United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WLLHOIT, JR., UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Defendant CSX Transportation,
Inc.'s Motion to Dismiss Amended Complaint [Docket No.
19]. Plaintiff has responded to the motion [Docket No. 22],
For the reasons state herein, this Court finds that Plaintiff
has failed to state a claim upon which relief may be granted
and dismissal is warranted.
case arises from George Smith's ownership of two adjacent
parcels of land in Boyd County, Kentucky. The two parcels in
question comprise a large tract of land which stretches
between CSXT's tracks and the Big Sandy River in the
Southeast corner of Boyd County.
first of these lots is identified in the Amended Complaint as
a parcel of 110.41 acres, purchased by Plaintiff from CSX
Realty, Inc. on December 23, 1991, deed of which is recorded
in the Boyd County Clerk's Office in Deed Book 553, Page
78, which Plaintiff refers to as "Lot A." [Docket
No. 18, Plaintiffs Amended Complaint, ¶8. and Docket No.
second lot is a parcel of 93.50 acres, purchased by Plaintiff
from CSX Realty, Inc. on June 2, 1993, which Plaintiff refers
to as "Lot B." [Docket No. 18, ¶9]. The deed
for that purchase is recorded in the Boyd County Clerk's
Office in Deed Book 567, Page 473. [Docket No. 19-3].
2007, A railroad crossing located near John-Mary Road (County
Road 1121) was removed by CSXT. Plaintiffs Amended Complaint
alleges that the closing of the railroad crossing rendered
Lot B "functionally landlocked and inaccessible as a
piece of commercial property." [Docket No. 18,
redress, Plaintiff filed this lawsuit in Boyd Circuit Court
on October 14, 2015. Following a prolonged and torturous
procedural path, Plaintiff filed an Amended Complaint almost
a year later. In his Amended Complaint, Plaintiff
alleges three causes of action: damage to land (Count II).
fraud (Count II) and negligent and intentional trespass
seeks dismissal of all claims alleged therein.
of a complaint is warranted under Fed.R.Civ.P. 12(b)(6) if it
fails to state a claim upon which relief can be granted. With
respect to a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Sixth Circuit Court of Appeals explained in Estate of
Ezra G. Smith v. United States, 509 Fed.Appx.
436 (6th Cir. 2012) that:
[t]he Supreme Court held in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) that to survive a motion to
dismiss under Rule 12(b)(6) a complaint must contain (1)
enough facts to state a claim to relief that is plausible;
(2) more than a formulaic recitation of a cause of
actions' elements; and (3) allegations that suggest a
right to relief above a speculative level, (internal citation
omitted)...A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, (internal citation omitted)...For a
complaint to survive a motion to dismiss, the non-conclusory
factual content and the reasonable inferences from that
content, must be plausibly suggestive of a claim entitling a
plaintiff to relief, (internal citation omitted) Where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not show[n]~that the pleader is entitled
Estate of Ezra G Smith, 509 Fed.Appx. at 439.
assertions, e.g., that...[the] defendants engaged in
'outrageous' and 'unlawful' behavior...are
insufficient to state a claim that is plausible on its
face." Ogle v. Columbia Gas Transmission, LLC,513 Fed.Appx. 520, 522-523 (6th Cir. 2013). The
"complaint must contain either direct or inferential
allegations respecting all material elements to sustain a
recovery under some viable legal theory." Bishop ...