Boyer v. BNSF Railway Co., 824 F.3d 694

Background

July 2007 flood in Bagley, Wisconsin allegedly caused when debris clogged a BNSF trestle, backing up Glass Hollow Drain and flooding most town properties.
Irish plaintiffs originally sued BNSF in Wisconsin state court (removed to federal court); district court dismissed under Wis. Stat. § 88.87; this court affirmed in Irish v. BNSF (7th Cir. 2012), finding plaintiffs had forfeited a particular maintenance-vs.-construction argument.
New, largely different group of Bagley residents (Boyer plaintiffs) filed a virtually identical suit in Arkansas state court asserting Wisconsin common-law negligence and nuisance claims (aiming to avoid prior rulings).
BNSF removed to federal court, moved to transfer to the Western District of Wisconsin; Arkansas federal court granted transfer; appeals/mandamus to the Eighth Circuit were summarily dismissed.
Western District of Wisconsin dismissed the Boyer complaint as preempted by Wis. Stat. § 88.87 and denied sanctions; on appeal this Court affirmed dismissal but reversed denial of sanctions under 28 U.S.C. § 1927, ordering counsel to pay fees related to the Arkansas detour.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of Wis. Stat. § 88.87 — does it bar common-law damages claims based on negligent maintenance?	Section 88.87 covers only construction defects giving rise to continuing/repeated nuisance; one-time maintenance-caused flood falls outside the statute.	§ 88.87 covers both construction and maintenance that unreasonably impede drainage; it precludes common-law damages and requires statutory claim procedure.	Statute preempts common-law negligence/nuisance claims based on maintenance; plaintiffs' damages claims barred and they failed to give the required statutory notice.
Adequacy of plaintiffs’ new factual theory (failure to clear upstream debris)	The flood resulted from failure to clear upstream debris (not the trestle), a theory outside § 88.87’s scope.	That upstream-debris theory still alleges interference with drainage and thus falls within § 88.87; moreover, that argument was raised too late.	Court finds theory either within § 88.87 or forfeited (raised at oral argument); not a basis to avoid preemption.
Claim preclusion / privity with Irish plaintiffs	Boyer plaintiffs could have been bound by Irish judgment; claims/arguments should have been litigated earlier.	Many Boyer plaintiffs were different persons and not in privity with Irish plaintiffs; claim preclusion does not bar their suits.	For most Boyer plaintiffs (not parties to Irish), claim preclusion did not apply; court reached merits and held claims preempted by statute.
Sanctions for forum shopping (28 U.S.C. § 1927)	Filing in Arkansas was legitimate choice of forum; appeal not frivolous.	Filing in Arkansas (no ties to case) was objectively unreasonable and multiplied proceedings; counsel liable under § 1927.	Imposed § 1927 sanctions against lead counsel for fees/costs of Arkansas detour ($34,575.80); Rule 38 sanctions for appeal denied.

Key Cases Cited

Irish v. BNSF Ry. Co., 674 F.3d 710 (7th Cir. 2012) (prior appellate decision in related litigation; discussed forfeiture of maintenance argument)
Pruim v. Town of Ashford, 483 N.W.2d 242 (Wis. Ct. App. 1992) (statute preempted common-law nuisance/damages claims arising from roadway construction/maintenance)
Kapco Mfg. Co. v. C & O Enters., Inc., 886 F.2d 1485 (7th Cir. 1989) (attorney sanctions for forum-shopping and multiplicative litigation)
Dal Pozzo v. Basic Mach. Co., 463 F.3d 609 (7th Cir. 2006) (standards for § 1927 sanctions; objective bad faith)
In re TCI Ltd., 769 F.2d 441 (7th Cir. 1985) (lawyer acts in bad faith when pursuing an objectively unreasonable path)
Richards v. Jefferson Cnty., Ala., 517 U.S. 793 (1996) (principle that judgments do not bind nonparties; privity limits claim preclusion)