Rushing v. Kansas City Southern Railway

Charles Ross represented Kansas City Southern Railway Company in the Circuit Court of Rankin County, Mississippi, against a claim that the company had created a private nuisance in operating its trains and switching yard. After removing the case to the U.S. District Court for the Southern District of Mississippi, Mr. Ross moved for summary judgment based on the fact that the plaintiffs’ state law nuisance claim was preempted by the federal Noise Control Act of 1972. The district court granted partial summary judgment; however, the Fifth Circuit Court of Appeals reversed the decision and remanded the case. While an appeal was pending, the plaintiffs filed another lawsuit in Rankin County Chancery Court alleging that Kansas City Southern negligently operated its switch yard thereby creating unbearable noise levels and vibrations resulting in real property damage and physical, mental and emotional health problems, and that the defendant was negligent in building an earthen berm adjacent to their property. Mr. Ross again removed the case, after which the two cases were consolidated. Mr. Ross then moved to have the action dismissed for lack of federal subject matter jurisdiction based on the fact that federal law states that the Surface Transportation Board has exclusive jurisdiction over claims arising out of switching operations conducted by railroads. The district court agreed with Mr. Ross and concluded that the plaintiffs’ state law nuisance and negligence claims pertaining to the complaints of vibrations and excessive noise were preempted by federal law in that they were directly related to the railroad’s switching operations. Therefore, the court granted Mr. Ross’ motion to dismiss for lack of federal subject matter jurisdiction. However, the court did find that it had federal subject matter jurisdiction over the plaintiffs’ state law claims relating to the defendant’s construction of the earthen berm because such construction was not directly related to the defendant’s switching operations.

United States District Court
S.D. Mississippi
Jackson Division
May 22, 2001