Chessie Logistics Company, LLC v. Krinos Holdings, Inc., 2017 U.S. App. LEXIS 15238

Chessie Logistics, a small Illinois rail carrier, sued neighboring companies (collectively "Krinos") after Krinos' construction allegedly buried and dumped dirt on Chessie’s tracks, rendering them unusable.
Chessie pleaded trespass, negligence, and a claim under 49 U.S.C. § 10903 (abandonment/discontinuance of rail lines).
District court dismissed the § 10903 claim for lack of a private right of action, then granted summary judgment to Krinos on trespass and negligence (finding Chessie lacked necessary easements and that an independent contractor caused the intrusion).
Chessie first argued negligence per se (based on Illinois’ Adjacent Landowner Excavation Protection Act) only in summary-judgment briefing; the district court deemed that argument forfeited.
On appeal Chessie sought reinstatement of the § 10903 claim and urged the negligence-per-se theory; the Seventh Circuit affirmed dismissal on both questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 10903 creates an implied private right of action	§ 10903 should imply a private cause of action allowing rail carriers to sue third parties whose actions force abandonment	Statute contains no rights-creating language; Congress provided explicit enforcement mechanisms elsewhere (Chapters 117,119) so no implied private right exists	No implied private right of action under § 10903; claim dismissed
Whether Chessie forfeited negligence-per-se claim raised at summary judgment	Chessie may alter legal theories later and can proceed on negligence per se based on the Illinois Excavation Protection Act	New negligence-per-se theory introduced new factual theory after discovery closed, unfairly surprising defendants; thus forfeited	Forfeited — district court did not abuse discretion in refusing to consider the late theory

Alexander v. Sandoval, 532 U.S. 275 (statutory silence cannot supply private right of action)
Cannon v. University of Chicago, 441 U.S. 677 (requirements for rights-creating statutory language)
Gonzaga University v. Doe, 536 U.S. 273 (statute must be phrased in terms of persons benefited)
California v. Sierra Club, 451 U.S. 287 (statutes focused on regulated parties do not imply private rights)
J.I. Case Co. v. Borak, 377 U.S. 426 (discussion on judicial creation of remedies vs. congressional intent)
India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651 (final-judgment rule and dismissal without prejudice)
Whitaker v. Milwaukee County, 772 F.3d 802 (when new theories at summary judgment may be allowed)
Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217 (plaintiff may alter legal theories absent unfair prejudice)