Opposition Brief — Canadian Pacific Pacific Railway Railway Co. Co. v. Lundeen (No. 08-871)

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Y FILED |

No. 08

“S71 APR 8 - 2008

In The OFFICE OF THE CLERK

SUPREME COURT, U.S. |

Supreme Court of the Anited States

CANADIAN PACIFIC RAILWAY COMPANY, ET AL.,

Petitioners,

TOM LUNDEEN, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF IN OPPOSITION OF

RESPONDENTS TOM LUNDEEN, ET AL.

GEORGE G. ECK

MICHAEL J. WAHOSKE*

DORSEY & WHITNEY LLP

50 South Sixth Street,

Suite 1500

Minneapolis, Minnesota

55402-1498

Telephone: (612) 340-2600

COLLIN P. DOBROVOLNY

McGEE, HANKLA, BACKES

& DOBROVOLNY, P.C.

Wells Fargo Center

15 Second Avenue SW,

Suite 305

Minot, North Dakota

58702-0998

Telephone: (701) 852-2544

April 8, 2009

SARAH ANDREWS HERMAN

KRISTY L. ALBRECHT

DORSEY & WHITNEY LLP

51 Broadway, Suite 402

Fargo, North Dakota

58107-1344

Telephone: (701) 235-6000

Counsel for Respondents

Tom Lundeen, et al.

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(1995), provides that courts must apply statutory

amendments “in reviewing judgments still on appeal

that were rendered before the law was enacted, and

must alter the outcome accordingly.” Jd. at 226.

Landgraf v. USI Film Prods., 511 U.S. 244 (1994),

explains that when a jurisdiction-stripping amend-

ment is enacted while a case is pending, the amend-

ment applies, even if “jurisdiction lay when the

underlying conduct occurred or when the suit was

filed.” Id. at 274. The question presented here is:

When a case is pending on direct appeal and Supreme

Court review of a prior interlocutory decision regard-

ing federal question jurisdiction is still available,

must the court of appeals apply a new amendment

providing that there is no federal question jurisdic-

tion?

2. This Court has held that separation of powers

concerns under United States v. Klein, 80 U.S. (13

Wall.) 128 (1871), are not implicated when an

amendment “set[s] out substantive legal standards

for the Judiciary to apply, and in that sense changes

the law (even if solely retroactively).” Plaut, 514 U.S.

at 218. The question presented here is: Does an

amendment that sets out substantive legal standards

for the Judiciary to apply regarding whether a federal

statute preempts certain state-law actions and con-

fers federal question jurisdiction violate the Klein

doctrine?

PARTIES TC THE PROCEEDINGS

Petitioners are as stated in the Petition, and are

sometimes referred to herein collectively as “Cana-

dian Pacific.”

Of the Respondents named in the Petition, a

number of them have reached a settlement with

Petitioners and no longer have pending actions: Larry

and Carol Crabbe; Leo and Denise Duchsherer; Leo

Gleason; Ray Lakoduk; Tom and Nanette Lundeen,

individually and on behalf of M.L. and M.L., minors;

Bobby and Mary Smith; and Melissa Todd.

The following named Respondents still have

pending actions: Mary Beth Gross, individually and

on behalf of B.G., a minor; JoAnn Flick; and Rachelle

Todosichuk. In addition, an action by Mark and

Sandra Nisbet is currently pending, but the parties

have reached a settlement agreement and have filed

a stipulation of dismissal with the court.

The United States of America, having intervened

in this action in the court of appeals to defend the

constitutionality of the 2007 amendments to 49

U.S.C. § 20106, is a respondent in this Court pur-

suant to Rule 12.6.

TABLE OF CONTENTS

Page

QUBS TIONS PIDGIN EIGE? «0. 5cccsssccsvseresccsvcsssenens i

PARTIES TO THE PROCEEDINGS .............00.... 1

Aes GO BAT EE EG cei sncscsesecscsvcccvesesessosess Vv

Eee EO shy izes ins vee Avecchda ceva siecensseues 1

Se TOE 2k a cdeenadscsnuscontsshscontavetaonecaseans 1

STATEMENT OF THE CASE Wat fivacoaeeee, Weatiuce 2

REASONS FOR DENYING THE PETITION ..... 11

I. THERE IS NO CONFLICT PRESENTED

PR easy icoststschxcciubniaticemteimvemenasieoe 14

A. The Lundeen II decision creates no

conflict regarding the amendment to

acerca vA aah cas eoarcacse ateanenes 14

B. The Lundeen II decision will not like-

ly conflict in the future with the hold-

ings of other courts of appeals as to

the application of § 20106................... 14

C. The Lundeen II decision creates no

conflict with Plaut or the cases that

Wave FOlLlOWE PUBUE ooccccccccccccccccccsccovcsss 16

1. There is no conflict with this

Court’s decision in Plaut ................ 16

2. There is no conflict with other cir-

cuits on Plaut either....................... 24

TABLE OF CONTENTS — Continued

Page

D. The Lundeen II decision creates no

conflict with Klein, or with other cir-

cuit cases concerning Klein... ............. 27

1. There is no conflict with Klein ....... 27

2. There is no conflict as to the appli-

cation of Alein............ seemiiastabe pera daloca 30

3. If there is any conflict in the cir-

cuits regarding the weight of clari-

fication amendments, this case is

not part of that conflict .................. 33

II. IN ADDITION TO THE LACK OF ANY

CONFLICT, OTHER CONSIDERATIONS

ALSO COUNSEL AGAINST REVIEW...... 35

PR Pe ARE REMUS 3s vosveacn ‘cavcvarcuhonssnnencens ay ecen arden dees 38

APPENDIX

Lundeen v. Canadian Pac. Ry. Co., Civ. No. 04-

3220 (RHK/AJB) (D. Minn. Mar. 9, 2005)....... App. 1

Lundeen v. Canadian Pac. Ry. Co., Civ. No. 04-

3220 (JMR/FLN) (D. Minn. Dec. 1, 2008).....App. 12

TABLE OF AUTHORITIES

Page

CASES

Ahmann v. Canadian Pac. Ry. Co., No. 08-cv-89

ee a NED ics. Js cass cosnasdabudnnes cpneneaiaeaueso’ 11

Anixter v. Home-Stak. Prod. Co., 77 F.3d 1215

I od cs se uiseasbineascnermnnaecaeaees 26

Apache Survival Coalition v. United States, 21

Pe CEE Gray RIED hacicnsces ~\ceckectasdennossctulavevake sas 30

Auco Corp. v. Aerc Lodge No. 735, 390 U.S. 557

EIR oR) ee ae RE PEER RIE oe EA 13

Baldwin v. Iowa State Traveling Men’s Ass’n,

BE te Ie 8 Oo grids sass sancenencsnducovbinsslunssnsisadaiaes 21

Bates v. Dow Agrosciences LLC, 544 U.S. 431

toe Asda veered na tasipanseecatoconapemleniecemeiane sips 7

Bates v. Missouri & N. Ark. R.R. Co., 548 F.3d

eR Ws INE op. coeundsccevenddncasosseulecbacteabemedsanndnes 37

Beneficial Natl Bank v. Anderson, 539 U.S. 1

ACLs aac anca tan nads da duosapedaraaeerecuaiakcauiumaiaee 13

Biodiversity Assocs. v. Cables, 357 F.3d 1152

MEI: SEEN ou, csicac oaicunadastussheudiaodenomeansecsbienncens 31

Bruner v. United States, 343 U.S. 112 (1952)...... 23, 35

Caterpillar, Inc. v. Williams, 482 U.S. 386

IN ccc Scan ase: Ga dashteh or dnpasaiiahdcciwinesnatissateiseecs 13

City of Chicago v. United States Dep't of Trea-

sury, Bureau of Alcohol, Tobacco & Firearms,

Me Te OTE TERE GE, ID vce vnnccevcseccsssccesessnncnsseic 32

TABLE OF AUTHORITIES — Continued

Page

City of New York v. Beretta U.S.A. Corp., 524

F.3d 384 (2d Cir. 2008), cert. denied, 77

U.S.L.W. 2267 (U.S. Mar. 9, 2009) (No. 08-

AE IRRRN PCS a sliver naa RPO AP yer ten hp Seer 30

CSX Transp., Inc. v. Easterwood, 507 U.S. 658

OPEN totus chstasiccwhiirs ik coutnca ies edacasakeseduniaeikabens 6, 7,12

Felix v. Lucent Techs., Inc., 387 F.3d 1146 (10th

ee a a a a eeatiantind 15

Fla. Dep’t of Revenue v. Piccadilly Cafeterias,

BG Te en I a vinta cvncatacedessecsvcseconsss 34

Franchise Tax Bd. v. Constr. Laborers Vacation

SE Se OF We IIE sans nknsacsindaassdnceiiicivensonces 13, 38

Franciscan Skemp Healthcare, Inc. v. Cent.

States Joint Bd. Health & Welfare Trust

Fund, 538 F.3d 594 (7th Cir. 2008).............cccccsccesess 37

Green v. French, 143 F.3d 865 (4th Cir. 1998),

abrogated in part on other grounds by Wil-

liams v. Taylor, 529 U.S. 362 (2000) ............essereeeee 31

Hallowell v. Commons, 239 U.S. 506 (1916).............. 36

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).....22, 23, 36

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

Se re IE 6 II is sci sicenessadinccoccdinnnesiesadiinaicannccnees 20

Hanover Shoe, Inc. v. United Shoe Mach. Corp.,

os sn ccachconescvndndediinsasnvaancienneabcasn 20

Hernandez-Rodriguez v. Pasquarell, 118 F.3d

SN IG BINED oo siic secs sadevanacpcunsesbacsbadrcncadienseaval 25

Vil

TABLE OF AUTHORITIES — Continued

Hughes Tool Co. v. Trans World Airlines, Inc.,

TE A go | Se nanan SON ee ne aon 20

In re Svo Line R.R. Co. Derailment of Jan. 18,

2002, 2006 WL 1153359 (Minn. D. Ct. Apr.

NT LR ie BR By yo RN Oe SOSA en RRO 3

Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites

de Guinee, 456 U.S. 694 (1982).........000ccc eee. 18, 21

Kircher v. Putnam Funds Trust, 547 U.S. 633

a a aE a 38

Lendgraf v. USI Film Prods., 511 U.S. 244

SRIIN sicwcderencaiiepapndshicseneasitauti eons caleadeeelemans passim

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996),

rev'd on other grounds, 521 U.S. 320 (1997) ....31, 32

Lontz v. Tharp, 413 F.3d 435 (4th Cir. 2005)............. 15

Lundeen v. Canadian Pac. Ry. Co., 342 F. Supp.

Be ee Ny BD onions tcssse benexacsansnessndeabasiviavesens 4

Lundeen v. Canadian Pac. Ry. Co., 2005 WL

SES ALE (Ey. BE. EOP. B, DOOG) ..ccisiscecscssscecccssescescnss A

Lundeen v. Canadian Pac. Ry. Co., 447 F.3d

ee Ce a ED ikenanbitincsascisnesicceiedivsesccasnsaes passim

Lundeen v. Canadian Pac. Ry. Co., 507 F. Supp.

Se URN Hs SIRI, SONG Dai cccsivenctsiscecndcncdacdaeenvasaccconss 7

Major League Baseball Players Ass’n v. Garvey,

Ok es Sa Ce eee 20

Mercer v. Theriot, 377 U.S. 152 (1964) ........0. ee. 20

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58

cola tcniadel 13

TABLE OF AUTHORITIES — Continued

Page

Miller v. French, 530 U.S. 327 (2000)............ 17, 26, 27

Natl Coal. to Save Our Mall v. Norton, 269

Fe RO CII, Gh Bt dicespernisiccsnsncssenteusascstccaan 31

Norfolk S. Ry. v. Shanklin, 529 U.S. 344

CI) vencorecnssvriseweteuvervenntaneaeeaee 6, 7,12

Peters v. Union Pac. R.R., 80 F.3d 257 (8th Cir.

DDD sc in vsnissssdosssccctassiccesatinratienincs wc eee 5

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

(REID) <ncsorencesiesesvisanecabuubeaassensvenedeiabaian aman passim

Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996) ...... 26, 32

Quackenbush v, Allstate Ins. Co., 517 U.S. 706

CSET vvsanhcissassuivsspsisscionsuiontemneteneieseabaeedne 11

Robertson v. Seattle Audubon Soc’y, 503 U.S.

BE CRI ies scosiisstenssscinntenbenrmoann 25, 28, 30, 31, 34

Rogers v. Tyson Foods, Inc., 308 F.3d 785 (7th

CAR, TE nsic:cnvevssetsecsenstsnveventanasadaianene adenine 15

Sullivan v. Am. Airlines, 424 F.3d 267 (2d Cir.

BD cksiscicsisenssensnvescninentetndinacnmemabans eee maemeaneea ae 15

Toledo Scale Co. v. Computing Scale Co., 261

Fabs SID soci:siccasccinesapvardindotpteneea te oaateee se 19, 20

United States v. Enjady, 134 F.3d 1427 (10th

COR Fe rekcsciesniiaendnscaccsbagincsctsnambaredest eatrataetne 26

United States v. Klein, 80 U.S. (13 Wall.) 128

CI AE Ackin sicatsniapeeandedveombica saninasmtatecdamiaiineeamaaen passim

United States v. Padelford, 76 U.S. (9 Wall.)

Se 6 IIT cat sa vadcvovctintarsedcesekesieauksitetensanaaeena amar: 27

TABLE OF AUTHORITIES - Continued

Page

United States v. Schooner Peggy, 5 U.S. (1

LS Ee 17, 26

United States v. Sioux Nation, 448 U.S. 371

asses ae ssspeessusenersnsecssedessooscvoosonsveveseese 28

United States v. Vazquez-Rivera, 135 F.3d 172

MED ssscccncosssossossssesccosesevsesevesnssonaasccees 24, 25

United States v. Virginia, 518 U.S, 515 (1996).......... 20

Va. Military Inst. v. United States, 508 U.S. 946

aa cdecncchad saksenssbendesdcesdcceccnesecscososonsesece 20

Williams v. Taylor, 529 U.S. 3862 (2000)............00008 31

STATUTES, REGULATIONS, AND RULES

ETT cccscscesnsssvcsossessccscescccesccvcccsvescensscoces 4,11

I ILO ceccsccvssssvsccsseccesevesccccscccccccscosones passim

TS ERED vcusssscesvscnnscecsssorsececcveccosocescccccccessconcevecs 6

TD sins sasevsessosssvstsvsssaceseoosesesonsescssccscssoncsees ii

I BY si ccncccsecsecececsisasecvenssscsesscccessvacosscsencce 6

OTHER AUTHORITIES

E. Gressman, et al., Supreme Court Practice

aes iccscoucssonceiciinubassduodestvasveeserscceseoes 20

BRIEF IN OPPOSITION

Respondents respectfully request that the peti-

tion for a writ of certiorari be denied.

OPINIONS BELOW

In addition to the decisions identified in the

Petition, Respondents refer the Court to the district

court’s prior decision of March 9, 2005, declining

supplemental jurisdiction and remanding these cases

back to state court. It was from this unreported

decision, reproduced herein at Resp. App. 1, that

Canadian Pacific appealed, leading to the Lundeen I

decision.

Respondents also refer the Court to the district

court’s order of December 1, 2008, remanding the

cases back to state court following issuance of the

mandate from the Lundeen II decision that is the

subject of the Petition. That order is also unreported

and is reproduced at Resp. App. 12.

INTRODUCTION

While these cases were pending on direct appeal,

Congress amended the statute at issue to state in

plain language that there is no federal question

jurisdiction in cases such as these. Although a prior

interlocutory decision of the court of appeals had

inferred federal question jurisdiction in the absence of

that language, that decision was not, by its very

nature, final under Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995), or any other authority. Amend-

ments regarding jurisdiction are routinely applied to

pending cases pursuant to well-settled law, including

Landgraf v. USI Film Prods., 511 U.S. 244 (1994),

and Plaut, which itself also explained that amend-

ments setting substantive legal standards for the

courts to apply do not conflict with this Court’s deci-

sion in United States v. Klein, 80 U.S. (13 Wall.) 128

(1871).

The court of appeals correctly held that the

amendments to 49 U.S.C. § 20106 are constitutional.

The court also correctly held that when a civil action

is on appeal and Congress amends the law as to

federal question jurisdiction applicable to that action,

appellate courts must apply the law, as amended, to

the case at hand. The decision below is consistent

with this Court's precedent and decisions of the other

courts of appeals. Further review is not warranted.

STATEMENT OF THE CASE

On January 18, 2002, a Canadian Pacific train

catastrophically derailed near Minot, North Dakota,

on track owned and maintained by Petitioner Soo

Line Railroad Company (“Soo Line”), a wholly owned

subsidiary of Petitioner Canadian Pacific Railway

Company. More than 220,000 gallons of anhydrous

ammonia were released from tank cars on the train,

forming a large toxic cloud that hung over the City of

Minot. Lundeen v. Canadian Pac. Ry. Co., 5382 F.3d

682, 687 (8th Cir. 2008) (“Lundeen II”) (Pet. App. 8a).

Many people, including Respondents, were exposed to

the anhydrous ammonia and, as a result, now suffer

from serious and permanent respiratory diseases and

eye damage. /d.

The complaints known as the “Lundeen” cases

were filed on June 28, 2004, in Hennepin County

state court, in Minneapolis, Minnesota, where Soo

Line resides. Numerous other individual plaintiffs

who were injured as a result of the derailment also

filed actions in that court. Jn re Soo Line R.R. Co.

Derailment of Jan. 18, 2002, 2006 WL 1153359, at *1

(Minn. D. Ct. Apr. 24, 2006).

Substantial litigation occurred in Hennepin

County Court. Discovery proceeded, various pretrial

motions and interlocutory appeals were decided, and

certain cases were scheduled for trial. Shortly before

each trial, Petitioners (collectively “Canadian Pacif-

ic”) admitted liability for the cases to be tried, con-

testing only damages. /d. at *2-3. Some cases

proceeded through trial to jury verdicts, others set-

tled shortly before trial, and still others awaited their

trial dates. Id.

Meanwhile, Canadian Pacific removed the Lun-

deen cases from Hennepin County Court to federal

court. The federal district court found that, in making

a reference to “United States law” while stating their

claims, the Lundeen plaintiffs had alleged a federal

cause of action, thus creating federal question juris-

diction. Lundeen v. Canadian Pac. Ry. Co., 342

F. Supp. 2d 826, 829-31 (D. Minn. 2004). Because the

plaintiffs had not intended to plead a federal cause of

action, they moved to amend their complaints to

remove the reference to United States law. That

motion was granted. Lundeen v. Canadian Pac. Ry.

Co., 2005 WL 563111, at *1 (D. Minn. Mar. 9, 2005)

(Resp. App. 4).

In the same March 9, 2005, order, the district

court further granted a motion to remand the Lun-

deen cases back to state court, where, as noted, other

cases arising out of the same derailment were pro-

ceeding. Jd. at 5-6. The court declined to exercise

supplemental federal jurisdiction over these cases. Jd.

at 6-7.

Canadian Pacific appealed the district court’s

remand order, arguing forum shopping and urging

that the district court abused its discretion in refus-

ing to exercise supplemental jurisdiction.’ Canadian

Pacific did not raise “complete preemption” as a basis

for federal question jurisdiction; it had in fact ex-

pressly argued to the district court that its removal

was not based on the complete preemption doctrine.

(Def.’s Opp’n to Mot. to Remand, p. 6.) After oral

' This Court heard oral arguments on February 24, 2009, in

the matter of Carlsbad Tech., Inc. v. HIF BIO, No. 07-1437, on

the issue of whether a remand order based on a declination of

supplemental jurisdiction is subject to appeal. See 28 U.S.C.

§ 1447(c) and (d).

argument, however, the Eighth Circuit sua sponte

raised the issue of potential federal jurisdiction under

the “complete preemption” doctrine and requested

additional briefing from the parties.

The Eighth Circuit ruled that there was implied

federal question jurisdiction over at least one of

the Lundeens’ claims (a claim based on negligent

inspection), based on the doctrine of “complete

preemption.” Specifically, the panel concluded that

the Lundeens’ negligent inspection claim was subs-

tantively preempted under 49 U.S.C. § 20106 of the

Federal Railway Safety Act of 1970 (“FRSA”), and,

because the regulations at issue did not contain a

savings clause indicating the Federal Railway Agency

meant to leave open a state-law cause of action, the

panel determined that “absent en banc review we are

bound by our decision in [Peters v. Union Pac. R.R.,

80 F.3d 257 (8th Cir. 1996)] to find complete, jurisdic-

tional, preemption.” Lundeen v. Canadian Pac. Ry.

Co., 447 F.3d 606, 614-15 (8th Cir. 2006) (“Lundeen I”)

(Pet. App. 78a). The cases were remanded to the

federal district court for further proceedings on the

basis of that jurisdiction. Id.

The Lundeens sought en banc review. While two

of the three Lundeen I panel members, including the

author of that decision, voted to grant the petition, it

was ultimately denied. The Lundeens then petitioned

this Court for a writ of certiorari, on the basis that

Lundeen I was in conflict with the law of nine other

circuits that have held that, regardiess of how broad

substantive preemption may or may not be, the

jurisdictional doctrine of “complete preemption”

requires a determination that the federal statute

creates a federal cause of action, which § 20106 does

not. See Petition for Writ of Certiorari in Lundeen v.

Canadian Pacific Railway Company, No. 06-528.

That interlocutory petition was denied. Pet. App. 80a.

Foliowing remand, Canadian Pacific moved the

federal district court for entry of a final judgment on

the pleadings under Fed. R. Civ. P. 12(c), arguing that

ail of the Lundeens’ claims were preempted under

§ 20106 because of the track regulations found in 49

C.F.R. pt. 213. The Lundeens opposed, arguing that

this Court has held that § 20106 displays “considera-

ble solicitude for state law,” courts must be “reluctant

to find preemption” under § 20106, and preemption

will not lie unless it is the “clear and manifest pur-

pose of Congress.” CSX Transp., Inc. v. Easterwood,

507 U.S. 658, 663-65 (1993). Further, since this Court

has held that to preempt a state-law standard, a

regulation under the FRSA must “substantially

subsume” the subject matter of the state require-

ment, id. at 664, the Lundeens argued that had not

occurred here regarding the particular claims at

issue. The Lundeens also argued that even where

* Contrary to Canadian Pacific’s statement that Lundeen I

was “in accord” with Easterwood and Norfolk S. Ry. v. Shanklin,

529 U.S. 344 (2000), (Pet. 18), it was not. Neither Easterwood

nor Shanklin even dealt with federal jurisdiction based on

complete preemption, and as to the substantive preemption

defense, those decisions set forth and applied a narrow and

(Continued on following page)

federal standards do substantially subsume an area,

a state-law action for damages based on violations of

those federal standards is not preempted, citing, inter

alia, Bates v. Dow Agrosciences LLC, 544 U.S. 431,

451-52 (2005). Nonetheless, following Canadian

Pacific’s argument that broad preemption under the

FRSA is the law in the Eighth Circuit, the district

court granted Canadian Pacific’s motion and entered

final judgment dismissing all claims. Lundeen v.

Canadian Pac. Ry. Co., 507 F. Supp. 2d 1006, 1017 (D.

Minn. 2007). The Lundeens appealed.

While the briefing for the appeal was under way,

Congress enacted and President Bush signed into law

an amendment to § 20106, adding what is now codi-

fied as subsections (b) and (c) to the statute. The pre-

amended § 20106 is now codified as subsection (a) of

the statute. As amended, § 20106 now provides:

§ 20106. Preemption

(a) NATIONAL UNIFORMITY OF REGU-

LATION. — (1) Laws, regulations, and orders

related to railroad safety and laws, regula-

tions, and orders related to railroad security

shall be nationally uniform to the extent

practicable.

(2) A State may adopt or continue in

force a law, regulation, or order related to

railroad safety or security until the Secretary

stringent standard under the FRSA. See generally 529 U.S. at

358-59; 507 U.S. at 673-75.

of Transportation (with respect to railroad

safety matters), or the Secretary of Home-

land Security (with respect to railroad secu-

rity matters), prescribes a regulation or

issues an order covering the subject matter

of the State requirement. A State may adopt

or continue in force an additional or more

stringent law, regulation, or order related to

railroad safety or security when the law,

regulation, or order —

(A) is necessary to eliminate or reduce

an essentially local safety or security

hazard;

(B) is not incompatible with a law, reg-

ulation, or order of the United States

Government; and

terstate commerce.

(b) CLARIFICATION REGARDING STATE

LAW CAUSES OF ACTION. — (1) Nothing in

this section shall be construed to preempt an

action under State law seeking damages for

personal injury, death, or property damage

alleging that a party —

(A) has failed to comply with the Fed-

eral standard of care established by a

regulation or order issued by the Secre-

tary of Transportation (with respect to

railroad safety matters), or the Secre-

tary of Homeland Security (with respect

to railroad security matters), covering

the subject matter as provided in subsec-

tion (a) of this section;

(B) has failed to comply with its own

plan, rule, or standard that it created

pursuant to a regulation or order issued

by either of the Secretaries; or

law, regulation, or order that is not in-

compatible with subsection (a)(2).

(2) This subsection shall apply to all

pending State law causes of action arising

from events or activities occurring on or after

January 18, 2002.

tion creates a Federal cause of action on be-

half of an injured party or confers Federal

question jurisdiction for such State law caus-

es of action.

Because § 20106, as amended in subsection (c),

expressly provides that “(nJothing in this section ...

confers Federal question jurisdiction for such State

law causes of action,” the Lundeens filed a motion

asking the court of appeals to apply the amended

statute to these cases, find a lack of federal jurisdic-

tion, and remand these cases with instructions that

they be remanded back to state court. The Eighth

Circuit ordered additional briefing from both parties

on the effect of the amendment.

In that briefing, Canadian Pacific challenged the

constitutionality of the new amendment on numerous

grounds, including Due Process, Equal Protection,

Separation of Powers, and the Ex Post Facto Clause

(only one of which — Separation of Powers — is urged

in the Petition). The United States intervened and

defended the constitutionality of Congress’s amend-

ment to § 20106, and the Lundeens also argued the

amendment was constitutional and applies to these

pending cases.

The Eighth Circuit held in Lundeen IT that the

amendment was constitutional. Applying the plain

language of § 20106(c), the court held there was no

federal question jurisdiction over these cases. Accor-

dingly, it vacated its decision in Lundeen T and re-

manded the cases to the federal district court, with

instructions to further remand the cases back to

Minnesota state court, where they had originally

been filed. Senior Judge C. Arlen Beam dissented.

Canadian Pacific filed a petition for rehearing

and rehearing en banc, and the full court denied

review. Although Senior Judge Beam again dissented,

no active judge on the Eighth Circuit joined in the

dissent.

Canadian Pacific filed a motion with the Eighth

Circuit to stay the mandate pending a petition for

writ of certiorari to this Court. The Eighth Circuit

denied that motion, again with only Judge Beam

dissenting. No motion was made to this Court for a

stay, and the mandate issued.

Upon remand, the federal district court re-

manded the cases back to the Hennepin County state

court. After the nearly five-year detour in federal

court, discovery is now proceeding, and the first trials

are set for early 2010.°

In the time since the Eighth Circuit denied

Canadian Pacific’s petition for rehearing en banc,

Canadian Pacific has settled with the plaintiffs in all

but three of the Lundeen actions.’

REASONS FOR DENYING THE PETITION

As fully set forth below, the constitutional ques-

tions the Petition purports to raise have already been

well-aired and conclusively decided by this Court. The

Petition presents nothing new with regard to those

questions, except to attempt to raise them again in a

setting of very narrow application. Indeed, in order to

appear new, the Petition resorts to a partial quote

from this Court’s Plaut decision, eliding crucial passag-

es, and to simply ignoring well-settled aspects of this

* Additional cases that are not in the Lundeen group and

are not the subject of the Petition, but which had been removed

to federal court by Canadian Pacific based on the Lundeen ]

decision, were also remanded back to state court after the

Eighth Circuit ruled in Lundeen IT. E.g., Ahmann v. Canadian

Pac. Ry. Co., No. 08-ev-89 (D. Minn. Dec. 1, 2008). Those re-

mands for lack of su ject matter jurisdiction are not subject to

appeal. 28 U.S.C. 5 1447(c) & (d); Quackenbush v. Allstate

Ins. Co., 517 U.S. 706, 711-12 (1996) (“[Rlemands based on

grounds specified in § 1447(c) are immune from review under

§ 1447(d).”).

* See “Parties to the Proceedings,” supra, p. ii.

Court’s jurisdiction and practice. Beyond that, the

Petition attempts to invoke a conflict around the

edges of a unique decision made in 1871, United

States v. Klein, that this Court has not held applica-

ble to invalidate an act of Congress even once in the

almost 140 years since then. The Petition attempts to

do so, not by reference to any decision involving the

Federal Railway Safety Act in question here, but

instead by invoking inapposite cases ranging from

AEDPA to Terri Schiavo.

The underlying controversy here involves an

attempt by victims of a catastrophic railroad derail-

ment to obtain some redress by asserting state-law

claims for personal injury damages based on the

violation of state-law negligence standards where no

federal standard applies, and, where federally im-

posed standards do apply, based on the violation of

those federal standards. Although the issue of wheth-

er the Lundeen I panel correctly decided that there

was federal jurisdiction based on complete preemp-

tion under the old version of § 20106 is not directly at

issue here (because Lundeen II applied the new

amendment to these cases), a very brief word con-

cerning that issue shows the background against

which Congress and the court of appeals acted:

Congress passed the FRSA in 1970. Easterwood,

507 U.S. at 661. Despite all the cases interpreting the

FRSA since then, including two by this Court,’ no

> Shanklin, 529 U.S. 344; Easterwood, 507 U.S. 658.

appellate court — other than the Eighth Circuit — has

ever held that the FRSA’s preemption provision, 49

U.S.C. § 20106, creates federal question jurisdiction

through the doctrine of “complete preemption.” In-

deed, this Court has only found three statutes that

support complete preemption, and the FHKSA is not

one of them.’ In its 2007 amendments to § 20106,

Congress made clear that the FRSA is indeed not one

of them, expressly providing that § 20106 creates no

federal cause of action and no federal question juris-

diction. In light of that amendment, the Eighth

Circuit then applied the law, as amended, to the cases

pending before it. The result is that the law on “com-

plete preemption” federal jurisdiction under the

FRSA is now uniform across the circuits. The Lun-

deen II decision of the Eighth Circuit did not create

any conflict; if anything, it eliminated one.

* As a matter of settled law, “a case may not be removed to

federal court on the basis of a federal defense, including the

defense of pre-emption.” Caterpillar, Inc. v. Williams, 482 U.S.

386, 393 (1987) (emphasis in original); accord Franchise Tax Bd.

v. Constr. Laborers Vacation Trust, 463 U.S. 1, 12 (1983). When,

however, a federal statute provides an “exclusive cause of

action,” a claim alleged under state law “necessarily arises

under federal law and the case is removable” under the complete

preemption doctrine. Beneficial Nat'l Bank v. Anderson, 539 U.S.

1, 9 (2003). This Court has identified only three federal statutes

where such complete preemption exists: section 301 of the Labor

Managemen Relations Act (“LMRA”), Avco Corp. v. Aero Lodge

No. 735, 3%% ' .S. 557 (1968); sections 85 and 86 of the National

Bank Act, Beneficial, supra; and section 502 of the Employee

Retirement Income Security Act (“ERISA”), Metro. Life Ins. Co.

v. Taylor, 481 U.S. 58, 64-67 (1987).

I. THERE IS NO CONFLICT PRESENTED

HERE

A. The Lundeen II decision creates no

conflict regarding the amendment to

§ 20106.

Lundeen II applied the plain language of a 2007

amendment to the preemption provision of the FRSA,

codified at 49 U.S.C. § 20106. As applicable here, that

amendment added a provision regarding federa!

question jurisdiction, § 20106(c), which states in its

entirety: “Nothing in this section creates a Federal

cause of action on behalf of an injured party or con-

fers Federal question jurisdiction for such State law

causes of action.” There are no conflicting decisions

concerning the application of that amendment, nor

does the Petition cite to any such conflict.

B. The Lundeen II decision will not likely

conflict in the future with the hold-

ings of other courts of appeals as to

the application of § 20106.

Lundeen II held that, if constitutional, § 20106(c),

which states explicitly that § 20106 does not confer

federal question jurisdiction, effectively overrules the

court’s prior interlocutory decision in Lundeen I,

which had found federal question jurisdiction based

on the language of what is now § 20106(a) when that

language stood alone. Pet. App. lla (“{I}f valid, sub-

section (c) of § 20106 effectively overrules our decision

in Lundeen I.”). Finding that Congress did not violate

the Constitution in enacting this amendment, Lun-

deen II vacated Lundeen I and sent these pending

cases back to district court with directions to remand

them to the state court from whence they had been

removed. /d. at 17a-18a.

The issue regarding the effect of § 20106(c) on

pending cases’ is extremely unlikely to arise again in

any court, for two reasons: (1) at the time the

amendment was enacted, there appear to have been

no other federal circuits where a pending action for

damages alleged under state law had been removed

to federal court based on alleged federal question

jurisdiction under § 20106;" and (2) all the pending

" The Petition presents no question regarding the applica-

tion of § 20106(c) to cases filed after its enactment.

* Indeed, the Eighth Circuit’s Lundeen I decision was

unique among the circuits in holding that a federal statute such

as § 20106, which creates no federal cause of action, could

provide the basis for federal question jurisdiction under the

“complete preemption” doctrine. See, e.g., Sullivan v. Am.

Airlines, 424 F.3d 267, 273-76 (2d Cir. 2005) (state-law claim not

removable because no federal cause of action replacing plain-

tiff’s state claims); Lontz v. Tharp, 413 F.3d 435, 442 (4th Cir.

2005) (“[TJhe sine qua non of complete preemption is a pre-

existing federal cause of action that can be brought in the

district courts.”) (emphasis in original); Felix v. Lucent Techs.,

Inc., 387 F.3d 1146, 1157 n.9 (10th Cir. 2004) (“a vita! feature of

complete preemption is the existence of a federal cause of action

that replaces the preempted cause of action”) (quotations and

citation omitted); Rogers v. Tyson Foods, Inc., 308 F.3d 785, 788

(7th Cir. 2002) (“Logically, complete preemption would not be

appropriate if a federal remedy did not exist in the alternative.”)

(internal quotes and cites omitted). See also Pet. for Cert. in

Lundeen /, No. 06-528, and additional cases cited therein.

cases arising from the Minot Derailment were filed

within the Eighth Circuit. Of the plaintiffs in the

Lundeen actions themselves, Canadian Pacific has

now settled with all but three. See n.4, supra.

C. The Lundeen II decision creates no con-

flict with Plaut or the cases that have

followed Plaut.

1. There is no conflict with this Court’s

decision in Plaut.

The alleged conflict with Plaut offered by Cana-

dian Pacific is based on a false premise: that the

decision of Lundeen J] inferring the existence of feder-

al question jurisdiction through the doctrine of “com-

plete preemption” was a “final” decision within the

meaning of Plaut. That argument ignores\ both what

this Court actually held in Plaut and this Court’s

standard practice regarding the exercise of its certi-

orari jurisdiction.

With regard to Plaut, the ellipses tell the tale:

When Canadian Pacific provides the Court an ex-

tended quote from Plaut at pages 10-11 of the Peti-

tion, it elides the crucial language. Below is the full

quote from Plaut, with the words of this Court that

Canadian Pacific excluded from the Petition pre-

sented in underscoring:

[A] distinction between judgments from

which all appeals have been forgone or com-

pleted, and judgments that remain on appeal

(or subject to being appealed), is implicit in

what Article III creates: not a batch of un-

necte rts, but a judicial rtment

composed of “inferior Courts” and “one su-

preme Court.” Within that hierarchy, the de-

cision of _an inferior court is not (unless the

time for appeal has expired) the final word of

the department as a whole. It is the obliga-

tion of the last court in the hierarchy that

rules on the case to give effect to Congress’s

latest enactment, even when that has the ef-

fect of overturning the judgment of an infe-

rior court, since each court, at every level,

must “decide according to existing laws.”

Schooner_Peggy, supra, at 109. Having

achieved finality, however, a judicial decision

becomes the last word of the judicial de-

partment with regard to a particular case or

controversy, and Congress may not declare

by retroactive legislation that the law appli-

cable to that very case was something other

than what the courts said it was.

Plaut, 514 U.S. at 227 (underscoring added) (italics in

original).

Thus, “finality” in the Plaut sense occurs only

when “a judicial decision becomes the last word of the

judicial department with regard to a particular case.”

The “judicial department” is “composed of inferior

Courts and one supreme Court,” and the decision of

an inferior court that is still subject to being appealed

to the Supreme Court “is not ... the final word

of the department as a whole.” Id.; see also Miller v.

French, 530 U.S. 327, 347 (2000) (holding that a

remedial injunction subject to continuing supervisory

jurisdiction of the courts was not “the last word of the

judicial department” under Plaut, even if appeals

have been exhausted, because the judicial depart-

ment was still involved).

As its omission of the critical language in Plaut

reveals, Canadian Pacific understands that its entire

argument falls apart unless it can convince this Court

that the Lundeen I decision of the court of appeals

was “the final word of the department as a whole.” It

plainly was not, either in general or with regard to

the question of “complete preemption” jurisdiction.

Lundeen I was an interlocutory decision. The

court of appeals inferred federal question jurisdiction

through § 20106 and remanded the case back to

federal district court. The federal district court on

remand then held that all claims were preempted,

and entered a judgment of dismissal. That decision

was pending before the Eighth Circuit on a direct

appeal when President Bush signed the amendments

to § 20106 into law, including § 20106(c). Thus, these

cases were “pending” and Lundeen I was not a “final”

decision.

It is of course the duty of all federal courts,

including federal appellate courts, to address a lack of

subject matter jurisdiction and to deny jurisdiction

where it is not supported. Ins. Corp. of Ir, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702

(1982). When a jurisdiction-stripping amendment is

enacted while a case is pending, the amended statute

applies, even if “jurisdiction lay when the underlying

conduct occurred or when the suit was filed.”

Landgraf, 511 U.S. at 274. The Eighth Circuit thus

acted properly and in accord with well-settled law

when it vacated its earlier decision, which had found

jurisdiction in these cases, and remanded the cases

with instructions that the cases be further remanded

to state court. Plaut, 514 U.S. at 226-27; Landgraf,

511 U.S. at 274. The Petition ignores that general

law, under which there is no conflict with Plaut.

The Petition also ignores both this Court’s juris-

diction and its regular practice with regard to wheth-

er Lundeen I was the “final word of the judicial

department as a whole” concerning the specific ques-

tion of “complete preemption” jurisdiction in this

case.

As this Court has long held, when its review is

sought from a final judgment, it can correct errors

made in a previous lower court decision in the same

case, even if the Court previously denied certiorari

review of that very decision. The leading treatise puts

it this way, citing several of this Court’s cases:

Supreme Court review of a final judgment

opens up the entire case, including all rele-

vant interlocutory orders that may have been

entered by the court of appeals or the district

court. The Court can reach back and correct

errors in the interlocutory proceedings below,

even though no attempt was made at the

time to secure review of the interlocutory de-

cree or even though such an attempt was

made without success. See ... Toledo Scale

Co. v. Computing Scale Co., 261 U.S. 399,

418 (1923); Hamilton-Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 257-58 (1916);

Hanover Shoe, Inc. v. United Shoe Mach.

Corp., 392 U.S. 481, 488 n.6 (1968); Mercer v.

Theriot, 377 U.S. 152, 153-54 (1964); see also

United States v. Virginia, 518 U.S. 515, 526,

558 (1996); Major League Baseball Players

Ass’n v. Garvey, 532 U.S. 504 (2001).

E. Gressman, et al., Supreme Court Practice 82-83

(9th ed. 2007). A prior denial of certiorari in this

context does “not establish the law of the case or

amount to res judicata on the points raised.” Hughes

Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363,

365 n.1 (1973). Indeed, the Court has often noted that

“[wle generally await final judgment in the lower

courts before exercising our certiorari jurisdiction.’

Va. Military Inst. v. United States, 508 U.S. 946

(1993) (Scalia, J., opinion respecting denial). “Our

action [denying a petition for writ of certiorari] does

not, of course, preclude [a party] from raising the

Same issues in a later petition, after final judgment

has been rendered.” Id.

Thus, under this Court’s normal practice and

understanding of its jurisdiction, its denial of certi-

orari in Lundeen I was not the final word of the

judicial department as a whole, even with regard to

the question of complete preemption jurisdiction at

issue there.” No conflict with Plaut is presented.

To support its flawed argument of a conflict with

Plaut, Canadian Pacific erroneously cites cases that

involve subsequent collateral attacks to jurisdictional

determinations in prior, closed litigation. See Ins.

Corp. of Ir, Ltd., 456 U.S. at 702 n.9 (noting that

while courts, including appellate courts, must address

a lack of subject matter jurisdiction in existing litiga-

tion, the principles of res judicata prevent a collateral

attack to reopen the question after that litigation has

closed); Baldwin v. Iowa State Traveling Men’s Ass’n,

283 U.S. 522, 524-26 (1931) (holding that a party

cannot collaterally attack a final judgment, contest-

ing personal jurisdiction, in a new, second lawsuit).

These cases do not address the finality of an earlier

subject matter jurisdiction determination in a still-

pending lawsuit, and they are inapposite here."

When Plaut is read in full, and when this Court’s

normal certiorari practice and the law regarding

subject matter jurisdiction are considered, it is clear

° Indeed, if certiorari is granted here in Lundeen II, Res-

pondents will urge as alternative grounds for affirmance the

arguments they made in their petition in No. 6-528, that

Lundeen I was wrongly decided, and that § 20106(a), even

standing alone as it did then, does not provide “complete

preemption” federal jurisdiction.

'* Similarly, none of the cases cited in footnote 3 on page 12

of the Petition concerns the effect of a subject matter jurisdiction

determination when a case is still pending on direct appeal.

the decision below does not raise a separation of

powers concern under Plaut, and that no conflict with

Plaut is presented.

Indeed, Congress carefully followed the law of

this Court in amending § 20106. For example, Con-

gress limited its retroactive amendment in subsection

(b), a substantive provision regarding the defense of

preemption, to pending state-law causes of action,

thus following Plaut. 49 U.S.C. § 20106(b)(2); see

Plaut, 514 U.S. at 225-27. Likewise, Congress ex-

pressly stated its intent regarding the retroactivity of

that substantive provision, thus following Landgraf.

49 U.S.C. § 20106(b)(2); see Landgraf, 511 U.S. at

272-73. While Congress did not state anything re-

garding the temporal application of subsection (c), the

jurisdictional provision, such language is not neces-

sary where, as here, only one jurisdictional provision

is involved. See, e.g., Hamdan v. Rumsfeld, 548 U.S.

557, 576-77 (2006) (explaining the presumption that

intervening statutes ousting jurisdiction apply to

pending cases);" Landgraf, 511 U.S. at 274 (“We have

' After reconfirming the general rule, the Court in Ham-

dan declined to apply it in the unique circumstances of that

case, where Congress had made changes to three sequential

jurisdictional provisions regarding habeas claims made by

detainees at Guantanamo Bay, explicitly providing for two of the

provisions to apply to pending cases but remaining silent as to

the effect of the third. The Court drew a “negative inference”

from Congress’s silence on the third provis‘on because of the

inclusios. of explicit language in the other two jurisdictional

provisions. 548 U.S. at 578-84.

(Continued on following page)

regularly applied intervening statutes conferring or

ousting jurisdiction, whether or not jurisdiction lay

when the underlying conduct occurred or when the

suit was filed.”). As this Court explained in Landgraf,

the application of a jurisdictional amendment to

pending cases is proper, “[e]ven absent specific legis-

lative authorization.” 511 U.S. at 273. “Present law

normally governs in such situations because jurisdic-

tional statutes speak to the power of the court rather

than to the rights or obligations of the parties.” Jd. at

274 (internal quotation and citation omitted); see also

Bruner v. United States, 343 U.S. 112, 116-17 (1952)

(distinguishing application of jurisdictional amend-

ments to pending cases from retroactive application

of substantive provisions, and applying an amend-

ment ousting jurisdiction to pending cases).

Thus, Congress followed the directives of this

Court in enacting the amendments to 49 U.S.C.

The unique circumstances of Hamdan are not present here.

Section 20106 contains only one jurisdictional provision,

§ 20106(c); there is no other jurisdictional provision from which

to draw a negative inference contrary to the general rule.

Canadian Pacific argued below that the explicit reference to

pending cases in § 20106(b) provides the conflicting language,

but that argument is incorrect. Section 20106(b) is a substantive

provision subject to different standards regarding the need for

express retroactive language, see Landgraf, 511 U.S. at 272-74,

and thus is not comparable to 20106(c). Further, § 20106(b)

actually provides an additional reason that complete preemp-

tion, as previously analyzed by the Eighth Circuit, fails, because

it expressly eliminates the defense of preemption for claims such

as these.

§ 20106, and the Eighth Circuit properly applied the

new subsection (c) of that statute to these pending

cases, in accordance with Plaut and Landgraf.

2. There is no conflict with other cir-

cuits on Plaut either.

Nor does Lundeen II create a conflict with other

circuits regarding Piaut. Canadian Pacific erroneous-

ly argues that other circuits have held “that Plaut

applies to judgments, not entire cases.” (Pet. 13.) The

cases Canadian Pacific cites do not support its cha-

racterization of a split in the circuits.

Canadian Pacific highlights the First Circuit’s

opinion in United States v. Vazquez-Rivera, 135 F.3d

172 (1st Cir. 1998), as its lead case. But Vazquez-

Rivera is an Ex Post Facto Clause case. At the heart

of Vazquez-Rivera was whether an Ex Post Facto

challenge to a change in criminal law could be de-

feated by labeling the amendment as a clarification.

See id. at 177. The First Circuit held that, regardless

of the label, the amendment did change the law, and

to apply it retrospectively (on a remand for re-

sentencing) would violate the ix Post Facto Clause.

Id. (“[T]here should be little doubt that the applica-

tion of the provisions of the Carjacking Correction Act

tc appellant for the crime for which he was convicted

violates the ex post facto clause of the Constitution.”).

The court simply cited Plaut in dicta, stating that it

would not change its interpretation of the original

criminal statute based on a subsequent “clarification”

that had in fact changed the law. Jd. Because of the

limitations of the Ex Post Facto Clause, the court

applied the pre-amendment version of the statute, as

originally interpreted by the court. /d. Significantly,

the court never cited Plaut to argue, as Canadian

Pacific does here, that the amendment itself was un-

constitutional under the separation of powers doctrine.

Vazquez-Rivera is plainly inapposite to Lundeen I.

Canadian Pacific also cites to the Fifth Circuit

opinion in Hernandez-Rodriguez v. Pasquarell, 118

F.3d 1034 (5th Cir. 1997), where the court denied a

motion to reopen a final decision of the Board of

Immigration Appeals in a habeas proceeding. Jd. at

1038, 1042-43. Plaut’s applicability to a collateral

review on a habeas petition is a completely different

legal issue than whether the “final word of the judi-

cial department” has been rendered when a civil

action is still pending on direct appeal. Indeed, the

court in Hernandez-Rodriguez articulated this dis-

tinction, stating:

[Unquestionably the judiciary must general-

ly apply changes in the law to cases pending

on appeal, and “[wJhen a new law makes

clear that it is retroactive, an appellate court

must apply that law in reviewing judgments

still on appeal that were rendered before the

law was enacted and must alter the outcome

accordingly,” .. .

Id. at 1042 (quoting Plaut, 514 U.S. at 226, and citing

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429,

439-41 (1992) and United States v. Schooner Peggy, 5

U.S. (1 Cranch) 1038 (1801)).

Next, Canadian Pacific cites a Fourth Circuit

decision, Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996).

There, the court found that a consent decree subject

to the ongoing supervision of the district court “re-

mains subject to subsequent changes in the law.” Jd.

at 371. The Plyler decision is consistent with this

Court’s teachings, see Plaut, 514 U.S. at 225-27;

Miller, 530 U.S. at 347, and presents no conflict with

Lundeen II.

Similarly, the Tenth Circuit cases that Canadian

Pacific cites apply Plaut in a manner consistent with

the other circuits’ application and Lundeen II. See

United States v. Enjady, 134 F.3d 1427, 1429-30 (10th

Cir. 1998) (holding that a new evidentiary rule ap-

plied to a pending trial because “[rjules of pleading

and proof can [] be altered after the cause of action

arises, and even, if the statute clearly so requires,

after they have been applied in a case but before final

judgment has been entered”) (quoting Plaut and

citing Landgraf); Anixter v. Home-Stake Prod. Co., 77

F.3d 1215, 1223 (10th Cir. 1996) (explaining that

because the case had not “completed [its] journey

through the federal courts” at the time an amend-

ment was enacted, there had been no “final” judg-

ment under Plaut).

In short, the decisions that Canadian Pacific cites

are consistent with each other in recognizing that

cases still subject to direct judicial review or still

under court supervision are “pending” for purposes of

separation of powers analysis under Plaut. These

decisions do not conflict with each other or with

Lundeen IT.

D. The Lundeen II decision creates no con-

flict with Klein, or with other circuit

cases concerning Klein.

1. There is no conflict with Klein.

Next, Canadian Pacific seeks review under

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871).

In Klein, “the executor [Klein] of the estate of a

Confederate sympathizer[] sought to recover the

value of property seized by the United States during

the Civil War, which by statute was recoverable if

Klein could demonstrate that the decedent had not

given aid or comfort to the rebellion.” Miller, 530 U.S.

at 348. This Court had held in United States v. Padel-

ford, 76 U.S. (9 Wall.) 531 (1869), that a presidential

pardon satisfied the statutory burden of proof that no

aid had been given. Congress then passed a statute

requiring courts to consider such a pardon to be

conclusive proof of disloyaity, and so to rule for the

government. The Court held that “it is clear that the

legislature cannot change the effect of such a pardon

any more than the executive can change a law. Yet

this is attempted by the provision under considera-

tion.” Klein, 80 U.S. at 148. It also rejected the at-

tempt by Congress to make the courts complicit in

that endeavor, noting that “[wle are directed to dis-

miss the appeal, if we find that the judgment must be

affirmed, because of a pardon granted,” id. at 146,

and stating that whether Congress can so direct a

court “because and only because its decision, in

accordance with settled law, must be adverse to the

government and favorable to the suitor” is a “question

[which] seems to us to answer itself,” id. at 147."

This Court has already made clear that there is

no conflict with Kle:n in the circumstances present

here. “Whatever the precise scope of Klein, ... later

decisions have made clear that its prohibition does

not take hold when Congress ‘amend[s] applicable

law’” as opposed to merely directing the disposition of

a case under existing law. Plaut, 514 U.S. at 218

(citing Robertson, 503 U.S. at 441, which held that

even when a statutory amendment is directed to

particular pending cases, it does not violate separa-

tion of powers principles if Congress leaves the appli-

cation of that amendment to the courts)."’ Thus, in

Plaut, where an amendment was enacted to overrule

a judicial statutory interpretation, this Court recog-

nized that the legislation “indisputably does set out

substantive legal standards for the Judiciary to

“ As this Court has since explained, “the fact that Congress

was attempting to decide the controversy at issue in the Gov-

ernment’s own favor” was “of obvious importance to the Klein

holding.” United States v. Sioux Nation, 448 U.S. 371, 405

(1980).

' Indeed, the Klein Court itself had foreshadowed that

clarification, distinguishing a situation in which an act had

changed the law “but the court was left to apply its ordinary

rules to the new circumstances created by the act.” 80 U.S. at

146-47.

apply” and therefore “changes the law (even if solely

retroactively).” /d.

The amendments here clearly set out substantive

legal standards that were not previously part of the

text of the law. Congress added section 20106(b),

which sets out the standard to apply in deciding

whether § 20106 preempts certain state-law actions

for damages. The law previously did not contain that

explicit standard. Congress thought (and said) it was

clarifying what should have been implicit in the

previous text of § 20106(a) alone, but there is no

doubt that Congress changed the law by providing an

explicit standard for the judiciary to apply as to state-

law actions for damages. And, as noted above, Con-

gress carefully followed this Court’s decision in Plaut

by expressly making that standard applicable only to

pending and future cases; it did not try to change the

law with regard to cases that had already been de-

cided by the final word of the judicial department.

Congress also added subsection (c), explicitly stating,

for the first time, that nothing in the entirety of

§ 20106 creates a federal cause of action or confers

any federal question jurisdiction. Congress thus gave

the judiciary explicit standards to use when deciding

questions of preemption, of implied federal causes of

action, and of implied federal question jurisdiction,

all of which turn on the judiciary’s reading of the

intent of Congress, which Congress here made expli-

cit by amending the text of the law.

Thus, as in Plaut and Robertson, Congress here

clearly amended the law and left the application of

that law to the courts. There is no conflict with Klein.

2. There is no conflict as to the appli-

cation of Klein.

Canadian Pacific’s attempt to create the impres-

sion of a circuit split as to the application of the Klein

doctrine also fails. Canadian Pacific erroneously

argues that Lundeen II and decisions by the Ninth,

Second, Tenth, and D.C. Circuits hold that “Congress

can direct the outcome of particular pending cases as

long as that result is achieved through legislative

enactment.” (Pet. 19-20.) Neither Lundeen IJ nor the

other circuits Canadian Pacific lists stand for that

proposition.

In fact, the cases Canadian Pacific cites do noth-

ing more than reiterate this Court’s holdings in

Robertson and Plaut that the separation of powers

doctrine at issue in Klein is not offended when Con-

gress amends applicable law. See Apache Survival

Coalition v. United States, 21 F.3d 895, 904 (9th Cir.

1994) (rejecting a Klein argument and holding that

the statutory amendment at issue “compells) changes

in law, not findings or results under old law”); City

of New York v. Beretta U.S.A. Corp., 524 F.3d 384,

396 (2d Cir. 2008), cert. denied, 77 U.S.L.W. 3267

(U.S. Mar. 9, 2009) (No. 08-530) (finding that Klein

did not render a statutory amendment unconstitutional

because the amendment “changes the applicable law”);

Biodiversity Assocs. v. Cables, 357 F.3d 1152, 1164 &

n.8 (10th Cir. 2004) (reasoning that because Congress

nad changed the law, the court “need not decide

whether directing specific actions without changing

the law would be an unconstitutional attempt by

Congress to usurp the Executive's role in interpreting

the law”); Nat’? Coal. to Save Our Mall v. Norton, 269

F.3d 1092, 1097 (D.C. Cir. 2001) (rejecting a Klein

argument because, as in Robertson, the statute at

issue “amends the applicable substantive law”).

The circuits that Canadian Pacific alleges

represent the “other side,” (Pet. 20-21) — the Fourth

and Seventh Circuits — actually use the same reason-

ing as the cases cited above. Green v. French, 143 F.3d

865, 874 (4th Cir. 1998) (explaining that separation of

powers was not implicated by amendment because it

did not “dictate[| the judiciary’s interpretation of

governing law” and did not “mandate[] a particular

result in any pending case”), abrogated in part on

other grounds by Williams v. Taylor, 529 U.S. 362

(2000); Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir.

1996) (explaining that separation of powers is not

offended under Klein when Congress makes rules

that affect an entire class of cases).'* If there were any

In describing Lindh v. Murphy, Canadian Pacific again

employs the tactic of elision. The full quote from this decision

clearly reflects that the Seventh Circuit is in accord with the

remaining circuits’ view that the Constitution is not offended

under Klein when Congress amends a law. Below is the entire

passage, with the language that Canadian Pacific omits unders-

cored:

(Continued on following page)

doubt about the law of these circuits, additional

decisions plainly demonstrate their understanding

that when an amendment changes the law, Klein is

not implicated. See City of Chicago v. United States

Dep't of Treasury, Bureau of Alcohol, Tobacco &

Firearms, 423 F.3d 777, 783-84 (7th Cir. 2005) (find-

ing it “unnecessary to address the City’s Klein chal-

lenge” because the amendment at issue had changed

the law); Plyler, 100 F.3d at 372 (Fourth Circuit

explaining that because Congress amended the law in

limiting the district court’s authority to award relief,

the amendment did not violate the Klein doctrine).

Notably, in every case cited by Canadian Pacific,

the legislation at issue was deemed constitutional

and not in violation of the Klein separation of powers

doctrine. Likewise, the amendment at issue in Lun-

deen II was found constitutional; it changed the

applicable law by setting forth Congress’s express

Congress cannot tell courts how to decide a particular

case, but it may make rules that affect classes of cas-

es. Congress cannot say that a court must award

Jones $35,000 for being run over by a postal truck, but

it may prescribe maximum damages for categories of

cases, or provide that victims of torts by federal em-

ployees cannot receive punitive damages. It may estab-

lish that if the driver was acting within the scope of

his employment, the United States must be substi-

tuted as a party and the driver dismissed — even if

that turns out to deprive the victim of compensation.

Lindh, 96 F.3d at 872 (internal citations omitted). In any event,

this Court later reversed the Seventh Circuit’s decision, on other

grounds. 521 U.S. 320 (1997).

intent regarding federal question jurisdiction and

preemption, and left the application of that changed

law to the courts. In short, there is no circuit conflict

at issue here regarding Klein.

3. If there is any conflict in the cir-

cuits regarding the weight of clari-

fication amendments, this case is

not part of that conflict.

Recognizing that separation of powers concerns

under Klein are not offended when “Congress ...

change[s] substantive law so as to affect pending

cases,” (Pet. 17-18), Canadian Pacific attempts -o

argue that the amendments did not substantively

change the meaning of the statute, because subsec-

tion (b) of § 20106 is entitled “Clarification Regarding

State Law Causes of Action.”

The argument is a red herring. As an initial

matter, the subtitle regarding a “clarification” applies

only to subsection (b), not to subsection (c), the juris-

dictional provision that was actually applied in

Lundeen II. Subsection (c) clearly makes new law in

that it expressly addresses issues to which Congress

had not spoken in the past, providing that § 20106

does not create a federal cause of action or confer

federal question jurisdiction. Further, even as to

subsection (b) and regardless of its label,'’ Congress

amended and changed § 20106 by stating, for the first

time, its express intent as to the standard for deter-

mining whether state-law actions for damages are

preempted. As this Court held in Robertson and

Plaut, such amendments do not violate the separation

of powers under Klein. Plaut, 514 U.S. at 218.

Because Congress changed the law in expressly

setting forth new statutory standards, the alleged

split heralded by Canadian Pacific regarding the

amount of weight to accord clarification provisions is

not at issue here. In fact, in Lundeen Il, the Eighth

Circuit explained Plaut’s teachings that Congress has

constitutional power to amend statutory law even if

such amendments will affect pending cases, and that

courts are obligated to apply the law, as amended, to

the pending cases. This explanation and reliance on

Plaut indicates the Eighth Circuit’s understanding

that the law had indeed changed under § 20106.

Further, the court went on to address Canadian

Pacific’s other constitutional challenges to the

amendments to 49 U.S.C. § 20106, an analysis it need

not have undertaken if the court had believed the

amendment was a clarification that did not change

the law and, as such, did not implicate potential

constitutional concerns. Thus, while Canadian Pacific

makes much of the scholarly debate regarding the

“To be sure, a subchapter heading cannot substitute for

the operative text of the statute.” Fla. Dep't of Revenue v.

Piccadilly Cafeterias, Inc., 128 S.Ct. 2326, 2336 (2008).

weight to give clarification amendments, such analy-

sis is not implicated by either the Eighth Circuit’s

finding that chenges to § 20106 do not violate Klein

principles or the court’s application of a new jurisdic-

tion-stripping amendment to pending cases.

Notably, none of the cases Canadian Pacific cites

regarding an alleged split on how much weight

should be given to clarification amendments involves

amendments conferring or stripping jurisdiction.

That is because jurisdictional amendments apply to

pending cases, and the question of whether they

change the law or merely clarify it is a moot point.

See Landgraf, 511 U.S. at 274 (citing Bruner, 343

U.S. at 116-17). Here, the specific amendment applied

in Lundeen II was § 20106(c), a jurisdictional

amendment. Accordingly, the question of how much

weight to give clarification statutes is not at issue.

Said another way, even if there is a split in the cir-

cuits, this case is not a good vehicle for determining

the weight to give to clarification amendments.

Il. IN ADDITION TO THE LACK OF ANY

CONFLICT, OTHER CONSIDERATIONS

ALSO COUNSEL AGAINST REVIEW

Finally, Canadian Pacific marshals a broad set of

cases, dealing with everything from AEDPA to Terri

Schiavo, to support an argument that this Court

should explore and define the parameters of Klein,

even alleging that Klein must be addressed because of

due process concerns. Notably missing from the

ace i ii ii ii

Petition is any decision (other than Lundeen II itself)

dealing with the 2007 amendments to § 20106 of the

FRSA. While the theoretical edges of Klein may

inspire an interesting debate, they are not at issue

here, and Lundeen II would be a poor vehicle for

exploring them.

Further, any potential due process concerns of

retroactivity that Canadian Pacific alleges animate

Klein (a separation of powers case), (Pet. 25), are not

in play here. The amendment applied in Lundeen II is

subsection (c), which states that § 20106 does not

confer federal question jurisdiction. As this Court

recently explained in Hamdan v. Rumsfeld, an

amendment like subsection (c) that eliminates poten-

tial federal question jurisdiction “takes away no

substantive right but simply changes the tribunal

that is to hear the case.” 548 U.S. at 577 (quoting

Hallowell v. Commons, 239 U.S. 506, 508 (1916)).

“(NJjo retroactivity problem arises because the change

in the law does not ‘impair rights a party possessed

when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to trans-

actions already completed.’” Jd. (quoting Landgraf,

511 U.S. at 280). Accordingly, Lundeen II does not

implicate any potential due process concerns. ™

'* Although the panel dissent speculates at length about the

topic, the Lundeen JJ court did not rule on the merits of any

defense of preemption under § 20106, as amended; it simply held

that the federal courts lack subject matter jurisdiction, leaving

the merits of any preemption defense to the state court on

(Continued on following page)

These cases involve plaintiffs who were seriously

injured in a derailment on January 18, 2002, caused

by what Canadian Pacific has admitted in other cases

was its negligence. Their state court lawsuits were

detoured by an interlocutory decision finding “com-

plete preemption,” which the Eighth Circuit inferred

from the preemption cléuse of 49 U.S.C. § 20106. The

decision in Lundeen Ii does nothing more than apply

to pending cases the plain language of a statutory

amendment stating there is no federal question

jurisdiction in such actions for damages, and then

return those cases back to state court, where they will

now finally proceed on the merits.’ Lundeen II is in

remand. See also Bates v. Missouri & N. Ark. R.R. Co., 548 F.3d

634, 637 (8th Cir. 2008) (noting that “Lundeen IJ makes clear

that the FRSA does not convert a state law claim into a federal

cause of action... . [a]bsent diversity, therefore, a state court is

the prener forum for litigating ... preemption defense[s]”). In

vacating Lundeen I, the decision in Lundeen II mirrored the

standard order given by appellate courts upon a finding that

there is no federal jurisdiction. Compare Lundeen II, Pet. App.

17a-28a (“we vacate our decision in Lundeen I and remand these

cases to the district court with instructions in turn to further

remand them to state court”), with, e.g., Franciscan Skemp

Healthcare, Inc. v. Cent. States Joint Bd. Health &: Welfare Trust

Fund, 538 F.3d 594, 601 (7th Cir. 2008) (“We reverse the denial

of the motion to remand and vacate the order dismissing the

claims as the tral court lacked jurisdiction to enter that order.

Upon return of this case to the district court, it is to be re-

manded to the state court from which it was removed.”).

" To the extent preemption is asserted in the state court

litigation on the merits, this Court has explained that state

courts are “equally competent” to make merits decisions on

issues such as “ ‘a claim of federal pre-emption, [and] that

decision may ultimately be reviewed on appeal by this Court.’”

(Continued on following page)

accordance with the settled law of this Court and

other circuits, and is not a decision worthy of this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Dated: April 8, 2009 Respectfully submitted,

GEORGE G. ECK SARAH ANDREWS HERMAN

MICHAEL J. WAHOSKE* KRISTY L. ALBRECHT

DORSEY & WHITNEY LLP DORSEY & WHITNEY LLP

50 South Sixth Street, 51 Broadway, Suite 402

Suite 1500 Fargo, North Dakota

Minneapolis, Minnesota 58107-1344

55402-1498 Telephone: (701) 235-6000

Telephone: (612) 340-2600

COLLIN P. DOBROVOLNY Counsel for Respondents

MCGEE, HANKLA, BACKES Tom Lundeen, et al.

& DOBROVOLNY, P.C.

Wells Fargo Center

15 Second Avenue SW,

Suite 305

Minot, North Dakota

58702-0998

Telephone: (701) 852-2544

*Counsel of Record

Kircher v. Putnam Funds Trust, 547 U.S. 633, 646, 648 (2006)

(quoting Franchise Tax Bd., 463 U.S. at 12 n.12).

App. 1

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Tom Lundeen, individually,

and Nanette Lundeen,

individually, and Tom

Lundeen and Nanette Lundeen

on behalf of, and as parents

and natural guardians of

[Name Of Minor Child Omitted], Gj, No. 04-3220

a minor, and Michael Lundeen, (RHK/AJB)

Plaintiffs, MEMORANDUM

‘ OPINION AND

ORDER

Canadian Pacific Railway

Company, Canadian Pacific

Limited, Canadian Pacific

Railway Limited, and Soo

Line Railroad Company,

Defendants.

Collin P. Dobrovolny and Bryan L. Van Grinsven,

McGee, Hankla, Backes & Dobrovolny, PC, Minot,

North Dakota, for Plaintiffs.

Timothy R. Thornton, Scott G. Knudson, and Kevin

M. Decker, Briggs and Morgan, Minneapolis, Minne-

sota, for Defendants.

ee ee

App. 2

Introduction

This case (and thirty other “related” cases’)

arises out of injuries sustained by the release of

liquefied anhydrous ammonia after a train derail-

ment in North Dakota. Before the Court is plaintiffs’

second remand motion. For the reasons set forth

below, the Court will grant the motion.

Background

Plaintiffs in this case are Tom and Nanette

Lundeen, both individually and on behalf of [Name Of

Minor Child Omitted] and Michael Lundeen (collec-

tively, the “Lundeens”). Defendants are Canadian

Pacific Railway Company, Canadian Pacific Limited,

Canadian Pacific Railway Limited, and Soo Line

Railroad Company (collectively, “CPR”).

In June 2004, the Lundeens sued CPR in Minne-

sota state court. Among their original claims, they

alleged that “CPR violated applicable state law ... as

well as United States law, resulting in the release of

hazardous substances and which amount to contami-

nation, pollution, unauthorized release of hazardous

material and other violations of applicable ‘environ-

mental laws’....” (Compl. Count Three {{ V (empha-

sis added).)

In July 2004, CPR removed the case to this Court

based upon federal question jurisdiction pursuant to

' See Exhibit A (attached).

App. 3

28 U.S.C. § 1441(a) and (b).* In August 2004, the

Lundeens filed their first remand motion on the

ground that no federal question jurisdiction existed.

This Court denied that motion, finding that the face

of the complaint — specifically, the reference to “Unit-

ed States law” — stated a federal question. Lundeen uv.

Canadian Pacific Ry. Co., 342 F. Supp. 2d 826, 829

(D. Minn. 2004).”

In November 2004, the Lundeens moved to

amend their complaint to delete the federal claim

and, in the alternative, to voluntarily dismiss that

claim. (See Doc. Nos. 26, 29.) At the same time, they

filed a motion, conditioned upon amendment of the

* Section 1441(a) provides, in relevant part:

Except as otherwise expressly provided by Act of Con-

gress, any civil action brought in a State court of

which the district courts of the United States have

original jurisdiction, may be removed by the defen-

dant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending... .

Section 1441(b) provides, in relevant part:

Any civil action of which the district courts have oi 1g-

inal jurisdiction founded on a claim or right arising

under the Constitution, treaties or laws of the United

States shall be removable without regard to the citi-

zenship or residence of the parties. .. .

* The Lundeens declined to amend their Complaint at that

time — even though the Court’s inquiry of counsel should have

made it abundantly clear that a request would have been

granted.

App. 4

complaint or voluntary dismissal of the federal claim,

to remand to state court. (See Doc. No. 33.)

In January 2005, Magistrate Judge Boylan

granted the Lundeens’ motion to amend and deter-

mined that the motion to dismiss was moot. (Doc. No.

54.) CPR sought reimbursement for expenses in-

curred in opposing the Lundeens’ motions, which it

estimated at $5,000. id.) Considering that only the

motions to amend and dismiss were pending before

him, while the second remand motion was before the

undersigned, Magistrate Judge Boylan ordered the

Lundeens (and another moving party) to pay CPR a

total of $2,000. (Id. )

In February 2005, the Lundeens filed an

Amended Complaint. (Doc. No. 55.) The reference to

“United States law,” which had formed the basis for

federal question jurisdiction, was deleted. The Court

now considers the Lundeens’ second remand motion.

Analysis

The Lundeens argue that this case should be

remanded to state court because the federal claim has

been deleted and only state-law claims remain. In

Carnegie-Mellon University v. Cohill, 484 U.S. 343,

348 (1988), the Supreme Court considered whether a

district court has discretion to remand a removed

case to state court “when all federal-law claims have

dropped out of the action and only pendant state-law

claims remain.” The plaintiffs in CoAill filed suit in

state court alleging violations of state and federal

App. 5

age-discrimination laws, as well as state common-law

claims. Jd. at 345. Defendants removed on the basis

of federal question jurisdiction. /d. Six months later,

the plaintiffs moved to amend their complaint to

delete the federal claim and moved to remand. /d. at

346. After granting the motion to amend, the district

court remanded the action to state court. Jd. The

Supreme Court held that “a district court has discre-

tion to remand to state court a removed case involv-

ing pendant claims upon a proper determination that

retaining jurisdiction over the case would be inappro-

priate.” Jd. at 357. In exercising discretion to remand,

district courts are to consider “the principles of econ-

omy, convenience, fairness, and comity.” Id.

Under these principles, the Court finds that

retaining jurisdiction over this case would be inap-

propriate. First, this case is in its initial stages and a

remand would waste little judicial resources: no

scheduling orders have been issued, no discovery has

been conducted, and no trial date has been set.

Second, it is not inconvenient or unfair for CPR to

litigate this matter in state court. Presently, CPR is

defending cases in state court that arise out of the

same train derailment. See e.g., Allende v. Soo Line

R.R. Co., et al., Civ. No. 03-3093 (D. Minn. Jan. 29,

2004) (Report and Recommendation recommending

case be remanded to state court). Finally, remand will

avoid a determination of state-law claims by this

Court that could conflict with state court decisions in

the other derailment cases. See Cohill, 484 U.S. at

350-51. As noted in Mine Workers v. Gibbs, 383 U.S.

App. 6

715, 726 (1966), upon which the Cofill court relied,

“fnjeedless decisions of state law [by federal courts]

should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for

them a surer-footed reading of applicable law.”

CPR argues that the remand motion should be

denied because the Lundeens have engaged in forum

shopping. While the Cofill court recognized that

“forum manipulation” is a factor to be considered

when determining whether to remand a case, there

is no “categorical prohibition” on remanding cases

where the plaintiff has attempted to manipulate the

forum. Cohill, 484 U.S. at 357. Here, the Court finds

no forum manipulation has occurred that would

prohibit remand. The Lundeens have explained that

they had no desire to allege or pursue federal claims.

Once this Court determined that they had alleged a

federal claim, which was only a small portion of the

original Complaint, they promptly moved to amend

and remand. Moreover, to the extent that forum

manipulation may have occurred, remand is still

warranted given the weight of the factors pointing in

favor of sending the case back to state court.

As the Supreme Court has recognized, “in the

usual case in which all federal-law claims are elimi-

nated before trial, the balance of factors to be consi-

dered under the pendant jurisdiction doctrine —

judicial economy, convenience, fairness, and comity —

will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Jd. at 350 n.7.

Here, as in Cohill, the balance of factors points to-

App. 7

ward declining to exercise jurisdiction over the Lun-

deens’ remaining state-law claims. Accordingly, the

Court will grant the Lundeens’ Motion to Remand

Action."

As a final matter, CPR seeks reimbursement of

its costs and attorneys’ fees. They argue that the

Lundeens’ federal claim, which has now been deleted,

caused it “to research, draft, and file Notices of Re-

moval, Notices of Filing of Removal, Opposition to

Remand, Response to Motion to Remand, and Opposi-

tion to Motions to Amend or Dismiss Complaint and

Remand Action.” (CPR Supp. Opp’n Mem. at 4.) It

fixes its costs at $4,650, which represents a $150

filing fee for each of the thirty-one removed cases.

(Decker Aff. { 1.) It fixes its reasonable attorneys’ fees

for “removing plaintiffs’ case to this Court and res-

ponding to plaintiffs’ two motions for remand” at

$7,570. Ud. 9 5.) Thus, CPR seeks $12,220 in totai

* Although the Lundeens primarily rely on Cohill in support

of their remand motion, they also cite 28 U.S.C. § 1367(c)(2) and

(3) as bases for remand. Section 1367(c)\(2) and (3) provide that

district courts may decline to exercise supplemental jurisdiction

over state-law claims where “the claim substantially predomi-

nates over the claim or claims over which the district court has

original jurisdiction” or where “the district court has dismissed

all claims over which it has original jurisdiction.” The Court

finds that § 1367(c) provides additional support for remand. See

In re Prairie Island Dakota Sioux, 21 F.3d 302, 304 (8th Cir.

1994) (affirming remand of removed case under § 1367(c) and

Cohill where the plaintiff amended complaint to delete federal-

law claims).

App. 8

reimbursement. The Lundeens have not opposed

CPR’s request.

Considering the totality of the circumstances, the

Court concludes that the Lundeens should reimburse

CPR $3,500 for its attorneys’ fees. When given the

opportunity to eliminate the federal claim during the

first remand motion, counsel for the Lundeens de-

clined. His refusal to strike that claim caused CPR to

litigate two otherwise unnecessary remand motions.

In the Court’s view, it is fair and just for the Lun-

deens to reimburse CPR for part of its attorneys’ fees.

However, it would not be fair or just to require the

Lundeens to reimburse CPR for its thirty-one filing

fees or for that portion of its attorneys’ fees not asso-

ciated with the remand motions. First, contrary to

CPR’s suggestion, the federal court litigation was not

all for naught — it resulted in the elimination of a

federal claim. Second, as exemplified by Cohill, there

is always a risk when removing a case based on

federal question jurisdiction that the complaint will

be amended and the case remanded. Finally, this

amount takes into account Magistrate Judge Boylan’s

order that the Lur-deens (and another moving party)

pay CPR $2,000.

Conclusion

App. 9

Based on the foregoing, and all of the files,

records, and proceedings herein, IT IS ORDERED:

1. The Lundeens’ Motion to Remand Action

(Doc. No. 33) is GRANTED and this matter,

and the thirty “related” actions identified in

Exhibit A (attached), shall be remanded to

Hennepin County District Court; and

2. The Lundeens shall reimburse CPR for rea-

sonable attorneys’ fees in the total amount of

$3,500 (this is in addition to the $2,000 or-

dered by Magistrate Judge Boylan).

LET JUDGMENT BE ENTERED ACCOR-

DINGLY.

Dated: March 9, 2005 s/ Richard H. Kyle

RICHARD H. KYLE

United States District Judge

Exhibit A

The “related” cases are:

Salling, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3221;

Darveaux, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3222;

Schafer, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3223;

* As with the first remand motion, counsel have agreed that

this Memorandum Opinion and Order will apply to each of the

“related” cases identified in Exhibit A (attached).

App. 10

Wickman v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3224;

Swenson, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3225;

Behnkie, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3282;

Carlson v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3283;

Crabbe, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3284;

Dahly, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3286;

Duchsherer, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3287;

Deutsch, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3288;

Flick v. Canadian Pacific Railway Co., et al., Civ. No.

04-3290;

Gleason v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3291;

Goerndt v. Canadian Pacific Railway Co.. et al., Civ.

No. 04-3292:

Gross, et al. v. Canadian Pacific Railway Co., e¢ al.,

Civ. No. 04-3293;

Just v. Canadian Pacific Railway Co., et al., Civ. No.

04-3294;

Korgel v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3295;

McBride, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3296;

Muhlbradt v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3297;

App. ll

Shigley v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3298;

Smith, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3299;

Todosichuk v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3300;

Hingst v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3301;

Freeman, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3303;

Weltzin v. Canadian Fucvific Railway Co., et al., Civ.

No. 04-3304;

Todd v. Canadian Pacific Railway Co., et al., Civ. No.

04-3305;

Lakoduk v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3306;

Westmeyer, et al. v. Canadian Pacific Railway Co., et

al., Civ. No. 04-3307;

Slorby v. Canadian Pacific Railway Co., et al., Civ.

No. 04-3309; and

Nisbet, et al. v. Canadian Pacific Railway Co., et al.,

Civ. No. 04-3311.

App. 12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

04-CV-3220 (JMR/FLN)

04-CV-3284 (JMR/FLN)

04-CV-3287 (JMR/FLN)

04-CV-3290 (JMR/FLN)

04-CV-3291 (JMR/FLN)

04-CV-3293 (JMR/FLN)

04-CV-3299 (JMR/FLN)

Tom Lundeen, et al.

Larry Crabbe, et al.

Denise Duchsherer, et al.

Jo Ann Flick

Leo Gleason

Mary Beth Gross, et al.

Bobby Smith, et al.

Rachelle Todosichuk 04-CV-3300 (JMR/FLN)

Melissa Todd 04-CV-3305 (JMR/FLN)

Mark Nisbet, et al. 04-CV-3311 (JMR/FLN)

v. ORDER

Nee eee eae eee ee “Se”

Canadian Pac. Ry. Co., et al.

These matters are before the Court on remand

from the Eighth Circuit Court of Appeals.

In accord with the mandate issued by the Fighth

Circuit on October 28, 2008, these matters are re-

manded to the District Court of the Fourth Judicial

District, Hennepin County, Minnesota.

IT IS SO ORDERED.

Dated: December 1, 2008

s/ JAMES M. ROSENBAUM

JAMES M. ROSENBAUM

United States District Judge

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