Soo Line Railroad Company v. Consolidated Rail Corporation

                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 19-3100


        Appeal from the United States District Court for the
         Northern District of Indiana, Hammond Division.
      No. 2:17-cv-106 — Andrew P. Rodovich, Magistrate Judge.

        ARGUED JUNE 3, 2020 — DECIDED JULY 15, 2020

   Before SYKES, Chief Judge, and BAUER and ST. EVE, Circuit
    ST. EVE, Circuit Judge. Soo Line Railroad Company, which
we refer to by its business name, Canadian Pacific, sought to
bring state-law claims under the diversity jurisdiction of the
district court. Its suit centered on a trackage rights agree-
ment—a contract governing one railroad’s use of another’s
track—that the Indiana Harbor Belt Railroad Company had
signed with its majority shareholders at a price that Canadian
2                                                 No. 19-3100

Pacific, the minority shareholder, alleged was detrimental to
Indiana Harbor’s profitability.
    Canadian Pacific, though, had a problem. The Surface
Transportation Board (STB) has exclusive authority to regu-
late trackage rights agreements, or to exempt such agree-
ments from its approval process, and it had exempted Indiana
Harbor’s agreement. The defendants argued that, by effect of
this exemption authority, two statutes—49 U.S.C. §§ 10501(b)
and 11321(a)—independently preempted Canadian Pacific’s
claims. The district court agreed with both arguments, but in
this appeal we focus on only one. The court concluded that
§ 11321(a) preempted the claims and noted that Canadian Pa-
cific had made no argument otherwise. Because we agree that
Canadian Pacific failed to contest this basis for dismissal, we
affirm the judgment on grounds of waiver.
    Although the ownership structure of Indiana Harbor is
somewhat complex, we can simply summarize it. Plaintiff Ca-
nadian Pacific owns 49%; defendant Consolidated Rail Cor-
poration owns 51%. Two other defendants, Norfolk Southern
Corporation and CSX Corporation, indirectly own Consoli-
dated Rail. Norfolk Southern and CSX each control two direc-
tors on Indiana Harbor’s seven-person board and, thus, have
a majority over Canadian Pacific’s three directors.
   Indiana Harbor operates as a switch carrier on tracks
owned by Consolidated Rail and its parent companies near
Chicago. These railroads managed their arrangement with a
99-year contract executed in 1906 between Indiana Harbor
and the previous owners of the tracks. Under the 1906 agree-
ment, Indiana Harbor would pay the track owners annual
No. 19-3100                                                 3

rent of approximately $150,000 for the use of the tracks, some
of which it would supervise and maintain. The track owners
would then pay Indiana Harbor a share of the operating and
maintenance expenses for their proportional use of the super-
vised tracks. Near the turn of the century, Consolidated Rail
was paying over $2 million a year in expenses.
    Things changed in 1999. According to Canadian Pacific’s
amended complaint, which we accept as true in the posture
of this appeal, Consolidated Rail stopped paying expenses
and invoicing Indiana Harbor for rent that year. This alleged
quid pro quo cessation lasted through the remainder of the
contract term, which ended in 2005, and into the extended ne-
gotiations over a new trackage rights agreement.
    Canadian Pacific alleges that during these negotiations,
Consolidated Rail and its parent companies used their power
as majority shareholders to force Indiana Harbor into an atro-
cious deal. Indiana Harbor’s board had obtained an inde-
pendent appraisal estimating that a fair annual rent for the
tracks was $1.3 million and unanimously resolved to offer that
much, but they were rebuffed. Instead, Consolidated Rail
threatened to involve the STB; Norfolk Southern demanded
the rent that had gone unpaid since 1999; and CSX even
warned it would evict Indiana Harbor if it did not agree to a
higher price. Under this pressure, Indiana Harbor’s board
split 4-3 along company lines to approve a new agreement at
a total annual rent of $5 million and with terms that Canadian
Pacific insists transferred ownership of Indiana Harbor’s as-
sets to the track owners.
   Indiana Harbor, Consolidated Rail, Norfolk Southern, and
CSX then notified the STB of their agreement. Under federal
law, the STB must approve a trackage rights agreement before
4                                                   No. 19-3100

it can be carried out. 49 U.S.C. § 11323(a)(6). Regulations,
however, exempt certain transactions from this approval pro-
cess, including trackage rights agreements that are “(i) based
on written agreements, and (ii) not filed or sought in respon-
sive applications in rail consolidation proceedings.” 49 C.F.R.
§ 1180.2(d)(7); see also 49 U.S.C. § 10502(a) (authorizing ex-
emptions). The railroads all applied for this exemption, and
the STB granted it over Canadian Pacific’s request to stay the
proceedings. Indiana Harbor Belt R.R.—Trackage Right—Con-
solidated Rail Corp., CSX Transp., Inc., & Norfolk S. Ry., No. FD

2017 WL 992358

(Mar. 14, 2017).
    Canadian Pacific predicated its stay motion on the litiga-
tion in this case. It had filed a verified complaint earlier that
month alleging that Consolidated Rail, Norfolk Southern, and
CSX had breached fiduciary duties they owed to it and Indi-
ana Harbor under Indiana law. As remedies, Canadian Pacific
sought compensatory and punitive damages based on the al-
leged overpayment for the trackage rights, voidance of the
new agreement, an injunction requiring Indiana Harbor’s
board to approve only the $1.3 million price, and an order for
Consolidated Rail to pay the operating and maintenance ex-
penses it owed since 1999.
    Consolidated Rail moved to dismiss the complaint for fail-
ure to state a claim. It argued that 49 U.S.C. § 10501(b) and 49
U.S.C. § 11321(a) independently preempted Canadian Pa-
cific’s claims.
    Section 10501(b) gives the STB exclusive jurisdiction over
“transportation by rail carriers, and the remedies provided in
this part with respect to rates.” Such remedies “with respect
to regulation of rail transportation … preempt the remedies
provided under Federal or State law.” 49 U.S.C. § 10501(b).
No. 19-3100                                                    5

Canadian Pacific was seeking remedies with respect to the
rates charged for trackage rights, Consolidated Rail argued,
so any state-law remedies were preempted.
    Section 11321(a) provides that “[a] rail carrier, corpora-
tion, or person participating in … [an] exempted transaction
is exempt from the antitrust laws and all other law, including
State and municipal law, as necessary to let that rail carrier,
corporation, or person carry out the transaction.” 49 U.S.C.
§ 11321(a). Because the STB exempted the trackage rights
agreement, Consolidated Rail asserted that it was exempt
from Indiana tort law to the extent the claims sought to pre-
vent the terms of the transaction, including price, from being
carried out.
    Although neither preemption argument extended to the
alleged failure to pay expenses in breach of the 1906 agree-
ment, Consolidated Rail contended that claim failed for a dif-
ferent reason. It owed expenses only for its proportional use
of the tracks, but the complaint never alleged that it had used
the tracks after 1999.
   Before the district court ruled on the first set of motions to
dismiss, Canadian Pacific amended its complaint. It added
more defendants, including the whole family of subsidiaries
and holding companies through which Norfolk Southern and
CSX owned Consolidated Rail, as well as the four directors
who had approved the agreement. Regarding the expenses,
though, it still failed to allege that Consolidated Rail had used
the track after 1999.
   Consolidated Rail, Norfolk Southern, and CSX jointly
moved to dismiss, adopting Consolidated Rail’s preemption
arguments. Although it thoroughly contested the defendants’
6                                                  No. 19-3100

reading of § 10501(b), Canadian Pacific did not respond to the
§ 11321(a) argument other than to assert, without elaboration,
that the section did not preempt its claims.
    A magistrate judge, presiding by consent, agreed with
both of the defendants’ preemption arguments. Regarding
§ 11321(a), the judge straightforwardly reasoned that the
claims would prevent the trackage rights agreement from be-
ing carried out as exempted. Canadian Pacific had “not pre-
sented any argument to the contrary.”
    The court then requested supplemental briefing on the ex-
penses issue. During the period of supplemental briefing Ca-
nadian Pacific still did not try to amend its complaint to add
the necessary facts that Consolidated Rail had consistently
identified as missing. Without an allegation that Consolidated
Rail had used the track after 1999, the district court concluded
that Canadian Pacific failed to state a plausible breach of con-
tract claim. Finally, the remaining defendants asked the court
to dismiss them alongside the others. The court agreed and
entered final judgment.
    On appeal, Canadian Pacific challenges the breadth of the
district court’s preemption analysis, which it asserts deprives
minority shareholders of any remedy for corporate malfea-
sance even tangentially related to trackage rights. The defend-
ants, for their part, center their defense of the judgment on
§ 11321(a) and, specifically, Canadian Pacific’s failure to make
any argument relating to that section in the district court.
They assert that this omission amounts to waiver. We agree.
   Generally, “[f]ailing to bring an argument to the district
court means that you waive that argument on appeal.”
No. 19-3100                                                      7

Wheeler v. Hronopoulos, 

891 F.3d 1072

, 1073 (7th Cir. 2018). A
party must present the specific argument urged on appeal
and cannot rest on having addressed the same general issue.
Puffer v. Allstate Ins. Co., 

675 F.3d 709

, 718 (7th Cir. 2012);
Fednav Intʹl Ltd. v. Contʹl Ins. Co., 

624 F.3d 834

, 841 (7th Cir.
2010). Although the argument need not be present in all its
particulars and a party may elaborate in its appellate briefs,
Lawson v. Sun Microsystems, Inc., 

791 F.3d 754

, 761 (7th Cir.
2015), a conclusory argument that amounts to little more than
an assertion does not preserve a question for our review. Betco
Corp. v. Peacock, 

876 F.3d 306

, 309 (7th Cir. 2017).
    In response to the joint motion to dismiss, Canadian Pa-
cific made only two references to § 11321(a). It noted that the
statute’s preemptive scope was “far from unlimited” before
transitioning into arguments about the meaning of the word
“regulation” in § 10501(b), and it asserted that the defendants’
arguments under both § 10501(b) and § 11321(a) were incon-
sistent with their representations before the STB. It did not
support any of its arguments with even a single legal author-
ity purporting to interpret § 11321(a), let alone those authori-
ties pressed on appeal. With so little, we understand why the
district court concluded that Canadian Pacific had not truly
contested preemption under § 11321(a).
   Canadian Pacific does not pretend that it made its argu-
ments in the district court or try to classify its appellate briefs
as an elaboration. Rather, it accepts that it waived its
§ 11321(a) arguments—as well as some § 10501(b) arguments
more nuanced than those presented to the district court—and
asks us to overlook that waiver.
    We have the discretion to take up these issues in the first
instance, see Singleton v. Wulff, 

428 U.S. 106

, 121 (1976), “but to
8                                                     No. 19-3100

say that an appellate court may address an issue that was for-
feited in the district court is not to say that it must.” Builders

922 F.3d 775

, 778 (7th Cir. 2019). Canadian
Pacific offers us no persuasive reason to address its new argu-
ments. It does not even explain why it so poorly developed its
theories in the district court and asserts only that we have
been more willing to overlook waiver when the new argu-
ment on appeal raises a pure question of law or statutory in-
terpretation. See, e.g., Hively v. Ivy Tech Cmty. Coll. of Ind., 

853 F.3d 339

, 351 (7th Cir. 2017) (en banc); Amcast Indus. Corp. v.
Detrex Corp., 

2 F.3d 746

, 749–50 (7th Cir. 1993).
     A question of law is not an express ticket to the court of
appeals that permits passing by the district court. Although
we are more conducive to forgiving waiver of legal issues, we
still do so only “sparingly” and in “rare instance[s].” In re Sw.
Airlines Voucher Litig., 

799 F.3d 701

, 714 (7th Cir. 2015). The
posture of this appeal—from dismissal under Federal Rule of
Civil Procedure 12(b)(6)—means that nearly all arguments
that can be put before us are “abstract” questions of law. Ash-
croft v. Iqbal, 

556 U.S. 662

, 674 (2009). Nevertheless, we rou-
tinely decline to consider new arguments on appeal from dis-
missals at the pleadings stage. E.g., Lee v. Ne. Ill. Regʹl Com-
muter R.R., 

912 F.3d 1049

, 1053–54 (7th Cir. 2019); G & S Hold-
ings LLC v. Contʹl Cas. Co., 

697 F.3d 534

, 538 (7th Cir. 2012);
Cty. of McHenry v. Ins. Co. of the West, 

438 F.3d 813

, 817–20 (7th
Cir. 2006); Kirksey v. R.J. Reynolds Tobacco Co., 

168 F.3d 1039

1041–42 (7th Cir. 1999). We see nothing about this dismissal to
make it any more worthy of consideration than any other. In-
deed, it may well be less deserving. Canadian Pacific is a so-
phisticated party, represented by able counsel, and knew it
needed to raise all arguments it had against the motion to
No. 19-3100                                                        9

dismiss, yet it failed to do so without explanation. See Cty. of

McHenry, 438 F.3d at 820

    Litigants are obligated to present to the district court both
factual and legal arguments in support of their positions. Ca-
nadian Pacific decided how to litigate its case, offered the dis-
trict court nothing at all on an entire theory of the defendants’
case, and predictably lost. That it lost as matter of law, not
fact, does not alone incline us to revisit that outcome.
    Canadian Pacific’s waiver, though, does not resolve the
entire appeal. The defendants did not argue in the district
court that § 11321(a) exempted them from Canadian Pacific’s
claims for damages relating to the operating and maintenance
expenses under the 1906 agreement. (They raise a new argu-
ment along these lines on appeal, but waiver cuts both ways
and we say no more on that theory.) The question remains,
then, whether the complaint stated a claim based on these ex-
    We review de novo the dismissal of a complaint for failure
to state a claim. See Div. Six Sports, Inc. v. Finish Line, Inc., 

928 F.3d 631

, 635 (7th Cir. 2019). To survive a motion to dismiss, a
complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678

(quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544

, 570 (2007)).
    Canadian Pacific argues that the district court erred by ad-
dressing its claim as a breach of contract instead of a breach
of fiduciary duty. Whatever label we use, though, Canadian
Pacific has failed to state a claim. Even as Canadian Pacific re-
casts its allegations on appeal, it insists only (1) Consolidated
Rail had an obligation to pay consistent with the terms of the
10                                                     No. 19-3100

1906 agreement, (2) Consolidated Rail stopped paying in
1999, and (3) Canadian Pacific is “entitled to recover dam-
ages.” That is a fair summary of the relevant parts of the com-
plaint and it also easily demonstrates the complaint’s failings.
The third statement is a bare legal conclusion that we need not
credit and the former two are textbook examples of facts
“’merely consistent with’ a defendant’s liability” that do not
elevate the claim to a level of plausibility. Id.; Taha v. Intʹl Bhd.
of Teamsters, Local 781, 

947 F.3d 464

, 471 (7th Cir. 2020). Under
the terms of the 1906 agreement, Consolidated Rail was obli-
gated to pay expenses only if it used the tracks (or allowed
others to use the tracks). If it stopped using the tracks in 1999,
as it represented to the STB, then it could stop paying without
breaching a single fiduciary or contractual duty. Despite hav-
ing ample opportunity to do so, Canadian Pacific never al-
leged that Consolidated Rail used the tracks or allowed others
to use them after 1999, so it did not state a plausible claim
based on the failure to pay expenses after that date.

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