United States District Court, D. South Carolina, Florence Division
Bryan Harwell Chief United States District Judge
matter is before the Court on Defendant CSX Transportation,
Inc.'s (“CSXT”) motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 4.
For the reasons set forth below, the Court denies CSXT's
motion to dismiss.
and Procedural Background
case arises out of a flooding incident that occurred in 2018.
See, generally, ECF No. 1-2 at 6-11
(“Compl.”). Plaintiff Home and Industrial
Mechanical Supplies, Inc. (“HIMS”), a South
Carolina corporation, is a hardware store which operates from
property it owns in Dillon, South Carolina. Id.
¶¶ 1, 4. CSXT is a Virginia corporation which owns
an embankment behind HIMS's property. Id.
¶¶ 2, 5-6.
in 2016, during Hurricane Matthew, CSXT's embankment
failed, storm water was diverted on to HIMS's property,
and HIMS's property flooded causing damages. Id.
¶ 5. Thereafter, CSXT reconstructed the embankment.
Id. HIMS alleges CSXT “failed to properly
develop and implement a drainage solution to prevent a
subsequent collapse of its embankment.” Id.
¶ 7. HIMS further claims CSXT “failed to properly
install a culvert, drain pipe, drainage solution, or proper
rail drainage system for the embankment following the 2016
events to prevent the subsequent embankment failure and
resulting damages . . . .” Id. ¶ 8.
September, 2018, Hurricane Florence moved through Dillon,
South Carolina. Id. ¶ 6. CSXT's embankment
again failed, and HIMS's property was flooded.
Id. HIMS's real property, personal property,
inventory, and business operations were significantly damaged
as a result of the embankment failure and resultant flooding.
February 21, 2019, HIMS filed suit against CSXT in the Court
of Common Pleas for Dillon County, South Carolina. Compl.
HIMS's complaint brought causes of action against CSXT
for: 1) nuisance; 2) negligence and gross negligence; 3)
negligent hiring, training, supervision and retention; and 4)
trespass. Id. On March 28, 2019, CSXT timely removed
to this Court. ECF No. 1.
April 2, 2019, CSXT filed the instant motion to dismiss. ECF
No. 4. On May 7, 2019, HIMS responded, ECF No. 9; CSXT
replied on May 22, 2019, ECF No. 13. This matter is thus ripe
motion filed under Rule 12(b)(6) challenges the legal
sufficiency of a complaint . . . considered with the
assumption that the facts alleged are true[.]”
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009) (citations omitted). The Court measures legal
sufficiency by determining whether the complaint meets the
Rule 8 standards for a pleading. Id. Rule 8
requires, in pertinent part, that a claim for relief contain
a “statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). “Each
allegation must be simple, concise, and direct.”
reviewing a motion under Rule 12(b)(6), the Court must
“accept all well-pleaded allegations in the
plaintiff's complaint as true and draw all reasonable
factual inferences from those facts in the plaintiff's
favor[.]” Edwards v. City of Goldsboro, 178
F.3d 231, 244 (4th Cir. 1999). However, the Court need not
accept as true allegations that are contradicted by exhibits
to the complaint. Veney v. Wyche, 293 F.3d 726, 730
(4th Cir. 2002) (citation omitted). To survive a Rule
12(b)(6) motion to dismiss, the plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563. A
complaint need not assert “detailed factual
allegations”; however, it must contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action” will not suffice.
Id. at 555 (citations omitted). Furthermore,
“a complaint must contain 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) (quoting
Twombly, 550 U.S. at 570). A claim has “facial
plausibility” where the pleading “allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss HIMS's
complaint in its entirety. ECF No. 4. In support of its
motion, CSXT first argues HIMS's claims against it are
preempted by the Interstate Commerce Clause Termination Act
(“ICCTA”). ECF Nos. 4 at 1; 4-1 at 2, 4-10; 13 at
1-8. According to CSXT, all HIMS's causes of action also
fail because HIMS insufficiently alleges CSXT caused
HIMS's damages. ECF Nos. 4 at 2; 4-1 at 2, 4-5, 16-17; 13
at 14-15. CSXT next advances because South Carolina follows
the common enemy rule regarding surface water, CSXT had no
duty to prevent water from running on to HIMS's property,
and thus HIMS's negligence claims fail. ECF Nos. 4 at 1; 4-1
at 1-2, 4, 10-15; 13 at 8-13. In relation to HIMS's
nuisance and trespass claims, CSXT avers those claims fail
because HIMS failed to show sufficient action to plead those
causes of action. ECF No. 4 at 1; 4-1 at 2, 4-5, 15-17; 13 at
11-14. HIMS responds that its claims are not expressly
preempted by ICCTA, it is premature to decide at this stage
whether ICCTA impliedly preempts HIMS's claims, and its
allegations are sufficiently well pled to withstand
CSXT's motion to dismiss. ECF No. 9. Accordingly, HIMS
argues the Court should deny CSXT's motion to dismiss.
Id. The Court will examine each of CSXT's
arguments in turn.
argues the ICCTA preempts all of HIMS's claims, and thus
HIMS's complaint is due to be dismissed. ECF Nos. 4 at 1;
4-1 at 2, 4-10; 13 at 1-8. HIMS responds that its claims are
not expressly preempted by the ICCTA, and it is too early to
decide whether the ICCTA preempts HIMS's causes of
action. ECF No. 9 at 1-2, 4-11. The Court agrees with HIMS:
it is premature to decide whether ICCTA preempts HIMS's
purpose of the ICCTA was to replace the Interstate Commerce
Commission with the Surface Transportation Board
(“STB”). PCS Phosphate Co., Inc. v. Norkfolk
S. Corp., 559 F.3d 212, 218 (4th Cir. 2009). The