United States Fifth Circuit

In a suit seeking injunctive and declaratory relief either to prohibit or regulate defendant's installation or use of private at-grade railroad crossings, dismissal for lack of jurisdiction is affirmed where: 1) the plaintiff's preemption claim arises as an anticipated or potential federal defense and as such the argument that federal jurisdiction is established under Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), fails; 2) plaintiff failed to establish jurisdiction on the basis of complete preemption under the Interstate Commerce Commission Termination Act (ICCTA) since it failed to show that section 10501(b) of the ICCTA completely preempts Article 689 and the Louisiana statutory scheme for enclosed estate owners; 3) plaintiff failed to show that the Louisiana statutory scheme for enclosed owners is completely preempted under the Federal Railroad Safety Act (FRSA); and 4) plaintiff failed to raise a disputed and substantial question of federal law.

Appellate Information

• Decided 06/25/2008
• Published 06/25/2008

Judges

• EMILIO M. GARZA, Circuit Judge:, Before REAVLEY, SMITH and GARZA, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• Lawrence J. Ernst, Mary Beth Meyer (argued), Christovich & Kearney, New Orleans, LA, for Plaintiff-Appellant., Stephen O. Scandurro, Scandurro & Layrisson, New Orleans, LA, W. Eric Lundin, III, Belle Chasse, LA, for Angel and Darren Barrois, and Bruce and Tammy Kennair., Joe M. Inabnett (argued), New Orleans, LA, Larry Bruce Feldman, Jr. (argued), McGlinchey Stafford, New Orleans, LA, for Brady and Tracy Miller, Rayborn and Gainey., Michael R. Delesdernier, Metairie, LA, for Betty and Kevin Nelson, Ann and Earl Koen, Riddle, Dawn and John Treadway and Carl and Robin Woodall., Marc Christopher Dougherty, Sr., Gretna, LA, for Lawrence and Patricia Tillotson., Michael Quirk Walshe, Jr. (argued), Stephen G. Bullock, Mary Stanfield Bubbett Jackson, Stone, Pigman, Walther & Wittmann, Jason Matthew Bilbe, Entergy Corp., New Orleans, LA, for Furniture Mart-Real Estate Holdings, LLC.