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Griffioen v. Cedar Rapids and Iowa City Railway Co.

United States Court of Appeals, Eighth Circuit

May 7, 2015

Mark Griffioen, individually and on behalf of all others similarly situated; Joyce Ludvicek, individually and on behalf of all others similarly situated; Mike Ludvicek, individually and on behalf of all others similarly situated; Sandra Skelton, individually and on behalf of all others similarly situated; Brian Vanous, individually and on behalf of all others similarly situated, Plaintiffs - Appellants
v.
Cedar Rapids and Iowa City Railway Company; Alliant Energy Corporation; Union Pacific Railroad Company; Union Pacific Corporation; Hawkeye Land Co.; Hawkeye Land II Co.; Hawkeye Land NFG, Inc.; Stickle Enterprises, Ltd.; Midwestern Trading, Inc.; Midwest Third Party Logistics, Inc., also known as Midwest 3PL; Stickle Grain Co.; Stickle Warehousing, Inc.; Rick Stickle; Marsha Stickle, Defendants - Appellees

Submitted October 7, 2014.

Page 1183

[Copyrighted Material Omitted]

Page 1184

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids.

For Mark Griffioen, individually and on behalf of all others similarly situated, Joyce Ludvicek, individually and on behalf of all others similarly situated, Mike Ludvicek, individually and on behalf of all others similarly situated, Sandra Skelton, individually and on behalf of all others similarly situated, Brian Vanous, individually and on behalf of all others similarly situated, Plaintiffs - Appellants: Curtis Brooks Cutter, John R. Parker, Eric J. Ratinoff, Kershaw & Cutter, Sacramento, CA; Russell George Petti, Law Offices of Russell G. Petti, La Canada, CA; Sam Sheronick, Sam Sheronick Law Firm, Cedar Rapids, IA.

For Cedar Rapids and Iowa City Railway Company, Alliant Energy Corporation, Defendants - Appellees: Kevin Heath Collins, Nyemaster & Goode, Cedar Rapids, IA; John Michael Devaney, Perkins & Coie, Washington, DC; David E. Jones, Rhett Martin, Perkins & Coie, Madison, WI; Eric Miller, Perkins & Coie, Seattle, WA.

For Union Pacific Railroad Company, Defendant - Appellee: Charles Glaston Cole, Alice Elizabeth Loughran, Steptoe & Johnson, Washington, DC; Charles Thomas Hvass Jr., Donna Law Firm,P.C., Minneapolis, MN; Bruce E. Johnson, Cutler Law Firm, West Des Moines, IA.

For Union Pacific Corporation, Defendant - Appellee: Charles Glaston Cole, Alice Elizabeth Loughran, Steptoe & Johnson, Washington, DC; Charles Thomas Hvass Jr., Donna Law Firm,P.C., Minneapolis, MN; Bruce E. Johnson, Cutler Law Firm, West Des Moines, IA.

For Hawkeye Land Co., Hawkeye Land II Co., Hawkeye Land NFG, Inc., Stickle Enterprises, Ltd., Midwestern Trading, Inc., Midwest Third Party Logistics, Inc., also known as: Midwest 3PL, Stickle Grain Co., Stickle Warehousing, Inc., Rick Stickle, Marsha Stickle, Defendants - Appellees: Brian Thomas Fairfield, Jeffrey Craig McDaniel, Brooks Law Firmm, Rock Island, IL; Jon M. McCright, Lynch & Dallas, Cedar Rapids, IA.

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.

OPINION

Page 1185

WOLLMAN, Circuit Judge.

Mark Griffioen, Joyce and Mike Ludvicek, Sandra Skelton, and Brian Vanous (collectively, the Griffioen Group) filed an action seeking recovery for property damage that occurred during the June 2008 flooding of the Cedar River. They now appeal from the district court's order and judgment denying their motion to remand the action to state court, granting the motion for judgment on the pleadings filed by Union Pacific Railway Company and Union Pacific Corporation (collectively, Union Pacific), and dismissing the claims against all defendant-appellees (collectively, the Rail Group). We vacate the order and judgment and remand for the action to be remanded to state court.

I.

The Griffioen Group brought a putative class action in Iowa state court against Union Pacific, Cedar Rapids and Iowa City Railway Co. and Alliant Energy Corp. (collectively, CRANDIC), and ten additional defendants (collectively, the Stickle Defendants),[1] alleging negligence, strict liability for abnormally dangerous or ultra-hazardous activity, and strict liability based on violations of Iowa Code sections 468.148 and 327F.2. They allege that the Rail Group's failure to properly build and maintain railway bridges over the Cedar River caused or exacerbated the 2008 flood. They also allege that the decision of some members of the Rail Group to attempt to stabilize the bridges by weighing them down with railcars filled with ballast caused or exacerbated the flooding of their properties, either because the bridges collapsed and effectively dammed the river and blocked drainage, or because the railcars on bridges that did not collapse blocked the free flow of the river and diverted water into low-lying areas.

CRANDIC was served with the complaint on June 7, 2013. The Stickle Defendants were served on June 8, 2013, and Union Pacific was served on June 10, 2013. On July 2, 2013, Union Pacific filed a Notice of Removal that asserted federal-question jurisdiction arising from the complete preemption created by the Federal Railway Safety Act (FRSA). The notice stated, " Undersigned counsel . . . have contacted attorneys for the other named co-defendants in this matter, and there is no objection to removal." Accompanying the affidavit was a local rule certification that stated, " The co-defendants have given their consent to the removal of this action." On July 10, 2013, CRANDIC filed its notice of consent to removal. The Stickle Defendants, however, did not file a notice of consent to removal until July 31, 2013--more than 30 days after Union Pacific was served with the complaint. By that time, the Griffioen Group had filed a motion to remand, arguing that the FRSA does not completely preempt their claims and that

Page 1186

removal was improper because not all defendants had timely consented. CRANDIC, the Stickle Defendants, and Union Pacific all filed briefs in opposition to the motion to remand, arguing that removal was proper. The Stickle Defendants' brief in opposition stated that their counsel had told Union Pacific that they had " no objection to removal." In their briefs in opposition, the Rail Group abandoned the FRSA argument, contending instead that the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. § § 701-727, 10101-16106, completely preempted the Griffioen ...


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