United States District Court, D. Kansas
NANCY LITTLE, individually and as personal representative of the estate of ROBERT L. RABE, Plaintiff,
THE BUDD COMPANY, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
Nancy Little brings this action individually and as the
personal representative of the estate of her father, Robert
L. Rabe, against defendant The Budd Company. Plaintiff
alleges that her father was exposed to asbestos-containing
pipe insulation while working as a Pipefitter for the
Atchison Topeka & Santa Fe Railroad (“ATSF”)
from 1951 into the mid-to-late 1970s. She contends that this
exposure caused her father to develop asbestos-related
malignant mesothelioma, causing his death on December 28,
allegedly manufactured passenger rail cars and sold them to
ATSF. Plaintiff contends that defendant placed asbestos and
asbestos-containing products into its railcars, thereby
exposing her father to asbestos during his employment with
ATSF. Plaintiff asserts Kansas state law claims for
negligence, strict product liability/design defect, and
strict product liability/warning defect. Alternatively,
plaintiff asserts a state law claim against defendant for
negligence per se based on defendant's alleged violation
of two federal statutes: (1) the Locomotive Inspection Act
(“LIA”), and (2) the Federal Safety Appliance Act
has filed a Motion for Judgment on the Pleadings under
Fed.R.Civ.P. 12(c). Doc. 22. Defendant asks the court to
dismiss plaintiff's state law claims because, it
contends, Congress's enactment of the LIA and SAA preempt
plaintiff from asserting state law claims based on alleged
exposure to asbestos contained in train equipment. Defendant
also seeks dismissal of the claim plaintiff pleads in the
alternative-i.e., the negligence per se claim based
on alleged LIA and SAA violations. Defendant argues that
these federal statutes confer no private right of action on
plaintiff and apply only to “railroad carriers.”
Defendant also argues that plaintiff's Complaint never
alleges that defendant violated a specific statutory
standard. Thus, defendant contends, plaintiff's
alternative claim fails to state a claim for relief against
considering the parties' arguments, the court denies
defendant's Motion for Judgment on the Pleadings. The
court explains why below.
27, 2016, plaintiff Nancy Little, individually and as
personal representative of the Estate of Robert L. Rabe,
deceased, filed this action against defendant The Budd
Company in the District Court of Shawnee County, Kansas. Doc.
1-1. On October 6, 2016, plaintiff filed a “First
Amended Original Petition.” Doc. 1-4. On November 2,
2016, defendant removed the action to our court, asserting
diversity jurisdiction under 28 U.S.C. § 1332.
court agrees that diversity jurisdiction exists here.
Plaintiff alleges that she is a Kansas citizen. Doc. 1-4
¶ 1. She also asserts that her father was a life-long
resident of Topeka, Kansas. Doc. 31 at 7. Plaintiff thus is a
citizen of Kansas for diversity jurisdiction purposes.
See 28 U.S.C. § 1332(c)(2) (“[T]he legal
representative of the estate of a decedent shall be deemed to
be a citizen only of the same State as the
decedent[.]”). Defendant is a Michigan corporation with
its principal place of business in Illinois. Doc. 1 at 2.
Defendant thus is a citizen of Michigan and Illinois.
See 28 U.S.C. § 1332(c)(1) (“[A]
corporation shall be deemed to be a citizen of every State
and foreign state by which it has been incorporated and of
the State or foreign state where it has its principal place
of business[.]”). Diversity of citizenship is present
amount in controversy also exceeds the $75, 000
jurisdictional requirement. Although plaintiff never asserts
an amount in controversy in either of her state court
pleadings, defendant has established that the amount in
controversy is satisfied based on plaintiff's alleged
injuries and requested relief. See McPhail v. Deer &
Co., 529 F.3d 947, 955 (10th Cir. 2008) (“A
complaint that presents a combination of facts and theories
of recovery that may support a claim in excess of $75, 000
can support removal.”). Here, plaintiff alleges that
defendant caused plaintiff's father “to suffer
severe and permanent injury to his person, to wit;
asbestos-related malignant mesothelioma resulting in his
death . . . .” Doc. 1-4 ¶ 3; see also Id.
¶¶ 11, 13, 19, 21, 28, and 30. Plaintiff seeks
general and special damages “including but not limited
to, damages for survival and wrongful death claims that
Plaintiff sustained both in her individual capacity and as
heir to [her father's] estate.” Id. ¶
38. And, plaintiff seeks punitive damages, costs, and
“all other and further relief permitted by law.”
Id. ¶ 38 and “Prayer for Relief.”
Based on these allegations and demands for relief, the court
finds that the $75, 000 amount in controversy requirement is
satisfied. See McPhail, 529 F.3d at 957 (holding
that defendant established the requisite amount in
controversy because, even though plaintiff never pleaded a
specific amount of damages, plaintiff's allegations of
wrongful death and the nature of the damages sought supported
a claim in excess of $75, 000).
the parties are diverse and the amount in controversy exceeds
$75, 000, the court has jurisdiction over this action under
28 U.S.C. § 1332.
following facts are taken from plaintiff's “First
Amended Original Petition” (Doc. 1-4),  accepted as true,
and viewed in the light most favorable to her. Ramirez v.
Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000)
(explaining that, on a motion for judgment on the pleadings,
the court must “accept the well-pleaded allegations of
the complaint as true and construe them in the light most
favorable to the plaintiff” (citation omitted)).
1951 until his retirement in 1979, Robert L. Rabe worked for
the ATSF in Shawnee County, Kansas, as a Pipefitter and in
other related capacities. As part of his job duties for ATSF,
Mr. Rabe was required to work with and around
asbestos-containing pipe insulation that defendant had
incorporated into passenger railcars it manufactured and sold
to ATSF. Mr. Rabe's exposure to asbestos caused him to
sustain severe and permanent injury to his body and
respiratory system. The asbestos exposure eventually caused
Mr. Rabe to develop malignant mesothelioma, resulting in his
death on December 29, 2012.
may move for judgment on the pleadings under Fed.R.Civ.P.
12(c) after the pleadings are closed but early enough not to
delay trial. Fed.R.Civ.P. 12(c). Courts evaluate a Rule 12(c)
motion under the same standard that governs a Rule 12(b)(6)
motion to dismiss. Jacobsen v. Deseret Book Co., 287
F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield
Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.
court will grant a motion for judgment on the pleadings only
when the factual allegations in the Complaint fail to
“state a claim to relief that is plausible on its face,
” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007), or when an issue of law is dispositive,
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556); see also Christy Sports, LLC v. Deer
Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir.
2009) (“The question is whether, if the allegations are
true, it is plausible and not merely possible that the
plaintiff is entitled to relief under the relevant
law.” (citation omitted)).
considering whether a plaintiff has stated a plausible claim,
the court must assume that the factual allegations in the
complaint are true. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). But, the court is
“‘not bound to accept as true a legal conclusion
couched as a factual allegation.'” Id.
(quoting Twombly, 550 U.S. at 555).
“‘Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice'” to state a claim for relief. Bixler
v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678). Also, the complaint's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citations omitted).
seeks dismissal of plaintiff's state law tort claims
based on a preemption theory. Defendant argues that the LIA
and SAA preempt all regulation of train equipment under state
law, including common law tort claims. So, defendant
contends, these federal statutes preclude plaintiff's
claims under Kansas law asserting negligence, strict product
liability/design defect, and strict product liability/warning
next argues that plaintiff's alternative state law
claim-one asserting negligence per se based on
defendant's alleged violation of the LIA and SAA-fails to
state a claim for relief. The court addresses each of
defendant's arguments, in turn, below.
Does Federal Law Preempt Plaintiff's State Law Tort
asserts that the LIA and SAA preempt the entire field of
state regulation over train equipment. Defendant thus
contends that federal preemption bars plaintiff's state
law tort claims because plaintiff bases these claims on her
father's alleged exposure to asbestos in passenger
railcars manufactured by defendant.
Supremacy Clause of the United States Constitution confers on
Congress the power to preempt state law. U.S. Const. Art. VI,
cl. 2. The clause provides that federal law is “the
supreme Law of the Land . . . any Thing in the Constitution
or Laws of any state to the Contrary notwithstanding.”
Id. “Pre-emption of state law thus occurs
through the ‘direct operation of the Supremacy
Clause.'” Kurns v. R.R. Friction Prods.
Corp., 565 U.S. 625, 630 (2012) (quoting Brown v.
Hotel Emps., 468 U.S. 491, 501 (1984)). The Supreme
Court has explained that “Congress may, of course,
expressly pre-empt state law, but ‘[e]ven without an
express provision for preemption, we have found that state
law must yield to a congressional Act in at least two
circumstances.'” Id. (quoting Crosby
v. Nat'l Foreign Trade Council, 530 U.S. 363, 372
(2000)). “First, ‘state law is naturally
preempted to the extent of any conflict with a federal
statute.'” Id. (quoting Crosby,
530 U.S. at 372). Second, state law is pre-empted
“‘when the scope of a [federal] statute indicates
that Congress intended federal law to occupy a field
exclusively.'” Id. at 630-31 (quoting
Freightliner Corp. v. Myrick, 514 U.S. 280, 287
court's analysis here deals with the second type of
preemption-field preemption. Defendant argues that Congress
intended to occupy the entire field of train equipment
regulation when it enacted the LIA and SAA. The court
disagrees. Neither of these two acts broadly preempts the
entire field of train equipment regulation. The court
explains its reasoning below, beginning with a description of
the two federal acts' history and then turning to discuss
each of the two statutes separately.
The History of the SAA and LIA
Third Circuit recently summarized the history of these two
federal statutes. In reAsbestos Prods.
Liability Litig. (No. VI), 822 F.3d 125, 128-29 (3d Cir.