Petition for Writ of Certiorari — CSX Transportation, Inc., Petitioner v. Norfolk Southern Railway Company, et al.

Supreme Court briefNov 26, 2024

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APPENDICES

TABLE OF CONTENTS

Page

Appendix A – Opinion of the Fourth Circuit

(Aug. 29, 2024) .......................................... 1a

Appendix B – Mandate from the Fourth Circuit (Sept. 20, 2024) .................................. 25a

Appendix C – Opinion and Order Granting

Defendants’ Motions Seeking the

Resolution of the Remaining State

Law Injunctive Claim (E.D. Va. Apr.

19, 2023) .................................................... 27a

Appendix D – Opinion and Order Granting

Defendants’ Motion Seeking Dismissal

of CSX’s Federal Antitrust Injunctive

Relief Claims (E.D. Va. Jan. 27, 2023) .... 50a

Appendix E – Opinion and Order Granting

in Part and Denying in Part Defendants’ Motions for Summary Judgment

(E.D. Va. Jan. 3, 2023).............................. 75a

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 23-1537

________________

CSX TRANSPORTATION, INC., individually and on

behalf of Norfolk & Portsmouth Belt Line Railroad

Company,

Plaintiff − Appellant,

NORFOLK SOUTHERN RAILWAY COMPANY;

NORFOLK & PORTSMOUTH BELT LINE RAILROAD COMPANY,

Defendants – Appellees,

________________

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge.

(2:18−cv−00530−MSD−RJK)

________________

Argued: March 21, 2024 Decided: August 29, 2024

________________

Before DIAZ, Chief Judge, QUATTLEBAUM and

RUSHING, Circuit Judges.

________________

Affirmed by published opinion. Chief Judge Diaz

wrote the opinion, in which Judge Quattlebaum and

Judge Rushing joined.

________________

ARGUED: Charles Alan Rothfeld, MAYER BROWN,

LLP, Washington, D.C., for Appellant. Shay

Dvoretzky, SKADDEN, ARPS, SLATE, MEAGHER &

FLOM LLP, Washington, D.C.; William Ryan Snow,

CRENSHAW WARE & MARTIN, PLC, Norfolk, Virginia, for Appellees. ON BRIEF: Benjamin L. Hatch,

Robert W. McFarland, MCGUIREWOODS, LLP, Norfolk, Virginia; Michael A. Scodro, Chicago, Illinois,

Evan M. Tager, Carmen N. Longoria-Green, MAYER

BROWN LLP, Washington, D.C., for Appellant. Alan

Durrum Wingfield, Michael Edward Lacy, Richmond,

Virginia, John Curtis Lynch, Megan Burns, Kathleen

Michelle Knudsen, TROUTMAN PEPPER HAMILTON SANDERS LLP, Virginia Beach, Virginia; Parker Rider-Longmaid, Steven Marcus, SKADDEN,

ARPS, SLATE, MEAGHER & FLOM LLP, Washington D.C., for Appellee Norfolk Southern Railway Co.

James Long Chapman, IV, Alexander Ryan McDaniel,

CRENSHAW WARE & MARTIN, PLC, Norfolk, Virginia, for Appellee Norfolk & Portsmouth Belt Line

Railroad Co.

DIAZ, Chief Judge:

The issue in this case is whether an exception to

the Sherman Act’s four-year statute of limitations, 15

U.S.C. § 15b, applies to otherwise untimely Sherman

Act claims for damages.

CSX Transportation, Inc., sued the Norfolk

Southern Railway Company and the Norfolk &

Portsmouth Belt Line Railroad Company in 2018.

CSX contends that Norfolk Southern and Belt Line

conspired—in violation of the Sherman Act—to

exclude it from competing in the international

shipping market at the Norfolk International

Terminal of the Port of Virginia. They did this, alleges

CSX, by imposing an effectively exclusionary “switch

rate,” beginning in 2010 (and continuing to the

present day), for the on-dock rail access CSX needs to

conduct its operations at the Norfolk Terminal.

According to CSX, it suffered injury to its business

each day the rate remained in effect.

“Generally, a [federal antitrust] cause of action accrues and the statute begins to run when a defendant

commits an act that injures a plaintiff’s business.”

Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S.

321, 338 (1971). It’s undisputed that CSX’s Sherman

Act claims first accrued in 2009 and 2010, when the

Defendants implemented the allegedly exclusionary

switch rate. Also undisputed is that CSX filed this

lawsuit in 2018, almost nine years after its claims first

accrued.

The question presented is whether CSX’s claims

can survive dismissal based on an exception to the

general accrual rule for antitrust causes of action—

specifically, the “continuing-violation” or “continuingconspiracy” doctrine the Supreme Court recognized in

Zenith. That exception provides that “[i]n the context

of a continuing conspiracy to violate the antitrust laws

. . . each time a plaintiff is injured by an act of the

defendants a cause of action accrues to him to recover

the damages caused by that act and that, as to those

damages, the statute of limitations runs from the commission of the act.” Id. According to CSX, the statute

of limitations restarted—and a new cause of action accrued—each day that Norfolk Southern and Belt Line

imposed the exclusionary rate.

The district court disagreed and granted

judgment to the Defendants. Like the district court,

we find that CSX hasn’t shown that the continuingviolation doctrine applies. The decision to keep the

allegedly exclusionary switch rate in place didn’t

trigger the doctrine because that conduct didn’t inflict

new harm causing new injury to CSX within the

limitations period. And even if we accept that the

Defendants committed some other act within the

limitations period in furtherance of a conspiracy, CSX

has failed to prove the second continuing-violation

requirement: “the damages caused by that act”—

which are the only damages it can “recover” under this

exception. Id.

Therefore, we affirm the district court court’s

judgment.

“Because this appeal follows the district court’s

grant of the [Defendants’] motion for summary

judgment, we recount the facts . . . in the light most

favorable to [CSX], the non-moving party.” SD3 II

LLC v. Black & Decker (U.S.) Inc., 888 F.3d 98, 103

(4th. Cir. 2018).

The Port of Virginia is a major East Coast hub of

the international shipping market. Norfolk

International Terminal “is one of two primary [Port of

Virginia] terminals where international container

ships offload their cargo.” CSX Transp., Inc. v. Norfolk

S. Ry. Co., 648 F. Supp. 3d 679, 688 (E.D. Va. 2023).

Generally,

companies

transporting

shipping

containers to and from overseas destinations via

ocean carriers contract with domestic railroad

companies like CSX and Norfolk Southern to move

their cargo at the Norfolk Terminal for transport to

and from inland destinations. See id. at 687–88.

“Intermodal” transportation—“the use of two

modes of freight . . . to transport goods from shipper

to consignee”—can, as is the case here, involve the use

of both ship and rail. J.A. 49 ¶ 3 n.1. CSX and Norfolk

Southern “vigorously compete for the domestic rail

transportation

international

‘intermodal’

containers delivered to and from various East Coast

ports [by container ships], including [those delivered

at] the Port of Virginia.” CSX Transp., 648 F. Supp.

3d at 687–88.

Belt Line is a “terminal and switching railroad”

company that operates at the Port of Virginia. Id. at

687. It facilitates “interchange of [railroad] cars

among the railroads” operating in Hampton Roads,

Virginia, “and connection to the port,” J.A. 48 ¶ 1, via

“[its] own tracks and tracks on which [it] has rights to

operate,” J.A. 276.

Belt Line “was established in 1896 as a joint

venture of eight railroads to provide switching

services in Norfolk, Portsmouth[,] and Chesapeake,

Virginia.” Norfolk S. Ry. Co. v. Surface Transp. Bd.,

72 F.4th 297, 301 (D.C. Cir. 2023), cert. denied, 144 S.

Ct 1343 (2024). Its ownership structure has since

changed. Today, CSX and Norfolk Southern are Belt

Line’s sole remaining shareholders, with CSX owning

a minority stake. See id. at 302.

The dispute here centers on rail access to the

docks at the Norfolk Terminal.

Norfolk Southern accesses the docks directly over

tracks that it owns. Belt Line also uses Norfolk

Southern’s tracks to access the docks. In contrast,

CSX doesn’t own on-dock tracks at the Terminal; it

can only access it via Belt Line’s access. To do so, CSX

pays “[a] ‘switch rate,’ which is the cost per train car

‘well’ that Belt Line charges customers to use its

tracks/switching services.”1 CSX Transp., 648 F.

Supp. 3d at 688.

Alternatively, CSX can load containers delivered

to the terminal dock onto trucks, which then transport

them to a local railyard to be loaded onto a CSX

train—“a practice referred to as ‘drayage.’” Id. But

CSX vigorously disputes whether drayage is a

“suitable” alternative to on-dock rail access. See id. at

726 (emphasis omitted).

Effective in early 2010, Belt Line’s Board

increased the switch rate to $210 per well. CSX

alleges that the new rate made it economically

impractical for it to access the Norfolk Terminal.

1 CSX defines a “well” as “a railcar designed to carry vertically

stacked containers.” Appellant’s Br. at 7 n.3.

Appellant’s Br. at 7. According to CSX, “[t]he [new]

switch rate has had the practical effect of almost

entirely precluding [it] from offering on-dock rail

service at [the Terminal],” which is essential to its

business. Id. at 8.

CSX doesn’t claim that it paid the rate or took any

other action from 2010 through 2015. In 2015,

however, heavy shipping traffic across the East Coast

made it more difficult for CSX to move shipping

containers via drayage. As a result, CSX alleges, it

was forced to pay Belt Line’s $210 rate.2

CSX asserts that Norfolk Southern and Belt Line

took other action to impede its operations at the

Norfolk Terminal. For instance, CSX claims—and the

district court found—“that at least one CSX train was

materially delayed” in 2015 by the actions of Norfolk

Southern, Belt Line, or both. CSX Transp., 648 F.

Supp. 3d at 706 n.14. CSX also alleges that “[Norfolk

Southern], and possibly [Belt Line], acted to obstruct,

or aided in the obstruction of, CSX’s train movements

during 2015, [which] result[ed] in CSX’s temporary

loss of business from one of its existing customers for

a period of several weeks.” Id. at 706 (emphasis

omitted).

In 2018, CSX offered to pay Belt Line a switch rate

of $80 in exchange for a promise to move a minimum

annual volume of train cars. But the Belt Line Board

never voted on the proposal, nor did CSX seek a vote.

See id. at 715.

CSX also asked that Belt Line’s Board be

restructured “to . . . afford CSX equal representation.”

2 We don’t know how many times CSX paid the switch rate.

Id. at 714. And it raised the possibility of establishing

an independent “rate committee” to review its $80

switch rate proposal. See id. at 714–16.

Using its majority stake, Norfolk Southern voted

its shares against CSX’s Board-modification

proposal.3 And while both Norfolk Southern and Belt

Line discussed the rate-committee proposal, nothing

ever came of it.

CSX sued Norfolk Southern and Belt Line in

federal court, raising claims for, as relevant here: (1)

conspiracy to restrain trade, in violation of Section 1

of the Sherman Act, 15 U.S.C. § 1, against Norfolk

Southern and Belt Line (Count One); (2) conspiracy to

monopolize the relevant market, in violation of

Section 2 of the Sherman Act, 15 U.S.C. § 2, against

Norfolk Southern and Belt Line (Count Two); (3)

monopolization, in violation of Section 2 of the

Sherman Act, 15 U.S.C. § 2, against Norfolk Southern

(Count Three); and (4) attempted monopolization, in

violation of Section 2 of the Sherman Act, 15 U.S.C. §

2, against Norfolk Southern (Count Four). CSX sought

both damages and injunctive relief for these

violations.

Norfolk Southern and Belt Line moved to dismiss

several of the counts against them. The district court

3 The district court concluded that this shareholder vote wasn’t

an overt act sufficient to invoke the continuing violation doctrine.

CSX Transp., 648 F. Supp. 3d at 716–17. CSX doesn’t address

the merits of this ruling in its briefs, so we won’t discuss it further.

granted Belt Line’s motion only as to CSX’s tortious

interference claim (Count Seven).

Separately, Norfolk Southern challenged the

district court’s jurisdiction and asserted an immunity

defense. As an alternative to granting relief on either

theory, Norfolk Southern asked the district court to

refer the issues to the United States Surface

Transportation Board.4 J.A. 234.

The district court denied relief in part but referred

the immunity issue to the Surface Transportation

Board. The Board then rejected Norfolk Southern’s

immunity claim, and the D.C. Circuit later affirmed.

See Norfolk S. Ry. Co. v. Surface Transp. Bd., 72 F.4th

297 (D.C. Cir. 2023), cert. denied, 144 S. Ct. 1343

(2024).

At the close of discovery, Norfolk Southern and

Belt Line moved for summary judgment on the ground

that CSX’s claims were time-barred. By this point,

only the Sherman Act Section 1 and 2 claims, Virginia

4 The Interstate Commerce Act, 49 U.S.C. §§ 10101 et seq., 11301

et seq., grants the Surface Transportation Board “exclusive authority to examine, condition, and approve proposed mergers and

consolidations of transportation carriers within its jurisdiction.”

Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S.

117, 119–20 (1991). And under the Act, “[a] rail carrier . . . participating in [a] [Board-]approved or [-]exempted [merger or acquisition] is exempt from the antitrust laws and from all other

law, including State and municipal law, as necessary to let that

rail carrier, corporation, or person carry out the transaction,

hold, maintain, and operate property, and exercise control or

franchises acquired through the transaction.” 49 U.S.C. §

11321(a).

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state-law conspiracy claims, and Virginia state-law

breach of contract claims remained.

In an exhaustive opinion, the district court agreed

with Norfolk Southern and Belt Line that, as to the

federal antitrust claims for damages, CSX’s action

was untimely, and it entered judgment accordingly.5

From that order, CSX appeals.

II.

We review a grant of summary judgment de novo,

“drawing all reasonable factual inferences in favor of

the nonmoving party.” Hixson v. Moran, 1 F.4th 297,

302 (4th Cir. 2021). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.

CSX maintains that its otherwise untimely

Sherman Act claims—brought almost nine years after

5 The district court also dismissed the remaining state law claims

for various reasons. The only argument CSX makes on appeal as

to these claims is that “if this [c]ourt reverses the district court’s

federal statute-of-limitations ruling, it also should vacate the district court’s state-law ruling and remand for reconsideration in

light of the Court’s decision.” Appellant’s Br. at 18 n.7. But as we

affirm the district court, we decline to address these claims further.

The court did order that a “court-raised issue of injunctive relief” would proceed to trial. CSX Transp., 648 F. Supp. 3d at 731.

But it later dismissed all claims for injunctive relief. See J.A.

379—405 (order dismissing federal antitrust injunctive relief

claims); J.A. 406—29 (order dismissing state-law injunctive relief claims). CSX doesn’t challenge the district court’s dismissal

of these claims.

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the new switch rate (on which its claims are based)

was implemented— can be saved by an exception to

the Act’s limitations statute known as the

“continuing-violation doctrine.”

The Clayton Antitrust Act imposes a four-year

statute of limitations for “[a]ny action to enforce [the

antitrust laws]” that starts to run “after the cause of

action accrue[s].” 15 U.S.C. § 15b. Thus, whether a

federal antitrust claim for damages is time-barred under the Act’s statute of limitations turns on whether

that cause of action accrued within the limitations period.

CSX concedes that if its claims for damages

accrued in 2010, when the switch rate was first

implemented, then its 2018 suit is untimely. To avoid

the four-year time bar, CSX asserts that the

continuing-violation doctrine brings its antitrust

claims within the governing limitations period—i.e.,

the four years just before this action—because each

day the Defendants charged the exclusionary switch

rate, from 2010 to the present, caused CSX new

injury.

As we explain, we disagree.

“Generally, a cause of action accrues and the

statute begins to run when a defendant commits an

act that injures a plaintiff’s business.” Zenith, 401

U.S. at 338. “In the context of a continuing conspiracy

to violate the antitrust laws,” a cause of action accrues

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“each time a plaintiff is injured by an act of the

defendants.”6 Id. (emphasis added).

The Supreme Court expounded on this concept in

the context of a civil RICO claim.7 Klehr v. A.O. Smith

Corp., 521 U.S. 179 (1997). The question in Klehr was

when a claim accrues “where the Respondent

continues to commit predicate acts in the 4-year

period immediately preceding suit.” Id. at 193

(cleaned up). The court answered:

[I]n the case of a continuing violation, say, a

price–fixing conspiracy that brings about a

series of unlawfully high[-]priced sales over a

period of years, each overt act that is part of

6 Zenith also carves out an exception to the statute of limitations

when future damages aren’t immediately ascertainable. See, e.g.,

Railing v. United Mine Workers of Am., 445 F.2d 353, 354 (4th

Cir. 1971) (“Zenith recognizes that there may be situations where

damages that will eventually result are insufficiently

ascertainable to permit recovery at the time the unlawful

conduct occurs. That such damages could not then be proved up

because they are purely speculative does not mean that they may

not be subsequently recoverable . . . . In such a situation the

cause of action accrues and the period of limitations begins to run

at different points in time, but in both instances at the time that

the damages are ascertainable.”). CSX doesn’t argue that

Zenith’s speculative damages exception applies, so we don’t

discuss it further.

The RICO statute “does not provide an express statute of

limitations for actions brought under its civil enforcement

provision.” Agency Holding Corp. v. Malley-Duff & Assocs., Inc.,

483 U.S. 143, 146 (1987). So the Supreme Court in Malley-Duff

established “a uniform statute of limitations” for such actions. Id.

at 149. After determining that the text of the Clayton Act

“offer[ed] the closest analogy to” the RICO statute’s civil

enforcement provision, id. at 150, the Court held that “the 4–year

statute of limitations for Clayton Act actions . . . [was] the most

appropriate limitations period for RICO actions.” Id. at 156

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the violation and that injures the plaintiff,

e.g., each sale to the plaintiff, starts the

statutory period running again . . . . But the

commission of a separate new overt act

generally does not permit the plaintiff to

recover for the injury caused by old overt acts

outside the limitations period.

Id. at 189 (internal citations and quotation marks

omitted).

CSX asserts that the Defendants’ decision to keep

the new switch rate in place from 2010 to the present

is an act sufficient to constitute a continuing violation

of the antitrust laws. On this theory, CSX contends

that the switch rate caused injury—in the form of

exclusion from “the market of railroad companies

serving [the Norfolk Terminal] via on-dock rail,”

Appellant’s Br. at 32—each day within the limitations

period that it remained effective.

CSX alternatively contends that Norfolk Southern

and Belt Line committed other acts within the

limitations period in furtherance of a continuing

violation or conspiracy. CSX points to actions in

2015—the year CSX paid Belt Line’s exclusionary

switch rate— that CSX maintains Norfolk Southern

and Belt Line took to hinder or interfere with CSX’s

ability to run its operations at the Norfolk Terminal

(the “2015 conduct”). These include (1) CSX’s payment

of the $210 switch rate to move an unknown amount

of freight at the Norfolk Terminal, and (2) efforts by

the Defendants to “materially delay[]” the movement

of “at least one CSX” train, “resulting in CSX’s

temporary loss of business from one of its existing

customers for a period of several weeks.” CSX

Transp., 648 F. Supp. 3d at 706 & n.14 (emphasis

omitted).

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CSX also claims that the Defendants’ failure to act

on CSX’s 2018 proposals to (1) reduce the switch rate

to $80 and (2) establish an independent rate

committee (the “2018 conduct”) is evidence of

additional overt acts.

We address each argument in turn.

According to CSX, the continuing-violation

doctrine holds that “[e]very time the defendant bars

the plaintiff from the relevant market or the

supracompetitive price is charged, the plaintiff is

injured—and the limitations period starts to run

again.”8 Appellant’s Br. at 27. CSX says that

Defendants’ 2010 decision to impose a new inflated

switch rate—and their decision to keep the rate in

place from then until well beyond the limitations

period—“harmed CSX[] [every subsequent day] by

denying it that day’s worth of business at [the Norfolk

Terminal], precluding CSX[] from obtaining longrunning contracts that require on-dock access to [the

terminal].” Id. at 29. Thus, argues CSX, because it has

incurred “successive damages suffered day by day

Generally, in a “long-run” predatory pricing scheme, a

“predator” firm acts in two phases to achieve its goal of

destroying competition. See Rebel Oil Co. v. Atl. Richfield Co., 51

F.3d 1421, 1433 (9th Cir. 1995). “In the first stage, or ‘price war’

period, the defendant[-predator] sets prices below its marginal

cost hoping to eliminate rivals and increase its share of the

market.” Id. “If the predator reaches this long-run goal, it enters

the second stage, the ‘recoupment’ period,” where it “can collect

the fruits of the predatory scheme by charging supracompetitive

prices—prices above competitive levels.” Id. at 1434. “The

predator’s hope is that the excess profits [earned as a result of

the supracompetitive prices] will allow it to recoup the losses

suffered during the price war.” Id.

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from a continuing conspiracy, the statute begins to

run on each day’s damage as it occurs.” Id. (quoting

Delta Theaters, Inc. v. Paramount Pictures, Inc., 158

F. Supp. 644, 649 (E.D. La. 1958)).

In CSX’s view, “the acts of maintaining

supracompetitive prices day after day to keep a

competitor out of the market are injurious overt acts

that restart the limitations period each day that the

high price remains in place—because each day the

[D]efendants could have lowered that price and chose

not to.” Id. at 37 (discussing In re Lower Lake Erie Iron

Ore Antitrust Litig., 998 F.2d 1144 (3d Cir. 1993)).

But that argument runs headlong into our

precedent holding otherwise. We’ve held that a

defendant’s “silence” or failure to act after committing

the initial antitrust violation, with no “promise [to]

act[] in the future,” doesn’t qualify as an act sufficient

to extend the statute of limitations. Charlotte

Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570,

573 (4th Cir. 1976).

In Charlotte Telecasters, a refusal-to-deal case,

Telecasters “charged that [the defendant, Jefferson,]

conspired with members of the city council of

Charlotte, North Carolina, to obtain a [non-exclusive]

television franchise, and to prevent the award of a

franchise to the applicant in which [the plaintiffs] had

an interest.” Id. at 572. The city council awarded

franchises to Jefferson and another unnamed

applicant in March 1967. Id. It didn’t, however, award

Telecasters a franchise. Id. But Telecasters “was told,

at the March [city council] meeting, that additional

franchises might be considered in the future.” Id.

Telecasters followed up on this statement on

August 7, 1967, when it “asked the council to

16a

reconsider its application.” Id. Aside from the mayor

responding to Telecasters’ request that the council

would “leave it as it is,” id. at 573 (cleaned up), “[t]he

council . . . took no further action,” id. at 572.

Just over four years later, Telecasters sued

Jefferson under Section 1 of the Sherman Act, alleging

that Jefferson “w[as] engaged in a continuing

conspiracy to prevent it from obtaining a franchise.”

Id. at 572. And Telecasters argued that its action

wasn’t untimely because “the cause of action did not

accrue until the council had had a reasonable time[—

]at least thirty days[—]to consider its request of

August 7, 1967, and that the council’s silence was an

overt act of refusal.” Id. In response, Jefferson urged

that the violation alleged by Telecasters “consisted of

a single act which injured [it],” and that pursuant to

this theory, “[Telecasters’] cause of action accrued [to

it] when the council confirmed the awards to

[Jefferson and the other applicant, who were]

Telecasters’ competitors[,] on April 3, 1967.” Id.

We held that Telecasters had successfully alleged

that it was excluded from participation in the cable

television market not by a single violation of the Act,

but by a continuing conspiracy. Id. at 573. We found

that “[s]ince the council adopted a non-exclusive

ordinance and left open the possibility of granting

additional franchises, Telecasters ha[d] properly

alleged a continuing conspiracy.” Id.

But Telecasters’ claim failed nonetheless because

“the last overt act of the alleged conspiracy was the

council’s consideration of Telecasters’ request on

August 7, 1967”—a date falling just outside the fouryear limitations period—when “the mayor responded

[to Telecasters’ request for reconsideration] that the

council would ‘leave it as it is.’” Id. We concluded that

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the council “did not promise action in the future” in its

response to Telecasters. Id. So the council’s

subsequent silence in the days and years following

Telecasters’ reconsideration request “d[id] not

constitute an overt act.” Id.

At bottom then, mere silence or inaction from a

defendant—even though the allegedly unlawful

conspiracy to exclude a plaintiff remains in effect—

isn’t enough to restart the limitations period. See id.

Instead, an affirmative act—like a promise to act in

the future—is required. See, e.g., Lancianese v. Bank

of Mount Hope, 783 F.2d 467, 470 (4th Cir. 1986)

(interpreting Charlotte Telecasters to mean that the

continuing-violation doctrine applies “only where

there is an overt act in furtherance of an antitrust

conspiracy or a separate substantive violation which

is committed within the limitations period.”).

Our holding in Charlotte Telecasters tracks with

the understanding of other circuits. See, e.g., Z Techs.

Corp. v. Lubrizol Corp., 753 F.3d 594, 600 (6th Cir.

2014) (recognizing that because “an overt act . . . must

be a new and independent act that is not merely a

reaffirmation of a previous act,” “the Sixth Circuit has

repeatedly rejected invocations of the continuingviolations defense that are mere reaffirmations of a

previous act”) (cleaned up); Kaw Valley Elec. Co-op.

Co. v. Kan. Elec. Power Co-op., Inc., 872 F.2d 931,

934–35 (10th Cir. 1989) (explaining the “rule” in

refusal-to-deal cases that mere “reaffirmation[s] of a

previous [pre-limitations] refusal” within the

limitations period are not enough to accrue a new

cause of action where the initial refusal is “final”).

Take the Fifth Circuit’s decision in Poster

Exchange v. National Screen Service Corp., 517 F.2d

18a

117 (5th Cir. 1975), a case CSX relies on heavily in

this appeal, as an example.

In Poster Exchange, the court considered:

whether the alleged continuing conspiracy

and monopoly interfering with [plaintiff]’s

ability to supply itself with advertising

accessories is to be treated for statute of

limitations purposes as a single act and

invasion of [plaintiff]’s rights, occurring with

the original refusal to deal, . . . or whether it

may be viewed as a continuing series of acts

upon which successive causes of actions may

accrue.

Id. at 125.

The court couldn’t determine whether the

continuing-violation doctrine applied to the plaintiff’s

claims because it was unclear whether, during the

limitations period, there was “a mere absence of

dealing, or whether there was some specific act or

word precluding [the plaintiff] from obtaining

supplies from [the defendant].” Id. at 128. But it held,

in line with this distinction, that a continuingviolation claim must be supported by evidence of

“some injurious act actually occurring during the

limitations period, not merely the abatable but

unabated inertial consequences of some prelimitations action.” Id. (emphasis added). That is, for

the plaintiff to establish that the doctrine applied, it

was “obliged to demonstrate some act of the

defendants during the limitations period foreclosing

or interfering with its access to supplies.” Id. at 128.

The district court there had left unresolved

whether the plaintiff had created a genuine issue for

trial “as to the occurrence of any specific act or word

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denying to it of access to [the defendant’s] posters for

distribution during the statutory period.” Id. at 129.

And the plaintiff had failed to offer evidence that “it

ha[d] been refused access to standard accessories by

[the defendant] during th[e] [limitations] period.” Id.

at 128. So the case was remanded “for a clarification

on this narrow question.” Id. at 129.

Rather than supporting CSX’s view of the law, we

read Poster Exchange to require exactly what the

district court and this court have required to establish

a continuing violation: an affirmative act committed

within the limitations period in furtherance of the

conspiracy to exclude the plaintiff from the relevant

market. See, e.g., Barnosky Oils, Inc. v. Union Oil Co.

of Cal., 665 F.2d 74, 81 (6th Cir. 1981) (explaining that

the Fifth Circuit in Poster Exchange “drew a critical

distinction between the mere absence of dealing and

an actual reiteration of the defendants’ refusal to

deal.”).

Nor are we moved by CSX’s reliance on Berkey

Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d

Cir. 1979). In Berkey Photo, an antitrust price-fixing

case, the Second Circuit concluded that although the

defendant-monopolist had formed a monopoly

enabling it to overcharge its customers “several

decades” before the customer-plaintiff filed its action,

a claim accrued to the plaintiff each time it paid the

inflated price within the limitation period. See id. at

293–96.

CSX urges that “extracting an inflated payment”

is equivalent to “den[ying] CSX[] income by keeping it

from operating in the affected market.” Appellant’s

Br. at 39–40 (emphasis omitted). Not so, according to

Berkey Photo:

20a

Although the business of a monopolist’s rival

may be injured at the time the anticompetitive

conduct occurs, a purchaser, by contrast, is

not harmed until the monopolist actually

exercises its illicit power to extract an

excessive price. The case of predatory pricing

illustrates the point clearly. As soon as the

dominant firm commences such a policy, other

producers, who may be driven out of the

market, are injured. But, clearly, purchasers

are not, for they receive the temporary boon of

artificially low prices. It is only when the

monopolist, having devoured its smaller

rivals, enjoys the spoils of its conquest by

boosting its price to excessive levels that a

purchaser “feels the adverse impact” of the

violation.

603 F.2d at 295 (quoting Zenith Radio, 401 U.S. at

339) (emphases added).

As the district court here noted, “[t]he differing

treatment between these two types of claims is

grounded in the concept that, unlike an excluded rival

who is injured as soon as the exclusion begins, a

customer is not injured until a sale occurs, and it

suffers a new and accumulating injury each time a

subsequent supracompetitive price is paid.” CSX

Transp., 648 F. Supp. 3d at 702 (emphases added and

omitted).

So even accepting that maintaining an exclusionary price is the “functional equivalent of affirmatively

posting a price,” Appellant’s Br. at 51, CSX’s claim

fails because it hasn’t shown that such conduct inflicted new harm causing new injury to it within the

limitations period. Instead, CSX’s exclusion from the

intermodal shipping market at the Norfolk Terminal

21a

following the Defendants’ imposition of the exclusionary rate was “final in its impact.” Charlotte Telecasters, 546 F.2d at 572.

We decline to find a continuing conspiracy based

on this conduct.

We’re left then with CSX’s alternative argument

that other overt acts committed in 2015 and 2018

entitle it to recover damages for the injuries sustained

within the limitations period. While we agree with

CSX that at least some of this conduct would qualify

as acts committed in furtherance of a continuing

violation or conspiracy, the continuing-violation

doctrine still can’t save its claims because it hasn’t

offered sufficient evidence of antitrust injury

resulting from these actions. Cf., e.g., Steves & Sons,

Inc. v. JELD-WEN, Inc., 988 F.3d 690, 710 (4th Cir.

2021) (discussing “antitrust injury” requirement of

antitrust standing).

Take the “2015 conduct” relating to CSX’s

payment of the $210 switch rate during the period of

“extreme port congestion.”9 CSX Transp., 648 F. Supp.

3d at 706. CSX says that its payment of the rate alone

restarted the statute. But CSX filed suit not as a

purchaser of Belt Line’s services but as a competitor

of Norfolk Southern. Id. at 702–03. This distinction

We agree with the district court that the “2018 conduct”

evidence—the proposals to lower the switch rate to $80 and

establish a rate committee—is insufficient to establish an overt

act, because there’s no evidence that CSX did anything to move

them forward. See CSX Transp., 648 F. Supp. 3d at 712–13.

Under our decision in Charlotte Telecasters, inaction or silence

isn’t enough. See 546 F.2d at 573. So we focus our analysis in this

section on the 2015 conduct.

22a

matters because although a purchaser is injured each

time it must pay an anticompetitive price, see, e.g.,

Mayor of Baltimore v. Actelion Pharms. Ltd., 995 F.3d

123, 131–32 (4th Cir. 2021), and thus a cause of action

accrues to it, the same can’t be said of a competitor—

whose antitrust injury is its exclusion from the

relevant market, see id. at 132 (citing Charlotte

Telecasters, 546 F.2d at 572 and Berkey Photo, 603

F.2d at 295).

CSX claims that the Defendants took other steps

in furtherance of the conspiracy to exclude it from the

Norfolk Terminal, like unreasonably delaying and

interfering with CSX’s ability to access the on-dock

tracks once it had paid the switch rate. See

Appellant’s Br. at 58. The district court found this

evidence underwhelming, stating that CSX has failed

to show “how many trains were delayed, intentionally

or otherwise, though its evidence is sufficient to

demonstrate that at least one CSX train was

materially delayed.” CSX Transp., 648 F. Supp. 3d at

706 n.14.

We agree with the district court’s assessment of

this evidence, but will assume that it shows the

necessary “overt act” or “act” needed to sustain a

continuing-violation or -conspiracy theory. Even so,

the claim fails because CSX hasn’t shown what

antitrust injury this act, or any other act committed

within the limitations period, caused it.

“CSX’s lone antitrust damages theory is that it

was excluded as a competitor from on-dock rail access

at [the Norfolk Terminal], purportedly causing CSX to

suffer hundreds of millions of dollars of damages

beginning in 2009,” id. at 703, and continuing until

2020, see J.A. 200 ¶ 102. Consistent with that theory,

its damages evidence “calculated aggregate harm

23a

from all [the Defendants’] alleged conduct, including

conduct [occurring] outside the limitations period and

other theories of liability that CSX has abandoned.”

Appellees’ Br. at 22. But this isn’t enough to establish

injury because it doesn’t show a causal connection

between the Defendants’ alleged antitrust violation

and CSX’s resulting injury within the limitations

period. Cf., e.g., Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 584 n.7 (1986) (“However one

decides to describe the contours of the asserted

conspiracy—whether there is one conspiracy or

several—respondents must show that the conspiracy

caused them an injury for which the antitrust laws

provide relief.”).

Recall that Klehr held that “the commission of a

separate new overt act generally does not permit the

plaintiff to recover for the injury caused by old overt

acts outside the limitations period.” Klehr, 521 U.S. at

189. In other words, a plaintiff’s recovery is limited to

“the damages caused by th[e] [injurious] act,” Zenith,

401 U.S. at 338, meaning that, “in . . . antitrust cases,

[a] plaintiff cannot use an independent, new predicate

act as a bootstrap to recover for injuries caused by

other earlier predicate acts that took place outside the

limitations period,” Klehr, 521 U.S. at 190.

These cases effectively derail CSX’s damages

evidence. Rather than specifying the damages the

Defendants caused CSX within the limitations period,

the evidence “bootstraps” all the injury CSX suffered

since Defendants’ initial, pre-limitations violation,

i.e., for its “total exclusion from the market.” CSX

Transp., 648 F. Supp. 3d at 707.

As the district court aptly put it, “CSX’s election

to proceed on a unitary theory seeking recovery for all

anti-competitive acts, regardless of when they

24a

occurred, dooms its ability to present to the jury a nonspeculative damages case arising from the 2015

conduct,” id. at 708—the only damages for which a

timely cause of action had accrued to CSX.

The district court correctly rejected CSX’s claim.

IV.

For these reasons, the district court’s judgment is

AFFIRMED.

25a

APPENDIX B

FILED: September 20, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 23-1537

(2:18-cv-00530-MSD-RJK)

________________

CSX TRANSPORTATION, INC., individually and on

behalf of Norfolk & Portsmouth Belt Line Railroad

Company,

Plaintiff − Appellant,

NORFOLK SOUTHERN RAILWAY COMPANY;

NORFOLK & PORTSMOUTH BELT LINE RAILROAD COMPANY,

Defendants – Appellees,

________________

MANDATE

________________

The judgment of this court, entered August 29, 2024, takes effect today.

This constitutes the formal mandate of

this court issued pursuant to Rule 41(a) of

the Federal Rules of Appellate Procedure.

26a

/s/Nwamaka Anowi, Clerk

27a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CSX TRANSPORTATION, INC., individually and on

behalf of Norfolk & Portsmouth Belt Line Railroad

Company,

Plaintiff,

Civil No. 2:18cv530

NORFOLK SOUTHERN RAILWAY COMPANY;

NORFOLK & PORTSMOUTH BELT LINE RAILROAD COMPANY,

Defendants.

OPINION AND ORDER

This matter is before the Court on supplemental

motions filed by Norfolk & Portsmouth Belt Line Railway Company (“NPBL”) and Norfolk Southern Railway Company (“NSR,” and together with NPBL, “Defendants”), addressing whether any of CSX Transportation, Inc.’s (“CSX”) state law claims seeking injunctive relief remain in this case and/or whether any such

claims that may remain are viable. ECF Nos. 614, 616.

Also before the Court is CSX’s motion asking the

Court to withhold ruling on the Defendants’ motions

and allow CSX to immediately appeal this Court’s

prior rulings on CSX’s federal antitrust claims and a

portion of CSX’s state law claims. ECF No. 623. For

the reasons explained below, the Court: (1) GRANTS

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Defendants’ motions to the extent they argue that

CSX’s state law conspiracy claims, and the vast majority of CSX’s state law contract claim, require no further ruling by the Court because injunctive relief under Virginia law is foreclosed by this Court’s findings

in its January 3, 2023 summary judgment Opinion

and Order; and (2) GRANTS NSR’s motion to the extent it argues that injunctive relief is unavailable under state law for any potential contractual breach involving NSR’s obstruction of CSX trains in 2015.

These rulings dispose of all remaining state law

claims, and CSX’s motion seeking a ruling authorizing

an immediate appeal is therefore DISMISSED as

moot.

PROCEDURAL BACKGROUND

Based on the focus of the parties’ summary judgment briefing, this Court’s January 3, 2023 Opinion

and Order was almost exclusively dedicated to ruling

on CSX’s federal antitrust damages claims. ECF No.

559. Although the Court also found that nearly all of

CSX’s state law damages claims were time-barred, the

Court did not squarely address the impact of its limitations ruling on CSX’s ability to pursue injunctive relief under Virginia law, noting that the summary

judgment briefs were underdeveloped on the ancillary

state law claims and did not flesh out how the nature

of the relief sought impacted the limitations bar. See

ECF No. 559, at 94 (“In keeping with their federal law

arguments, Defendants assert that CSX’s Virginia

state law claims are time-barred or otherwise fail as a

matter of law. These arguments, and CSX’s responses,

are substantially underdeveloped compared to the

parties’ extensive federal antitrust arguments.”); id.

at 98 (“Presumably due to the complexity of the antitrust issues, NSR’s and CSX’s summary judgment

29a

briefs devote limited attention to CSX’s breach of contract claim.”); id. at 103 n.46 (noting that although the

Court “does not directly reach” the unbriefed issue of

state law injunctive relief, “it does not appear” that

any state claims for injunctive relief remain viable for

various reasons, to include the Court’s finding that

the underlying conspiracy and contract claims were

time-barred under Virginia law).

A week after the Court issued its summary judgment opinion, Defendants filed a motion to dismiss

that was purportedly directed at all remaining claims,

but the briefing focused on the availability of federal

injunctive relief, and CSX argued at a later hearing

that “there is no pending motion to which [CSX] had

the opportunity to respond that challenged the state

law claims,” and that “there’s more to be said” on

these issues. ECF No. 605, at 38. At that hearing, the

Court granted the Defendants’ motion to dismiss

CSX’s federal antitrust injunctive relief claim based

on a legal finding applicable solely to the federal

claim. The Court also asked the parties again for their

views on the status of the case — that is, whether Defendants had effectively already moved to have the remaining state law injunctive relief claims dismissed,

or whether a bench trial should begin on those claims.

The Court expressly referenced the Virginia legal

principle that “equity follows the law,” asking

whether there was “really anything left to proceed on

as to the time-barred state law injunctive relief

claims” following the Court’s ruling on summary judgment. ECF No. 605, at 32. The Court separately asked

whether CSX’s timely allegation of a contractual

breach by NSR in 2015 required a different analysis,

to include whether the Court could order specific performance of any relevant contract provision. Id. at 3334.

30a

After a recess to allow counsel an opportunity to

speak with each other and with their clients, CSX informed the Court that it “does not . . . make sense” to

proceed to a bench trial “if the Court would conclude

that [CSX’s] claims are completely barred on purely

legal ground[s].” Id. at 37-38. CSX, however, indicated

that Defendants’ recent motions did not formally

move to dismiss the state law injunctive relief claims,

meaning that CSX had not provided responsive argument on the relevant issues. Id. at 38. Although all

counsel were given an opportunity to advocate for

their view of how the case should proceed and whether

the state law claims were barred on purely legal

grounds, the Court noted that CSX had argued “several times” that it had never had the opportunity to

brief the viability of the state law injunctive relief

claims. Id. at 72-73. After another recess requested by

CSX, counsel for all parties reported that the bench

trial should be continued, with the Court acknowledging that it could just proceed to trial and “sort it all

out on the back end,” but that doing so would “be very

hard” for counsel and their clients. Id. at 73, 79. The

Court therefore accepted the parties’ joint proposal to

continue the bench trial scheduled for the next day in

favor of further briefing. Id. at 79, 82.

The motions currently before the Court were then

filed, and CSX has now been afforded the opportunity

to fully address the legal viability of any outstanding

state law claims. CSX, of course, continues to oppose

dismissal of the state law claims on the merits, but

also argues that Defendants’ pending motions, styled

as Rule 12(c) motions, are not procedurally proper.

CSX takes the position that the Court should neither

have a trial nor rule on Defendants’ motions, but

should instead permit an immediate appeal to the

31a

Fourth Circuit, leaving the viability of the state law

injunctive relief claims unresolved.

II. DISCUSSION - CLAIMS DEEMED TIMEBARRED

For the reasons explained below, and for those articulated in Defendants’ briefs, the Court finds that its

prior limitations ruling effectively resolved the entirety of CSX’s untimely state law causes of action regardless of the remedy requested. Although Defendants did not expressly argue on summary judgment

that a favorable limitations ruling would extinguish

the portion of CSX’s state law claims seeking injunctive relief, they also did not argue that a favorable limitations ruling would only apply to the portion of the

state law claim seeking money damages. See ECF No.

605, at 53 (reflecting NPBL’s concession that the summary judgment briefs did not mention injunctive relief, but arguing that both Defendants’ summary judgment motions were directed at the time- barred claims

in their entirety). Though this Court found it advisable to seek further briefing to ensure that its summary

judgment ruling did not improperly foreclose an available state law equitable remedy that operated outside

the statute of limitations, having now provided CSX a

full opportunity to argue its position, the Court agrees

with Defendants that the Court’s prior limitations ruling granting summary judgment in Defendants’ favor

effectively disposed of the entirety of the time-barred

causes of action. Because the Court’s prior ruling fully

resolved CSX’s untimely claims, the Court rejects

CSX’s procedural challenge to Defendants’ pending

motions.

32a

A. Equity Follows the Law

In Virginia, it is well established that “equity follows the law” and that with “respect to the statute of

limitations[,] . . . a demand that would be barred if

asserted in a legal forum will be equally barred in equity.” Redford v. Clarke, 100 Va. 115, 121 (1902);

Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity, 266 Va. 455, 467 (2003) (same). Injunctive relief

under Virginia law is a remedy and not a standalone

cause of action.1 Although injunctive relief is equitable in nature, when such remedy is sought in conjunction with money damages as a remedy for a legal

cause of action, the fact that the requested relief is

grounded in equity does not allow a plaintiff to circumvent the otherwise applicable limitations period

and proceed with timeliness governed only by the equitable doctrine of laches. See City of Portsmouth v.

City of Chesapeake, 232 Va. 158, 164 (1986) (“Laches,

a species of estoppel, is an equitable defense,” and a

“proceeding to enforce a legal right is not subject to

the equitable defense of laches.”); Pendleton v. Nat’l

Wildlife Fed’n, No. 5:10cv9, 2010 WL 1212566, at *6

(W.D. Va. Mar. 26, 2010) (“[B]oth the United States

Court of Appeals for the Fourth Circuit and the Virginia Supreme Court have held that laches is a doctrine that applies only in equity to bar equitable actions, not at law to bar legal actions.”) (quotation

marks and citations omitted). As recently explained

by the Fourth Circuit:

Under Virginia law, it is well established that

the form of litigation does not affect the analysis of the statute of limitations. Kappa Sigma

1 This legal proposition is not disputed. See ECF No. 632, at 11

n.3.

33a

Fraternity, Inc., 266 Va. at 465. Instead, “[t]he

applicability of the statute of limitations is

governed by the object of the litigation and the

substance of the complaint, not the form in

which the litigation is filed.” Id. “If the law

were otherwise, the statute of limitations

could be rendered meaningless merely by the

filing of a declaratory judgment action.”

Board of Supervisors v. Thompson Assocs.,

240 Va. 133, 139 (1990). Consequently, in order to determine whether the statute of limitations applies to [a] claim for declaratory and

injunctive relief, it is necessary to look to “the

object of the litigation and the substance of the

complaint. . . .” Kappa Sigma Fraternity, Inc.,

266 Va. at 465.

Manotas v. Ocwen Loan Servicing, LLC, 794 F. App’x

259, 263-64 (4th Cir. 2019) (second alteration added);

see also Birchwood-Manassas Assocs., L.L.C. v. Birchwood at Oak Knoll Farm, L.L.C., 290 Va. 5, 7 (2015)

(“[S]tatutes of limitations are strictly enforced and

must be applied unless the General Assembly has

clearly created an exception to their application,” and

“any doubt[s] must be resolved in favor of the enforcement of the statute.”) (citation omitted); Lyons P’ship,

L.P. v. Morris Costumes, Inc., 243 F.3d 789, 798 (4th

Cir. 2001) (conducting a separation of powers analysis

and finding that, with respect to federal causes of action, “when Congress creates a cause of action and

provides both legal and equitable remedies, its statute

of limitations for that cause of action should govern,

regardless of the remedy sought”).

Applying the above, a Virginia breach of contract

claim (or conspiracy claim grounded in a breach of a

fiduciary duty) seeking both money damages and

34a

prospective injunctive relief does not have one standard governing the timeliness of the damages remedy

and a second standard governing the timeliness of the

requested injunctive relief. See Blankenship v. Consolidation Coal Co., 850 F.3d 630, 640 (4th Cir. 2017)

(“Apart from their challenge to the district court’s limitations rulings, the plaintiffs challenge the court’s denial of their request for injunctive relief. Because,

however, the causes of action that provide the basis

for any claimed relief are [time-]barred, the plaintiffs’

request for injunctive relief is also (time-]barred.”).2

B. Prospective Injunctions and Nature of

Relief

CSX nevertheless argues that because the injunctive relief it seeks is “prospective,” the Virginia statutory limitations periods governing contractual

breaches and conspiracy claims do not control. ECF

No. 632, at 8-14. CSX relies almost exclusively on citations to trespass and nuisance case law where the

plaintiffs sought injunctions due to still-present conditions on real property that purportedly deprived the

owners of certain rights. See Downey v. Verizon Virginia, L.L.C., 86 Va. Cir. 526, 527 (Greene Cnty.,

2013) (sustaining a plea in bar as to an untimely damages claim due to the fact that the telephone cable at

issue was installed on the plaintiffs’ land many years

ago, but allowing the case to proceed as to whether the

defendant must remove the cable); Willems v. Batcheller, 109 Va. Cir. 319, 320 (Fairfax Cnty., 2022) (finding that the statutory limitation periods did not apply

2 Blankenship involved “state law claims of trespass, unjust en-

richment, negligence, nuisance, and waste,” and like the instant

case, the plaintiffs “demanded hundreds of millions of dollars in

damages, punitive damages, and injunctive relief.” Blankenship,

850 F.3d at 633-34.

35a

to the plaintiffs’ nuisance and trespass claims seeking

equitable relief and that “the defense of laches instead

delimits the period within which the actions had to be

brought”).3

While Downey appears favorable to CSX, it is

readily distinguishable because, unlike the instant

case, Downey involved a still-present physical trespass on land for which a purely equitable claim otherwise appeared to exist. See Boerner v. McCallister,

197 Va. 169, 170-71 (1955) (finding that the “bill in

chancery” was not a legal dispute over title to land,

but “appeared to be a pure bill for an injunction to prevent a trespass” on land, which was properly asserted

in equity). Second, even if Downey were not distinguishable, it is unpersuasive when read in the context

of the weight of Virginia authority, including other

trespass cases, holding that laches “operates as the

time limitation on certain equitable claims where no

statute of limitations is denoted.” Rustgi v. Webb, 105

Va. Cir. 199, 208 (Fairfax Cnty., 2020) (emphasis

added) (internal quotation marks omitted). In contrast, if a statute of limitations is denoted for a claim,

as it is for trespass and nuisance claims, then the statute applies and laches cannot “operate to defeat the

intent of the General Assembly.” Id.; cf. City of Portsmouth, 232 Va. at 164 (indicating that laches did not

apply to a boundary line dispute because the

3 CSX also cites to the Virginia Supreme Court’s opinion in Arm-

strong v. Bryant, 189 Va. 760, 769 (1949) for the proposition that

equitable remedies are not subject to statutes of limitations even

if a claim is grounded in contract. This argument is unavailing

because the cited discussion involved the court’s explanation of

why the plaintiff did not have an adequate remedy in law, and

the facts as presented did not suggest that the plaintiff’s claim

seeking specific performance of the sale of a residence was untimely under the applicable limitations period).

36a

procedure invoked by the plaintiff “is purely statutory, conferring only legal, not equitable rights”); Sinclair on Virginia Remedies § 43-2[E] (Oct. 2022)

(“Claims cognizable at law presented in equitable actions remain subject to applicable statutory periods of

limitations; this is true even where the claim is based

on equitable considerations, such as unjust enrichment.”).

The rule articulated in Rustgi was thereafter clarified by the same judge in Willems, with the later

opinion noting that Rustgi “left unanswered” whether

the determination of the timeliness of a trespass or

nuisance claim “depends upon the nature of the remedy sought by the complainant.” Willems, 109 Va. Cir.

at 329-30. The court answered that question in the affirmative to the extent the relief sought by a plaintiff

is solely equitable, relying on Virginia Code § 8.01230, which includes an exception for solely equitable

claims.4 Id. at 333. Applying § 8.01-230, the court

4 Virginia Code § 8.01-230 provides:

In every action for which a limitation period is

prescribed, the right of action shall be deemed to

accrue and the prescribed limitation period shall

begin to run from the date the injury is sustained

in the case of injury to the person or damage to

property, when the breach of contract occurs in

actions ex contractu and not when the resulting

damage is discovered, except where the relief

sought is solely equitable . . . .

Va. Code § 8.01-230 (emphasis added). Though the Willems opinion appears to read this statute as removing “solely equitable”

claims from the reach of an otherwise applicable statutory limitations period, section 8.01-230 can also be read as governing

when the applicable limitations period begins to run, with claims

grounded “solely” in equity potentially benefitting from the “discovery rule.” See Wallace v. Jarvis, No. 7:09cv426, 2010 WL

8750309, at *3 (W.D. Va. July 30, 2010) (interpreting Va. Code §

37a

explained: “[W]hile the statute of limitations of actions under Virginia Code § 8.01-243 generally applies

to claims of trespass and nuisance, . . . because the

relief sought by Plaintiffs is solely equitable . . . the

statutory limitation periods do not apply to Plaintiffs’

claims,” which are instead governed by “the defense of

laches.” Id. at 333 (emphasis added).

C. Nature of the Cause of Action

Contrary to the Virginia case law cited by CSX,

Virginia cases that do not involve a continuing trespass have held that the determination of whether a

statutory limitations period bars equitable relief

turns on the nature of the cause of action, not of the

remedy sought. See Orantes v. Ranchero, 70 Va. Cir.

277 (Fairfax Cnty., 2006). The Orantes court explained:

Orantes’ argument that the limitations period

of Va. Code § 8.01-243 does not apply to his

claim in Count I because it seeks equitable

remedies is unavailing. The fact that the Bill

of Complaint seeks largely equitable remedies

does not change the fact that the claim in

Count I is for fraud. . . . Fraud is a tort, actionable at law, and would be barred if brought for

money damages at law. Accordingly, even

though Orantes’ claim was brought on the

chancery side of the Court, it still is barred by

Va. Code § 8.01-243. . . . Here, while the remedy sought is equitable, the cause of action is

fraud, and the fact that money damages are

8.01-230 as providing that “when the relief sought is solely equitable, Virginia applies a discovery rule”).

38a

not sought in Count I does not save it from being time-barred.

Id. at 279-80 (emphasis in original). The court went on

to reach the same conclusion as to the plaintiff’s second count, a Virginia civil conspiracy claim, rejecting

the plaintiff’s argument that laches applied and noting that the plaintiff “cannot even claim that he seeks

purely equitable remedies in Count II.” Id. at 280; see

Kappa Sigma Fraternity, Inc., 266 Va. at 467 (finding

that to the extent the plaintiff’s claims are viewed as

alleging a breach of fiduciary duty, they “are timebarred” by that statutory “catch-all” limitations provision); see Marriott v. Harris, 235 Va. 199, 214 (1988)

(finding that an “ordinary bill of complaint instituting

a suit in equity upon written contracts” that sought

“alternative relief in the form of rescission” was governed by Virginia’s statute of limitations governing

actions founded upon a contract).

In the context of the case before this Court, which

involves remedies for stale contractual breaches and

conspiracies to harm CSX’s business, the Court finds

unpersuasive both CSX’s reliance on continuing trespass cases and CSX’s framing of its causes of action as

timely seeking prospective relief. See Manotas, 794 F.

App’x at 263-64 (finding that even when a plaintiff

seeks to enjoin a future foreclosure sale based on the

failure of a condition precedent to such sale, the cause

of action is “rooted in contract and [is] subject to Virginia’s statute of limitations for breach of contract”).

The better interpretation of Virginia law is that laches

applies instead of a statutory limitations period only

when the cause of action is exclusively cognizable in

equity. Parker v. Griffin, 55 Va. Cir. 191 (Shenandoah

Cnty., 2001); Culwell v. Huff, 50 Va. Cir. 180, 181

(Bedford Cnty., 1999).

39a

In Parker, the court explained that even though

the suit to “rescind a transaction or contract” was

properly filed in equity, the court still needed to determine whether there was a “statute of limitations applicable to the circumstances presented.” Id. At 19293. The Parker opinion further explained that: (1)

while “[g]eneral statutes of limitations do not apply to

chancery courts when dealing with matters exclusively cognizable in equity,” claims of “undue influence are cognizable at law as well as in equity”; (2)

“[r]estitution may be recovered at law or in equity”; (3)

undue influence “is a species of fraud” that is “actionable at law”; and (4) “[w]here the chancery court enforces a right cognizable at law, equity follows the law

and will apply such statute of limitations as may exist.” Id. at 193 (emphasis added). Based on these findings, as well as the finding that the claim at issue

sought recission of a contract, the court applied the

five- year limitations period governing contracts. Id.;

see Good v. Weaver, 98 Va. Cir. 493, 493-94 (Rockingham Cnty., 2016) (“Despite a finding that an action is

equitable, that does not typically end the analysis of

the potential influence of a statute of limitations[,]”

and “if the equitable action at issue has a corresponding action in law, then any equitable analysis governing delay of filing will follow the statute of limitations

that governs the law action.”); 12A Michie’s Jurisprudence - Limitation of Actions § 7 (2022) (“If a particular cause of action sounds in both equity and law, then

a trial court should apply a statute of limitation to

that particular cause of action.”); Chen v. VPT, Inc.,

No. 7:08cv419, 2008 WL 4693556, at *3 (W.D. Va. Oct.

24, 2008) (rejecting the plaintiff’s efforts to use the equitable nature of the relief sought to avoid the statute

of limitations for contract, fraud, and duress claims,

agreeing with the defendant that “even if the

40a

complaint purports to only seek declaratory and equitable relief, ‘equity follows the law; and if a legal demand be asserted in equity which at law is barred by

statute, it is equally barred in equity’” (quoting Kappa

Sigma Fraternity, Inc., 266 Va. at 467)); Westwood

Ltd. P’ship v. Grayson, 96 Va. Cir. 312 (Fairfax Cnty.,

2017) (applying laches to a fraudulent conveyance

claim because it did not have a statutory limitations

period, but applying the statute of limitations to a

“voluntary conveyance” claim and claims for common

law and statutory conspiracy), rev’d and vacated on

other grounds sub nom. Grayson v. Westwood Buildings L.P., 300 Va. 25 (2021).

This Court has already ruled on summary judgment that both of CSX’s conspiracy claims, and a portion of its contract claim, are time-barred under the

applicable Virginia statutes of limitations, and even

accepting that such claims sound in both law and equity, CSX remains bound by the statutory limitations

period. Stated another way, because equity follows the

law, Defendants have demonstrated that the legal effect of this Court’s already issued summary judgment

ruling extinguished these state law causes of action in

their entirety.5 Defendants’ pending motions are

therefore GRANTED to the extent that they contend

that the Court’s prior limitations ruling operates as a

complete denial of the above-analyzed state law

claims.

5 Even if the Court accepts, for the sake of argument, that the

applicable Virginia statute of limitations does not apply to certain contract claims or conspiracy claims when the relief requested is “solely equitable,” the Court is not faced with such scenario here as CSX’s breach of contract claim and conspiracy

claims sought hundreds of millions of dollars in monetary damages along with related injunctive relief.

41a

Alternatively, to the extent that there is a procedural infirmity with the Court simply revisiting the

legal “impact” of its prior ruling, the Court finds it appropriate to: (1) reopen its earlier interlocutory ruling

under Rule 54(b) of the Federal Rules of Civil Procedure to clarify its scope; or (2) to consider the state law

injunctive relief issue anew through a Court-raised

Rule 56(f) summary judgment procedure.6 Under either of these alternative approaches, summary judgment is GRANTED in favor of Defendants on the

above analyzed claims because the issues are purely

legal, both parties have had ample opportunity to

brief and argue these purely legal issues, and neither

party seeks to proceed to a trial that would merely

waste resources.

6 Rule 54(b), as argued by Defendants, provides that this Court’s

summary judgement ruling, which did not resolve all the claims

in the case, “may be revised at any time” before the entry of final

judgment. Fed. R. Civ. P. 54(b). Rule 56(f), as previously referenced by this Court in its summary judgment ruling, allows the

Court to grant summary judgment on a court-raised issue as long

as the parties are provided notice and “a reasonable time to respond.” Fed. R. Civ. P. 56(f). As to Rule 54(b), when a prior ruling

of the Court is avowedly tentative (as this Court’s ruling was

when indicating that it was not squarely addressing the full impact of its limitations finding while noting its reservations regarding whether any state law injunctive relief claims remained

viable), law of the case considerations do not apply or at a minimum are far less potent. See ECF No. 613, at 7-8. As to Rule

56(f), the issue of whether CSX’s injunctive relief claims could

survive a limitations ruling adverse to CSX was first raised by

this Court at oral argument on December 3, 2022, was argued

extensively at the January hearing, and was thereafter fully

briefed by the parties. No factual disputes are relevant to this

legal issue, and CSX has expressly indicated that it did not want

to proceed to trial if there is a dispositive legal issue that would

undercut CSX’s ability to prevail. Accordingly, a reasonable time

to respond to this issue unquestionably has been provided.

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III. DISCUSSION - TIMELY CONTRACT CLAIM

AGAINST NSR

A. Remaining Contract Claim and Procedure

To the extent CSX’s breach of contract claim

against NSR relies on alleged conduct occurring more

than five years before the instant lawsuit was filed,

such claim is resolved immediately above as timebarred conduct. To the extent CSX relies on purported

breaches occurring in 2016 and 2018, this Court previously held that there was insufficient evidence in

the summary judgment record to support a jury verdict finding that NSR breached an enforceable contract provision. ECF No. 559, at 99-101. Accordingly,

CSX’s contract claim has already been rejected as to

the 2016 and 2018 conduct regardless of the remedy

requested.

With respect to NSR’s purported contractual

breaches in 2015, which occurred during the limitations period and were not previously rejected on any

ground asserting that there was insufficient evidence

to demonstrate a breach, this issue requires a ruling

beyond this Court’s prior summary judgment Opinion

and Order. Considering the proper procedure, if any,

to take up this claim, the Court agrees with CSX that

Rule 12(c), governing judgement on the pleadings,

does not appear to be the proper procedural vehicle.

However, CSX plainly has been given ample opportunity to be heard on the validity of its state law injunctive relief claim grounded in contract, and CSX

does not seek a trial on this claim at this time. Accordingly, in light of the procedural history set forth in

Part I above, and for the reasons discussed in conjunction with the limitations ruling in Part III above, the

Court finds that it is appropriate to reopen summary

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judgment under Rule 54(b), or to take up summary

judgment anew under Rule 56(f) as to this lone outstanding matter.7

B. Availability of Injunctive Relief under

State Contract Law for alleged 2015

Breaches

First, CSX fails to demonstrate irreparable harm

resulting from the potentially actionable contractual

breaches occurring in 2015. As described in greater

detail in this Court’s summary judgment opinion,

NSR purportedly obstructed the movement of a small

number of CSX trains seeking to access a Norfolk, Virginia, containership terminal in 2015. It is undisputed

that special market conditions in 2015 had created

massive port congestion and unique challenges to

managing intermodal rail traffic. For that reason,

CSX sought to move a small number of trains across

NSR’s tracks using CSX’s rights as a NPBL customer

and shareholder even though those train movements

would not be profitable for CSX. Although CSX purportedly lost business from one intermodal customer

for a period of weeks as a result of NSR’s obstructive

conduct, CSX failed to advance a damages theory

seeking to recover the limited monetary damages it

suffered due to this temporary loss of business. ECF

7 In addition to the prior discussion on Rule 54(b), the Court notes

its agreement with Defendants that controlling law addressing

the scope of federal preemption has been clarified since this

Court denied Defendants’ original motion to dismiss. See ECF

No. 617, at 7-8; ECF No. 637 at 8 (citing Edwards v. CSX Transportation, Inc., 983 F.3d 112, 122 (4th Cir. 2020)). Furthermore,

the Court notes that it has fully considered CSX’s motion seeking

a path to file an interlocutory appeal, ECF No. 623, but finds that

it promotes efficiency to resolve the merits of this very small slice

of the contract claim — the sole issue remaining in this case.

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No. 559, at 102. Moreover, similar to the Court’s prior

conclusion that “the summary judgment record is devoid of even a scintilla of evidence” suggesting that

CSX lost any long term contracts due to the 2015 conduct, id., nothing in the record would allow a reasonable juror to conclude that CSX is suffering any form

of ongoing harm, let alone “irreparable harm” from

these alleged contractual breaches, see Carbaugh v.

Solem, 225 Va. 310, 314 (1983) (explaining that “lack

of proof of irreparable harm is generally fatal,” to a

request for an injunction, which is an “extraordinary

remedy” that will not issue “if the petitioner has an

adequate remedy at law for the redress of his injury”).

Therefore, CSX fails to demonstrate any ongoing

harm or a risk of irreparable harm if an injunction

grounded in contract is not issued.

Second, NSR effectively argues that although the

contract provision at issue — that NSR “co-operate

cordially” to encourage the business of NPBL8 — may

be sufficiently definite to support a damages award, it

is too broad to support injunctive relief. Notably, because “cordial” cooperation cannot be ordered to be

specifically performed, any injunctive relief tethered

to the 2015 breaches would require the Court to rewrite the contract to order that NSR engage in specific

acts that are not otherwise required by the broad

terms of the contract. ECF No. 615, at 15-16 (citing

cases). This, of course, is improper under Virginia contract law. See Eascalco, Inc. v. Caulfield, 220 Va. 475,

477 (1979) (“A court cannot alter the terms of a contract and then enforce it; when specific performance is

To the extent that CSX’s trains were prevented from using

NSR’s tracks to access the containership terminal, NPBL lost

business as NPBL would have generated income from these train

movements.

45a

granted, the contract must conform substantially to

the contract made by the parties.”).

Third, considering CSX’s contention that it does

“not seek specific performance of the ‘cordial cooperation’ clause,” but instead seeks to remedy prior

breaches through an injunction modifying NPBL’s

Board structure or management so that NSR could no

longer “control” NPBL, ECF No. 632, at 18, 26, such

relief is not an available remedy for the 2015

breaches. An injunction ordering NSR to behave differently with respect to how it nominates NPBL Board

members not only would improperly require this

Court to write new terms into the parties’ contract,

but in doing so would conflict with NSR’s existing express contractual right to appoint the majority of

NPBL’s Board, a right that has been in place since

1989. See Condo. Servs., Inc. v. First Owners’ Ass’n of

Forty Six Hundred Condo., Inc., 281 Va. 561, 573

(2011) (indicating that contract language should be

harmonized to effectuate the intention of the parties

and that “a specific provision of a contract governs

over one that is more general in nature”). The Court

agrees with NSR that Virginia contract law does not

provide an injunctive remedy that would allow this

Court to overrule or otherwise subvert NSR’s express

contractual right to appoint the majority of the NPBL

Board, or otherwise apply the very broad cordial cooperation clause to enjoin NSR from engaging in specified future activity not otherwise dictated by the

terms of the contract.

Similarly, to the extent CSX seeks an injunction

that would prevent NSR from engaging in an unlawful conspiracy to injure CSX, or to modify how NSR

nominates NPBL Board members, both forms of relief

are not tethered to the 2015 breaches. NSR’s alleged

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2015 contractual breaches were a series of acts allegedly committed by NSR that did not involve the NPBL

Board as NSR did not need to manipulate or conspire

with the Board to obstruct access to NSR’s own tracks.

CSX’s requested injunctive relief is in actuality tethered to its two state law conspiracy claims — which

have both been rejected as time-barred — and not to

the remaining contractual breach claim. Such relief is

therefore an improper remedy for the alleged contractual breaches.

Fourth and finally, injunctive relief that is designed to redress (i.e., relief that is tethered to) the

2015 obstruction would require the Court to direct

NSR to modify its rail schedules or train movements.

The Court agrees with NSR’s contention, which is essentially conceded by CSX, that any injunctive relief

directed at train movements would invade the exclusive jurisdiction of the Surface Transportation Board

(“STB”). ECF No. 632, at 18 n.4. Notwithstanding

CSX’s efforts to avoid this issue by seeking an injunction that does not directly impact train movements

but instead modifies the control structure of the

NPBL Board, because CSX relies on a state law contract claim to seek an injunction ordering an STB-regulated railroad to modify its control structure, the

Court finds that such remedy, even if otherwise available, is preempted by federal law.9

9 Sections 11321 and 11323 of the Interstate Commerce Commis-

sion Termination Act (the “ICCTA”) provide the STB with exclusive authority over “control” of rail carriers. 49 U.S.C. §§ 11321,

11323. Where the STB has approved and authorized such control, a rail carrier’s actions in maintaining or exercising that control are “exempt from the antitrust laws and from all other law,

including State and municipal law.” Id. § 11321. Notably, the

STB did not authorize NSR’s control of NPBL. Norfolk Southern

47a

For all of these reasons, pursuant to Rule 54(b)

and 56(f), the Court GRANTS NSR’s motion to the

Railway Co., Docket No. FD 36522, 2022 WL 2191932, at *15

(STB June 17, 2022). Without the protection of STB authorization, NSR’s control is not automatically exempt from otherwise

applicable laws, most notably federal antitrust laws. Although

this Court previously determined that CSX’s federal antitrust

claims for damages and injunctive relief failed as a matter of law,

the Court’s ruling was not due to ICCTA preemption. Indeed, the

ICCTA should be harmonized with other federal statutes, including the Sherman and Clayton Acts, wherever possible. See, e.g.,

Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142,

1156 (9th Cir. 2020). Applying federal antitrust laws in the absence of STB “control” authorization is just that sort of necessary

harmonization. CSX’s remaining state law claims for injunctive

relief, however, cannot be harmonized in the same way. CSX

asks this Court, standing in the stead of a Virginia trial court, to

eliminate NSR’s (unapproved) control over NPBL by restructuring the NPBL board and/or rewriting the parties’ 1989 contract.

As previously explained by this Court, “the ICCTA sought generally to consolidate railroad regulatory power into the hands of

the STB, limiting the reach of local, state, and even other federal

laws.” ECF No. 613, at 23 (citations omitted). This purpose is evident in both § 11321’s grant of “exclusive” jurisdiction to the

STB and in § 10501’s preemption of laws or actions impacting

rail transportation and rates. Edwards, 983 F.3d at 121. And

while space remains to harmonize the federal antitrust laws with

the STB’s exclusive authority to regulate control of rail carriers,

granting CSX’s requested injunctive relief based on a state law

breach of contract would encroach too far into the railroad regulatory regime that Congress sought to streamline and federalize

through the ICCTA. Cf. Norfolk Southern Railway Co., 2022 WL

2191932, at *14 n.24-25 (suggesting that that STB expects the

control issue to be brought before the STB after the instant case

is completed). Therefore, unlike a situation where a railroad has

expressly agreed by contract to engage in specific conduct otherwise within the STB’s jurisdiction, PCS Phosphate Co. v. Norfolk

S. Corp., 559 F.3d 212, 221 (4th Cir. 2009), using state contract

law to meddle in issues of railroad control is inconsistent with

and therefore preempted by the ICCTA.

48a

extent it argues that CSX’s claim for injunctive relief,

grounded in contractual breaches occurring in 2015,

fails as a matter of law. The Court notes that CSX has

had a full and fair opportunity to address this issue,

no further discovery has been requested, neither party

seeks to proceed to trial, and this subpart of the ancillary pendent state law contract claim represents an

exceedingly small piece of the instant litigation that is

best resolved at this time. Given the procedural posture and the lack of any request for a trial,10 the interests of justice and efficiency will both be best served

by avoiding piecemeal appeals.

CONCLUSION

For the reasons set forth above, Defendants’ motions seeking the resolution of the remaining state law

injunctive relief claims are GRANTED. ECF Nos.

614, 616. In light of such ruling disposing of all remaining state law claims, CSX’s motion seeking a

CSX has acknowledged that proceeding to trial would be a

waste of resources if there was a legal bar to its injunctive relief

claims, see ECF No. 605, at 37-38; ECF No. 593, at 3, with CSX

further clarifying that it would be “inefficient” and “contrary to

sound judicial administration” to proceed to trial on the remaining state law claims, ECF No. 624, at 2. This is not to say that

CSX conceded that a ruling on the contract claim is procedurally

appropriate; to the contrary, CSX highlights why Rule 12(c), as

invoked by Defendants, is an improper procedural vehicle for a

merits-based ruling. However, because all of the federal claims

and the state law conspiracy claims have now been fully resolved,

as has CSX’s contract claim to the extent it relies on conduct occurring before or after 2015, and because the viability of the state

law injunctive relief contract claim is intertwined with this

Court’s summary judgment ruling, the Court finds it appropriate

to resolve this fully briefed issue in advance of the impending

appeal rather than take steps to authorize an interlocutory appeal and leave one exceedingly small fraction of the case undecided.

49a

ruling authorizing an immediate interlocutory appeal

is DISMISSED as moot. ECF No. 623.

The Clerk is DIRECTED to send a copy of this

Opinion and Order to all counsel of record.

IT IS SO ORDERED.

Norfolk, Virginia

April 19, 2023

/s/ Mark S. Davis

Mark S. Davis

CHIEF UNITED STATES

DISTRICT JUDGE

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APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CSX TRANSPORTATION, INC., individually and on

behalf of Norfolk & Portsmouth Belt Line Railroad

Company,

Plaintiff,

Civil No. 2:18cv530

NORFOLK SOUTHERN RAILWAY COMPANY,

NORFOLK & PORTSMOUTH BELT LINE RAILROAD COMPANY,

Defendants.

OPINION AND ORDER

This matter is before the Court on a “Motion to

Dismiss All Remaining Claims for Relief,” filed by Defendant Norfolk & Portsmouth Belt Line Railway

Company (“NPBL”) on January 9, 2023. ECF No. 572.

Defendant Norfolk Southern Railway Company

(“NSR,” and together with NPBL, “Defendants”),

joined in the motion. ECF No. 574. In response to an

expedited briefing order issued by the Court due to the

impending trial date, Plaintiff CSX Transportation,

Inc. (“CSX”) filed its opposition brief on Thursday,

January 12, 2023, and Defendants filed their replies

51a

on Friday, January 13, 2023.1 On Monday January 16,

2023, a day that the Court was closed in observance of

a federal holiday, the Court issued a short order

scheduling oral argument on the pending motion.

ECF No. 602. After holding oral argument on January

18, 2023, and ruling from the bench, the Court now

issues the instant Opinion and Order memorializing

its rulings GRANTING Defendants’ motion to the extent it seeks dismissal of CSX’s federal injunctive relief claims.

PROCEDURAL HISTORY

On January 3, 2023, the Court issued a lengthy

Opinion and Order granting summary judgment in favor of Defendants on CSX’s federal antitrust and

state-law damages claims, but denying summary

judgment on injunctive relief.2 ECF No. 559. Familiarity with the case background and the key factual

and legal allegations is therefore assumed.

Though the briefing period was expedited, CSX’s opposition

brief offers the well-reasoned observation, fully joined in by the

Court, that it would be a waste of resources to proceed to a

lengthy antitrust trial on injunctive relief only for the Court to

hold at the conclusion of trial that CSX lacks a federal cause of

action. ECF No. 593, at 3.

2 Defendants’ summary judgment motions and briefs did not ad-

dress CSX’s claims for injunctive relief, which prompted the

Court to ask questions about injunctive relief at oral argument

in early December. Injunctive relief was raised by the Court

based on the Court’s lack of clarity regarding the degree to which

the stale timing of the antitrust activity alleged by CSX impacted

the injunctive relief claims. In response, Defendants orally argued that CSX’s injunctive relief claims failed for lack of standing. CSX opposed this contention. Thereafter, the Court provided

the parties with two opportunities to file simultaneous briefs on

injunctive relief.

52a

In the January 3, 2023 Opinion and Order, the

Court’s threshold summary judgment ruling on injunctive relief did not turn on the merits, but rather,

the Court concluded:

The timing of the additional briefing periods

was both short and overlapping with December holidays, and neither injunctive relief generally, nor laches, were previously raised by

either Defendant in support of summary judgment. Consistent with CSX’s position on this

issue, the Court finds that court-initiated

summary judgment should not be granted in

favor of either Defendant on the issue of injunctive relief, which has different elements

and is governed by a different federal statute

than CSX’s antitrust damages claim. See 15

U.S.C. § 26.

ECF No. 559, at 81-82. As explained earlier in the

Court’s January 3, 2023 summary judgment Opinion

and Order, Section 16 of the Clayton Act, which is codified at 15 U.S.C. § 26, is what authorizes a private

cause of action seeking injunctive relief for violations

of §§ 1 and 2 of the Sherman Act. Id. at 10 n.5.

As an alternative ruling, the Court noted that the

summary judgment record suggested that CSX had

standing to pursue injunctive relief, discussed the

Court’s broad power under federal law to provide injunctive relief within the context of CSX’s requested

injunctive remedies, and found that there was not an

adequate basis to grant summary judgment on this

Court-raised issue. The Court similarly concluded

that, based on the state of the record at that time, the

doctrine of laches (also an issue that had not been previously briefed) did not bar injunctive relief as a matter of law.

53a

Approximately one week after the Court ruled on

summary judgment, Defendants filed the now-pending motion arguing that, pursuant to a clause in 15

U.S.C. § 26, the Court lacks jurisdiction to grant injunctive relief against “common carriers” subject to

the jurisdiction of the U.S. Surface Transportation

Board (the “STB”).3 ECF Nos. 572, 574. Defendants

alternatively argue that, even if the limiting clause in

§ 26 is not jurisdictional, judgment on the pleadings is

appropriate because CSX has no viable cause of action

under § 26. Id.; see Fed. R. Civ. P. 12(c) & 12(h)(2).

The Court will first address the legal standard applicable to each alternative argument, as well as the legal standard for reconsidering prior rulings, and then

analyze whether Defendants’ motion is proper under

the various procedural avenues briefed by the parties.

Defendants, who have advanced various jurisdictional challenges throughout this case, raised a less developed version of

this argument in their briefs responding to the Court-raised issue of injunctive relief. However, Defendants’ briefs did not previously distinguish the seminal Supreme Court case on this issue. See Georgia v. Penn. R.R. Co., 324 U.S. 439, 454 (1945); cf.

ECF No. 549, at 11 (reflecting CSX’s reliance on Georgia in response to the jurisdictional argument at summary judgment). In

a footnote in the Court’s summary judgment opinion, the Court

indicated that it was “not squarely analyz[ing] Defendants’ reasserted arguments that this Court lacks authority” to grant injunctive relief due to the STB’s regulatory authority. ECF No.

559, at 83 n.33; see also ECF No. 395 (reflecting this Court’s prior

statement that it has “every intention of ensuring that the monetary or injunctive remedies secured in this case (if any) are

within this Court’s authority to award”). Defendants’ current motion, having advanced a more developed argument on this issue,

argues that the time to squarely address the claim is now. CSX

offers procedural objections to Defendants’ motions, but acknowledges that pre-trial resolution of this issue is sensible.

54a

II. THRESHOLD PROCEDURAL ISSUES

A. Subject Matter Jurisdiction

It is well-established that litigants generally retain the ability to “raise a court’s lack of subject-matter jurisdiction at any time in the same civil action,

even initially at the highest appellate instance.” Kontrick v. Ryan, 540 U.S. 443, 455 (2004). As courts of

limited jurisdiction, federal district courts have the

ability, and even the obligation, to raise subject matter jurisdiction sua sponte. See Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 390

(4th Cir. 2004). However, “[b]ecause the consequences

that attach to the jurisdictional label may be so drastic,” the United States Supreme Court has endeavored

in recent years “to bring some discipline to the use of

this term.” Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 435 (2011). Federal courts are directed

to “look to see if there is any ‘clear’ indication that

Congress wanted the rule” at issue to be “jurisdictional.” Id. at 436.

Whether a private cause of action exists under a

federal statute is typically not a jurisdictional question, except in those cases where the plaintiff’s position is “so insubstantial, implausible, foreclosed by

prior decisions of [the Supreme Court], or otherwise

completely devoid of merit as not to involve a federal

controversy.” Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 89 (1998). It is therefore “firmly established [in Supreme Court precedent] that the absence

of a valid (as opposed to arguable) cause of action does

not implicate subject-matter jurisdiction, i.e., the

courts’ statutory or constitutional power to adjudicate

the case.” Id. Accordingly, a district court has jurisdiction over a case if “the right of the petitioners to recover under their complaint will be sustained if the

55a

Constitution and laws of the United States are given

one construction and will be defeated if they are given

another.” Id. (quoting Bell v. Hood, 327 U.S. 678, 685

(1946)); see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014) (noting that

while imperfect, the term “statutory standing” has

been used to denote whether a plaintiff has a cause of

action under a federal statute, but clarifying that applying statutory interpretation principles to determine “the meaning of the congressionally enacted provision creating a cause of action” is typically not a jurisdictional inquiry).

B. Rule 12(b)(6), Rule 12(h)(2), & Rule 12(c)

In situations where an issue is not jurisdictional,

but a plaintiff cannot state a valid legal claim on

which relief can be granted, a motion to dismiss may

be filed under Rule 12(b)(6). Although a Rule 12(b)(6)

motion is typically filed early in a case in response to

the complaint, Rule 12(h)(2) provides that “[f]ailure to

state a claim on which relief can be granted,” is not

waived even if it is not raised until trial. Fed. R. Civ.

P. 12(h)(2); see 5C Fed. Prac. & Proc. Civ. § 1392 (3d

ed., Apr. 2022) (explaining that the defense of failure

to state a claim is preserved “against waiver during

the pleading, motion, discovery, and trial stages of the

action”). Similar to a motion filed under Rule 12(b)(6),

Rule 12(c) provides: “After the pleadings are closed —

but early enough not to delay trial — a party may

move for judgment on the pleadings.” Fed. R. Civ. P.

12(c).

C. Reconsideration of Prior Orders

As noted above, this Court’s prior summary judgment ruling declined to squarely address Defendants’

challenge to this Court’s authority to enjoin

56a

Defendants’ activities that allegedly violate federal

antitrust laws. “Where a district court issues an interlocutory order such as one for partial summary judgment ‘that adjudicates fewer than all of the claims,’”

the court retains discretion to revise such order ‘at any

time before the entry of a judgment adjudicating all

the claims.’” Carlson v. Bos. Sci. Corp., 856 F.3d 320,

325 (4th Cir. 2017) (quoting Fed. R. Civ. P. 54(b)).

Compared to revising a final judgment under Federal

Rule of Civil Procedure 59(e), revising an interlocutory order under Rule 54(b) “involves broader flexibility . . . as the litigation develops and new facts or arguments come to light.” Carlson, 856 F.3d at 325. Although district courts applying Rule 54(b) draw guidance from Rule 59(e)’s standard to ensure that the

“law of the case” retains a sufficient degree of finality,4

the “law of the case is just that,” and it “cannot limit

the power of a court to reconsider an earlier ruling.”

Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,

515 (4th Cir. 2003). This is true because the “ultimate

responsibility of the federal courts, at all levels, is to

reach the correct judgment under law,” and while

such obligation “may be tempered at times by concerns of finality and judicial economy,” the law of the

case remains “a malleable doctrine meant to balance

the interests of correctness and finality.” Id.

4 A district court generally will not depart from a prior ruling

constituting the law of the case unless there is (1) new evidence

that was previously unavailable, (2) new controlling authority,

or (3) a clear error in the prior ruling that would result in “manifest injustice.” Hicks v. Brennan, No. 2:16CV89, 2017 WL

4476835, at *3 (E.D. Va. Apr. 27, 2017). However, while a district

court’s discretion to revisit a prior ruling “is guided by the law of

the case doctrine,” the absence of the above three factors does not

prohibit the court from revisiting a ruling. Id. at *9.

57a

Reaching the correct judgment is of particular importance when a district court addresses significant

threshold matters, such as questions of “Article III

standing” and “jurisdictional issues generally.” Id.

Furthermore, the weight given to the law of the case

may be tempered “by the nature of the first ruling”; if

“the ruling is avowedly tentative . . . it may be said

that law-of-the-case principles do not apply.” Id. at

516 (quoting 18B Fed. Prac. & Proc. Juris. § 4478.5).

D. Procedural Analysis

Consistent with evolving Supreme Court precedent cabining the breadth of issues deemed “jurisdictional,” the Court finds that it has jurisdiction over

this question. Within the scope of that jurisdiction, the

parties’ dispute requires the Court to apply traditional principles of statutory interpretation to determine the scope of a statutory exception to the private

cause of action created by 15 U.S.C. § 26. Though, historically, the instant dispute may have been labeled

“jurisdictional,” CSX’s position regarding the existence of a federal cause of action is not so implausible

that it divests this Court of federal question jurisdiction. Furthermore, the language of the statute does

not reveal a clear intent by Congress to render the

matter jurisdictional, as the relevant provision uses

negative phrasing to explain to whom the statute does

not provide an injunctive remedy. See 15 U.S.C. § 26

(“[N]othing herein contained shall be construed to entitle” the listed class of parties the right to pursue relief).5

5 Alternatively, to the extent this issue should be deemed “juris-

dictional” based on historical cases indicating that 15 U.S.C. § 26

provides the sole authority for a private party to seek an

58a

Adopting CSX’s contention that the issue before

this Court is not jurisdictional, the Court finds that

determining whether CSX has a valid cause of action

to seek relief under 15 U.S.C. § 26 is cognizable under

Rule 12. See Fed. R. Civ. P. 12(c), 12(h), 12(b) (6).

First, as argued by NSR, this Court has discretion to

consider a Rule 12(c) motion even if it is filed shortly

before trial. See Reynolds Assocs. v. Kemp, 974 F.2d

1331, 1992 WL 207747, at *2 n.4 (4th Cir. 1992) (unpublished table opinion) (“The determination whether

the 12(c) motion constitutes a delay of trial is within

the sound discretion of the judge. However, if it seems

clear that the motion may effectively dispose of the

case, the court should permit it regardless of any possible delay its consideration may cause.” (quoting 5A

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 at 514 (1990))). Second, as

conceded by CSX, Rule 12(h)(2) permits this Court to

consider a Rule 12(b)(6) defense “at trial,” and it would

be irrational to proceed to a multi-week federal antitrust trial only to determine at the conclusion that

CSX does not have a cause of action under 15 U.S.C. §

26. Third, notwithstanding CSX’s arguments to the

contrary, the Court finds that the motions advanced

by Defendants are subject to Rule 12(b)(6) treatment

because they turn on a legal interpretation of the statute at issue, not on the facts developed during discovery.6

injunction, Defendants’ motions are plainly timely and dismissal

for lack of jurisdiction would be warranted.

6 The only issue that could be considered “factual” is whether De-

fendants are “common carriers subject to the jurisdiction of the

Surface Transportation Board.” 15 U.S.C. § 26. While CSX’s complaint does not expressly identify Defendants in this way, they

are identified as Class I and Class III railroads that move

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Even if resolving the instant dispute under Rule

12 is improper at this time, the Court finds that Defendants’ motion is alternatively cognizable as an appropriate request for the Court to revisit its ruling on

summary judgment. While the existence of a private

cause of action under § 26 is not “jurisdictional,” it is

a critical threshold matter with similar import. The

Supreme Court’s opinion in Nat’l R. R. Passenger

Corp. v. Nat’l Ass’n of R. R. Passengers, 414 U.S. 453

(1974) illustrates this point. There, the dispute centered on whether a private party can file suit under

“the Amtrak Act” to challenge the discontinuance of

specific passenger trains. Id. at 454-55. In framing the

issue, the Supreme Court noted that “the parties have

approached the question from several perspectives,”

with the issue “variously stated to be whether the

Amtrak Act can be read to create a private right of

action . . .; whether a federal district court has jurisdiction under the terms of the Act to entertain such a

suit; and whether the respondent has standing to

bring such a suit.” Id. at 455-56. The Court further

noted that those questions “overlap in the context of

this case even more than they ordinarily would” and

that “however phrased, the threshold question clearly

intermodal freight, and there has not, at any stage in this case,

been any suggestion from CSX that Defendants are not common

carriers under the STB’s jurisdiction. In fact, it is undisputed

that both Defendants are currently parties to a rate proceeding

before the STB (a proceeding that began before the instant lawsuit was filed). ECF No. 312-17. Furthermore, this case was

stayed in 2021 to permit a potentially dispositive issue to be resolved by the STB. ECF No. 395. To the extent the current motion relies on a fact outside of the pleadings (Defendants’ status

as common carriers), CSX’s failure to contest such fact, including

at oral argument, is sufficient to support the pre-trial resolution

of the threshold legal dispute, particularly when CSX concurs

that pre-trial resolution is preferable.

60a

is whether the Amtrak Act or any other provision of

law creates a cause of action whereby a private party

such as the respondent can enforce duties and obligations imposed by the Act; for it is only if such a right

of action exists that we need consider whether the respondent had standing to bring the action and

whether the District Court had jurisdiction to entertain it.” Id. at 456. Ultimately, the Court concluded

that there was not a private right of action, noting in

a footnote that “[s]ince we hold that no right of action

exists, questions of standing and jurisdiction became

immaterial.” Id. at 465 n.13.

Consistent with the discussion in American Canoe, the law of the case doctrine is less potent when a

dispute goes to the very heart of whether a cause of

action is valid. Furthermore, as noted above, this

Court did not squarely take up this matter when resolving the original summary judgment motion, as the

parties did not seek a ruling on injunctive relief at

that time. As a result, notwithstanding CSX’s suggestion that law of the case principles preclude reconsideration, there is either no “law of the case” on this issue for the Court to reconsider, or the Court’s prior

ruling is properly deemed “tentative,” rendering law

of the case principles largely inapplicable.

In summary, regardless of whether the Court interprets Defendants’ pending motion as a Rule 12(c)

pre-trial motion, a Rule 12(b)(6) motion filed at the

outset of trial, or a motion to reconsider the Court’s

recent summary judgment ruling, the Court has authority to reach the merits.

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III. DISCUSSION - 15 U.S.C. § 26

A. Statutory Interpretation Principles

Having determined that Defendants’ motion is

procedurally proper, the Court turns to its merits. Defendants argue that dismissal of CSX’s federal antitrust injunctive relief claims is required because Section 16 of the Clayton Act — the very provision that

creates a private cause of action for federal antitrust

injunctive relief — deprives a district court of its authority to grant such relief if the defendant is a “common carrier subject to the jurisdiction of the Surface

Transportation Board under subtitle IV of title 49,

United States Code.” 15 U.S.C. § 26. Defendants highlight the notable difference between the language of

the current version of § 26 and the version in force before Congress passed the Interstate Commerce Commission Termination Act (the “ICCTA”). Prior to the

passage of the ICCTA in 1995, the Interstate Commerce Commission (the “ICC”) served as the regulator

for rail carriers, among other industries, as part of one

of the “most pervasive and comprehensive of federal

regulatory schemes.” Chi. & N.W. Transp. Co. v. Kalo

Brick & Tile Co., 450 U.S. 311, 318 (1981). The ICCTA

abolished the ICC, established the STB to take its

place, and made numerous updates to the regulatory

scheme governing rail carriers. See ICC Termination

Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, §§ 101205 (Title I, abolishing the ICC and amending subtitle

IV of Title 49 of the U.S. Code; and Title II, creating

the STB). Title III of the ICCTA, titled “Conforming

Amendments,” sets forth a litany of changes to be

made to other federal statutes to conform those statutes to the ICCTA. Many of these changes simply

swapped out the term “Interstate Commerce Commission” in favor of the term “Surface Transportation

62a

Board.” See generally id. §§ 301-408. Other changes,

such as the change made to 15 U.S.C. § 26 (also known

as Section 16 of the Clayton Act), included additional

modifications. Id. § 318(3).

Defendants argue that under the pre-ICCTA version of 15 U.S.C. § 26, a district court was required to

conduct “two inquiries to determine whether injunctive relief is prohibited”: (1) a “kind of defendant” inquiry; and (2) a “kind of relief” inquiry. ECF No. 573,

at 8. Following the amendment of § 26 in 1995, Defendants contend that the only remaining inquiry is

the “kind of defendant” inquiry. Id. This singular inquiry, Defendants suggest, requires the Court to ask:

“Is the defendant a common carrier subject to the jurisdiction of the STB?” Id. In opposition, CSX argues

that the current statutory language should be read no

differently than the pre-ICCTA version of the statute

because there is no indication in the legislative history

that Congress intended to substantively change the

statute in order to expand the “antitrust immunity

available to common carriers.” ECF No. 593, at 15. Instead, CSX asserts that the amended version of § 26

is “merely a condensed, and conforming, version of the

pre-1995 language.” Id. at 20.

To determine whether CSX “has a cause of action

under” 15 U.S.C. § 26, this Court must examine the

statute by “apply[ing] traditional principles of statutory interpretation.” Lexmark Int’l, 572 U.S. at 128.

“The starting point in discerning congressional intent

is the existing statutory text . . . .” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (Kennedy, J.) (internal

citation omitted); see Niz-Chavez v. Garland, 141 S.

Ct. 1474, 1480 (2021) (Gorsuch, J.) (“When called on

to resolve a dispute over a statute’s meaning, this

Court normally seeks to afford the law’s terms their

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ordinary meaning at the time Congress adopted

them.”); Caraco Pharm. Labs., Ltd. v. Novo Nordisk

A/S, 566 U.S. 399, 412 (2012) (Kagan, J., unanimous)

(“We begin where all such inquiries must begin: with

the language of the statute itself.” (internal citations

omitted)); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98

(2003) (Thomas, J., unanimous) (“Our precedents

make clear that the starting point for our analysis is

the statutory text.”); Am. Tobacco Co. v. Patterson,

456 U.S. 63, 68 (1982) (White, J.) (“As in all cases involving statutory construction, our starting point

must be the language employed by Congress” (internal citations omitted)). As this Court has previously

stated, “when determining Congress’s purpose in enacting — or amending — a particular statute, the statutory text is the best evidence of what Congress set

out to change, but also what it resolved to leave

alone.” World Fuel Servs. Trading, DMCC v. M/V HEBEI SHIJIAZHUANG, 12 F. Supp. 3d 792, 806 (E.D.

Va. 2014) (citing W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 98 (1991)) (cleaned up). It is therefore ordinarily appropriate to assume, “absent a clearly expressed legislative intention to the contrary, that the

legislative purpose is expressed by the ordinary meaning of the words used.” Jam v. Int’l Fin. Corp., 139 S.

Ct. 759, 769 (2019) (Roberts, C.J.) (quoting Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)) (cleaned

up).

Reliance on legislative history as an interpretive

tool is only appropriate where the statutory language,

along with “all the textual and structural clues,” NizChavez, 141 S. Ct. at 1480, render the statute ambiguous as written, Toibb v. Radloff, 501 U.S. 157, 162

(1991) (Blackmun, J.) (“Where, as here, the resolution

of a question of federal law turns on a statute and the

intention of Congress, we look first to the statutory

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language and then to the legislative history if the statutory language is unclear.” (quoting Blum v. Stenson,

465 U.S. 886, 896 (1984))). The rule that “reference to

legislative history is inappropriate when the text of

the statute is unambiguous,” Dep’t of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 132 (2002)

(Rehnquist, C.J., unanimous), persists even in the

face of legislative history that is contrary to the statute’s clear meaning, see Ratzlaf v. United States, 510

U.S. 135, 147-48 (1994) (Ginsburg, J.) (noting that

even when the Court acknowledges some “contrary indications in [a] statute’s legislative history,” the Court

“do[es] not resort to legislative history to cloud a statutory text that is clear”).

B. Textual Analysis

Here, the Court’s statutory analysis begins with

the current text of 15 U.S.C. § 26, Lamie, 540 U.S. at

534, which states in relevant part:

Any person, firm, corporation, or association

shall be entitled to sue for and have injunctive

relief, in any court of the United States having

jurisdiction over the parties . . . [p]rovided[]

[t]hat nothing herein contained shall be construed to entitle any person, firm, corporation,

or association, except the United States, to

bring suit for injunctive relief against any

common carrier subject to the jurisdiction of

the Surface Transportation Board under subtitle IV of Title 49.

15 U.S.C. § 26 (emphasis added). A plain reading of

this text leaves scant room for interpretation. The

statute provides a private cause of action to seek injunctive relief for a federal antitrust violation except

when the defendant is a common carrier subject to the

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STB’s jurisdiction. Here, there is no question that

CSX is a private party that does not represent the

United States. Neither can there be any question that

NSR and NPBL are common carriers subject to the

STB’s jurisdiction. Accordingly, under the plain language of the statute, this Court cannot award CSX the

federal antitrust injunctive remedy that it seeks.

Hoping to preserve the effect of the now-superseded version of the statute, CSX urges the Court to

focus on the statutory language at the end of the common carrier exception. CSX contends that the word

“under” in the phrase “subject to the jurisdiction of the

Surface Transportation Board under subtitle IV of Title 49” should be read to provide that private party

injunctive relief is unavailable only with respect to

matters “within [the STB’s] areas of regulatory authority.” ECF No. 593, at 16. However, that is not the

plainest reading of that statutory phrase. Instead, the

language at the end of the exception reads more naturally as instructing where to look to determine if the

putative defendant is the type of “common carrier”

that is exempt from private party suits. In other

words, the phrase says, if subtitle IV of Title 49 reveals that the defendant is a common carrier subject

to STB authority, then only the United States can

bring a claim for injunctive relief against that entity.

The phrase does not, as CSX suggests, delimit the

type of matters that can be the subject of a cause of

action filed by a private party; rather, it delimits the

type of parties that face exposure to a private action

seeking injunctive relief.

It is for this reason that CSX’s continued reliance

on Georgia v. Penn. R.R. Co., 324 U.S. 439 (1945), is

misplaced. In Georgia, the Supreme Court interpreted

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the pre-ICCTA version of 15 U.S.C. § 26, which stated,

in relevant part:

[N]othing herein contained shall be construed

to entitle any person, firm, or association, except the United States, to bring suit in equity

for injunctive relief against any common carrier subject to the provisions of the Act to regulate commerce, approved February fourth,

eighteen hundred and eighty-seven, in respect

of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate

Commerce Commission.

15 U.S.C. § 26 (amended 1995) (emphasis added). Relying on the pre-1995 statutory language that no

longer exists, the Supreme Court held that injunctive

relief against the rail carrier defendants was not

barred because the relief sought by the plaintiff was

“not a matter subject to the jurisdiction of the [ICC].”

Id. at 455 (emphasis added). This analysis, however,

does not speak to the current statutory text, which no

longer limits the bar on private actions to matters that

are subject to the jurisdiction of the STB. Although

CSX argues that the current language is subject to the

same interpretive scope as the version of the statute

analyzed in Georgia, the plain language of the statute

cannot support that conclusion. To conclude that the

Georgia Court’s analysis applies with equal force today requires concluding that, despite altering 15

U.S.C. § 26 to remove that language, Congress intended to preserve the functionality of the omitted

clause. While it remains possible that Congress had

such subjective intent, it is for Congress, not this

Court, to rewrite § 26 to ensure that the objective statutory language achieves that end.

67a

CSX’s interpretation of the current statutory language effectively would require this Court to read additional language into § 26, such that it would say: “for

injunctive relief against any common carrier with respect to matters subject to the jurisdiction of the Surface Transportation Board”; or alternatively, “for injunctive relief against any common carrier to the extent it is subject to the jurisdiction of the STB.” But as

the Supreme Court has explained, federal courts do

not “usually read into statutes words that aren’t

there.” Romag Fasteners, Inc. v. Fossil, Inc., 140 S.

Ct. 1492, 1495 (2020). The federal judiciary, as a separate branch of government, must be “doubly careful”

to avoid the temptation of reading words into a statute

that change its meaning “when Congress has [ ] included the term in question elsewhere in the very

same statutory provision.” Id.

The Romag Fasteners logic supporting the need

for elevated caution also applies in this case. Here, not

only does CSX’s position require reading additional

words into 15 U.S.C. § 26, but it also requires the

Court to ignore the manner in which Congress modified the law when it abolished the ICC and established

the STB. Notably, elsewhere in the ICCTA’s conforming amendments, Congress simply swapped in the

phrase “Surface Transportation Board” where the

statutes previously read “Interstate Commerce Commission.” See ICC Termination Act of 1995, Pub. L.

No. 104-88, 109 Stat. 803, §§ 301-340 (Title III — Conforming Amendments). In fact, Congress did just that

in amending a different section of the Clayton Act. Id.

§ 318(1)(A) (replacing ICC with STB in § 7 of the Clayton Act). In obvious contrast to such straight swaps,

Congress modified 15 U.S.C. § 26 by rephrasing and

restructuring its articulation of the class of cases for

which no private cause of action exists. Though, as

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CSX asserts, it remains possible that Congress merely

intended to streamline the statutory phrasing without

changing the provision’s meaning, this Court is loath

to make that speculative assumption in light of the

clarity of Congress’s chosen words, particularly when

the change is viewed against the backdrop of the other

1-for-1 substitutions in Title III of the ICCTA. See

Lamie, 540 U.S. at 534 (“The starting point in discerning congressional intent is the existing statutory text

and not the predecessor statutes. It is well established

that ‘when the statute’s language is plain, the sole

function of the courts — at least where the disposition

required by the text is not absurd — is to enforce it

according to its terms.’” (emphasis added) (quoting

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530 U.S. 1, 6 (2000)) (other internal citation omitted)).

C. Legislative History

CSX seeks to further support its interpretation of

§ 26 by emphasizing the legislative history behind the

1995 ICCTA. However, as described in detail above,

legislative history is only useful when it helps to clarify ambiguous statutory text. Toibb, 501 U.S. at 162.

Congress, the branch of our government responsible

for codifying federal causes of action, elected to strike

some of the preexisting language in § 26 and the updated provision uses clear and plain words to codify a

broad ban on private injunctive actions. As explained

below, the limited legislative history behind the ICCTA creates, rather than resolves, ambiguity. See

Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814

(2019) (“Unable to muster support for its position in

the statutory text or structure, the government encourages us to . . . follow it into the legislative history

lurking behind the Medicare Act. But legislative

69a

history is not the law. And even those of us who believe that clear legislative history can illuminate ambiguous text won’t allow ambiguous legislative history

to muddy clear statutory language.”) (cleaned up).

As CSX underscores, there is a dearth of record

evidence regarding Congress’s intent in altering the

words of 15 U.S.C. § 26, leading CSX to argue that

Congress must not have intended to substantively alter the statute’s scope. While this is a plausible theory, it could just as easily suggest that Congress

thought that an explanation was unnecessary in light

of both the language’s clarity and the overall purpose

of the ICCTA (railroad deregulation). The Court will

not infer Congressional intent from the absence of

Congressional comment in the face of clear statutory

text.7 Moreover, the Court’s review of the limited legislative history that does exist shows that the legislative history might hurt, rather than help, CSX.8

7 Similarly, the Court must “not ask whether in [its] judgment

Congress should have authorized [a particular cause of action],

but whether Congress in fact did so.” Lexmark Int’l, 572 U.S. at

128. This inquiry leaves no room for the Court to “apply its independent policy judgment to recognize a cause of action that Congress has denied.” Id.

8 See S. Rept. 104-176 - INTERSTATE COMMERCE COMMIS-

SION SUNSET ACT OF 1995, S. Rept. 104-176, 104th Cong., at

51 (1995), https://www.congress.gov/ congressional-report/104thcongress/senate-report/176/1. (“Sec. 506. Clayton Act — This section would amend 3 provisions of the Clayton Act to substitute

the Board for the ICC. The affected sections are 15 U.S.C. 18

(which exempts ICC-approved mergers and acquisitions from the

antitrust laws), 21 (which authorizes the ICC to enforce provisions of the Clayton Act), and 26 (which precludes private enforcement of the antitrust laws against regulated carriers).”)

(emphasis added).

70a

Similarly, considering the policy behind the 1995

amendments also offers no obvious support for CSX’s

position. As CSX underscores, a professed purpose of

the ICCTA was to facilitate railroad deregulation. See

ECF No. 593, at 3-4, 18. To further that goal, the ICCTA sought generally to consolidate railroad regulatory power into the hands of the STB, limiting the

reach of local, state, and even other federal laws. See

Iowa, Chicago & E. R.R. Corp. v. Washington Cnty.,

Iowa, 384 F.3d 557, 559 (8th Cir. 2004) (The “ICCTA

repealed much of the economic regulation previously

conducted by the ICC and by state railroad regulators

working in conjunction with the ICC. In so doing, Congress recognized that continuing state regulation — of

intrastate rail rates, for example — would ‘risk the

balkanization and subversion of the Federal scheme

of minimal regulation for this intrinsically interstate

form of transportation.’” (quoting H.R. REP. NO. 104311, at 96, reprinted in 1995 U.S.C.C.A.N. 793, 808));

Island Park, LLC v. CSX Transp., 559 F.3d 96, 102 (2d

Cir. 2009) (same).

The goal of consolidating regulatory authority in

the STB arguably undercuts CSX’s assertion that

eliminating private injunctive actions against carriers

subject to the STB’s jurisdiction would represent a

counter-intuitive “dramatic expansion of antitrust immunity” that was “buried” in the ICCTA. ECF No.

593, at 18. As an initial matter, 15 U.S.C. § 26 does

not confer antitrust “immunity” from injunctions because the antitrust laws continue to apply to rail carriers, with the United States serving as the ultimate

backstop. If an STB-regulated common carrier commits ongoing antitrust violations of sufficient public

concern, the Department of Justice retains its ability

under § 26 to secure an injunction ending the antitrust violation. Second, narrowing the field of people

71a

who can bring injunctive relief claims against the railroad industry — claims that, by their nature require

courts to order rail carriers to take certain actions –

seems consistent with the ICCTA’s deregulatory purpose because it limits rail carriers’ exposure to regulation by court-ordered injunction.9 Third, it is important to remember that § 26 only governs injunctive

relief. Private enforcement actions seeking damages

for antitrust violations remain available under a different section of the Clayton Act that contains no common carrier exception. See 15 U.S.C. § 15. Accordingly, at best, the record demonstrates that there are

two reasonable sides to the policy dispute. See NizChavez, 141 S. Ct. at 1486 (“As usual, there are (at

least) two sides to the policy questions before [the

Court]; a rational Congress could reach the policy

judgment the statutory text suggests it did; and no

amount of policy-talk can overcome a plain statutory

command.”).

Finally, more recent legislative activity provides

further support for the Court’s reading of the statute’s

plain language. As Defendants highlight, congressional bills in 2008, 2011, and 2013 sought to eliminate what the bills’ proponents saw as a rail carrier

“carve-out” under federal antitrust law. See ECF No.

9 CSX argues that it cannot be the case that “a private litigant

may never obtain injunctive relief in a federal antitrust case

against a common carrier subject to the jurisdiction of the STB,

regardless of whether that injunctive relief has anything to do

with the STB’s sphere of regulation.” ECF No. 593, at 15 (emphasis in original). That, however, is just what the statute says; the

text is not facially ambiguous. Moreover, that concern does not

apply here as the subject matter of this case is clearly related to

the STB’s sphere of regulations.

72a

573, at 9-10;10 ECF No. 601, at 4 (quoting the 2008

draft amendment package, as included in a report

from the House Judiciary Committee, as stating that

“[u]nder current law, section 16 [of the Clayton Act]

exempts common carriers subject to the jurisdiction of

the STB from suit for injunctive relief by anyone except the United States”).11 Though this Court does not

infer anything about Congress’s intent in 1995 from

legislative proposals or legislative comments made in

subsequent years, see Oscar Mayer & Co. v. Evans,

441 U.S. 750, 758 (1979) (cautioning against undue

reliance on statements made by Congress years after

a law was passed), the fact that Members of Congress

have repeatedly expressed an understanding of the

current version of 15 U.S.C. § 26 that comports with

10 While these three bills all failed, legislating is a complicated

process, and there is therefore no valid inference to be drawn

from the fact that the bills were not passed.

11 Cf. Markup of H.R. 4279, the Prioritizing Resources and Or-

ganization for Intellectual Property Act of 2008 . . . H.R. 1650,

the Railroad Antitrust Enforcement Act of 2007 . . . . 110th Cong.,

at 48 (2008) (statement of Rep. Henry “Hank” Johnson, Member,

H. Comm. On the Judiciary) (“After listening to Ranking Member Smith’s remarks, I am concerned about section 2 of this act

which would change section 16 of the Clayton Act, which provides that only the Federal Government may file suit for injunctive relief against any common carrier subject to the STB’s jurisdiction, and it would give private individuals or private plaintiffs

filing civil antitrust suits the right to obtain injunctive relief.”);

Id. (statement of Rep. Tammy Baldwin, Member, H. Comm. On

the Judiciary) (“Currently, freight rail has enjoyed an exemption

from a wide array of antitrust laws. Antitrust laws generally

have public enforcement and private enforcement. This would

give actors aggrieved by anticompetitive practices a private right

to assert that grievance and have enforcement with injunctions.”).

73a

this Court’s view provides further support for the

Court’s finding that § 26 means what it says.12

Of course, none of this legislative analysis or policy analysis is necessary here. The Court highlights it

only to explain why CSX’s legislative history arguments, which seek to derive the statute’s meaning

from what the enacting Congress did not say, are unavailing even if considered substantively. This issue

can be, should be, and indeed is settled based on the

statutory text alone. That text hardly could be clearer:

private parties (like CSX) cannot obtain injunctive relief for federal antitrust claims (like those alleged

here) against STB-regulated common carriers (like

NSR and NPBL). Therefore, the Court finds that CSX

cannot maintain its remaining federal antitrust

claims for injunctive relief against NSR and NPBL.

This ruling does not render Defendants “immune”

from federal antitrust law, or even federal antitrust

injunctive remedies. Rather, Defendants remain subject to the threat of private actions seeking treble

damages for federal antitrust violations and to the

12 In addition to Congress’s post-ICCTA comments, another fed-

eral district judge has held that the current version of 15 U.S.C.

§ 26 precludes a private cause of action seeking injunctive relief

against a common carrier subject to the STB’s jurisdiction.

Truck-Rail Handling Inc. v. BNSF Ry. Co., No. C 02-02825 JSW,

2005 WL 8178364, at *4 n.5 (N.D. Cal. Mar. 8, 2005). There, neither party had raised the issue, and the court succinctly addressed § 26 in a single footnote; but the fact that the district

judge apparently viewed the statutory language as sufficiently

clear on its face to support a sua sponte ruling further supports

this Court’s interpretation of the statutory language. Stated differently, if the statutory history and familiarity with the Georgia

case are what arguably create an interpretive dilemma, but the

face of the current statute is clear and reveals no dilemma, the

proper course is to apply the statute as written.

74a

threat of an injunction in a case filed by the United

States.13

CONCLUSION

For the reasons set forth above, Defendants’ motion seeking dismissal of CSX’s federal antitrust injunctive relief claims are GRANTED. ECF Nos. 572,

574. As the legal viability of any remaining state law

claim seeking injunctive relief is an open question, the

Court anticipates setting a briefing schedule for this

issue at the February status conference or earlier

upon joint request from the parties. The bench trial on

any remaining state law claims seeking injunctive relief has been continued at the joint request of the parties.

The Clerk is DIRECTED to send a copy of this

Opinion and Order to all counsel of record.

IT IS SO ORDERED.

/s/ Mark S. Davis

Mark S. Davis

CHIEF UNITED STATES

DISTRICT JUDGE

Norfolk, Virginia

January 27, 2023

13 To the extent that the thrust of the instant lawsuit is NSR’s

purported improper “control” over NPBL, Defendants may also

be subject to federal oversight and certain injunctive remedies as

imposed by the STB.

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APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

CSX TRANSPORTATION, INC., individually and on

behalf of NORFOLK & PORTSMOUTH BELT LINE

RAILROAD COMPANY,

Plaintiff,

Civil No. 2:18cv530

NORFOLK SOUTHERN RAILWAY COMPANY, and

NORFOLK & PORTSMOUTH BELT LINE RAILROAD COMPANY,

Defendants.

OPINION AND ORDER

This matter is before the Court on motions for

summary judgment filed by defendant Norfolk &

Portsmouth Belt Line Railway Company (“NPBL”),

ECF No. 296, and defendant Norfolk Southern Railway Company (“NSR,” and together with NPBL, “Defendants”), ECF No. 307. A jury trial is currently

scheduled to commence on January 18, 2023. On December 1, 2022, the Court conducted a hearing on the

pending motions, and it thereafter received two sets

of supplemental briefs from the parties on the issue of

injunctive relief. For the reasons stated below, the

Court GRANTS in part, and DENIES in part, summary judgment in favor of Defendants. The jury trial

76a

currently scheduled for January 18, 2023, will be converted to a bench trial on injunctive relief.

FACTUAL

GROUND

AND

PROCEDURAL

BACK-

Plaintiff CSX Transportation, Inc. (“Plaintiff” or

“CSX”) and defendant NSR are Class I railroads that

operate in the eastern United States and Canada. Defendant NPBL is a terminal and switching railroad

that operates in Hampton Roads, Virginia. NPBL was

founded in 1896 as a joint venture by eight railroads,

including predecessors of CSX and NSR, and it operates to provide its owners with access to NPBL’s own

tracks and tracks on which NPBL has rights to operate. Due to industry consolidation, NPBL is now

jointly owned only by CSX (43%) and NSR (57%).

Based on its majority position, NSR has appointed the

majority of the NPBL Board for approximately thirty

years. During this time, there has been a pattern of

the NPBL Board selecting a former NSR employee to

serve as the NPBL President and of NSR rehiring its

former employee after he serves as NPBL President

for a few years. ECF No. 324-2. Additionally, NSR provides various forms of administrative support to

NPBL, including locomotive leases, billing and contract services, technology services, a car management

system, email addresses,1 benefits administration,

and locomotive maintenance.

CSX and NSR vigorously compete for the domestic

rail transportation of international “intermodal” containers delivered to and from various East Coast

ports, including the Port of Virginia in Hampton

1 As a result of the email support, NPBL executives, including

the company president, send and receive emails at the NSR domain “nscorp.com.”

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Roads (the “POV”). Norfolk International Terminals

(“NIT”) is one of two primary POV terminals where

international container ships offload their cargo. Critically, NSR has rail access to NIT over tracks that it

owns, whereas CSX can only access NIT by rail

through NPBL’s contractual right to use NSR’s tracks

to access the terminal. Utilizing NPBL’s trackage

rights requires CSX to pay the NPBL “switch rate,”

which is the cost per train car “well” that NPBL

charges customers to use its tracks/switching services.

In 2009, the NPBL Board increased the switch rate to

$210 per well, and that switch rate has remained the

same ever since.2 CSX’s alternative to paying the $210

switch rate is transporting intermodal containers by

truck from NIT to a local CSX railyard to be loaded

onto a CSX train, a practice referred to as “drayage.”

Adding further complication to the shared use of

the single track to and from NIT, NSR owns tracks on

the southern side of NIT that allow NSR trains to

move through the terminal in a contiguous circle with

its trains entering through the north gate and exiting

2 The parties vehemently dispute whether the 2009 rate is an

unreasonable barrier to CSX’s ability to participate in the market. CSX has presented sufficient evidence on which a factfinder

could conclude that the rate was viewed by NSR as a “high” rate

that acted as an obstacle to CSX’s ability to provide on-dock rail

at NIT. CSX has also provided facially damaging evidence indicating that NSR acted to leverage its majority stake in NPBL to

prevent CSX from securing a lower rate to access NIT in 2009

and shortly thereafter. CSX therefore has presented evidence

supporting its claim that, in or around 2009, NSR and/or NSR in

conjunction with NPBL, knowingly acted to preclude CSX from

accessing NIT by rail even though NPBL exists for the purpose

of providing its owners (including CSX) access to NPBL tracks

and trackage rights. However, as discussed herein, nearly all of

the claimed anti-competitive acts for which there is evidentiary

support occurred prior to 2013.

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through the south gate. In contrast, NPBL’s more limited trackage rights require CSX trains moved by

NPBL to enter and exit NIT through the north gate.

The crux of the instant lawsuit is whether NSR

and NPBL committed monopolistic antitrust violations, or unlawfully colluded with each other in restraint of trade, in a manner that prevented CSX from

fairly competing to transport international shipping

containers destined for the POV, or more specifically

for NIT, by preventing CSX from obtaining on-dock

rail access at NIT.

Relevant to the dispute over rail access at NIT,

both CSX and NSR have on-dock rail access at Virginia International Gateway (“VIG”), the other primary POV container terminal. VIG, however, has

fewer berths capable of accepting large international

containerships than does NIT.3 The terminal operating company (Virginia International Terminals, hereinafter, “VIT”) that operates the POV ultimately determines which terminal a containership will be

routed to for docking and unloading.4 As such, CSX

cannot guarantee to its international shipping customers that CSX will be able to provide on-dock rail

access at both POV terminals because it cannot prevent VIT from routing those customers’ vessels to

NIT. Various forms of record evidence demonstrate

3 It is the Court’s understanding that both terminals were re-

cently expanded and upgraded, but it appears undisputed that

VIG was significantly smaller than NIT during the years leading

up to the filing of the instant lawsuit.

4 During certain years withing the applicable limitations period

there was a third smaller POV terminal that also received some

international container cargo. However, the operation of such

smaller terminal during certain relevant years does not appear

to materially impact the matters pending on summary judgment.

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that NSR highly valued its position as the “sole” provider of on-dock rail access at NIT and that international shippers and VIT employees viewed CSX’s lack

of on-dock rail access at NIT as negatively impacting

CSX’s ability to compete for international shipping

business at NIT.

CSX’s lawsuit contends that, due to the share of

POV intermodal business that is routed through NIT

and due to NSR’s monopolistic control over on-dock

rail access at NIT, CSX is unlawfully precluded from

fairly competing with NSR for intermodal traffic at

NIT because: (1) on-dock rail access is critically important to international intermodal customers and

that delays and/or unpredictability associated with

drayage means that it is not a suitable commercial alternative beyond certain levels; (2) based on its ondock rail access at VIG and NIT, only NSR can guarantee on-dock rail access to its international shipping

customers; and (3) international shipping customers

are harmed by elevated rates that NSR is able to

charge and does charge due to its actions excluding

CSX from competing at NIT.

Though VIG and NIT are in some ways “substitutes” within the same geographic market, as they

provide the same service, CSX points to evidence establishing that NSR, CSX, and international shipping

companies are prevented from choosing to patronize

one terminal over the other due to VIT’s assignment

of incoming vessels to a terminal based on berth availability and additional considerations other than railroad affiliation. CSX and its expert therefore contend

that NIT and VIG are not truly “substitutes” within

the same “market.” Instead, CSX argues that the only

way a railway serving the POV terminals can fairly

compete for international shipping contracts is to offer

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on-dock rail access at both major terminals. CSX and

its expert separately contend that relying on “drayage” services at NIT is not a valid substitute for ondock rail access, and NSR’s 2009 efforts to stop CSX

from advertising that it had on-dock rail access at NIT

provides circumstantial evidence for CSX’s factual

contention that on-dock rail access is critical to its

ability to compete for international customers and

that NSR took multiple steps to limit that access in

and around 2009. See ECF Nos. 326-32 to 326-34;

ECF No. 326-31. NSR strongly disputes all these

claims, contending that CSX has not defined a relevant market due to available substitutes, to include

VIG, drayage, other East Coast ports, and end-to-end

truck transportation (meaning that international containers are transported from the port to their final

destination without being placed on a train).

CSX filed its complaint in this action in October of

2018, alleging four federal antitrust claims and various state law claims. Following motions practice and

dismissals, the remaining claims, all of which are disputed on summary judgment, are as follows: Count

One, a § 1 Sherman Act conspiracy to restrain trade

claim against NSR and NPBL; Count Two, a § 2 Sherman Act conspiracy to monopolize claim against NSR

and NPBL; Counts Three and Four, § 2 Sherman Act

monopoly and attempted monopoly claims against

NSR; Count Five, a Virginia state law breach of contract claim against NSR; and Counts Eight and Nine,

Virginia state law conspiracy claims against NSR and

NPBL.

In March of 2020, the parties filed a joint motion

to stay the case due to the COVID-19 pandemic, and

several additional joint motions to stay for the same

reason were subsequently filed and granted. A

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scheduling order establishing new deadlines was entered in October of 2020. In May of 2021, the Court

entered an order referring a potentially dispositive issue to the U.S. Surface Transportation Board (“STB”),

the federal agency charged with the economic regulation of freight rail. The case was again stayed until

June of 2022 when the STB issued its decision. In August of 2022, an updated scheduling order was entered

and a jury trial was scheduled for January 18, 2023.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides

that a district court shall grant summary judgment in

favor of a movant if such party “shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The mere existence of some alleged

factual dispute between the parties “will not defeat an

otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine

issue of material fact.” Anderson v. Liberty Lobby Inc.,

477 U.S. 242, 247-48 (1986). “A genuine question of

material fact exists where, after reviewing the record

as a whole, a court finds that a reasonable jury could

return a verdict for the nonmoving party.” Dulaney v.

Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir.

2012).

“Because ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge,’” the Court must only evaluate the evidence

to the extent necessary to determine whether there is

“sufficient disagreement to require submission to a

jury or whether [the evidence] prevail as a matter of

law. “McAirlaids, Inc. v. Kimberly-Clark Corp., 756

F.3d 307, 310 (4th Cir. 2014) (alteration in original)

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(quoting Anderson, 477 U.S. at 251-52, 255). In making its determination, “the district court must view

the evidence in the light most favorable to the nonmoving party.” Jacobs v. N.C. Admin. Off. of the Cts.,

780 F.3d 562, 568 (4th Cir. 2015) (internal quotation

marks omitted). The requirement that the district

court construe all reasonable inferences in favor of the

non-movant and avoid “weighing” evidence is not to be

taken lightly, and a district court is obligated to deny

summary judgment if “a jury could reasonably find either that the plaintiff proved his case by the quality

and quantity of evidence required by the governing

law or that he did not.” United States v. McClellan, 44

F.4th 200, 205 (4th Cir. 2022) (quoting Anderson, 477

U.S. at 254).

The United States Supreme Court has instructed

district courts to cautiously apply summary procedures in federal antitrust cases, though such caution

is particularly important at the motion to dismiss

stage. Poller v. Columbia Broad. Sys., Inc., 368 U.S.

464, 473 (1962). “Summary judgment clearly remains,

however, an appropriate procedure in antitrust litigation.” Terry’s Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir. 1985). As the

Fourth Circuit noted long after Poller was decided,

“because of the unusual entanglement of legal and factual issues frequently presented in antitrust cases,

the task of sorting them out may be particularly wellsuited for Rule 56 utilization.” Thompson Everett, Inc.

v. Nat’l Cable Advert., L.P., 57 F.3d 1317, 1322 (4th

Cir. 1995). This is, of course, especially true when dispositive matters do not turn on issues of motive or inferences to be drawn from circumstantial evidence.

See id. (explaining, in the context of an antitrust case,

that “if the evidence is ‘merely colorable’ or ‘not significantly probative,’ it may not be adequate to oppose

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entry of summary judgment” (quoting Anderson, 477

U.S. at 249-50)).

III. DISCUSSION - STATUTE OF LIMITATIONS

BACKGROUND

Defendants NSR and NPBL assert on summary

judgment that CSX’s federal antitrust claims and related state law claims are all time-barred. It is undisputed that the longest applicable limitations period

for any claim in this case is five years (thus dating

back no earlier than October of 2013), with the federal

antitrust claims governed by a four-year limitations

period. See GO Computer, Inc. v. Microsoft Corp., 508

F.3d 170, 173 (4th Cir. 2007) (“The statute of limitations for federal antitrust claims bars any action ‘unless commenced within four years after the cause of

action accrued,’ plus any tolling.”) (quoting 15 U.S.C.

§ 15b).5 CSX’s Virginia common law conspiracy claim

appears to have a two-year limitations period to the

extent it relies on an alleged breach of a fiduciary

duty. See NorthStar Aviation, LLC v. Alberto, 332 F.

Supp. 3d 1007, 1015 (E.D. Va. 2018) (citing Va. Code

§ 8.01-248; Singer v. Dungan, 45 F.3d 823, 827 (4th

Cir. 1995).

The “principal purpose of limiting statutes is the

prevention of stale claims,” and as “the Supreme

Court has explained, statutes of limitations protect

5 CSX’s federal claims are advanced pursuant to § 1 and § 2 of

the Sherman Act, though the private right to enforce the Sherman Act and recover damages is provided by a statutory provision adopted as part of the Clayton Act. 15 U.S.C. § 15. The Clayton Act expressly provides that private enforcement actions seeking damages are subject to a four-year limitations period. 15

U.S.C. § 15b. A separate provision of the Clayton Act provides for

injunctive relief based on threatened loss or damage. 15 U.S.C. §

26.

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important rights and are primarily designed to assure

fairness to defendants.” SD3, LLC v. Black & Decker

(U.S.), Inc., 215 F. Supp. 3d 486, 493 (E.D. Va. 2016)

(quoting Goad v. Celotex Corp., 831 F.2d 508, 511 (4th

Cir. 1987); Burnett v. New York Cent. R. Co., 380 U.S.

424, 428 (1965)). As explained in a leading antitrust

treatise:

Limitation serves the same functions in antitrust as elsewhere in the law: to put old liabilities to rest, to relieve courts and parties from

“stale” claims where the best evidence may no

longer be available, and to create incentives

for those who believe themselves wronged to

investigate and bring their claims promptly,

particularly when they are known or can be

determined. Repose is especially valuable in

antitrust, where tests of legality are often rather vague, where many business practices

can be simultaneously efficient and beneficial

to consumers but also challengeable as antitrust violations . . . .

Phillip E. Areeda & Herbert Hovenkamp, Antitrust

Law ¶ 320a (5th ed. 2022). In fact, the Supreme Court

has expressly acknowledged the need for enforcement

of the limitations period in both the RICO and Clayton

Act contexts, explaining that:

Both statutes share a common congressional

objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices.

The object of civil RICO is thus not merely to

compensate victims but to turn them into

prosecutors, “private attorneys general,” dedicated to eliminating racketeering activity.

The provision for treble damages is

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accordingly justified by the expected benefit of

suppressing racketeering activity, an object

pursued the sooner the better. It would, accordingly, be strange to provide an unusually

long basic limitations period that could only

have the effect of postponing whatever public

benefit civil RICO might realize. The Clayton

Act avoids any such policy conflict by its accrual rule that “[g]enerally, a cause of action

accrues and the statute begins to run when a

defendant commits an act that injures a plaintiff’s business,” Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 338 (1971), and

the Clayton Act analogy reflects the clear intent of Congress to reject a potentially longer

basic rule under RICO.

Rotella v. Wood, 528 U.S. 549, 557-58 (2000) (footnote

and citation omitted).

As further explained in the above-referenced treatise, the impetus to apply a policy that generally recognizes immediate accrual “is particularly strong in

the case of ‘public’ acts challenged as antitrust violations,” including “exclusionary practices that are

known by those at whom they are directed.” Areeda &

Hovenkamp, Antitrust Law ¶ 320a. This is so because

parties injured by so-called “public” acts “are able to

feel and perhaps to assess their injuries almost immediately,” and because assessing the full scope of antitrust consequences “is often difficult[,] . . . it is especially important that antitrust challenges be timely

made, thus minimizing the social costs of any antitrust violation but giving the parties repose for conduct that is lawful.” Id. (emphasis added).

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IV. DISCUSSION - FEDERAL STATUTE OF

LIMITATIONS

A. Standard Accrual Rule

Supreme Court precedent establishes that a Sherman Act “cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Mayor of Baltimore v.

Actelion Pharms. Ltd., 995 F.3d 123, 129 (4th Cir.

2021) (quoting Zenith, 401 U.S. at 338). Because a private action seeking to enforce the Sherman Act “vindicates one who is injured by a violation of the antitrust laws, it accrues when the plaintiff first suffers

injury.” Id. (second emphasis added) (citing Zenith,

401 U.S. at 339). Therefore, if “a plaintiff feels the adverse impact of an antitrust conspiracy on a particular

date, a cause of action immediately accrues to him.”

Id. (quoting Zenith, 401 U.S. at 339). When the injury

at issue involves exclusion from an industry or market based on an antitrust violation, the excluded

would-be competitor typically has knowledge of the

“public” act of exclusion, and thus, the injury is felt

immediately. See N. Carolina Elec. Membership Corp.

v. Carolina Power & Light Co., 780 F. Supp. 322, 331

(M.D.N.C. 1991) (“Judge Posner, a former antitrust

professor, has explained that to a potential competitor

‘exclusion from a market is a conventional form of antitrust injury that gives rise to a claim for damages as

soon as the exclusion occurs even though, in the nature of things, the victim’s losses lie mostly in the future.” (cleaned up) (emphasis added) (quoting Brunswick Corp. v. Riegel Textile Corp., 752 F.2d 261, 271

(7th Cir. 1984))).

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B. Continuing Violation Doctrine

A review of the summary judgment record reveals

that CSX’s litigation position is based on alleged injuries stemming from numerous acts committed by Defendants more than four years before this suit was

filed. NSR’s summary judgment motion therefore anticipates CSX’s reliance on the “continuing violation”

doctrine applicable to certain § 1 and § 2 Sherman Act

claims. Specifically, NSR argues that CSX cannot establish either that antitrust “overt acts” were committed during the limitations period or that it suffered

new injuries from Defendants’ conduct occurring during the limitations period. ECF No. 308, at 19-20.6 In

opposition to Defendants’ motions for summary judgment, CSX does in fact invoke the continuing violation

doctrine. ECF No. 328, at 41-46. In their reply briefs,

both Defendants seek to further refute the doctrine’s

applicability. ECF No. 383, at 5-15; ECF No. 388, at

5-8.

Defendants, of course, bear the burden of proving

that CSX’s claims are time-barred. David v. Alphin,

704 F.3d 327, 339 (4th Cir. 2013). However, with respect to the federal antitrust claims, once Defendants

illustrate that the claims are untimely but for the application of the continuing violation exception, CSX

bears the burden of establishing that the exception

applies. See XY, LLC v. Trans Ova Genetics, 890 F.3d

1282, 1292 (Fed. Cir. 2018) (applying Tenth Circuit

law); Kaw Valley Elec. Co-op. Co. v. Kansas Elec.

Power Co-op., Inc., 872 F.2d 931, 933 (10th Cir. 1989);

Varner v. Peterson Farms, 371 F.3d 1011, 1019-20

6 The Court’s citations to the parties’ briefs are to the paginated

numbers of the briefs, not the differently numbered ECF documents.

88a

(8th Cir. 2004) (finding that the plaintiffs who wished

to proceed under a “continuing violation” exception

“failed to plead sufficient facts . . . to establish an exception to toll the statutes of limitations”); see also Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp.,

828 F.2d 211, 219-20 (4th Cir. 1987) (noting that when

a plaintiff seeks “to escape the statute” of limitations

on the basis of fraudulent concealment, the plaintiff

must plead the necessary facts to demonstrate fraudulent concealment); Akron Presform Mold Co. v.

McNeil Corp., 496 F.2d 230, 233 (6th Cir. 1974) (noting that when invoked rules are “in avoidance of the

statute of limitations, the party seeking the benefit of

them has the burden of proof to establish them”). Although CSX disputed at oral argument whether Defendants timely asserted that CSX had the burden on

this issue and/or whether the applicable law places

the burden on CSX, the Court finds both that the matter is properly before the Court and that CSX must

shoulder the burden to prove that this exception applies. Regardless, these findings are not determinative because the outcome of the Court’s limitations

analysis would be the same no matter which party

bears the burden of proof.

The “continuing violation” or “continuing conspiracy” doctrine applicable to claims under § 1 and § 2 of

the Sherman Act is easily understood at a basic level.

However, its application is exceedingly complex, and

it applies differently across various types of antitrust

cases. At base, the rule provides that “in the case of a

‘continuing violation,’ say, a price-fixing conspiracy

that brings about a series of unlawfully high-priced

sales over a period of years, ‘each overt act that is part

of the violation and that injures the plaintiff,’ e.g.,

each sale to the plaintiff, ‘starts the statutory period

running again, regardless of the plaintiff’s knowledge

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of the alleged illegality at much earlier times.’” Klehr

v. A.O. Smith Corp., 521 U.S. 179, 189 (1997) (quoting

2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b,

p. 145 (rev. ed. 1995)). Although the limitations period

restarts as to new injuries flowing from new acts committed within the limitations period, “the commission

of a separate new overt act generally does not permit

the plaintiff to recover for the injury caused by old

overt acts outside the limitations period.” Id. (citing

Zenith, 401 U.S. at 338). Thus, as recognized by the

Supreme Court in the context of both civil RICO cases

and federal “antitrust cases, the plaintiff cannot use

an independent, new predicate act as a bootstrap to

recover for injuries caused by other earlier predicate

acts that took place outside the limitations period.” Id.

at 190 (emphasis added). It is therefore “not sufficient

that the plaintiff may have suffered the damages

caused by the defendant’s violation within the limitations period,” Lancianese v. Bank of Mount Hope, 783

F.2d 467, 470 (4th Cir. 1986); rather, calculable damages that flow from time-barred acts are time-barred

four years after the defendant committed the acts that

caused calculable harm. In Zenith, the Court explained the renewed limitations period in the “continuing violation” antitrust context as follows:

In the context of a continuing conspiracy to violate the antitrust laws, such as the conspiracy in the instant case, this has usually been

understood to mean that each time a plaintiff

is injured by an act of the defendants a cause

of action accrues to him to recover the damages caused by that act and that, as to those

damages, the statute of limitations runs from

the commission of the act. . . . Thus, if a plaintiff feels the adverse impact of an antitrust

conspiracy on a particular date, a cause of

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action immediately accrues to him to recover

all damages incurred by that date and all

provable damages that will flow in the future

from the acts of the conspirators on that date.

To recover those damages, he must sue within

the requisite number of years from the accrual

of the action.

Zenith, 401 U.S. at 338-39 (emphasis added).

Here, Defendants assert that – as established by

the plain language of Zenith and further supported by

the Supreme Court’s subsequent anti-bootstrapping

rule from Klehr – CSX must provide evidence “linking” its claimed damages to overt acts occurring during the limitations period. See GO Computer, Inc. v.

Microsoft Corp., 508 F.3d 170, 174 (4th Cir. 2007) (citing Zenith for the proposition that “each new injurious

act in a continuing antitrust conspiracy starts a new

limitations clock as to that act”) (emphasis added); In

re Cotton Yarn Antitrust Litig., 505 F.3d 274, 290 (4th

Cir. 2007) (citing Zenith and Klehr); AGF, Inc. v. Columbia Gas Transmission Corp., No. CV 2:04-0870,

2009 WL 10688066, at *3 (S.D.W. Va. July 2, 2009)

(granting summary judgment in the defendant’s favor

as the plaintiff failed to file suit within four years of

being excluded from the market, and any acts by defendant after plaintiffs terminated their businesses

“did not cause new injuries to them”).

As another judge of this Court recently explained,

based on the Zenith analysis governing continuing violations in antitrust cases, “each injury suffered gives

rise to a separate cause of action that is subject to its

own limitations period,” and a plaintiff’s damages

“must be connected to the discrete injuries that caused

them.” Steves & Sons, Inc. v. JELD-WEN, Inc., 292 F.

Supp. 3d 656, 671 (E.D. Va. 2018). Therefore:

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[A]n action by defendants within the statutory

period does not bring the entire alleged conspiracy, the vast majority of which occurred

outside the statutory period, into that period.

Rather, it will only give rise to a cause of action (a) if the action within the statutory period itself injures the plaintiffs and (b) as to

damages stemming from that action.

Litovich v. Bank of Am. Corp., 568 F. Supp. 3d 398,

434 (S.D.N.Y. 2021); see United States v. Dentsply

Int’l, Inc., Civ. No. 99-255-SLR, 2001 WL 624807, at

*17 (D. Del. Mar. 30, 2001) (explaining that the intralimitations period “overt act alleged by a plaintiff

must be causally related to the plaintiff’s claimed injury”).

C. Special Accrual Rule - Speculative Damages (“Zenith Exception”)

A special antitrust accrual rule, sometimes referred to as the “Zenith exception,” applies in certain

antitrust actions to delay the date of accrual. The Zenith exception only applies when, at the time of the exclusionary conduct (when a private antitrust action

would normally accrue), the plaintiff’s damages are so

dependent on future events that they are “too speculative to recover.” Actelion Pharms., 995 F.3d at 130

(citing Zenith, 401 U.S. at 339); see Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573

(4th Cir. 1976) (“[A] cause of action for future damages does not accrue until the damages become reasonably ascertainable and, therefore, capable of

proof.”). The concept of “speculative” damages, however, must not be extended too far, lest it swallow the

otherwise applicable accrual rule. Moreover, as recognized by the Fourth Circuit, “Zenith did not prescribe

new standards for determining whether damages are

92a

too speculative to permit recovery.” Charlotte Telecasters, 546 F.2d at 573. Rather, the precedent in

place at the time Zenith was decided, “teach[es] that

when the defendant’s wrong has been proven, ‘the jury

may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly,” and that juries may “‘act upon probable

and inferential, as well as direct and positive proof.’”

Id. (quoting Bigelow v. RKO Pictures, Inc., 327 U.S.

251, 264 (1946)).

Accordingly, “[m]ere uncertainty as to the extent

or amount of damage will not bar recovery under the

antitrust laws.” Aurora Enterprises, Inc. v. Nat’l

Broad. Co., 688 F.2d 689, 694 (9th Cir. 1982) (citing

Story Parchment Co. v. Paterson Paper Co., 282 U.S.

555, 562 (1931)). Stated another way, “the Zenith case

does not require that the plaintiff have the best evidence possible of his damage, but rather only that the

damages be provable,” and while better evidence of

damages may not be available until the future, “that

does not mean at an earlier point in time, enough evidence of damage was not available to allow the issue

to go to the jury.” In re Multidistrict Vehicle Air Pollution, 591 F.2d 68, 74 (9th Cir. 1979) (quoting

Monona Shores, Inc. v. United States Steel Corp., 374

F. Supp. 930, 936 (D. Minn. 1973)). In Charlotte Telecasters, the Fourth Circuit rejected the plaintiff’s

Zenith argument that its date of accrual should be delayed because its future damages were too speculative, noting that the plaintiff’s prior submission of a

five-year projection of future subscribers and gross receipts that would have occurred had the plaintiffs received a television franchise from the city council revealed that “the damages which [the plaintiffs] sought

were not too speculative to prevent the cause of action

from accruing at the time of the last overt act.”

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Charlotte Telecasters, 546 F.2d at 573; see N. Carolina Elec. Membership Corp., 780 F. Supp. at 333 (discussing the difference between uncertain damage and

uncertain extent of damage, and indicating that “since

Zenith most circuit courts have declined to label future damage claims speculative”).

D. CSX’s Legal Construction of the Continuing Violation Doctrine

CSX advances two primary arguments in support

of the application of the continuing violation doctrine

to the summary judgment record. First, as set forth in

its written brief and as argued at the summary judgment hearing, CSX contends that proof of an ongoing

conspiracy during the limitations period as illustrated

by any overt act is enough to support recovery for all

damages caused by the conspiracy. Second, as advanced for the first time at oral argument, CSX contends that the Zenith exception governing speculative

damages applies in this case.

1. Proof of Ongoing Conspiracy

In its written brief, CSX relies on In re Lower

Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144 (3d

Cir. 1993) for the proposition that, in the context of an

unlawful monopoly or conspiracy in restraint of trade

that extends into the limitations period, the plaintiff

need not link specific overt acts to specific accumulating damages because “overt acts aren’t what cause

damage,” rather, “[i]t is the effectiveness of the overall

conspiracy that causes damages.” Id. at 1172. In

Lower Lake Erie, the court expressly rejected the argument that “Zenith and its progeny limit recovery to

damages resulting ‘from injury-causing overt acts,”

explaining that such assertion “fails to recognize, in

circumstances such as here, that continuing and

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accumulating damage may result from intentional,

concerted inaction,” meaning that purposeful inaction

can be a sufficiently injurious act, even if “perhaps not

an overt one in the commonly-understood sense.” Id.

The Lower Lake Erie decision labeled the defendant’s

effort – to rely on Zenith’s language linking the restarted limitations period to the damage caused by a

new overt act – as an “overreading” of Zenith directing

a “myopic gaze” at a rule that was not even at issue in

Zenith. Id.

After rejecting the need to link damages to current

overt acts and allowing for a damages claim based on

recent inaction, the Third Circuit went on to reject the

defendant’s reliance on Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 117 (5th Cir.

1975), which was similarly cited for the proposition

that damages needed to be linked to overt acts. The

Lower Lake Erie opinion explained that “far from requiring that the plaintiff tie its damages to specific

acts, the [Poster Exchange] court acknowledged that

a continuing conspiracy may give rise to ‘continually

accruing rights of action,’ and the court simply required the plaintiff to support its allegation that the

defendant had ‘continued during the period in suit to

refuse to deal.” 998 F.2d at 1173 (quoting Poster Exchange, 517 F.2d at 128).

While Lower Lake Erie offers CSX a favorable interpretation of Zenith in support of CSX’s limitations

and damages theories, it predated the Supreme

Court’s clarification of the anti-bootstrapping rule in

Klehr. Further, subsequent case law from multiple

circuits, including the Third and Fifth Circuits, has

clarified that the plain language in Zenith means

what it says. That is, the limitations period restarts

for new and accumulating damages caused by new

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actions committed within the limitations period, and

a plaintiff is barred from seeking damages based on

long stale conduct that has inertial consequences felt

inside the limitations period.

Having carefully considered CSX’s reliance on

Lower Lake Erie in the light of subsequent case law,

the Court reaches two conclusions. First, as to Poster

Exchange, the analysis in that case appears to address a slightly different question than Lower Lake

Erie, as the primary issue addressed by the Fifth Circuit appeared to be why the repetition during the limitations period of acts that are the same or similar to

acts committed outside the limitations period can restart the limitations period. The Fifth Circuit noted

(1) that Zenith relied on case law that does not require

“acts different in kind to set up a later accruing cause

of action,” and (2) the concern that a contrary rule

would “improperly transform the limitations statute

from one of repose to one of continued immunity.”

Poster Exchange, 517 F.2d at 127.7 Importantly, a

7 Consistent with the holding in Poster Exchange, the Fifth and

Third Circuits both allow new acts similar-in-kind to old timebarred acts to “restart” the limitations period, whereas several

other circuits, including the Sixth, Ninth, and Tenth, take a contrary view. See Bell v. Dow Chem. Co., 847 F.2d 1179, 1187 (5th

Cir. 1988) (discussing disagreement with the Ninth Circuit regarding whether “reaffirmations” of refusals to deal restart the

limitations period); W. Penn Allegheny Health Sys., Inc. v.

UPMC, 627 F.3d 85, 106 (3d Cir. 2010) (declining to follow the

Sixth Circuit’s rule that “reaffirmations” of time-barred acts do

not restart the limitations period because it was “inconsistent

with controlling [Third Circuit] precedent”); Kaw Valley Elec.

Co-op. Co. v. Kansas Elec. Power Co-op., Inc., 872 F.2d 931, 933

(10th Cir. 1989) (adopting the Ninth Circuit’s rule). As discussed

below, in this Court’s view, the best way to synthesize such case

law is to focus on whether the time-barred conduct excluding a

company from participating in an industry was “final and

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subsequent case from the Fifth Circuit that more directly focused on the damages that are recoverable

based on recent acts committed during the limitations

period clarified that “[i]n the course of the Poster Exchange opinion we were careful to sound two caveats,”

with the second caveat “emphasiz[ing] that where a

defendant commits an act injurious to plaintiff outside

the limitations period, and damages continue to result

from that act within the limitation period, no new

cause of action accrues for the damages

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