United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendant National Railroad
Passenger Corporation d/b/a Amtrak's
(“Amtrak”) motion for summary judgment on
punitive damages and consumer protection act claim, Dkt. 21,
and supplement re: motion for summary judgment on punitive
damages and consumer protection act claim, Dkt. 30. The Court
has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants in part and denies in part the motion for the
reasons stated herein.
February 13, 2018, Plaintiff Madeleine Garza
(“Garza”) filed a complaint against Amtrak for
damages sustained when Amtrak Train 501 derailed near DuPont,
Washington. Dkt. 1. Garza asserts a negligence claim and a
claim for violation of Washington's Consumer Protection
Act (“CPA”), RCW Chapter 19.86, and requests
actual damages, punitive damages, and injunctive relief.
31, 2019, the deadline for filing dispositive motions, Amtrak
filed a motion for summary judgment on Garza's request
for punitive damages and on her CPA claim. Dkt. 21.
August 9, 2019, the Court granted Amtrak's motion for
summary judgment on punitive damages in a related case,
Wilmotte v. Nat'l R.R. Passenger Corp.,
C18-0086BHS, 2019 WL 3767133 (W.D. Wash. Aug. 9, 2019)
(“Wilmotte”), and granted in part and
denied in part Amtrak's motion for summary judgment on a
CPA claim in another related case, Harris v. Nat'l
R.R. Passenger Corp., C18-134BHS, 2019 WL 3767140 (W.D.
Wash. Aug. 9, 2019).
August 16, 2019, the last business day before Garza's
response was due, Amtrak renoted its motion for consideration
on September 6, 2019. Dkt. 27. On August 22, 2019, Amtrak
renoted its motion for consideration on September 20, 2019.
Dkt. 29. On August 27, 2019, Amtrak filed a supplemental
brief in support of its motion. Dkt. 30. On September 16,
2019, Garza responded to the motion and the supplement. Dkts.
32, 33. On September 20, 2019, Amtrak submitted two replies.
Dkts. 36, 38.
majority of the facts relevant to this motion are undisputed.
The Amtrak Cascades line operates from Eugene, Oregon to
Vancouver, British Columbia. On December 18, 2017, Amtrak
began service on a new section of track on the Cascades line,
which bypassed Point Defiance (“Point Defiance
Bypass”). This section of track is approximately 20
miles and runs from Olympia to Tacoma, Washington. A part of
the section is commonly referred to as the Lakewood
Subdivision. Sound Transit is a public transit authority
serving the nearby communities which owns the Lakewood
Subdivision and operates as a host railroad for Amtrak.
response to an Amtrak derailment outside of Philadelphia in
2015, Congress passed the Fixing America's Surface
Transportation Act (“FAST Act”), PL 114-94, 129
Stat. 1312. In certain situations, the FAST Act required
railroad carriers to “identify each main track location
where there is a reduction of more than 20 miles per hour
from the approach speed to a curve, bridge, or tunnel.”
§ 11406, 129 Stat. at 1684-85. Railroad carriers were
required to develop speed limit action plans including
“increased crew communication” to prevent
overspeed derailments at the identified track locations.
Id. Importantly, the carrier, in this case Amtrak,
was responsible for meeting the requirements of the FAST Act
and not the host railroad, Sound Transit. Id.
undisputed that Amtrak failed to comply with the FAST
Act's requirements for the inaugural run on the Point
Defiance Bypass. At milepost 19.8 (“MP 19.8”) of
the Lakewood Subdivision, there is a 49 mile per hour
(“mph”) speed reduction curve where trains must
reduce their speed from 79 mph to 30 mph. Neither
Amtrak's regional safety office, located in Seattle,
Washington, nor Amtrak's national safety office, located
in Wilmington, Delaware, included any warning of the MP 19.8
speed reduction curve in its General Order for the territory
covering the Point Defiance Bypass. The General Order
provides the instructions for all Amtrak employees operating
in the specific geographic area. Dkt. 34-2 at 7-10. The order
is intended to include a list of all FAST Act locations, and
the order instructs the conductor to verbally remind the
locomotive engineer of the upcoming speed reduction location.
parties dispute which office is to blame for failing to
include the speed reduction curve at ¶ 19.8 in the
General Order. Although the parties have each submitted
voluminous evidence in support of their respective positions,
the Court declines to summarize this evidence because the
evidence supports a conclusion that Amtrak employees in both
Seattle and Delaware were negligent by omission regarding
this speed reduction curve. For the purposes of the instant
motion, the Court will give Garza the benefit of the doubt in
finding that Amtrak's Delaware employees were more
negligent than the Seattle employees, which is itself a
December 17, 2018, the inaugural run, Amtrak 501, left the
Amtrak station at Tacoma, Washington heading toward MP 19.8.
As the train approached the curve, the conductor failed to
verbally remind the engineer of the need to reduce the
train's speed to 30 mph. The train entered the curve at a
high rate of speed, derailed, and resulted in a horrible
accident killing three passengers and injuring numerous
moves to strike Amtrak's supplemental brief as an
untimely dispositive motion and argues that Amtrak waived its
defense of preemption. Dkt. 32 at 3-6. Regarding the first
issue, Amtrak cleverly used the local rules to renote its
timely motion for summary judgment and then titled its second
motion as a “supplement.” It even realized that
there could be an issue with this litigation tactic by
addressing prejudice to Garza in the introduction to its
supplement. Despite this questionable tactic, the Court
denies Garza's motion to strike because (1) Garza was
afforded sufficient notice and opportunity to be heard and
(2) the Court prefers resolving all issues of law before
waiver, it is undisputed that Amtrak should have included the
affirmative defense of preemption in its answer. See
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987) (“Federal pre-emption is ordinarily a federal
defense to the plaintiff's suit.”); Sickle v.
Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345
(D.C. Cir. 2018) (“Preemption ordinarily is an
affirmative defense forfeitable by the party entitled to its
benefit.”); Fed.R.Civ.P. 8(c) (affirmative defenses
must be made in defendant's responsive pleading).
“In the absence of a showing of prejudice, however, an
affirmative defense may be raised for the first time at
summary judgment.” Camarillo v. McCarthy, 998
F.2d 638, 639 (9th Cir. 1993). Here, Garza argues that Amtrak
“has no conceivable excuse for failing to raise a
defense based on a statute literally titled ‘The Amtrak
Act' that repeatedly references Amtrak.” Dkt. 32 ...