The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Gloria Rubietta has brought a four count third amended complaint against defendants National Railroad Passenger Corporation ("Amtrak") and BNSF Railway Company ('BNSF"), seeking damages for personal injuries she sustained while a passenger on an Amtrak train chartered by 20th Century Railroad Club, a railroad club that offers organized passenger rail trips to its members over tracks owned by BNSF. Although set out in four counts, the third amended complaint actually asserts five distinct claims against defendants. Count I is brought against Amtrak and alleges both negligence and spoliation of evidence. Count II alleges negligence against BNSF. Counts III and IV are res ipsa loquitur claims against Amtrak and BNSF respectively. Defendants have moved to dismiss the entire third amended complaint under Fed. R. Civ. P. 12(b)(6), arguing that the negligence claims in Counts I and II are preempted by federal law, that the spoliation claim in Count I is either preempted or fails to state a claim, and that Counts III and IV fail to state a claim. For the reasons described below, defendants' motion is granted in part and denied in part.
In October 2007 20th Century chartered an Amtrak train for use by its club members and guests for a round trip passage between Chicago and Galena, Illinois. Plaintiff purchased a ticket from either 20th Century or Amtrak and was assigned a seat in a "handicapped" railcar that had a large open area and accessible restrooms. The open area was not equipped with handrails. Plaintiff was walking through the open area returning to her seat after using the restroom when the train accelerated and violently shook. Plaintiff was thrown against the wall, resulting in her injuries. The train was equipped with an on-board event recording system that was able to capture the speed of the train and other data, but defendants no longer have the device.
Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. The purpose of such a motion is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering the motion, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiff's favor. McMillan, 455 F.3d at 758. The complaint must plead sufficient facts to plausibly suggest that plaintiff has a right to relief and raise that possibility above the speculative level. Bell Atlantic Co. v. Twombly, 550 U.S. 554, 555 (2007).
Defendants have moved to dismiss Counts I and II, arguing that the negligence claims asserted in those counts are preempted by federal law. Specifically, defendants argue that: the claims alleging negligent operation of the train and negligent maintenance of the track are preempted by the Federal Railway Safety Act of 1970, 49 U.S.C. § 2101 et seq. ("FRSA"); and the claims alleging negligent railcar design are preempted by the Americans with Disabilities Act of 1990 ("ADA") 42 U.S.C. § 12101 et seq. and/or the preemption provisions of the Amtrak Act, 49 U.S.C. § 24301(g).
State laws that interfere with or are contrary to the laws of Congress, enacted pursuant to the Constitution are invalid. U.S. Const. Art. VI, Cl. 2; Gibbons v. Ogden, 22 U.S. 1 (1824). Whether a federal statute preempts state law is a question of congressional intent. Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993). That intent may be expressed in the statute itself, or may be implied by its structure or purpose. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Not withstanding the supremacy of federal law, there is a presumption against preemption. See Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992). This presumption requires courts to construe even express preemption clauses narrowly. Id.
As an initial matter, plaintiff argues that federal preemption is an affirmative defense that defendants have waived by not raising in response to her earlier complaints. Each new complaint supercedes all previous complaints, however, and an "amended complaint opens the door for defendants to raise new and previously unmentioned affirmative defenses." Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1997). Thus, plaintiff is incorrect, and defendants have not waived the defense. Because preemption is an affirmative defense, however, plaintiff is correct that she is not required to plead around it. See Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005). Nonetheless, the Seventh Circuit has held that where a defect is apparent on the face of the complaint (as defendants assert), an affirmative defense may be raised in a Rule 12(b)(6) motion to dismiss. Butcher v. United Elec. Coal Co., 174 F.2d 1003, 1006 (7th Cir. 1949). Therefore, the court concludes that the defense has been properly raised.
The FRSA preemption provision (49 U.S.C. § 20106) provides that:
(2) 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 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, regulation or order of the United ...