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Aliksa v. North Carolina Railroad Co.

United States District Court, M.D. North Carolina

July 18, 2018

FELIX ALIKSA, individually, and as administrator of the estate of Ersila M. Aliksa, Plaintiff,
v.
NORTH CAROLINA RAILROAD CO., CSX TRANSPORTATION, INC., CSX CORPORATION, NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a AMTRAK, MOORE COUNTY NORTH CAROLINA, and MOORE COUNTY, NORTH CAROLINA PLANNING & TRANSPORTATION DEPARTMENT, Defendants.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE.

         Presently before this court is a Motion to Dismiss for Lack of Jurisdiction filed by Defendants Moore County, North Carolina and Moore County, North Carolina Planning and Transportation Department, (collectively the “Moore County Defendants”), (Doc. 25), which Moore County Defendants filed a supportive brief thereof, (Doc. 26). Also before this court is a Motion to Dismiss for Failure to State a Claim filed by Moore County Defendants, (Doc. 27), which Moore County Defendants filed a supportive brief thereof, (Doc. 28). Plaintiff Felix Aliksa (“Plaintiff”) filed a response in opposition to both motions, (Doc. 29), and Moore County Defendants replied, (Doc. 30). For the reasons stated herein, this court will grant the Motion to Dismiss for Lack of Jurisdiction and deny as moot the Motion to Dismiss for Failure to State a Claim.

         I. FACTUAL BACKGROUND

         The allegations of the complaint, viewed in the light most favorable to Plaintiff, the nonmoving party, are as follows:

         On December 3, 2015, Ersila M. Aliksa (“Decedent”) was traveling westbound on Pinebluff Lake Road in Moore County, North Carolina, toward United States Department of Transportation Crossing No. 630807X (“the Pinebluff Lake Road Crossing”). (Complaint (“Compl.”) (Doc. 3) ¶¶ 1, 21-22.) At the same time, an Amtrak train was headed northbound towards the same crossing. (Id. ¶ 22.) Tall rail cars were parked on both sides of the crossing, on a second set of tracks. (Id.) Plaintiff's view of the crossing was allegedly obstructed by said tall rail cars and by trees surrounding the Pinebluff Lake Road Crossing. (Id. ¶¶ 21-22.) Additionally, the tall rail cars allegedly caused safety features of the crossing to malfunction, such that “the crossing gates failed to fully close to stop vehicular traffic upon a train's approach” and “failed to provide the functions and warning for which it was designed, and as such, provided inadequate warning of an approaching train.” (Id. ¶ 21.)

         As Decedent traversed the crossing, her car was struck on the driver's side by an Amtrak train. (Id. ¶ 22.) Upon impact, Decedent's car was crushed between the train and the tall rail cars, causing her death. (Id.) Plaintiff, as administrator of Decedent's estate, raises tort claims against Moore County Defendants under North Carolina law. (Id. ¶¶ 1-3, 280-85.)

         II. LEGAL STANDARDS

         Moore County Defendants' Motion to Dismiss for Lack of Jurisdiction asserts governmental immunity against Plaintiff's North Carolina tort claims and invokes both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) as a basis for dismissal. (Doc. 25.) In cases where state sovereign or governmental immunity is asserted, “[a] motion to dismiss based on sovereign immunity is a jurisdictional issue.” Simmons v. Corizon Health, Inc., 122 F.Supp.3d 255, 268 (M.D. N.C. 2015) (citing M. Series Rebuild, LLC v. Town of Mount Pleasant, Inc., 222 N.C.App. 59, 63, 730 S.E.2d 254, 257 (2012)). When a state supreme court “has spoken neither directly nor indirectly on the particular issue” at hand, a federal court must “predict how [the state supreme] court would rule if presented with the issue.” See Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005) (citation omitted). While undecided by the Supreme Court of North Carolina, the North Carolina Court of Appeals has stated that “the general rule is that sovereign immunity presents a question of personal jurisdiction, not subject matter jurisdiction.” Green v. Kearney, 203 N.C.App. 260, 265, 690 S.E.2d 755, 760 (2010); see also Meherrin Indian Tribe v. Lewis, 197 N.C.App. 380, 384, 677 S.E.2d 203, 207 (2009) (“An appeal of a motion to dismiss based on sovereign immunity presents a question of personal jurisdiction rather than subject matter jurisdiction.”).[1] Accordingly, this court will consider Moore County Defendants' Motion to Dismiss for Lack of Jurisdiction under Federal Rule of Civil Procedure 12(b)(2).

         Plaintiffs bear the burden of establishing personal jurisdiction by a preponderance of the evidence. See Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). “When, however, as here, a district court decides a pretrial personal jurisdiction motion without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). The court may consider supporting affidavits when determining whether a plaintiff has made a prima facie showing of personal jurisdiction. See Universal Leather, 773 F.3d at 558. “In deciding whether the plaintiff has proved a prima facie case of personal jurisdiction, the district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor.” Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993); see also Carefirst of Md., Inc., 334 F.3d at 396.

         “If the existence of jurisdiction turns on disputed factual questions, the court may resolve the challenge on the basis of an evidentiary hearing or, when a prima facie demonstration of personal jurisdiction has been made, it can proceed ‘as if it has personal jurisdiction over th[e] matter, although factual determinations to the contrary may be made at trial.'” Simmons, 122 F.Supp.3d at 269 (quoting Pinpoint IT Servs., L.L.C. v. Atlas IT Exp. Corp., 812 F.Supp.2d 710, 717 (E.D. Va. 2011)). A plaintiff must, either at an evidentiary hearing or trial, eventually prove the existence of personal jurisdiction by a preponderance of the evidence. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp, 416 F.3d 290, 294 n.5 (4th Cir. 2005).

         III. ANALYSIS

         Moore County Defendants first argue that Plaintiff's state tort claims should be dismissed for lack of jurisdiction by virtue of sovereign immunity. (Defs.' Reply in Supp. of Mots. to Dismiss (Doc. 30) at 9.)[2] In the alternative, Moore County Defendants argue that Plaintiff's claims should be dismissed for failure to state a claim. (Id.) Because this court concludes that Plaintiff's claims against Moore County Defendants should be dismissed for lack of jurisdiction as a result of governmental immunity, this court will not reach the motion to dismiss for failure to state a claim.

         “In this State it is well established that counties are a part of the State government, and thus are entitled to sovereign immunity.” Helsius v. Robertson, 174 N.C.App. 507, 509, 621 S.E.2d 263, 265 (2005) (citing Dawes v. Nash Cty., 357 N.C. 442, 445, 584 S.E.2d 760, 762, reh'g denied, 357 N.C. 511, 587 S.E.2d 417 (2003)). “Under the doctrine of governmental immunity, a county or municipal corporation ‘is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity.'” Estate of Williams ex rel. Overton v. Pasquotank Cty. Parks & Recreation Dep't, 366 N.C. 195, 198, 732 S.E.2d 137, 140 (2012) (citations omitted). “Governmental immunity covers only the acts of a municipality or a municipal corporation committed pursuant to its governmental functions.” Id. at 199, 732 S.E.2d at 141 (citation omitted). When a municipality “engages in a proprietary function, ” governmental immunity does not apply. Id. Moore County Defendants contend, and Plaintiff does not contest, that the factual allegations underlying Plaintiff's Complaint constitute the exercise of governmental functions and not proprietary functions. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss for Lack of Jurisdiction (“Defs.' Mem.”) (Doc. 26) at 7-11; Pl.'s Mem. of Law in Opp'n (“Pl.'s Resp.”) (Doc. 29) at 11-12.)

         Where governmental immunity applies, a county may not be sued unless (a) a statute authorizes such a suit or (b) it has consented to suit or waived its immunity. Helsius, 174 N.C.App. at 509, 621 S.E.2d at 265-66; Archer v. Rockingham Cty., 144 N.C.App. 550, 554 & n.1, 548 S.E.2d 788, 791 (2001). Plaintiff contends that Moore County Defendants are amenable to suit in this case because (a) the county has a duty to abate public safety hazards under N.C. Gen. Stat. § 153A-140; (b) the county has waived immunity through its purchase of liability insurance and/or its participation in a risk pool; (c) the county has waived immunity by purchasing a bond; and (d) the county has waived immunity by settling similar actions or claims. (Pl.'s Resp. (Doc. 29) at 11-12.) This court takes up each of Plaintiff's arguments in turn.

         A. N.C. Gen. Stat. § 153A-140

         Plaintiff first contends that N.C. Gen. Stat. § 153A-140 imposes a duty on the county to abate public safety hazards and because “governmental immunity does not apply where a duty is imposed on the government by statute[, ]” suit is authorized against Moore County Defendants. (See Pl.'s Resp. (Doc. 29) at 11-12.) In support of this assertion, Plaintiff points to a quote included in Moore County Defendants' brief from Colombo v. Dorrity, 115 N.C.App. 81, 84, 443 S.E.2d 752, 755 (1994), which states in relevant part “[u]nless a right of action is given by statute, municipal corporations may not be held civilly liable for neglecting to perform or negligence in performing duties which are governmental in nature.” (Pl.'s Resp. (Doc. 29) at 12.) Plaintiff's argument, however, conflates two distinct principles. The first is that, as acknowledged by the excerpted quote from Colombo, a statute may expressly waive sovereign immunity and permit suit against the State and its political subdivisions. See, e.g., N.C. Ins. Guar. Ass'n v. Bd. of Trs. of Guilford Tech. Cmty. Coll., 364 N.C. 102, 107-08, 691 S.E.2d 694, 697-98 (2010). The second is that in order to state a negligence claim, the plaintiff must allege that the defendant owed a legal duty to the plaintiff. See, e.g., Inman v. City of Whiteville, 236 N.C.App. 301, 303, 763 S.E.2d 332, 334 (2014). Waiver of sovereign immunity, by statute or otherwise, is a threshold question which must be considered first and separately from the elements of the underlying claim.

         Instead of pointing to a statute that purports to waive the Moore County Defendants' sovereign immunity, Plaintiff points to N.C. Gen. Stat. § 153A-140, which he contends gives the county authority over the railroad crossing in question and, in certain circumstances present in this case, imposes duties. (Pl.'s Resp. (Doc. 29) at 11-12.) No waiver of county sovereign immunity appears within the text of § 153A-140, and Plaintiff has failed to establish otherwise. See Simmons, 122 F.Supp.3d at 270-71. Further, Plaintiff has failed to explain how, even if this statute imposed a duty on the county, sovereign immunity would be waived.

         “Waiver of sovereign immunity may not be lightly inferred and State statutes waiving this immunity, being in derogation of the sovereign right to immunity, must be strictly construed.” Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997) (citation omitted). Plaintiff has failed to carry his burden of establishing that the county's sovereign immunity can be waived by virtue of ยง ...


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