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September 20, 1996


The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This case, which invokes this court's infrequently exercised jurisdiction over federally created corporations in which the United States is the majority shareholder, requires this court to predict how the New Jersey Supreme Court would decide a seemingly "pedestrian," but still novel question of New Jersey law: Whether a plaintiff who trips over a weed growing over a sidewalk from an abutting railroad bridge may hold the railroad responsible for her injuries when the railroad does not own, maintain, or directly benefit from the sidewalk? Based upon the undisputed facts contained in the summary judgment record before this court, for the reasons which follow, I predict that the New Jersey Supreme Court, if presented with these facts, would conclude that the railroad is not liable to the plaintiff. Therefore, Amtrak's motion for summary judgment will be granted.

 Plaintiff, Valerie Hollus ("Hollus" or "plaintiff"), commenced this action on January 4, 1995, against Amtrak Northeast Corridor ("Amtrak"), Conrail and various state and municipal entities, seeking damages for a slip and fall which is alleged to have taken place in the City of New Brunswick on May 10, 1994. Plaintiff filed her original complaint in the Law Division of the Superior Court of New Jersey, Middlesex County. Pursuant to 28 U.S.C. § 1441, defendant, Amtrak, filed its Notice of Removal in this court on March 8, 1995. The City of New Brunswick, the County of Middlesex, Amtrak, Conrail, the State of New Jersey and New Jersey Transit have all filed cross-claims.

 On May 1, 1996, Hollus amended her complaint to allege claims of medical malpractice against the Raritan Bay Medical Center and the individual defendants and other entities involved in her medical care following the May 10, 1994 incident ("the medical defendants"). Removal jurisdiction is based upon 28 U.S.C. §§ 1331, 1349. *fn1" Supplemental jurisdiction over Hollus's claims against the remaining defendants is conferred upon this court by 28 U.S.C. § 1367.

 Amtrak, Conrail and the County of Middlesex have each moved for summary judgment pursuant to Fed. R. Civ. P. 56(b). Plaintiff opposes these summary judgment motions. In addition, Conrail opposes Amtrak's motion for summary judgment. The medical defendants have taken no position on the instant motions. As noted above, Amtrak's motion for summary judgment will be granted. The remaining motions will be denied without prejudice and the case remanded to the Law Division of the Superior Court of New Jersey, Middlesex County, pursuant to 28 U.S.C. § 1367(c)(3). *fn2"

 I. Facts and Procedural History

 With the exception of Amtrak, the moving defendants all contend that, because they did not then own, control or maintain the railroad bridge, they owed no legal duty to Hollus at the time of the accident. Amtrak admits ownership of the railroad bridge over Bayard Street, but nevertheless asserts that it owes no duty to Hollus to keep the sidewalk abutting the bridge free of grass and weeds. Amtrak contends that it does not now, and never has assumed responsibility for the maintenance of the sidewalk, which it does not own, or for control of the weeds overgrowing the sidewalk. Affidavit of Jeffrey Pitkin PP 3-4.

 II. Standard for Summary Judgment

 The standard for summary judgment requires that this court view the underlying facts and all reasonable inferences taken therefrom in the light most favorable to the party opposing the motion. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted); see also Helen L. v. DiDario, 46 F.3d 325, 329 (3d Cir.), cert. denied, 116 S. Ct. 64 (1995); Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 200 (3d Cir. 1995); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977).

 Summary judgment should be granted only if this court concludes that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996).

 The party may seek summary judgment on an issue on which its adversary will bear the burden at trial, by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). There is no requirement that the moving party "support its motion with affidavits or similar materials negating the opponent's claim." Id.

 Once the moving party has carried its initial burden, the nonmoving party "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)) (emphasis added in Matsushita). When challenged on an essential element of its claim, the non-movant must present evidence in support of its claim in order to survive summary judgment. Celotex, 477 U.S. at 324 (1986).

 The question for this court, then, is whether Hollus, or the cross-claimants, have presented sufficient evidence to create a dispute regarding a genuine issue of material fact, viewing the evidence in the light most favorable to them. Gottshall v. Consolidated Rail Corp., 56 F.3d 530 (3d Cir. 1995); Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1381 (3d Cir. 1991). "Facts that could alter the outcome are 'material', and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted).

 III. Discussion

 a) Jurisdiction and Applicable Law

 This court is obligated to consider whether subject matter jurisdiction exists, even though the parties have never questioned federal jurisdiction or put it at issue in these motions. Fed. R. Civ. P. 12(h)(3). This case presents an unusual exercise of this court's federal question jurisdiction, that of jurisdiction over cases involving federally-chartered stock corporations in which the United States is the majority shareholder. See 28 U.S.C. §§ 1331, 1349. *fn3"

 The question whether the "arising under" clause of Article III conferred jurisdiction on the federal courts solely by virtue of a corporate plaintiff's federal charter was resolved by Chief Justice Marshall in favor of federal jurisdiction in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824). *fn4" Subsequently, the Supreme Court held that ordinary tort actions against federally-chartered railroads were automatically actions "arising under" the laws of the United States. The Pacific Railroad Removal Cases, 115 U.S. 1, 29 L. Ed. 319, 5 S. Ct. 1113 (1885). This holding is now generally thought to have been an excessively expansive reading of the congressional grant of "arising under" jurisdiction. See 13B Charles A. Wright, et al., Federal Practice and Procedure § 3562, at 23 (2d ed. 1984). Anticipating a flood of such federal incorporation suits, and perceiving a need to shield the federal courts from the burden of adjudicating such claims, Congress, in 1915, restricted jurisdiction over federally-chartered railroads, and, in 1925, enacted the predecessor of 28 U.S.C. § 1349. See id. § 3571, at 177-78.

 Section 1349 currently provides: "The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half its capital stock." Thus, Section 1349 has partially overruled Osborn and, particularly, The Pacific Railroad Removal Cases.

 Congress incorporated the National Railroad Passenger Corporation ("Amtrak") in 1970. Act of October 30, 1970, Pub. L. No. 91-518, 84 Stat. 1327 (codified as amended at 49 U.S.C. § 24101-24709). *fn5" Because a majority of the capital stock of Amtrak is owned by the United States, the federal courts have subject matter jurisdiction over any action involving Amtrak. See Jones v. National Railroad Passenger Corp., 1994 U.S. Dist. LEXIS 15946, No. 94-2332, 1994 WL 608597 *2 (D. Kan. 1994); Estate of Wright v. Illinois Central R. Co., 831 F. Supp. 574 (D. Miss. 1993). Cf. Hicks v. Amtrak Corp., 1989 U.S. Dist. LEXIS 7092, CIV. A. No. 89-2429, 1989 WL 71274 (E.D. Pa. 1989) (Federal courts have jurisdiction over cases involving Amtrak, assuming all procedural requirements of § 1441(a) have been followed.).

 Ordinarily, in exercising federal question jurisdiction, a district court is called upon to interpret and apply federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986) (stating that in "the vast majority" of cases under § 1331, federal law "creates the cause of action"). However, Congress was silent concerning tort liability in the statutes creating and funding Amtrak. There is "no federal general common law." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Sensibly, therefore, "a federal court applies state law when it decides an issue not addressed by federal law, regardless of the source from which the cause of action is deemed to have arisen for the purpose of establishing federal jurisdiction." A.I. Trade Finance, Inc. v. Petra Int'l Banking Corp., 314 U.S. App. D.C. 122, 62 F.3d 1454, 1463 (D.C. Cir. 1995). Accordingly, the tort law of New Jersey, as enunciated by the New Jersey Supreme Court, is applicable to this action.

 b) Amtrak's Motion for Summary Judgment

 Amtrak admits that it owns the railroad bridge, which is elsewhere designated as Undergrade Bridge 31.63, that runs over a portion of Bayard Street in the City of New Brunswick. Amtrak's Rule 12G Statement P 3; Affidavit of Jeffrey Pitkin P 3. For the purposes of this motion, Amtrak accepts as true the allegation that Hollus was walking on the sidewalk, and tripped or slipped on a weed which was obstructing the sidewalk beneath the bridge. Memorandum of Law in Support of Defendant, Amtrak's Cross-Motion for Summary Judgment and in Opposition to Co-Defendants' Motions for Summary Judgment ("Amtrak's Brief") at 1.

 Notwithstanding its ownership of the bridge, Amtrak contends that summary judgment is appropriate because Amtrak owed no legal duty to Hollus at the time of the accident. Amtrak presents two alternative arguments in support of summary judgment, as follows: (1) Amtrak is not in the category of owners of abutting property that owe a legal duty to pedestrians to maintain the sidewalk, and (2) federal law preempts a common-law negligence action arising out of Amtrak's alleged failure to maintain a sidewalk beneath a railroad bridge.

 Plaintiff vigorously opposes summary judgment, contending that Amtrak was responsible for the "vegetation which grew out of the stone side-wall of the railroad bridge out onto the sidewalk." Plaintiff's Letter Brief dated July 29, 1996 at 3. As noted above, defendant, Conrail, also opposes Amtrak's motion for summary judgment.

 c) The Law of Sidewalk Liability in New Jersey

 It was long the law in New Jersey, as elsewhere, that an individual who was injured by reason of a failure to comply with an ordinance mandating that sidewalks be kept in good repair and free of obstructions, could not maintain an action against an individual landowner whose neglect had caused the injury. Fielders v. North Jersey St. Ry. Co., 68 N.J.L. 343, 352, 53 A. 404 (N.J. 1902) (citing the "general acceptance" in New Jersey of the rule set forth in Taylor v. Railroad Co., 45 Mich. 74, 7 N.W. 728 (Mich. 1881), that any duty imposed by ordinance upon abutting property owners to maintain and clear sidewalks of snow and ice runs to the public "at large" and creates no private ...

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