The opinion of the court was delivered by: Nan Nolan, Magistrate Judge
To: The Honorable Paul E. Plunkett
United States District Court Judge
REPORT AND RECOMMENDATION
This lawsuit arises out of a train-auto collision in Dwight, Illinois on January 14, 2001. This case is now before the Court on: 1) Plaintiffs Motion for Leave to File a Second Amended Complaint at Law; 2) Plaintiffs Motion to Overrule Objections and Compel Answers to Plaintiffs Discovery Requests; and 3) Plaintiffs Motion to Compel Defendant, Union Pacific Railroad Company, to Produce Documents. For the following reasons, Plaintiffs Motion for Leave to File a Second Amended Complaint should he GRANTED, Plaintiffs Motion to Overrule Objections and Compel Answers to Plaintiffs Discovery Requests is GRANTED IN PART, DENIED IN PART, and RESERVED IN PART, and Plaintiffs Motion to Compel Defendant, Union Pacific Railroad Company, to Produce Documents is GRANTED IN PART and RESERVED IN PART.
On January 14, 2001, an Amtrak train collided with a vehicle driven by Becky Stalling. Becky Stalling and Ryan Stalling, a passenger in her mother's car, sustained injuries in the crash that resulted in their deaths. Plaintiff Gregory Stalling ("Stalling") alleges common law negligence against Defendants Union Pacific and Amtrak for the wrongful death of his wife and daughter. Stalling states that his allegations of negligence are based on Defendants' failure to provide adequate warning devices at the Livingston Road crossing where the collision occurred. At the time of the accident, the Livingston Road crossing was equipped with a crossbuck sign on either side of the crossing and an advance warning sign 500 feet east of the crossing. The crossing was not equipped with automatic gates or flashing light signals.
A. Motion for Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that, after a responsive pleading has been served, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The court need not allow leave to amend when there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
Stalling seeks leave to file a second amended complaint against Defendants "refining" the allegations of negligence against Defendants and adding a state law claim for willful and wanton conduct against the track owner, Union Pacific Railroad Company. Defendants oppose Stalling's request to file a second amended complaint on essentially two grounds: (1) a state law claim of willful and wanton conduct is preempted by federal law and thus allowing the amendment would be futile and (2) Stalling unduly delayed in raising these claims and allowing the willful and wanton claim would impose additional discovery costs.*fn1 The Court will address each argument in turn.
The Federal Railroad Safety Act of 1970 ("FSRA") was enacted "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FSRA gives the Secretary of Transportation authority to "prescribe regulations and issue orders for every area of railroad safety. . . ." 49 U.S.C. § 20103 (a). The FSRA contains an express preemption provision:
Laws, regulations, and orders related to railroad
safety and laws, regulations, and orders related to
railroad security shall be nationally uniform to the
extent practicable. A State may adopt or continue in
force a law, regulation, or order related to railroad
safety or security until the Secretary of
Transportation prescribes a regulation or issues an
order covering the subject matter of the State
49 U.S.C. § 20106. To pre-empt state law, the federal regulation must "cover" the same subject matter and not merely "`touch upon' or `relate to' that subject matter." CSX Transp., Inc. v. Easterwood, 507 U.S. 658
, 664 (1993). "[P]re-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Id. The Seventh Circuit has noted that "[t]here is a presumption against finding federal preemption of state law." Thiele v. Norfolk & Western Railway Company, 68 F.3d 179, 181 (7th Cir. 1995).
Union Pacific argues that regulations included in 23 C.F.R. pt. 924 and Part VIII of the Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD") preempt Stalling's proposed claim for failing to evaluate grade crossings. The purpose of the regulations set forth in 23 C.F.R. pt. 924 is "to set forth policy for the development and implementation of a comprehensive highway safety improvement program in each State." 23 C.F.R. § 924.1. The regulations require the States to "develop and implement, on a continuing basis, a highway safety improvement program which has the overall objective of reducing the number and severity of accidents and decreasing the potential for accidents on all highways." 23 C.F.R. § 924.5. The program consists of planning, implementation, evaluation, and reporting components. 23 C.F.R. § 924.7, 924.9, 924.11, 924.13, and 924.15.
In Easterwood, the Supreme Court considered whether the regulations contained in 23 C.F.R. pt. 924 and Part VIII of the MUTCD preempted a state law claim for failing to maintain adequate warning devices at a Georgia crossing. The Easterwood court held that the provisions of 23 C.F.R. pt. 924 do not pre-empt state tort law concerning whether the railroad was negligent in failing to maintain adequate warning devices at a grade crossing. The Court noted that the provisions of 23 C.F.R. part 924 merely establish the "general terms of the bargain between the Federal and State Governments: The states may obtain federal funds if they take certain steps to ensure that the funds are efficiently spent." Id. at 667. The Court further noted that these regulations simply "encourage the States to rationalize their decision-making" and the regulations say little about the subject matter of negligence law because the responsibilities of railroads and the States with respect to grade crossing safety has traditionally been quite distinct. Id.
Moreover, the Easterwood court observed that a state's negligence scheme could easily complement these federal regulations by encouraging railroads to provide current and complete information to the state agency responsible for determining priorities for railroad improvement projects in accordance with § 924.9. Thus, the Court held that "[i]n light of the relatively stringent standard set by the language of § 434 and the presumption against pre-emption, and given that the regulations provide no affirmative indication of their effect on negligence law, [it] was not prepared to find pre-emption solely on the strength of the general mandates of 23 C.F.R. pt. 924." Id. at 924. Similarly, the Easterwood court held that the requirement that the States comply with the MUTCD does not cover the subject matter of state tort law of grade crossings because the Manual disavowed any claim to cover the subject matter of state tort law. Id. at 669-70.
The Easterwood court reached a different conclusion with respect to 23 C.F.R. § 646.214 (b)(3) and (4). Sections 646.214(b)(3) and (4) "establish requirements as to the installation of particular warning devices." Easterwood, 507 U.S. at 670. When these regulations are applicable, state tort law is pre-empted. Id. These regulations cover "the subject matter of state law, which . . . seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." Id. at 671. These regulations apply "on any project where Federal-aid funds participate in the installation of" warning devices at railroad crossings. 23 C.F.R. § 646.214 (b)(3); Thiele, 68 F.3d at 182.
Here, Stalling seeks to add a claim of willful and wanton conduct based on Union Pacific's alleged policy of failing to independently install adequate warning devices at passive railroad crossings, including the Livingston Road crossing, and its alleged policy of failing to independently evaluate warning devices and identify dangerous crossings. Illinois common law provides that a "railroad has a duty to provide adequate warning devices at its crossings." Espinoza v. Elgin, Joliet and Eastern Railway Company, 649 N.E.2d 1323, 1329 (Ill. 1995). Absent federal financial participation and complete installation of devices, Illinois common law concerning grade crossings is not pre-empted. Meyer v. Southern Pacific Lines, 199 F.R.D. 610, 613 (N.D. Ill. 2001). Because Union Pacific has not claimed that federal funds participated in the installation of the safety devices at the Livingston Road crossing or any other crossing, the Court finds that Stalling's proposed allegations regarding the adequacy of warning devices are not pre-empted.
With respect to evaluating and identifying dangerous crossings, Union Pacific argues that the States, not the railroads, are responsible for surveying each crossing and making a determination of the need for upgrading protection at all rail-highway grade crossings. Union Pacific contends that railroads do not have an independent duty to evaluate the adequacy of the protection at railroad crossings.
Other than the potential sources of pre-emption discussed in Easterwood, Union Pacific does not cite any specific federal law, rule, regulation, or standard which preempts Illinois negligence law regarding identifying dangerous crossings. In Easterwood, the Supreme Court examined the regulations of 23 C.F.R. pt. 924. The Court also noted that parallel regulations, then codified at 23 C.F.R. § 1204.4, Highway Safety Program Guideline No. 12(G), "require state programs to systematically identify hazardous crossings and develop `a program for the elimination of hazards.'" Easterwood, 570 U.S. at 666 n. 6. Effective August 17, 1995, a new Roadway Safety guideline number Guideline No. 21 was created and Guideline No. 12, among others, was eliminated. 60 F.R. 36641-01. Guideline No. 21 provides, in relevant part:
Every state, in cooperation with county and local
governments, should have a program of highway design,
construction, and maintenance to improve highway
safety. A model program should have the following
characteristics . . . A method for systematic
identification and tabulation of all rail-highway
grade crossings and a plan for the elimination of
hazards and dangerous crossings.
60 F.R. at 36665. Guideline No. 21 further provides:
Each State, in cooperation with its political
subdivisions and with each Federal department or
agency which controls highways open to public travel
or supervises traffic operations, should have a
program for applying traffic engineering measures and
techniques, including the use of traffic control
devices which are in conformance with the Manual on
Uniform Traffic Control Devices, to reduce the number
and severity of traffic crashes. A model program
should have the following characteristics . . .
analyze potentially hazardous locations — such
as sharp curves, steep grades, and railroad grade
crossings — and develop appropriate counter
60 F.R. at 36666. The Amendments to the Highway Safety Program Guidelines make clear that Guideline No. 21 is merely "advisory" and not "mandatory." 60 F.R. at 36653. Thus, like the regulations of 23 C.F.R. pt. 924 which merely "establish the general terms of the bargain between the federal and state government," the Highway Safety Program Guidelines only provide information the States could draw upon to build the framework of their highway safety programs. 60 F.R. at 36653. The Amendments to the Highway Safety Program Guidelines do not cover the subject matter of Illinois negligence law.
Moreover, in Easterwood, the Supreme Court observed that while final authority, for the installation of particular safety devices at grade crossings may rest with state and local governments in Georgia, this allocation of responsibility did not relieve the railroads of their duty to take all reasonable precautions to maintain grade crossing safety, "including, for example, identifying and bringing to the attention of the relevant authorities dangers posed by particular crossings." Easterwood, 507 U.S. at 665 n. 5. Similarly, while Illinois law provides that "no railroad may change or modify the warning device system at a railroad-highway grade crossing . . . without having first received the approval of the [Illinois Commerce] Commission (625 ILCS 5/18c-7401)," Union Pacific has failed to cite to any authority providing that a railroad's common law duty does not include a duty to identify dangerous crossings and bring them to the attention of the proper governmental authorities. In fact, Illinois law expressly recognizes that the Illinois Commerce Commission may receive and act upon "complaint[s]" regarding the adequacy of warning devices "in order to promote and safeguard the health and safety of the public." 625 ILCS 5/18c-7401.
Thus, the Court concludes that a railroad's duty to identify dangerous crossings is not preempted by federal law absent federal financial participation and completed installation of warning devices. Stalling may be able to show that absent federal financial participation in the installation of warning devices, Union Pacific had a policy of failing to identify dangerous crossings and failing to provide adequate warning devices. Because Union Pacific has not shown that such ...