Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pollicino v. Consolidated Rail Corporation

United States District Court, Third Circuit

October 4, 2013

IN RE PAULSBORO DERAILMENT CASES KATHLEEN POLLICINO, et. al., Plaintiffs,
v.
CONSOLIDATED RAIL CORPORATION, et al. Defendants. Civil No. 12-7648 (RBK/KMW)

OPINION (No. 19).

ROBERT B. KUGLER, District Judge.

This matter comes before the Court on the motion of Consolidated Rail Corporation, Norfolk Southern Railway Company, and CSX Transportation ("Defendants") to dismiss counts I, II, and III of this putative class-action complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

For the reasons stated herein, Defendants' Motion to dismiss in part will be GRANTED in part, and DENIED in part.

I. BACKGROUND

On the morning of November 30, 2012, a freight train derailed and plunged into the Mantua Creek in Paulsboro, Gloucester County, New Jersey when the Paulsboro Bridge, [1] a railroad bridge spanning the creek, buckled and collapsed. Compl. at ¶¶ 25-28. Four cars became partially submerged in the creek. Id. at ¶ 26. One of the derailed railcars released its cargo of vinyl chloride into the air and water. Id. at ¶ 28. As a result, the Borough of Paulsboro declared a state of emergency and shortly thereafter, residents of the area near the accident site were directed to evacuate or shelter in place. Id. at ¶¶ 33-35. Additional residents were evacuated in the days following the spill, and ultimately approximately six hundred people were evacuated from the area due to safety concerns related to the vinyl chloride spill. Id. at ¶ 34. The evacuation lasted for over one week. Id . Outside of the evacuation zone, Paulsboro residents were told to remain indoors and to seal windows and doors until a clean-up was completed. Id. at ¶ 35.

This suit was initially filed by Kathleen A. Pollicino and Nicole Williams, on behalf of themselves and a class of all other similarly situated persons who reside in Paulsboro, New Jersey who were forced to evacuate their homes or shelter in-place due to the derailment. Id. at ¶ 36. Pollicino later voluntarily dismissed her claims without prejudice. See Docket No. 14. Interim lead counsel was subsequently appointed for the several class action suits filed in connection with the derailment, including this case. See Docket No. 22. Plaintiffs allege that Defendants acted negligently and recklessly in their operation of the freight train and maintenance of the bridge. They allege that the train proceeded across the bridge against a red signal and that shortly before the derailment, Defendants had been notified of deficient conditions relating to the operation of the bridge, but failed to correct the problems. Compl. at ¶ 31. The putative class seeks damages including the loss of use and enjoyment, and diminution of value of the properties of class members. Id. at 60.

II. LEGAL STANDARD

A. Choice of Law

Because the Court hears this case pursuant to its diversity jurisdiction, 28 U.S.C. § 1332, it must apply state substantive law and federal procedural law. Chaimberlain v. Giampapa , 210 F.3d 154, 158 (3d Cir. 2000). The choice-of-law rules of the forum state control in this case. Warriner v. Stanton , 475 F.3d 497, 499-500 (3d Cir. 2007). Under New Jersey choice-of-law principles, there is a presumption that the law of the place of injury governs, unless another state has a more significant relationship to the parties and the issues. P.V. ex rel. T.V. v. Camp Jaycee , 197 N.J. 132, 142-43 (2008). Here, the parties point to no state other than New Jersey whose law would potentially apply to this matter; accordingly, we assume, as the parties have, that New Jersey bears the most significant relationship to the issues now before the Court.

B. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).

To make this determination, a court conducts a three-part analysis. Santiago v. Warminster Twp. , 629 F.3d 121, 130 (3d Cir. 2010). First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Id . (quoting Iqbal , 556 U.S. at 675). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 131 (quoting Iqbal , 556 U.S. at 680). Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id . (quoting Iqbal , 556 U.S. at 680). This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. Id.

III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.