United States District Court, E.D. Michigan, Southern Division
MARK A. LAPOINTE and BECKY LAPOINTE, Counter-Plaintiffs,
CSX TRANSPORTATION, INC., Counter-Defendant.
K. Majzoub United States Magistrate Judge
OPINION AND ORDER DENYING COUNTER-DEFENDANT'S
MOTION TO DISMISS
D. Borman United States District Judge
Mark LaPointe was driving a tractor-trailer truck when he
arrived at a two-track perpendicular railroad crossing owned
and operated by Counter-Defendant CSX Transportation, Inc.
(“CSX”). At least one of the crossing gates was
down and a train idled on the nearer track, partially
blocking the view of the track next to it. After a few
minutes during which the vehicles ahead of LaPointe drove
around the gates and across the tracks one by one, LaPointe
followed suit. As he crossed the tracks he was hit by an
oncoming train that had been obscured from view by the
stationary train, and suffered grievous injuries as a result.
The accident also caused property damage to CSX. This lawsuit
was initiated by CSX suing LaPointe and others to recover for
its damages. LaPointe countersued with a negligence claim
(along with his wife Becky, who asserts a derivative loss of
consortium claim). All other claims except for those asserted
by Mark and Becky LaPointe (collectively
“Counter-Plaintiffs”) have dropped out of the
moves to dismiss the action for failure to state a claim.
Owing to a significant ambiguity in Counter-Plaintiffs'
allegations regarding the activation of the crossing gates,
however, the Court will deny CSX's Motion to Dismiss.
Counter-Plaintiffs' Factual Allegations
November 24, 2013, Counter-Plaintiff Mark A. LaPointe
(“LaPointe”) was driving a tractor-trailer truck
eastbound on County Road 151 in Monroe County, Michigan, when
he arrived at a multi-track railroad crossing owned and
operated by CSX. The railroad tracks were roughly
perpendicular to the road. At the crossing, a train was
idling on the southbound track (the track closer to
LaPointe), and part of the train protruded into the crossing.
The protruding part of the train thus obstructed the
road's path through the crossing, and the rest of the
train blocked any view to the south of the adjacent track.
(ECF No. 54, Am. Counter-Compl. ¶ 4.)
least one gate of the crossing was down; the parties disagree
as to the second gate. There were no flaggers or other
railroad personnel at the crossing, and Counter-Plaintiffs
allege on information and belief that the train on the
southbound track had been idling in the same position for
hours. There was no moving train traffic on either track
while LaPointe waited at the crossing for over five minutes,
during which time several vehicles in front of him traveled
successfully through the crossing. (Am. Counter-Compl. ¶
4.) When LaPointe himself entered the crossing and maneuvered
past the idling train, he was unexpectedly struck by a
northbound train. (Am. Counter-Compl. ¶ 7.)
Counter-Plaintiffs contend that the northbound train either
failed to sound its horn as it went through the crossing, or
sounded a horn that was drowned out by the sound of the
idling southbound train. (Am. Counter-Compl. ¶¶
9-10.) LaPointe was severely injured as a result of the
collision, and his injuries included a traumatic brain
injury, injuries to his hip and shoulder that each required
surgery, a serious and prolonged infection, and other
physical and psychological pain including post-traumatic
stress. (Am. Counter-Compl. ¶ 15.) His wife Becky also
seeks damages for loss of consortium.
allege that CSX has consistently left its trains idling near
and protruding into this crossing with the gates down, and
that LaPointe himself “had passed through this crossing
on countless occasions previously and knew that the operation
of the crossing [gates and signals] was unreliable.”
(Am. Counter-Compl. ¶¶ 6, 9.) Counter-Plaintiffs
further allege that CSX violated its own safety rules by
leaving the southbound train protruding into the crossing
such that it obstructed motorists' view of the adjacent
track, and by failing to deploy a flagman at the crossing to
warn motorists and direct traffic. (Am. Counter-Compl. ¶
lawsuit was originally filed on May 1, 2015 by CSX against
various parties including LaPointe, the owners of the truck
he was driving, and an insurance company that had insured the
other defendants. (ECF No. 1.) Jurisdiction was predicated on
the complete diversity of the parties. (See Id.
¶ 13.) On December 30, 2015, this Court entered an
Opinion and Order dismissing some of the claims and
defendants, and granting CSX leave to file an amended
complaint, which CSX did on January 15, 2017. (ECF Nos. 27,
28.) Two weeks later, Mark and Becky LaPointe
(Counter-Plaintiffs here) filed a Counter-Complaint in which
they first asserted the claims against CSX that are now the
target of CSX's Motion to Dismiss: one count of
negligence and one derivative count of loss of consortium.
(ECF No. 30.)
January 13, 2017, CSX dropped all remaining claims except for
one claim against LaPointe (ECF No. 40), leaving only that
claim and Counter-Plaintiffs' counter-claims against CSX
still in the action. One month later, Counter-Plaintiffs
moved for leave to amend their counter-complaint based on
information they had obtained since they first filed it. (ECF
No. 42.) The proposed changes to their allegations
specifically concerned the crossing gates.
Counter-Plaintiffs' original counter-complaint alleged
that “the crossing gates and warning signals located at
the crossing were not activated” at the time of the
accident. (ECF No. 30 ¶ 5.) But, Counter-Plaintiffs
stated in their motion for leave to amend, further
investigation tended to show that the east gate-the gate on
the other side of the crossing from where LaPointe approached
it-was lowered. (ECF No. 42 at 2-3, Pg ID 372-73.)
motion for leave to amend was referred to Magistrate Judge
Mona K. Majzoub on February 14, 2017. (ECF No. 44.) Shortly
thereafter, CSX dropped its last claim against LaPointe (ECF
Nos. 50-51), at which point only Counter-Plaintiffs'
claims against CSX were left.
opposed Counter-Plaintiffs' motion for leave to amend on
the basis of futility (ECF No. 47), but the Magistrate Judge
determined that Counter-Plaintiffs' proposed
counter-complaint did not fail to state a claim on its face,
and granted their motion for leave to amend (ECF No. 53).
Counter-Plaintiffs filed their Amended Counter-Complaint on
July 25, 2017 (ECF No. 54. Am. Counter-Compl), and CSX filed
the instant Motion to Dismiss eight days later (ECF No. 55,
Def.'s Mot.). ...