MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant CSX Transportation, Inc.'s Motion for Judgment on the Pleadings [DN 25]. Fully briefed, this matter is ripe for decision. For the following reasons, Defendant's motion is GRANTED.
On September 9, 2011, Beulah Pirtle was driving southbound on U.S. 41 in Webster County, Kentucky when she turned onto Sebree Springs Road. Mrs. Pirtle proceeded over a railroad crossing where her vehicle was struck by a train that was owned and operated by Defendants. Mrs. Pirtle's husband and the personal representative of her estate filed this lawsuit seeking damages. According to them, the train never entered Mrs. Pirtle's field of vision and she was never provided a warning or a reason to yield to it. Defendant CSX Transportation, Inc. ("CSXT") filed a motion for judgment on the pleadings under Rule 12(c), arguing that "Count XVI and Count XVII" must be dismissed. (Def. CSX Transp., Inc.'s Mot. for J. on the Pleadings [DN 25] 1.)*fn1 The Court considers this motion below.
"The standard of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (citing Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511--12 (6th Cir. 2001)). Upon a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiff," League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), accepting all of the plaintiff's allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for his entitlement to relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when he "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts that are merely "consistent with a defendant's liability" or if the facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 678--79. Instead, the allegations must "'show that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
In Plaintiffs' complaint under a heading entitled "XVI. Operation Lifesaver," Plaintiffs allege that "Defendant Railroad uses a program called 'Operation Lifesaver' as its primary crossing safety program" and that this program "is part of an industry wide public relations campaign created to serve the . . . special interests of the railroad industry." (Compl. [DN 1] ¶ 65.) Moreover, Plaintiffs allege that "Defendant Railroad has misrepresented its Operation Lifesaver public relations campaign to be a safety program in an attempted [sic] to obscure the fact that Defendant Railroad actually has no comprehensive crossing safety program of its own." (Id.) According to Plaintiffs, Defendant CSXT has used this program "to indoctrinate railroad employees with a belief system that there is nothing they can do to improve public safety at grade crossings," despite having "knowledge that it is endangering the public by allowing . . . hazardous conditions and practices . . . ." (Id. ¶¶ 66--67.)
In its motion to dismiss, Defendant CSXT contends that this "Operation Lifesaver" claim of Plaintiff's complaint, found in "Count XVI," fails to state a claim upon which relief can be granted. According to CSXT, "[a] review of Kentucky authority reveals no case that suggests that merely utilizing a public relations campaign that provides information to the motoring public gives rise to a cause of action against the party utilizing the campaign by a motorist involved in an intersection collision." (Mem. in Supp. of Def. CSXT's Mot. for J. on the Pleadings [DN 25-1] 5.) Further, CSXT argues that Plaintiffs' claim must be dismissed since it is essentially a claim for fraud and since Plaintiffs have failed to satisfy the specificity requirement of Rule 9(b). CSXT maintains that Plaintiffs do not "identify the substance of the allegedly false and misleading information, the facts misrepresented, nor the time and place at which the allegedly false information was disseminated." (Id. at 6.)
The Court agrees with CSXT that Plaintiffs' "Operation Lifesaver" claim must be dismissed. In support of this holding, the Court finds Stevenson v. Union Pacific R.R. Co., No. 2:99-CV-00160 (E.D. Ark. Nov. 6, 2000), instructive. In that case, the district court explained the plaintiffs' argument, noting that the plaintiffs alleged that Operation Lifesaver "assumed a 'special duty' . . . because it holds itself out as an organization dedicated to the safety of the motoring public who come in contact with it, and because the program increases the risk of injury or death to motorists by creating an illusion of safety for the railroad industry's practices." (Order [DN 25-2] 2.) The plaintiffs also alleged that Operation Lifesaver created a public perception of safety by "assuming that a reasonable driver who looked and listened would not be at risk of being hit by a train at a crossing." (Id. at 3.) However, the district court rejected these arguments, relying instead on Arkansas Carpenters' Health & Welfare Fund v. Philip Morris, Inc., 75 F. Supp. 2d 936, 944 (E.D. Ark. 1999).
In Arkansas Carpenters' Health & Welfare Fund v. Philip Morris, Inc., the plaintiff argued that the defendants, by running advertisements related to tobacco related health issues, had taken on a special duty to act as a sort of guardian as public health with regard to tobacco products. But the court found "no Arkansas case even remotely suggesting that one can assume the sort of 'special responsibility' plaintiff describes simply by placing advertisements or issuing corporate statements." Id. Here, the same result follows. At its core, Plaintiffs are attempting to hold CSXT liable because it utilized a public relations campaign that provides information to the motoring public. However, Plaintiffs have cited no cases suggesting that liability should be imposed on this basis. Therefore, the Court finds that Plaintiffs' claim fails as a matter of law.
Moreover, to the extent that Plaintiffs' claim is based on CSXT's alleged misrepresentations, the Court finds that Plaintiffs have not "state[d] with particularity the circumstances constituting fraud." See Fed. R. Civ. P. 9(b). Although Plaintiffs' complaint refers to misleading information, it does not identify the facts misrepresented, nor the time and place at which the allegedly information was disseminated. The Court thus finds that despite construing the complaint in the light most favorable to Plaintiffs and accepting their allegations as true, Plaintiffs' claim fails as a matter of law. See U.S. ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 444 (6th Cir. 2008) (noting that a complaint, "at a minimum, must allege the time, place, and content of the alleged misrepresentation on which [the plaintiff] relied . . .") (internal quotations omitted)).
In Plaintiffs' complaint under a heading entitled "XVII. Common Carrier," Plaintiffs allege that "Defendant Railroad is a common carrier and has violated laws regulating said carriers." (Compl. [DN 1] ¶ 69.) Plaintiffs further allege that Defendant "is obligated to pay all damages sustained by Plaintiff together with the costs of suit and reasonable attorney fees." (Id.) Defendant CSXT argues that the "Common Carrier" claim of Plaintiff's complaint, found in "Count XVII," fails to state a claim upon which relief can be granted. According to CSXT, Plaintiffs' allegations do not rise above "conclusory, non-factual assertions or legal conclusions." (Mem. in Supp. of Def. CSXT's Mot. ...