Appeal from Jefferson Circuit Court (CV-13-804)
Norfolk Southern Railway Company ("Norfolk Southern") petitioned this Court for permission to appeal, pursuant to Rule 5, Ala. R. App. P., the circuit court's denial of its motion to dismiss an action against it. We granted permission to appeal, and we reverse the order denying the motion to dismiss and render a judgment for Norfolk Southern.
Facts and Procedural History
James H. Goldthwaite has lived in Birmingham in the house he currently lives in for approximately 45 years. The house is adjacent to or near property on which are actively used railroad tracks owned by Norfolk Southern. The record indicates that Norfolk Southern now uses one of the railroad tracks located near Goldthwaite's house as a staging or temporary storage area for coal trains, which consist of empty rail cars and cars loaded with coal. It further appears that while a train is temporarily being stored on the railroad tracks at least one locomotive remains running.
In October 2013, Goldthwaite filed a complaint in Jefferson Circuit Court against Norfolk Southern alleging that his "life, health, liberty and possessions" have been harmed by noise and "noxious fumes" from the diesel locomotives that are left running in coal trains that are temporarily stored near his house.
In January 2014, Norfolk Southern had the case removed to the United States District Court for the Northern District of Alabama, Southern Division, on the ground that Goldthwaite's claims were completely preempted by the Interstate Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101 et seq. ("the ICCTA"), and that the federal district court, pursuant to 28 U.S.C. § 1331, had federal-question jurisdiction for the limited purpose of dismissing the action. In April 2014, the federal district court held that it lacked subject-matter jurisdiction over the action because Goldthwaite's state-law claims were not completely preempted by the ICCTA. Specifically, the federal district court held that Norfolk Southern had failed to satisfy its burden of proving complete preemption because the evidence did not establish that Goldthwaite had pleaded a clear-cut federal cause of action; rather, the court held, Goldthwaite had pleaded a state-law cause of action that may be preempted by federal law. Holding that removal of the action from state court was not proper, the federal district court remanded the case to the Jefferson Circuit Court. In its order, the federal district court stated:
"On remand, Norfolk Southern is free to raise its preemption defense because '[s]tate courts are competent to determine whether state law has been preempted by federal law and they must be permitted to perform that function in cases brought before them, absent a Congressional intent to the contrary.' Geddes [v. American Airlines, Inc.], 321 F.3d , 1357 [(11th Cir. 2003)]."
In May 2014, on remand to state court, Norfolk Southern moved the circuit court to dismiss the action, arguing, among other things, that Goldthwaite's claims were preempted under the ICCTA because, it maintained, the nuisance action was an attempt to regulate transportation by rail carrier and actions related to the regulation and operation of rail carriers, pursuant to the ICCTA, were within the exclusive jurisdiction of the Surface Transportation Board. In support of its motion, Norfolk Southern submitted an affidavit from Justin Meko, an assistant division superintendent for Norfolk Southern, in which he averred:
"1. I am Justin A. Meko, and I am over the age of nineteen (19) years and in no way disqualified from making this affidavit, which is made from personal knowledge.
"2. I am currently employed as Assistant Division Superintendent for the Alabama Division of Norfolk Southern Corporation and its operating subsidiaries, including Norfolk Southern Railway Company (hereafter referred to simply as 'Norfolk Southern'). Norfolk Southern is a rail carrier. Its Alabama Division is based in Irondale, Alabama, where my office is located. I have held this position since April 2013 and have worked for Norfolk Southern since 2004.
"3. I have reviewed the complaint filed by the plaintiff, Mr. Goldthwaite, in this lawsuit, and have spoken in the past to him and his wife. As I understand it, Mr. Goldthwaite is complaining about the fact that, on occasion (primarily on weekends), Norfolk Southern has to use one of the railroad tracks located near his house as a staging or temporary storage area for coal trains (containing both empty rail cars and cars loaded with coal) traveling between the coal mine at Berry, Alabama (operated by Walter Energy, Inc.) and Alabama Power Company's coal-fired electric generating plant located near Wilsonville, Alabama (the Gaston Steam Plant, often referred to on the railroad as the 'Yellowleaf' plant). I understand that Mr. Goldthwaite is further complaining about the fact that, when the coal trains are temporarily left in this area, at least one locomotive of the train consist is kept running, resulting (according to Mr. Goldthwaite) in noise and fumes.
"4. As I have attempted to explain to Mr. Goldthwaite, the reason why the area of track near his house is sometimes used as a staging or temporary storage area as described above pertains directly to the rail transportation services provided by Norfolk Southern. In particular, the track capacity at the Berry coal mine and Yellowleaf steam plant facilities is such that these coal trains must on occasion (again, normally on weekends) be temporarily stored somewhere between the two facilities. The best location for that temporary storage, considering all of the rail transportation services provided by Norfolk to its various customers and the available track, is the area of track that happens to be near [Goldthwaite's] house. Using any other location for this needed temporary storage would disrupt Norfolk Southern's operations and the transportation services it provides to a number of customers.
"5. As I have also attempted to explain to Mr. Goldthwaite, the reason why at least one locomotive of the train consist is kept running when the coal trains are temporarily stored on the area of track near his house also pertains directly to the rail transportation services provided by Norfolk Southern. In particular, if all of the locomotives of a train consist are shut down, the air line that operates the train's main air-brake system is shut down. If that happens (referred to as the train being 'off air') for more than four hours, a Class I brake inspection and test must be done by a qualified person for each locomotive and each car in the train before the train may be operated again. This is required by federal regulation, namely 49 C.F.R. § 232.205, as well as by Norfolk Southern's Rules for Equipment Operation and Handling, specifically Rule A-6. Coal trains such as the ones which are on occasion being temporarily stored on the area of the track near Mr. Goldthwaite's house are typically comprised of approximately one hundred (100) rail cars (hopper cars, for this kind of train) plus locomotives. To have to do a Class I brake test for each of the cars and locomotives on each of the trains stored in this area would require considerable resources and would adversely affect Norfolk Southern's ability to provide rail transportation services to its customers. Indeed, Norfolk Southern's Rules for Equipment Operation and Handling, specifically Rule L-2389(k) require that the lead locomotive of the trains which are ...