United States District Court, N.D. Illinois, Eastern Division
ILLINOIS CENTRAL RAILROAD COMPANY, an Illinois Corporation, d/b/a CN, Plaintiff,
KINDER MORGAN LIQUIDS TERMINALS, a Delaware LLC, Defendant.
CHARLES P. KOCORAS, District Judge.
the Court is Defendant Kinder Morgan Liquids Terminals'
(“Kinder Morgan”) motion to dismiss Plaintiff
Illinois Central Railroad's (“CN”) Amended
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). For the following reasons, the Court grants in part
and denies in part Kinder Morgan's motion.
following facts are taken from CN's Amended Complaint and
are assumed to be true for purposes of this motion. See
Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). The
Court draws all reasonable inferences in favor of CN. See
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
lawsuit stems from alleged charges assessed by CN for
demurrage and intraplant switching fees. According
to CN's Amended Complaint, between August 2015 and
October 2016, CN transported freight rail cars to Kinder
Morgan's Argo Facility. The Argo Terminal acts as a rail
transportation intermediary that will transload shipped
materials by moving them from the railroad to another form of
transportation, such as pipeline or truck, or will
temporarily store shipped materials for the owner. CN alleges
that Kinder Morgan is responsible for $1, 841, 045 in
demurrage fees assessed in 95 invoices from August 2015 to
October 2016. These invoices relate to rail cars allegedly
delayed at the Argo Terminal. CN seeks to recover the balance
of its invoices pursuant to the demurrage regulations and its
demurrage tariff. Additionally, CN claims Kinder Morgan is
liable for $28, 577.00 in intraplant switching charges
between August 2015 and October 2016. According to CN, Kinder
Morgan requested intraplant switching services which CN
performed. Furthermore, CN asserts they have not received
payment for services rendered.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) “tests the sufficiency of the complaint, not
the merits of the case.” McReynolds v. Merrill
Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). The
allegations in a complaint must set forth a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A plaintiff
need not provide detailed factual allegations, but must
provide enough factual support to raise his right to relief
above a speculative level. Bell Atlantic. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim must be
facially plausible, meaning that the pleadings must
“allow . . . the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The claim must be described “in sufficient
detail to give the defendant ‘fair notice of what the .
. . claim is and the grounds upon which it rests.'”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S.
at 555). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
” are insufficient to withstand a 12(b)(6) motion to
dismiss. Iqbal, 556 U.S. at 678.
Count I-Demurrage Charges
Morgan argues that Count I of CN's Amended Complaint
should be dismissed because: (i) demurrage regulations do not
apply to this dispute; (ii) CN fails to allege that Kinder
Morgan unduly caused the rail car delays; and (iii) CN fails
to allege that it provided Kinder Morgan with proper notice
of the material changes to its tariff.
the guidelines promulgated by the Surface Transportation
Board (the “STB”),
Demurrage shall be assessed by the serving rail carrier,
i.e., the rail carrier providing rail cars to a shipper at an
origin point or delivering them to a receiver at an end-point
or intermediate destination. A serving carrier and its
customers (including those to which it delivers rail cars at
origin or destination) may enter into contracts pertaining to
demurrage, but in the absence of ...