Elam, 635 F.3d at 805 (quoting Franks, 593 F.3d at 410)
(alterations in original).
       We have emphasized that “Congress was particularly concerned about
state economic regulation of railroads when it enacted the ICCTA.” Id. On the
other hand, § 10501(b) “does not expressly preempt generally applicable state
laws that have a mere ‘remote or incidental effect on rail transportation.’” Id.
(quoting Franks, 593 F.3d at 410). 4 Nonetheless, a state law claim that is not
expressly preempted by the ICCTA may be impliedly preempted, such as when,
as applied in a particular case, the claim has “the effect of unreasonably
burdening or interfering with rail transportation.” Franks, 593 F.3d at 414.
       Based on the scope, purpose, and jurisdictional statement of the ICCTA,
we have previously invalidated state laws and claims that regulate the amount
of time trains block crossings. See, e.g., Friberg, 267 F.3d at 443–44. 5 We
explained that “[r]egulating the time a train can occupy a rail crossing impacts,
in such areas as train speed, length, and scheduling, the way a railroad
operates its trains, with concomitant economic ramifications . . . .” Friberg, 267


       4  See also Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th
Cir. 2001) (“Congress narrowly tailored the ICCTA pre-emption provision to displace only
‘regulation,’ i.e., those state laws that may reasonably be said to have the effect of
‘manag[ing]’ or govern[ing]’ rail transportation, . . . while permitting the continued
application of laws having more remote or incidental effect on rail transportation.” (internal
citations omitted)).
        5 See also Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010) (“[T]o permit

monetary liability to accrue under a state law nuisance claim where that liability is based on
decisions the ICCTA purposefully freed from outside regulation would contradict the
language and purpose of the ICCTA. The ICCTA expressly preempts state remedies involving
the operation of the side track. Therefore, we will not permit landowners to circumvent that
Congressional decision through state law nuisance claims.”); Rushing v. Ks. City S. Ry. Co.,
194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) (“[A]lthough the relevant Mississippi laws of
negligence and nuisance may be construed as a exercise of the police power of the state to
safeguard the health and safety of its citizens, the Plaintiffs are attempting to use these laws
to impose regulations on the Defendant regarding the manner in which it operates its switch
yard thereby potentially interfering with interstate rail operations.”).
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F.3d at 443. Indeed, in Elam v. Kansas City Southern Railway, we held that a
negligence per se claim based on the precise Mississippi Anti-Blocking Statute
at issue here was completely preempted by the ICCTA. 635 F.3d at 807–08. We
agree with the district court that Elam squarely forecloses Ezell’s negligence
per se claim based on the Mississippi Anti-Blocking Statute.
      Our analysis in Elam makes clear that Ezell’s blocking claim based on
KCSR’s internal operating rules is preempted by the ICCTA as well. Like his
negligence per se claim, Ezell’s second blocking claim is based solely on the
amount of time that KCSR’s train blocked a crossing, and “the effect of [such
a] claim is to economically regulate KCSR’s switching operations.” Id. at 807;
see also id. (“[A] state law tort remedy that would directly regulate a railroad’s
switching rates and services falls squarely under § 10501(b) . . . . [because] a
rail operator’s decisions about switching rates and services are economic
decisions.” (citing Friberg, 267 F.3d at 444)); Franks, 593 F.3d at 411 (“It is
clear that a tort suit that attempts to mandate when trains can use tracks and
stop on them is attempting to manage or govern rail transportation in a direct
way[.]”); Friberg, 267 F.3d at 443 (“[N]or does the all-encompassing language
of the ICCTA’s preemption clause permit the federal statute to be
circumvented by allowing liability to accrue under state common law, where
that liability arises from a railroad’s economic decisions such as those
pertaining to train length, speed or scheduling.”).
      Ezell has not attempted to distinguish Elam or this court’s other ICCTA
preemption caselaw. Instead, he cites the preemption clause of a different
federal railroad regulatory statute, the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20101, et seq., as his sole argument for why his blocking claim based
on KCSR’s operating rules is not preempted by the ICCTA. The FRSA’s
preemption clause clarifies that a state law claim is not preempted by that
statute if the claim is based on operating rules adopted pursuant to an order
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or regulation issued by either the Secretary of Transportation or the Secretary
of Homeland Security. 49 U.S.C. § 20106(b)(1)(B). Ezell does not explain how
or why the FRSA’s preemption clause would bear on our ICCTA preemption
analysis, nor does he acknowledge that the preemption exception he relies on
to rebut KCSR’s ICCTA argument is from a different statute. Notably, even if
Ezell were to convince us that the FRSA’s preemption exception could save his
blocking claim from ICCTA preemption, he has failed to show that the KCSR
operating rule he cites qualifies as a “plan, rule, or standard that is created
pursuant to a regulation or order of the Secretaries.” 49 U.S.C.
§ 20106(b)(1)(B). Ezell’s FRSA argument is unavailing, and we conclude that
both blocking claims are preempted by the ICCTA. 6
                                              IV
       Ezell also alleges that KCSR “failed to adequately warn motorist[s] on
North Division Street of the obstructed crossing by a train.” We agree with the
district court that this claim is barred by Mississippi’s Occupied Crossing Rule.
“Under Mississippi law, ‘ordinarily a train legitimately stopped or standing


       6   We note that the FRSA may inform ICCTA preemption analysis in some
circumstances. Caselaw from this circuit and others has highlighted the complicated
relationship between the two statutes and the difficulty that may arise when a state action
or common law claim falls at the intersection of ICCTA’s realm of economic regulation and
the FRSA’s realm of safety regulation. See, e.g., Elam, 635 F.3d at 807–08 (“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. Indeed, the [FRSA] expressly provides that states may
enact (and citizens may enforce) rail safety laws in certain circumstances.”); Tyrell v. Norfolk
S. Ry. Co., 248 F.3d 517, 522–23 (6th Cir. 2001) (“[T]he district court’s decision erroneously
preempts state rail safety law that is saved under FRSA if it tangentially touches upon an
economic area regulated under the ICCTA. . . . [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.”). In some cases, it may be difficult to discern whether a particular state law or claim
is better characterized as an economic or safety regulation. But, as discussed, we have
already determined that claims based solely on how long a train blocks a crossing are
economic regulations preempted by the ICCTA. See Elam, 635 F.3d at 814 n.13 (“To the
extent the Elams allege KCSR was negligent solely because it blocked the . . . crossing, that
claim is impliedly preempted.”).
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over a public crossing because of its tremendous size is all the warning the
traveling public is entitled to.’” King v. Ill. Cent. R.R., 337 F.3d 550, 553 (5th
Cir. 2003) (quoting Clark v. Columbus & Greenville Ry. Co., 473 So. 2d 947,
950 (Miss. 1985)). Under this doctrine, the Occupied Crossing Rule,
      a railroad company may leave its train, or any part of it, standing
      over a public crossing, night or day, and whether light or dark,
      without any light or warning of any kind to the traveling public;
      that the presence of the car or cars themselves is all the warning
      the traveling public is entitled to unless the conditions were
      unusual.
Miss. Exp. R.R. Co. v. Summers, 11 So. 2d 429, 430 (Miss. 1943).
      However, there is an exception to the rule when “the railroad should
foresee that a motorist using ordinary care may not see the train because of a
peculiar environment or hazardous condition.” King, 337 F.3d at 553. Put
another way:
      A railroad has the right to occupy a crossing for its legitimate
      purposes, and, while so occupying it, the carrier is not required to
      maintain lights on its cars or to station a man with a lantern at
      the crossing to give warning that it is obstructed . . . by cars, unless
      the conditions and circumstances are such that the employees of the
      railroad know, or in the exercise of reasonable care and caution
      should have known, that a person driving upon the highway at a
      reasonable rate of speed in an automobile properly equipped with
      lights, and carefully operated, could not see, or might not be able
      to see, the cars in time to avoid a collision with them.
Owens v. Int’l Paper Co., 528 F.2d 606, 609 (5th Cir. 1976) (quoting Ill. Cent.
R.R. v. Williams, 135 So. 2d 831, 834 (Miss. 1961)) (emphasis added).
      To invoke this exception, the Mississippi Supreme Court has emphasized
that plaintiffs must show the existence of “unusual hazards” and “peculiar
conditions,” Boyd v. Ill. Cent. R.R. Co., 52 So. 2d 21, 25 (Miss. 1951), and the
court has described the factual inquiry as one to determine “whether [the]
crossing was more than ordinarily hazardous or dangerous,” Williams, 135 So.
2d at 835. We have interpreted this exception to be narrow, explaining that
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“there must be some peculiar environment which renders the crossing
unusually dangerous.” Owens, 528 F.2d at 609 (internal quotation marks
omitted). Further, we have cautioned that Mississippi courts set the bar high
and “have only found the exception applicable where extraordinary physical
environments or landscapes make the crossing difficult to see.” King, 337 F.3d
at 553.
      Ezell argues that the Occupied Crossing Rule should not bar his failure
to warn claim because of the conditions present on the night of the accident. In
sum, the conditions described by Ezell are a “kind of” foggy night, darkness
around the area of the track, a small dip in the road followed by an incline to
the track, a black train car, and that he could see a traffic light beyond the
railroad track. Although the conditions described by Ezell do resemble facts
present in some of the cases in which Mississippi courts applied the exception,
those cases involved a number of additional hazardous conditions that are not
present here and which rendered the conditions more clearly “peculiar” and
“unusually dangerous.” See, e.g., Boyd, 52 So. 2d at 22 (observing that, in
addition to a “slight dip” in the road, there was also no warning of any kind of
the approaching crossing (in violation of state law), and the only visible part of
the train blocking the crossing was the narrow, 15-18 inch bed of an empty
flatcar with its wheels positioned so that they were not visible to approaching
drivers and there was no light at all); Williams, 135 So. 2d at 835 (observing
that the approach to the crossing was an “abruptly steep and varied incline,”
which, combined with the unusually high grade of the crossing, created a
particularly hazardous approach).
      We agree with the district court that, even taking all of Ezell’s
allegations to be true, his summary judgment evidence fails to show that the
conditions on the night of the accident were “peculiar” and “unusually
dangerous” such that application of this narrow exception is appropriate.
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Owens, 528 F.2d at 609. As explained, the bar for the exception is high, and
Ezell’s evidence does not show “extraordinary physical environments or
landscapes.” King, 337 F.3d at 553. The relatively ordinary conditions
described by Ezell do not meet this threshold. Thus, the Occupied Crossing
Rule bars his failure to warn negligence claim. 7
                                            V
      Accordingly, we AFFIRM the district court’s judgment.




      7  At oral argument, KCSR invoked a recent Mississippi Supreme Court decision to
argue that our Occupied Crossing Rule analysis cannot consider hazardous factors that the
railroad cannot control, such as the conditions or characteristics of the road leading the
crossing. Because we find that the Occupied Crossing Rule bars Ezell’s claim regardless of
which of the alleged conditions we consider, we need not reach KCSR’s argument.
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