June 1, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 C 8864 - Jorge
L. Alonso, Judge.
Bauer, Posner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
plaintiff here is a rail carrier, Chessie Logistics, which
claims it was injured when its neighbor Krinos damaged its
railroad tracks. Chessie Logistics sued for trespass,
negligence, and violation of a federal railroad statute. The
district court dismissed the statutory claim and then granted
summary judgment to defendants on Chessie's claims for
trespass and negligence. On appeal, Chessie seeks to
reinstate its claim under the Interstate Commerce Commission
Termination Act of 1995 and its late effort to transform its
common-law negligence theory into a negligence per se theory
based on an Illinois statute. This appeal asks us to decide
two questions: first, whether § 10903 of the federal Act
creates an implied right of action, and second, whether
Ches-sie was entitled to change its negligence theory as late
as it did. We agree with the district court that the answers
are both no. On appeal, Chessie has not challenged the
summary judgment on its common-law claims for trespass and
negligence. We affirm judgment for defendants.
Factual and Procedural Background
Chessie Logistics Company is a railroad authorized to operate
just one mile of track in Melrose Park, Illinois, though it
has apparently been many years since trains have actually run
on those stretches of track. The defendants are a collection
of companies that own and operate an industrial facility
adjacent to Chessie's tracks. A spur track and a side
track run over defendants' property; Chessie says it has
easements to use those tracks. The defendants are related
companies that include Krinos Holdings and Krinos Realty, and
we refer to all defendants collectively as Krinos.
alleges that in 2012 and 2013, Krinos constructed a sewer
line and did other drainage-management work near
Chessie's tracks. Chessie claims that the work buried
parts of its tracks and created a slope directing runoff onto
another part of the tracks, damaging them and rendering them
impassable. After Chessie told Krinos about the problem,
Chessie says, Krinos removed the dirt from one track
(damaging the track in the process) and put it onto another
track and into a ditch Chessie needed to manage its drainage.
Chessie filed suit in the Northern District of Illinois,
asserting both federal question and diversity jurisdiction,
noting that it is an Illinois citizen, all defendants are New
York citizens, and the amount in controversy exceeds $75,
000. See 28 U.S.C. § 1332(a).
Chessie did not need to include its legal theories in its
complaint, e.g., Title Industry Assurance Co. v. First
American Title Insurance Co., 853 F.3d 876, 880 (7th
Cir. 2017), its complaint laid out three such theories:
trespass, negligence, and violation of 49 U.S.C. §
10903. Krinos counterclaimed, alleging that Chessie did not
have easements to use the spur and side tracks and seeking a
declaratory judgment, quiet title, and ejectment. Krinos also
moved to dismiss Chessie's claim premised on §
10903: that section, it argued, did not create a private
right of action. Section 10903 regulates abandonment of rail
lines; it requires rail carriers to receive permission from
the Surface Transportation Board before abandoning parts of
their lines. The district court agreed that § 10903 did
not create a private right of action and dismissed that
discovery, the parties filed cross-motions for summary
judgment. The district court granted Krinos's motion and
denied Chessie's. Chessie Logistics Co. v. Krinos
Holdings, Inc., No. 13 C 8864, 2016 WL 7034101, at *7
(N.D. 111. Dec. 2, 2016). Chessie had not shown that it had
easements over some of Krinos's property, the court
ruled, and even if it had, an independent contractor, not
Krinos, caused the intrusion on Chessie's tracks.
Id. at ""5-6. The court therefore granted
summary judgment against Chessie's trespass claim, and
against its negligence claim "to the extent it is based
on trespass." Id. at*6.
argued that its negligence claim was not based wholly on
trespass. In its summary judgment brief, Chessie argued that
Krinos was negligent per se. It cited the Illinois Adjacent
Landowner Excavation Protection Act, which requires
landowners to notify adjoining landowners before excavating.
765 Ill.Comp.Stat. 140/1. Krinos had not followed this
statute, Chessie reasoned, and was therefore negligent per
se. Krinos argued, and the district court agreed, that
Chessie had never made that argument before and that the
argument was therefore forfeited. The court granted summary
judgment against Chessie's negligence per se claim.
Krinos dismissed its counterclaims without prejudice, and
addressing the parties' merits arguments, we pause to
consider our jurisdiction. The only route to appellate
jurisdiction in this case runs through 28 U.S.C. § 1291,
which gives us jurisdiction over appeals from district
courts' "final decisions." With certain
exceptions not relevant here, a decision is final if it
"disposes of all claims against all parties."
Dale v. Lappin,376 F.3d 652, 654 (7th Cir. 2004).
Claims dismissed without prejudice have not been disposed of,
and any resulting judgment is not final unless there is a
clear legal bar to the claim's revival. First Health
Group Corp. v. BCE Emergis Corp.,269 F.3d 800, 801 (7th
Cir. 2001) ("[Dismissal of one claim or theory without
prejudice ... makes the judgment non-final."); Dixon
v. Page,291 F.3d 485, 488 (7th Cir. ...