IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
JIMMY EDWARDS,
ROBERT HUNT,
DOLORES HUNT,
CLIFFORD MCKELLAR, JR.,
EMMA MCKELLAR, on behalf of themselves
and all others similarly situated,

Case No. 7:18-cv-169-BO
Consolidated with Cases No. 7:18-cv-177-BO and
No. 7:18-cv-178-BO

Plaintiffs,
v.
CSX Transportation, Inc.,
Defendant.
ANTOINETTE MOORE, individually and on
behalf of all others similarly situated,

Case No. 7:18-cv-177-BO

Plaintiff,
v.
CSX Transportation, Inc.,
Defendant.
WEST LUMBERTON BAPTIST CHURCH,
CURRIE CHAIN SAW, INC.,
C.J.M. VENTURES, INC.,
WILLIAM LOCKLEAR d/b/a
STRICKLAND’S BARBERSHOP,
TBL ENVIRONMENTAL LABORATORY,
INC.,
SAMMY’S AUTO SALES, INC.,
LINDA SAMPSON, and
ERIC CHAVIS,

Case No. 7:18-cv-178-BO

individually and on behalf all others similarly
situated,
Plaintiffs,

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 v.
CSX TRANSPORTATION, INC.,
Defendant.
AMENDED COMPLAINT
1.

This is a complaint for damages arising from flooding caused by the Defendant,

informally known as the CSX railroad company. CSX owns and maintains tracks running through
the city of Lumberton, North Carolina. The CSX tracks run roughly adjacent to the Lumber
River and through a gap in the embankment under Interstate 95. The local authorities have
constructed a levee system to protect Lumberton residents and businesses from river-borne
flooding. At the time the system was built, CSX agreed to allow the City of Lumberton to close
the gap.
2.

However, CSX has reneged on its agreement, not closed the gap that it maintains

in the levee system, and has actively impeded the City’s efforts to close the gap. Predictably, and
as a direct result of CSX’s bad acts, the southern and western parts of Lumberton unnecessarily
flooded during Hurricane Matthew and Hurricane Florence.
3.

Plaintiffs and members of the proposed class are Lumberton residents and

businesses whose properties were flooded during Hurricane Matthew (October 2016) and
Hurricane Florence (September 2018) as a result of CSX’s actions. Plaintiffs have suffered
significant economic losses as a result.

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 PARTIES
4.

All Plaintiffs own property or operate businesses in Lumberton. All Plaintiffs

suffered significant damage when floodwaters rose after Hurricanes Matthew and Florence and
flowed through the gap in the City’s levee system where the CSX tracks run under I-95.
5.

Plaintiff Jimmy Edwards owns a home at 66 National Avenue, Lumberton, North

Carolina.
6.

Plaintiffs Robert Hunt and Dolores Hunt own a home at 2404 and 2405 Arnold

Street, Lumberton, North Carolina.
7.

Plaintiffs Clifford McKellar, Jr. and Emma McKellar own a home at 2410 Arnold

Street, Lumberton, North Carolina.
8.

Plaintiff Antoinette Moore owns a home at 28 Lake Drive, Lumberton, North

Carolina.
9.

Plaintiff West Lumberton Baptist Church is a nonprofit corporation organized

under the laws of the State of North Carolina. It is located at 2320 West 5th Street, Lumberton,
North Carolina.
10.

Plaintiff Currie Chain Saw, Inc. is a corporation organized under the laws of the

State of North Carolina. It is located at 1311 West 5th Street, Lumberton, North Carolina.
11.

Plaintiff C.J.M. Ventures, Inc. is a corporation organized under the laws of the

State of North Carolina. It owns property located at 1001 West 5th Street, Lumberton, North
Carolina.
12.

Plaintiff William Locklear does business as Strickland’s Barbershop, which is

located at 2209 West 5th Street, Lumberton, North Carolina.

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 13.

Plaintiff TBL Environmental Laboratory, Inc. is a corporation organized under the

laws of the State of North Carolina. It is located at 2401 West 5th Street, Lumberton, North
Carolina.
14.

Plaintiff Sammy’s Auto Sales, Inc. is a corporation organized under the laws of the

State of North Carolina. It is located at 1509 West 5th Street, Lumberton, North Carolina.
15.

Plaintiff Linda Sampson owns a home at 2912 Anne Street, Lumberton, North

Carolina.
16.

Plaintiff Eric Chavis owns a home at 2960 Bragg Street, Lumberton, North

Carolina.
17.

Defendant CSX Transportation, Inc., which will be referred to as “CSX”

throughout this complaint, is a corporation organized and existing under the laws of the State of
Virginia, with a principal place of business at 500 Water Street, Jacksonville, Florida. CSX owns
and operates a railroad running through the City of Lumberton.
JURISDICTION AND VENUE
18.

The Court has jurisdiction over this action under 28 U.S.C. § 1332(a), the general

diversity statute, because the amount in controversy exceeds $75,000 and there is complete
diversity of citizenship between the parties.
19.

The Court also has jurisdiction under 28 U.S.C. § 1332(d)(2), the Class Action

Fairness Act of 2005, because the amount in controversy exceeds $5,000,000, there is at least
minimal diversity between the parties, and there are more than 100 proposed class members.
20.

Venue lies in this district under 28 U.S.C. § 1391(b)(2), because a substantial

portion of the acts and omissions giving rise to Plaintiffs’ claims occurred in this district. Venue
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 is also proper because all of the property that is the subject of this action is situated in this
district.
FACTUAL ALLEGATIONS
21.

For over forty years, there has been a levee along the Lumber River as it passes

through Lumberton, North Carolina. The purpose of the levee is flood control. For all of that
time, the tracks of CSX and its predecessor, the Seaboard Coast Line, created a singular gap in
that levee. However, at the same time, CSX has been contractually obligated to permit the
temporary and permanent closures of its gap to prevent floods. Nonetheless, CSX has done
nothing to deal with the flood hazard its tracks cause—and in fact, it has threatened local officials
with trespass and lawsuits when they tried to deal with those hazards, as their contract allowed.
CSX’s actions and inactions caused flooding in Lumberton that otherwise would not have
occurred. The results were catastrophic.
22.

Some history of the Lumberton region is helpful in explaining the lay of the land.

The Lumber River flows from northwest to southeast. Paralleling the river, VFW Road lies to the
south of the river, and runs northwest to southeast. Just south of VFW Road lies the CSX tracks,
also running northwest to southeast. In 1964, an overpass for I-95, passing from the southwest to
the northeast, was built over the tracks, VFW Road, and the river. The main body of I-95 lies on
an elevated berm. Finally, in 1977, the local drainage district built the levee between the CSX
tracks and the river.

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 23.

Here is a general map of the region:

On this map, I-95 is purple; the CSX tracks are blue; and the levee roughly follows the
thin grey line south of the river, on the right half of the map.
24.

The levee ties into the elevated Interstate like a T. Both lines of the T—I-95 and

the levee—protect against floods because both are elevated structures. At the upper left elbow of
the T is the spot where CSX’s tracks pass through at a dangerously low level—much lower than
the levee, and low enough to act as a drain or funnel, pulling in floodwaters that have collected on
the wet, northwest side of I-95, through the gap, and into Lumberton and into Plaintiffs’ homes
and businesses.

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 25.

After Hurricane Matthew, the State hired a consulting firm that depicted this

“funnel effect.” Its diagram follows.

In this image, I-95 is the highway slicing to the northeast, the CSX tracks are the stark line
running to the southeast, and at the center of the image is the CSX gap: the place where, after
two consecutive hurricanes, millions of gallons of water have flooded south into town.
26.

The image above shows an analysis of Hurricane Matthew in 2016, during and

after which Lumberton suffered grievous devastation. The potential of flooding at this spot was
foreseeably obvious. In fact, flooding was expressly contemplated in 1978, when CSX’s
predecessor entered into a “Tri-Party Agreement” wherein the railroad agreed to let others
block its line at the gap. This agreement will be discussed in detail below.
27.

Hurricane Matthew could not have given CSX a more compelling demonstration

of the damage that its gap in the levee system could cause. Yet, CSX still failed to do anything
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 about it. CSX refused to work with the City and other governmental bodies to take steps—such
as building a long-recommended floodgate—to ensure that the flooding resulting from Hurricane
Matthew was not repeated.
28.

Man is doomed to repeat his mistakes until he learns his lesson. And, as Hurricane

Florence approached Lumberton in September 2018, CSX forbade local officials from
temporarily closing the gap to block the impending floodwaters, even threatening prosecution—
despite the fact CSX was fully aware of the likely potential of another catastrophe. After
Hurricane Florence arrived on or about September 10, 2018, and for days after, the City of
Lumberton again experienced devastating flooding. Once again, numerous homes, businesses,
and vehicles in South Lumberton and West Lumberton were damaged or destroyed by water
which poured through the same CSX gap.
29.

The result of all this is that the City has now twice experienced extensive flooding,

damage, and the displacement of hundreds of residents—one of the poorest populations in one of
the least economically developed parts of North Carolina. For decades, CSX has disregarded and
ignored the clear risks of its operations in Lumberton.
A.

CSX’s corporate history and the history of railroad operations through
Lumberton.

30.

CSX’s present-day operations trace back to legislative charters granted in the

1800’s. These charters make clear that CSX operates as a quasi-public corporation, possessing
the special powers and subject to the special duties of a railroad corporation in North Carolina.
31.

The North Carolina legislature granted a charter to the Wilmington and Charlotte

Railroad Company on February 13, 1855. Ch. 225, N.C. Priv. L. (1855). The next day, the name
was changed to the Wilmington, Charlotte & Rutherford Railroad (WC&R). Ch. 226, N.C. Priv.
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 L. (1855). Under the charter, the railroad was granted 100 feet of right of way on each side of its
centerline. Ch. 225, § 27.
32.

The railroad began on the coast, at Wilmington, and was constructed westward.

By 1861, the railroad had reached Lumberton.
33.

The WC&R failed, and was sold at foreclosure to the Carolina Central Railway on

April 10, 1873.
34.

In 1876, the Carolina Central Railway went into receivership, and on May 31,

1880, it was sold at foreclosure to be reorganized as the Carolina Central Railroad (CCR).
35.

In 1881, the Carolina Central Railroad’s controlling interest was sold, and the

CCR informally became part of the Sea-Board Air Line system.
36.

In 1900, the Sea-Board Air Line Railway took over the CCR.

37.

During the 1960’s, Seaboard’s successor company completed a merger with the

Atlantic Coast Line and emerged as the Seaboard Coast Line Railroad Company.
38.

In 1982, the Seaboard Coast Line Railroad Company was merged with the

Louisville & Nashville road into a new company, the Seaboard System Railroad.
39.

In 1986, the Seaboard System Railroad merged into present-day CSX.

40.

CSX owns the tracks running through Lumberton.

41.

CSX also owns the right-of-way over which the tracks run.

42.

As a result of the merger, CSX assumed all of Seaboard Coast Line’s legal duties,

responsibilities, and liabilities. CSX stands in the shoes of the Seaboard Coast Line Railroad
Company today.

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 43.

CSX has derived and continues to derive economic advantage from the operation

of its railroad tracks in the area of the I-95 underpass.
B.

1960’s and 1970’s: The levee system is built to protect Lumberton from
further floods, and CSX makes promises to the City of Lumberton to
cooperate.

44.

The north side of Lumberton, where downtown is, is elevated somewhat and is

thus relatively safe from the Lumber River.
45.

However, the south and west sides, where Plaintiffs are located, are lower-lying

ground, and more vulnerable to floods. So, during the 1960’s, federal, state, and local authorities
came together to plan for a levee system that would protect the south and west sides of
Lumberton.
46.

In 1966, the federal Natural Resources Conservation Service finalized the Jacob

Swamp Watershed Improvement Plan.
47.

The plan called for a number of projects, including constructing a levee system

along the Lumber River.
48.

In the 1960’s, the State of North Carolina created the entity known as the

Robeson County Drainage District No. One (hereafter just “Drainage District”).
49.

In 1966, the City and the Drainage District signed a “Watershed Work Plan

Agreement” (hereafter just “Work Plan”). Id. at i–iv.
50.

Under the Work Plan, the City of Lumberton agreed to acquire any land,

easements or rights-of-ways that were necessary to install, operate and maintain a levee and
appurtenant features. Id.
51.

Construction of the levee began in 1975. The earthen levee was completed in 1977.

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 52.

Although the levee along the river was complete in 1977, the gap under I-95,

through which the Seaboard Coast Line tracks passed, still remained.
53.

So, the City of Lumberton, the Drainage District, and the Seaboard Coast Line

Railroad Company negotiated and signed a “Tri-Party Agreement” dated June 14, 1978. (Ex. 1.)
54.

Under the Tri-Party Agreement, the Seaboard Coast Line granted the City and

the Drainage District the right to construct a permanent levee system across Seaboard’s wide
right of way. Id. at preamble. Specifically, the governments were permitted to “construct and
maintain portions of a[n] . . . earthen dike on the easterly and westerly portions of [Seaboard’s]
right of way.” Id. The governments were permitted to build as close as “15 feet from the center
line of [Seaboard’s] main track.” Id.
55.

The construction authorized in the Tri-Party Agreement appears like this:

56.

Thus, the Tri-Party Agreement, drafted with Seaboard’s involvement and signed

(Ex. 1.)

by Seaboard’s hand, specifically contemplated that even after constructing the partial structures

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 more than 15 feet out from the centerline, the narrower “gap” would remain. And Seaboard
played a role in specifying how wide that gap would be.
57.

To deal with the inevitability of flooding at the gap, the Tri-Party Agreement

included provisions concerning emergency situations. Specifically, Seaboard gave the City the
right to block the gap “in the event the City of Lumberton is in eminent [sic] danger of flood.” Id.
¶ 8(a). The City was given “the right and privilege of closing said dike across said track and the
roadbed thereof.” Id. In other words, the City got the right to close part of the gap—that part
more than 15 feet from Seaboard’s centerline—to prevent imminent flooding.
58.

Under the agreement, Seaboard agreed to permit the City to close the remaining

gap (within 15 feet on each side of the centerline) whenever given “12 hours notice prior to such
closing.” Id.
59.

The Tri-Party Agreement was duly signed by all three parties and remains in

effect today.
60.

CSX, in acquiring Seaboard, acquired its rights, duties, and obligations under the

Tri-Party Agreement.
61.

CSX has done nothing to cancel or repudiate the Tri-Party Agreement.

62.

The Tri-Party Agreement, and specifically the provision regarding closure of the

gap, was intended for the benefit of City residents.
63.

In October 1979, in furtherance of its powers under the Tri-Party Agreement, the

City of Lumberton prepared “Operational Procedures” for “Sandbagging Seaboard Coast Line
Railroad.” (Ex. 2.)

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 64.

In these procedures, the City stated its intent “to affirm beyond any shadow of

doubt that the protection of lives and property during times of flooding is a paramount concern of
the City of Lumberton.” Id. § I.
65.

The procedures recounted that in connection with levee construction,

“appropriate agreements were reached with the Seaboard Coast Line Railroad permitting
sandbagging.” Id. The procedures also recited the requirement of twelve hours’ notice to the
railroad, consistent with the Tri-Party Agreement. Id. § II(8).
66.

In the years following the Tri-Party Agreement, the City had a version of its

procedures for closing the gap pinned up on a board in the Public Works Department.
67.

During the negotiations over the levee construction, all parties concerned—the

City, the Drainage District, Seaboard, the Soil Conservation Service, and the Army Corps of
Engineers—were aware of the need to block the gap at the Seaboard/CSX tracks.
68.

A letter dated December 12, 1977 from the Army Corps of Engineers to the Soil

Conservation Service is instructive. It notes that at an October 27, 1977 meeting, “there was a
discussion concerning additional project features which would reduce or eliminate inflow into the
diked area, such as . . . a gated structure at the railroad underpass.” This meeting was held prior
to the negotiation and signing of the Tri-Party Agreement.
69.

Indeed, in this same time period, Seaboard also agreed to construction of a

permanent floodgate at the gap.
70.

In 2017, the North Carolina Division of Emergency Management, a state agency,

commissioned a report to study the problems with flooding in Lumberton. The agency hired
AECOM Technical Services of North Carolina, Inc. (“AECOM”), which released its report in

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 September 2017. The report was titled Hurricane Matthew: Sources of Flooding and Mitigation
Strategies in Lumberton, NC.
71.

This report stated that closing the underpass was part of the original plan for the

area. It also noted that “[a]greements were reached between all parties but the permanent
improvements were not made.”
72.

The report stated that the temporary sandbagging plan, set out in the Tri-Party

Agreement, was agreed to “as an alternative” to the permanent closure.
73.

In other words, the temporary plan is literally a stopgap measure until the

permanent fix could be built. Seaboard had agreed to both temporary and permanent measures.
C.

1970’s to present: CSX always knows of the danger of its gap in the levee
system, but does nothing to remedy the problem.

74.

Initially, the Lumberton levee system was certified as a sufficient means of

protection for people in the areas west and south of the CSX gap.
75.

However, the Federal Emergency Management Agency and the State of North

Carolina’s Flood Mapping Program reconsidered this designation of flood protection based on
the still-extant gap at the CSX tracks.
76.

According to meeting minutes from May 21, 2003, these agencies (along with

some consultants) noted that permanent improvements to the CSX gap area were contemplated
and designed in 1977. “The roadway was supposed to have been raised . . . and the areas between
the road and south of the railroad were to have been blocked by permanent levees.” Id.
77.

This shows that CSX knew, back in 1977, that its gap posed a risk of harm to the

City of Lumberton.

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 78.

CSX continued to engage in communications with the City about the gap over the

79.

During a storm that threatened to approach the region sometime between 2006

years.

and 2010, CSX’s roadmaster was Robert Grooms. The City made contact with Mr. Grooms and
asked him to consent to a closure of the gap using sandbags. The storm changed course and the
City did not follow up on the plan to close the gap.
80.

During a storm in a subsequent year, CSX’s roadmaster was Mike Small. Mr.

Small denied being familiar with the Tri-Party Agreement or CSX’s consent to sandbagging the
gap. Mr. Small told the City’s representatives that if they attempted to sandbag the line, that
would constitute trespassing, because no one is supposed to enter onto CSX property. Again, the
storm changed course before the City had to press the issue.
81.

Over the years, studies have shown that the CSX gap is a significant risk and the

biggest contributor to flooding in the area.
82.

The 2017 AECOM report is one such study.

83.

In preparing this report, AECOM drew on hydrological data; Army Corps of

Engineers trip reports; interviews, photos, and assessments from residents; the original levee
construction documents; the agreements between the City of Lumberton, the Drainage District,
and Seaboard Coast Line; and other information. AECOM’s charge was to determine what
caused flooding after 2016’s Hurricane Matthew, and how to prevent it in the future.
84.

Unsurprisingly, AECOM identified the CSX gap as a principal source of flooding.

AECOM estimated that, in the aftermath of Hurricane Matthew, as much as 1,250 ft3/second of
water was flowing into the area “through the railroad opening.” Id. at 8.

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 85.

Hurricane Matthew began affecting Lumberton on October 8, 2016. But AECOM

noted that even on October 13, three days after the flood’s high-water mark, water was still
flowing across the railroad area. Id. at 9.
86.

AECOM made findings as to the cause of the flooding after Hurricane Matthew.

AECOM wrote that the “overriding factor that caused the majority of the devastation was the
failure to have a proper closure at the VFW Road underpass.” Id. at 12. This includes the CSX
tracks.
87.

AECOM said that, without any mitigation strategy, “the first point of failure in

the levee system protecting the project area will be the underpass” where the CSX tracks lie. Id.
at 13.
88.

The consultants made recommendations to prevent future flooding of the City.

The primary recommendation was the installation of a floodgate at the gap, across the CSX
tracks and VFW Road. Id. at 14. AECOM noted that its proposed solution would comply with
railway industry engineering standard practices. Id.
89.

AECOM calculated that its proposal would cost $486,500, and that during a 1%

annual chance flood, it would avert over $5 million in direct and indirect losses. Id. at 18.
90.

Another public study that cited the CSX gap as the cause of flooding in

Lumberton was titled Hurricane Matthew Resilient Redevelopment Plan: Robeson County. It was
published in May 2017 under the supervision of the North Carolina Division of Emergency
Management.
91.

The Redevelopment Plan stated that most of the flooded homes were flooded with

water that came through the CSX gap.

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 92.

The Plan also concluded that without a floodgate at the I-95 underpass, the

community was at risk of suffering similar flooding events in the future.
93.

The North Carolina Division of Emergency Management and the North Carolina

Department of Transportation also commissioned a second study from AECOM. This second
study was dated May 1, 2018, and titled Lumber River Basin Flood Analysis and Mitigation
Strategies Study.
94.

In this study, AECOM analyzed the broader Lumber River basin rather than just

the Lumberton area.
95.

Once again, the consultants made clear that the CSX gap was the cause of “drastic

flooding in the interior of the levee.”
96.

AECOM determined that, had a floodgate across the gap been in place,

$46,581,000 in direct damage and $198,715,566 in indirect damage would have been averted in
the broader Lumber Basin.
D.

2016: The CSX gap’s predictable impact on Plaintiffs and class members
during and after Hurricane Matthew.

97.

On October 8, 2016, Hurricane Matthew made landfall near McClellanville, South

Carolina, and began churning up the coast.
98.

Thus, it was obvious that the City of Lumberton could be at risk of flooding.

99.

The City sought to construct an emergency sandbag dam at the CSX gap and

contacted the railroad.
100.

CSX did not respond to this request.

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 101.

The City made a small effort to construct a sandbag dam in the low ditch

alongside the tracks, but without permission to construct a proper barrier across the tracks, this
effort was not likely to accomplish anything. This first attempt of the City failed.
102.

Facing waters that continued to rise, City officials came up with a second plan.

The City sought to use construction equipment, jersey barriers, and other materials to block the
gap itself.
103.

Because CSX had not even responded to its first request, the City sought help

from the State to get CSX’s attention.
104.

CSX responded to the State’s request, to say that it would not permit anyone to

block its line.
105.

The State communicated CSX’s denial of access back to the City of Lumberton.

106.

As a result, the City was unable to take any meaningful action to protect its

residents and businesses.
107.

The rising waters finally reached the gap. In the early hours of October 10,

millions of gallons of floodwater began coursing through the CSX gap and into Plaintiffs’ homes
and businesses.
108.

The catastrophic flooding in Lumberton resulted in more than 1,500 people being

displaced for months, 2,367 structures being damaged, and $257,574,000 in damage.
109.

Much of the flooded part of the City was navigable only by boat.

110.

The Lumberton water treatment plant was also flooded, shutting down the

municipal water supply for weeks.

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 111.

The City of Lumberton’s main levee system held; it was not breached. Thus, the

overall flood protection system would have worked, and would have saved the town, if only the
CSX gap had not been open.
112.

AECOM found that “the major contributing factor to the devastation was the

inflow of floodwater” at the CSX gap.

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 113.

Aerial images taken on October 16, 2016 show how the floodwaters passed

through the gap and left perceptible deposits on the land. The image below is from the 2017
AECOM report:

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 E.

2016: After Matthew, CSX rebuilt its own property using materials that made
the flood risk even worse for the residents of Lumberton.

114.

The torrent caused when Hurricane Matthew’s waters rushed through the CSX

gap was very destructive. In fact, the waters were so powerful that they washed out the CSX
trackbed and its subgrade, and part of the I-95 bridge abutment as well. The photo below shows,
from right to left: the erosion to the highway abutment; the CSX tracks being completely
submerged; and VFW Road, partially submerged.

115.

Moving water carries force, but still waters do not. Had the waters been held back,

the damage to the CSX line and the highway bridge would not have occurred.

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 116.

In rebuilding its property, CSX significantly changed the composition of its

trackbed and subgrade.
117.

Whereas the old trackbed had been a impermeable berm of solid earth, the new

bed was constructed with large aggregate (rocks).
118.

Water can flow under and through the spaces between these large rocks.

119.

The segment of trackbed rebuilt after Hurricane Matthew was therefore much

more permeable and porous than before.
120.

Accordingly, the newly rebuilt CSX line actually worsened the risk and intensity

of a future flood at the same spot.
121.

The Tri-Party Agreement expressly considered that the CSX property would

serve as an integral part of the flood control system the City and the Drainage District were
constructing.
122.

But CSX did not advise the City or the Drainage District, its counterparties, of

this change in a material assumption of the Tri-Party Agreement.
123.

This problem would only become apparent to the City during 2018’s Hurricane

Florence when it was too late. Text messages sent by the City of Lumberton’s Public Works
Director show that the City was very concerned: “No matter what temporary system we use
none will totally seal of[f] the porous rock below the tracks.”
124.

CSX’s actions here were egregious. Rather than building a permanent solution, as

it had promised to do, when CSX had the chance to rebuild its tracks, it made the problem worse.

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 F.

2017: As Hurricane Irma approaches, CSX refuses the City of Lumberton’s
pleas to close the gap.

125.

In early September 2017, Hurricane Irma was raking the north coast of Cuba and

was forecast to hit the Florida peninsula, then track northeast toward North Carolina.
126.

Fearing a repeat of the Matthew devastation, the City of Lumberton’s Public

Works Director Rob Armstrong made a formal request to CSX to permit the city to sandbag
across the CSX gap.
127.

At this time, CSX’s roadmaster was Todd Meineke. Mr. Meineke said he would

pass the request up the chain of command.
128.

In a voicemail left on September 6, 2017, Mr. Meineke stated: “I talked with Troy

[Creasy, CSX Project Manager] and I spoke with my boss. Troy says we don’t actually—they
can’t find and don’t have a copy of . . . an executed agreement for that sandbagging. . . . anyways,
running that by our Division Engineer, um, he said no. I sent him the pictures and everything,
um, but he said, he’s not going to allow, um, the [unclear] be sandbagged. So, anyways, I hope
that doesn’t—hopefully that storm doesn’t end up hurting us. . . . No, they’re not going to allow
that, we don’t have an agreement in place that’s been executed that shows that we are obligated
to do that, so therefore, we’re not going to.”
129.

On September 8, 2017, the City Manager of Lumberton wrote a letter to Mr.

Creasy, to memorialize CSX’s oral denial. He also told Mr. Creasy, “The issue of protective
closure of this opening under the levee during hurricane events, to protect the citizens of
Lumberton, is a major concern of our Mayor and City Council.”
130.

Despite the City’s pleas, CSX continued to operate its line as usual, and did

nothing to remedy the problem with its gap in the flood structures.
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 131.

CSX did not even respond to the letter.

132.

In other communications, Mr. Creasy acknowledged the possibility of

constructing a permanent floodgate. Mr. Creasy, who worked in Richmond, Virginia, pointed out
that rail floodgates are common, and even identified CSX gates in the Richmond area.
G.

2018: As Hurricane Florence approaches, CSX threatens legal action and
refuses to allow anyone to close its gap. Plaintiffs and class members are hit
again.

133.

Hurricane Florence developed in the Atlantic Ocean during September 2018 and

began threatening the Atlantic Coast.
134.

Early in the month of September 2018, Lumberton city officials requested

permission from CSX to build a sandbag berm across the tracks, filling the CSX gap, to prevent
flooding.
135.

Once again, CSX denied these requests.

136.

While doing so, CSX again failed to disclose that its changes to its own trackbed

meant that sandbagging would no longer work and that the CSX tracks were even less useful for
flood control than before.
137.

Mr. Meineke, the roadmaster who had denied the City’s requests the year before,

told the City not to go onto CSX property, because that would constitute trespassing.
138.

Mr. Meineke also told the City that “anything that alters the rail could be a

felony.”
139.

On September 9, the City’s Public Works Director Rob Armstrong sent a text

message to Wayne Horne, the City Manager, in which he wrote: “1) CSX has forbidden us to
place anything over the tracks with the threat of felony trespassing. We really need to get
someone higher up, maybe mayor, to plead with CSX to allow us to install temporary closure.”
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 140.

After the storm, Brandon Love, Lumberton’s Deputy Mayor, was interviewed by

NBC News regarding CSX’s conduct. Based on its interview of Love, NBC reported that “CSX
had threatened to sue anyone who tried to place sandbags across the underpass.” NBC also said
Love had indicated that “CSX did not show up to meetings to discuss the building of a floodgate
to protect that part of the city . . . despite promises that it would.”
141.

In the same article, Bruce Davis, the Mayor of Lumberton, was quoted as saying:

“The holdup is that we don’t have permission from the railroad to get on that property and do
anything.” He went on to say, in NBC’s paraphrasing, that “city officials have been told multiple
times that CSX would consider anyone attempting to stem the flooding from the underpass as a
trespasser.”
142.

In later news reports, Governor Cooper’s spokesman Ford Porter was reported as

having written that “CSX officials who were contacted did not consent to allowing for
sandbagging of the tracks, arguing that there was no proof that it would work.”
143.

CSX officials admitted that CSX denied permission to close the line, but claimed

that its denial was so that emergency relief supplies could be moved into the hurricanethreatened area.
144.

However, North Carolina Department of Transportation records show that CSX

officially closed its railroad line on September 13. On this date, the City still did not have
permission from CSX to build a temporary berm, and City leaders were desperate.
145.

Ultimately, Lumberton city leaders were forced to petition North Carolina

Governor Roy Cooper to intervene and allow sandbags to be placed across the CSX railway
underpass.

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 146.

Acting through his emergency powers, Governor Cooper personally ordered that

construction of a temporary berm across the CSX gap could take place.
147.

City leaders learned of the decision on the morning of September 14, 2018.

148.

Only after the Governor’s declaration did the construction begin. As City

Councilman John Cantey, Jr. stated bluntly, “We were really stuck in a barrel. The water’s
coming. We can’t stop it.”
149.

At no point before the Governor issued his declaration did CSX agree to allow the

construction of the temporary berm. In fact, even after the declaration, CSX personnel appeared
at the site and demanded written proof of the Governor’s order before allowing access.
150.

Finally, an army of volunteers, government workers, and the National Guard

gathered in a church parking lot, and as Hurricane Florence struck Lumberton, they filled 5,000
sandbags in tropical force winds while being pelted with rain. The sandbags were then used to
construct a temporary berm and buy time for Lumberton residents.
151.

The sandbagged berm did hold back the floodwaters for a few days, allowing some

residents to move their property and themselves out of the area.
152.

Unfortunately, the berm broke around 2:00 p.m. on September 17, 2018.

153.

When the sandbag berm gave way, the Lumber River poured through the CSX gap

and flooded western and southern Lumberton, just as it had two years earlier during Hurricane
Matthew, and just as had been foreseen in the 1978 Tri-Party Agreement.
154.

A particularly sad part of this story is the City’s response in the face of CSX’s

denials and threats. These actions cost the City precious time: the water was rising; every hour of
delay meant that much less time to take effective actions.

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 155.

Because the City had seen flooding after Hurricane Matthew, and because the

City did not have permission to block the CSX gap to protect this entire area of town, the City’s
crews turned to their alternate strategy: attempting to build a berm just around the City’s water
plant. At least this way, the water supply would not have been affected.
156.

The efforts to protect the water plant during Hurricane Florence were successful.

The City built a berm around it that held.
157.

But this just shows that the City was prepared to take action, and could have taken

action at the CSX gap, a much higher priority, if CSX had not threatened legal action. The City
could have protected the Plaintiffs and the proposed class members, rather than just the water
plant.
H.

Even after Hurricane Matthew, CSX refused to join government efforts to
solve the problem.

158.

Even though CSX was fully aware of the danger posed by its gap, according to

reports by local governmental officials to the media, CSX had not participated in discussions after
Hurricane Matthew about how to mitigate future flooding disasters.
159.

One government official reported that CSX slowed the process of construction of

any floodgate despite the willingness of the North Carolina Division of Emergency Management
and the Golden LEAF Foundation to fully fund the estimated cost.
160.

In fact, although CSX had promised to attend an August 2018 meeting in Raleigh

about the problem—a month before the city was flooded by Hurricane Florence—the railroad
rescinded its promise the day of the meeting.
161.

CSX’s only public explanation for its nonparticipation in discussions to address

the flooding risk has been that the governmental plans have not been clear enough—an
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 explanation revealing that CSX was abdicating responsibility for resolving the serious flooding
problem it causes, and was not working to address the issue.
162.

A CSX spokesperson indicated to the press only that a company vice president

had been planning prior to Hurricane Florence to begin conversations with Lumberton officials in
October 2018—when the hurricane season is virtually over.
I.

Plaintiffs suffered significant damages from Matthew and Florence, and
continue to be at risk of a future flood today.

163.

Due to extensive flooding and mandatory evacuations, Plaintiffs and proposed

class members were devastated by the loss of their homes and businesses.
164.

The flooding through the CSX gap caused devastating economic damage, which

has not been repaired or adequately compensated for.
165.

Businesses have lost and continue to lose income, and property owners have

suffered loss, damage, and diminution of the value of their properties.
166.

All Plaintiffs suffered significant loss and damage during floods after Hurricanes

Matthew and Florence. In each case, the total value of property damage and incidental expenses
exceeded $75,000.
167.

Plaintiff Jimmy Edwards owns a house that was heavily damaged during Hurricane

Matthew in 2016. The house took on about four feet of water; the floors warped and the cabinets
were destroyed. All of the furniture and appliances had to be thrown out, as well as thousands of
dollars’ worth of tools and a golf cart. Mr. Edwards moved to another house in Lumberton, and
in 2018, his damaged house was flooded again.
168.

Plaintiffs Robert Hunt and Dolores Hunt have lived in their house for 32 years.

The house was damaged by floodwaters in 2016’s Hurricane Matthew and declared to be a total
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 loss. They renovated this house to be livable again. Unfortunately, in 2018, it was flooded again
after Hurricane Florence. In both events, the interior needed to be replaced: floors, walls, and
furnishings. They suffered significant expenses. After the flood in 2018, the house grew
significant mold, which is not believed to be reparable.
169.

Plaintiffs Clifford McKellar, Jr. and Emma McKellar own their house in

Lumberton and have done so for fifty years. The floods after Hurricane Matthew damaged the
house—the floors, the insulation, roof, and doors. They also destroyed a car. After Hurricane
Florence, the McKellars’ house was flooded again. The house had to be dried, the insulation had
to be removed and replaced again, and carpets and appliances were ruined. The McKellars had to
stay in a hotel for eight days while the work was being done, too.
170.

Plaintiff Antoinette Moore suffered losses in both storms also. After Hurricane

Matthew, she was out of her home for two months while it was rebuilt. The home was put right
by early 2017, but tragically flooded a second time in the aftermath of Hurricane Florence. She
was not able to live there for another week. Her HVAC equipment was destroyed and it took a
month to replace. Now, her homeowners insurer has refused to renew her policy due to her
history of repeat losses. She believes that this company also has refused to renew her neighbors’
policies.
171.

Plaintiff West Lumberton Baptist Church flooded during Hurricane Matthew.

The Church suffered $1.3 million in damage, which included destruction of the sanctuary,
parsonage, and education buildings. Other buildings that were part of the Church had all of their
interior furnishings destroyed and required substantial repair. The Church also had to rebuild
two parking lots due to the flooding. During Hurricane Florence, the church and classrooms and

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 fellowship buildings all sustained extensive damage from flooding, while one of the parking lots
was again destroyed. Estimated damages from Hurricane Florence are $800,000 to $1,000,000.
172.

Plaintiff Currie Chain Saw, Inc. is a Honda dealership. During Hurricane

Matthew, Currie Chain Saw lost $2 million in inventory. Flooding also caused substantial
damage to the exterior of three buildings. Inside those buildings, one had 33 inches of floodwater,
another had 30 inches of floodwater, and a third had 18 inches of floodwater. One of the buildings
required a complete tear-out of all drywall and paneling. During Hurricane Florence, floodwaters
again invaded the business’s buildings, requiring substantial cleanup.
173.

Plaintiff C.J.M. Ventures, Inc. also flooded during Hurricane Matthew. The flood

left three to four feet of water in the building and destroyed its inventory, including ATVs,
UTVs, and motorcycles. The building itself had to be gutted. During Hurricane Florence,
floodwaters covered the land, although the water did not enter the building this time.
174.

Plaintiff William Locklear does business as Strickland’s Barbershop. As a result of

flooding during Hurricane Matthew, the Barbershop sustained damage to its building and
equipment, resulting in closure of the business for approximately seven months. With
Hurricane Florence, floodwaters damaged cabinets and equipment.
175.

Plaintiff TBL Environmental Laboratory, Inc. was forced to close for more than

three months as a result of flood damage after Hurricane Matthew. The land was flooded with
two feet of water while 16 inches was inside the business, extensively damaging flooring,
sheetrock, equipment, records, and supplies and requiring mold remediation. Floodwaters from
Hurricane Florence again covered the property and entered TBL’s building causing closure of

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 the business for an extended time due to damage to the interior of the building, including damage
again to the flooring, sheetrock, and records, and the need for additional mold remediation.
176.

Plaintiff Sammy’s Auto Sales, Inc. flooded during Hurricane Matthew. Its

building had five and a half feet of water in the office, and shops that the company leased out
were also under water. The company suffered extensive damage to the building, equipment, and
cars. The business was closed for five weeks and also lost rent. The flooding from Hurricane
Florence resulted in flooding to a level of one to two feet and substantial damage to the interior of
the buildings. Shops leasing from Sammy’s Auto Sales lost inventory and business.
177.

Plaintiff Linda Sampson is a homeowner. During both Hurricanes Matthew and

Florence, floodwaters covered her property and ran under her home.
178.

Plaintiff Eric Chavis is a homeowner. As a result of flooding over his property

during Hurricane Matthew, he sustained substantial damage to insulation, ductwork, the air
conditioning unit, and a water heater. During Hurricane Florence, his property again flooded,
and he sustained damage to the air conditioning unit, insulation, ductwork, a generator, and a
truck.
179.

As will be set forth later, the proposed class members are City property owners

and businesses who suffered losses similar to Plaintiffs’.
180.

Unfortunately, all Plaintiffs and proposed class members continue to be at risk of

future flooding events as a direct result of the CSX gap.

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 J.

A permanent fix to the CSX gap was feasible, was recommended for decades,
and would have prevented Plaintiffs’ catastrophic losses.

181.

As discussed, in the 1970’s, CSX’s predecessor agreed to allow temporary

sandbagging across its line as well as a permanent fix to the problem of the gap in the levee
defenses.
182.

The proposal to fix the gap thus has been a matter of public record for forty years.

183.

CSX has been on actual notice of a need to fix the gap since at least 1978.

184.

A floodgate is a relatively simple solution to the problem. In the 2017 AECOM

report, the consultants produced technical diagrams and renderings showing how a floodgate
might look, and described how it would operate. This is a rendering of the visual appearance of
the floodgate. The CSX tracks are on the left side of the image.

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 185.

Below is an overhead view from the same report, showing where such a structure

could have been placed. The dark horizontal line shows the structure from the rendering in the
previous paragraph.

(Ex. 3.)
186.

The installation of a permanent floodgate like this would not impede CSX’s

railroad operations, nor would it be a burden on railroading in any way.
187.

A permanent floodgate would operate only when there is an impending flood.

Such a flood would be so severe as to completely disable CSX’s line, rendering it unusable to
CSX for any purpose.

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 188.

For example, the U.S. Army Corps of Engineers took the following picture on

October 11, 2016, after Hurricane Matthew. The picture shows CSX’s line submerged by the
same floodwaters that affected Plaintiffs and the proposed class.

189.

CSX itself recognizes the need for floodgates and the feasibility of operating such

structures.
190.

In fact, CSX maintains floodgates at other points in its system. For example, CSX has

a floodgate in Orleans Parish, Louisiana. And as discussed above, its own Division Engineer for
the line in Lumberton pointed out that CSX has floodgates on its system in the Richmond area.
191.

In short, rather than burdening or impeding CSX’s rail operations, a floodgate

would actually protect them, and such a solution certainly was feasible in Lumberton.

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 K.

CSX controls access to the entire gap under I-95.

192.

When the railroad was first built, CSX’s predecessor was granted a right-of-way

100 feet on each side of the centerline of its tracks.
193.

The entire distance from bridge abutment to bridge abutment under I-95 is less

than this, meaning that CSX’s right of way is contiguous with the entire I-95 gap.
194.

VFW Road runs parallel to the CSX tracks, over the CSX right of way, through

the same gap.
195.

VFW Road lies entirely on CSX’s right of way.

196.

Accordingly, in constructing a solution for flooding through its gap, CSX’s

agreement has been necessary to fix the gap at VFW Road, too.
197.

Local authorities have repeatedly blamed CSX for not playing any role in closing

its gap. Had CSX decided to fix the problem at its tracks, the City of Lumberton would have
cooperated, and would have made any necessary changes to VFW Road’s configuration if the end
result would be effective flood control.
198.

In conclusion, only CSX has prevented a solution to the flooding problem that its

gap in the levee system has caused.
CLASS ACTION ALLEGATIONS
199.

This action is properly certifiable as a class action under Fed. R. Civ. P. 23.

Plaintiffs seek to define two separate classes, and seek certification under Rule 23(b)(2) and
23(b)(3). Plaintiffs also seek certification of a common issues class under Rule 23(c)(4).

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 A.

Class definitions and exclusions

200.

Plaintiffs seek certification of the following Classes:
Area Residents Class:
All persons whose real or personal property located
in Lumberton, North Carolina was damaged or
destroyed due to floods through the gap at the
intersection of the CSX railroad tracks and
Interstate 95.
Area Business Class:
All businesses in Lumberton, North Carolina that
lost income or suffered damage to real or personal
property due to floods through the gap at the
intersection of the CSX railroad tracks and
Interstate 95.

201.

Excluded from the Classes are: (a) any Judge or Magistrate Judge presiding over

this action, and members of their families; (b) CSX itself, any entity in which CSX has a
controlling interest or which has a controlling interest in CSX, and their legal representatives,
assigns, and successors; and (c) any class member who excludes himself or herself, or is currently
in litigation with CSX over the same matters.
B.

Numerosity of the class and impracticability of joinder: Rule 23(a)(1).

202.

The Classes consist of hundreds of individuals and businesses who have been

economically damaged by flooding caused by the presence of the CSX gap, making joinder
impracticable.
203.

Class members can be informed of the pendency of this action by print, Internet,

and broadcast notice. Further, these consolidated actions against CSX over Lumberton flooding
already have received extensive local press coverage.

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 C.

Commonality of facts and applicable law: Rule 23(a)(2).

204.

Common questions of law and fact exist as to all members of the Classes.

205.

CSX’s conduct is governed by North Carolina common law, and each class

member’s claim will arise under the same law.
206.

Furthermore, the factual bases of the claims against CSX are common to all class

members. CSX’s conduct presents a series of significant factual questions with common answers,
including:


Whether CSX negligently, outrageously, willfully, wantonly, and/or recklessly
caused and/or contributed to flooding in Lumberton.



Whether and when CSX knew or should have known of the risk that its gap would
cause or contribute to flooding in Lumberton.



Whether CSX’s failure to build a permanent floodgate before Hurricane Matthew
or Hurricane Florence was outrageous, willful, wanton, or reckless.



Whether CSX’s failure to take temporary protective and preventative measures,
or in obstructing government officials in their attempts to take the same measures,
before Hurricane Matthew or Hurricane Florence was outrageous, grossly
negligent, willful, wanton, or reckless.



Whether the CSX gap constituted and constitutes a nuisance.

207.

CSX’s pattern of gross negligence and willful, wanton, and reckless indifference

for the rights of others was the same as to each class member. Each class member suffered floodrelated losses due to the same actions and inactions of CSX.
208.

Each class member’s claim arises from the same course of planning, decisions,

and events; and each class member will make similar legal and factual arguments to prove CSX’s
liability.
209.

Common questions of fact also exist with respect to the punitive damages liability

of CSX to the Class, including CSX’s outrageous, willful, reckless, and wanton conduct; the
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 calculation of the amount of punitive damages that may be imposed upon CSX; intra-class equity
with respect to the allocation and utilization of punitive damages; and the most practicable and
most equitable allocation, disbursement, and utilization of such damages for punishment of
CSX’s wrongful conduct toward Plaintiffs and class members, including fulfillment of the
deterrent policy and purpose of punitive damages.
D.

Typicality of Plaintiffs’ claims: Rule 23(a)(3).

210.

The claims of the Plaintiffs in these consolidated actions are typical of the claims

of class members as a whole.
211.

The Plaintiffs in these cases are a representative cross section of Lumberton

property owners, residents, and business owners.
212.

The Plaintiffs here include homeowners who had property damage and who were

displaced; business owners who had direct property damage from floodwaters; and business
owners who suffered lost income, including lost rents, from flood damage.
213.

Plaintiffs also include one nonprofit entity, a church, which had its own significant

property damage.
214.

The Plaintiffs before the Court are typical of the proposed class members as a

E.

Adequacy of representation by Plaintiffs: Rule 23(a)(4).

215.

Plaintiffs will fairly and adequately represent and protect the interests of the

whole.

proposed classes.
216.

First of all, Plaintiffs have a direct interest in the outcome of these actions, and

will uphold their duty to the proposed classes to see that class members’ interests are similarly
prosecuted.
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 217.

Further, Plaintiffs have retained counsel with substantial experience in

prosecuting complex class actions and mass torts.
218.

Plaintiffs and their counsel are committed to prosecuting this action vigorously on

behalf of the Classes and have the financial resources to do so.
219.

Neither Plaintiffs nor their counsel have any interests adverse to those of the

Class, and neither Plaintiffs nor their counsel have any conflict of interest relating to CSX.
F.

Injunctive relief is appropriate: Rule 23(b)(2).

220.

CSX has acted or refused to act on grounds that apply to the class generally, so

final injunctive relief is appropriate respecting the class as a whole.
221.

Specifically, CSX’s maintenance of a gap in the City’s levee system; its refusal to

remedy that gap; its aggressive and threatening stance toward local officials, including threats of
lawsuits and prosecutions; and the other actions and inactions described in this complaint, are
actions that have affected the class as a whole.
222.

Final injunctive relief, in the form of an order requiring CSX to take appropriate

action to ensure its gap does not cause a flood again, is appropriate and should be granted by the
Court.
G.

Predominance of common questions and superiority of class action practice:
Rule 23(b)(3).

223.

The common issues of fact and law presented in this action, including those

specified above, predominate over any questions affecting only individual class members.
224.

Fundamentally, all Plaintiffs’ claims arise out of a single course of conduct—a

chain of decisions and actions made by CSX that caused flooding in Lumberton.

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 225.

Plaintiffs will present common proof with respect to CSX’s failure to take

reasonable precautions or allow others to do so—proof that is the same for each member of the
Class.
226.

Plaintiffs’ proof of CSX’s outrageous, willful, reckless, and wanton conduct will

involve the same participants, events, discovery, documents, fact witnesses, and experts.
Common questions of fact also predominate concerning the determination of the aggregate
quantum of punitive damages necessary to fulfill the punishment and deterrence goals of such
damages.
227.

A class action is superior to the only other method available for the adjudication of

these claims—individual litigation and multiple trials. But repetitive litigation of CSX’s conduct
by each member of a proposed class would be inefficient, impracticable, economically infeasible,
and potentially unfair, particularly in light of the unique context of CSX’s course of conduct and
its unprecedented impact upon the proposed classes, the economy, and society.
228.

It is desirable to concentrate litigation against CSX in a single forum—this Court

and in these cases— rather than having those claims heard by multiple judges of this Court or the
State courts.
229.

Further, it would be very burdensome on the courts to entertain re-litigation of the

same facts and legal issues in hundreds of cases. The consideration of common questions of fact
and law via this class action will conserve judicial resources and promote a fair and consistent
resolution of these claims.
H.

Common issues are present: Rule 23(c)(4).

230.

Under Fed. R. Civ. P. 23(c)(4), an action may be brought or maintained as a class

action with respect to particular issues. Even if the Court finds that a class should not be certified
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 under Rule 23(b)(3), the Court may and should maintain these cases as class actions because of
the presence of common issues.
231.

Plaintiffs seek certification as to the common questions regarding (a) CSX’s

knowledge of the risk of flooding created by its gap, (b) whether Defendant had a duty to take
action to eliminate and/or reduce the risk of flooding, (c) whether Defendant negligently failed to
take action to eliminate the risk of flooding created by the CSX gap, (d) whether CSX obstructed
efforts to protect class members from flooding, and (e) Defendant’s liability for damages
occurring from flooding.
232.

Plaintiffs respectfully maintain that class certification as to these issues is

appropriate because certification as to particular issues is superior to any alternative means of
adjudication, because it eliminates the possibility of duplicative, inefficient litigation of identical
issues. Resolution of these matters would materially advance the litigation.
233.

This complaint should be construed so as to incorporate all facts above into each

cause of action stated below.
COUNT 1: THIRD-PARTY BENEFICIARY CLAIM FOR BREACH
OF CONTRACT ARISING FROM CSX’S CONTRACTS
WITH THE CITY OF LUMBERTON AND THE DRAINAGE DISTRICT
234.

The 1978 Tri-Party Agreement between CSX’s predecessor, the City of

Lumberton, and the Drainage District was made for the direct benefit of the people of Lumberton
whose homes and businesses would be damaged by floods if the CSX gap were not closed.
235.

The parties to the Tri-Party Agreement intended that it would directly benefit

Plaintiffs and the proposed class members.

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 236.

As alleged in paragraphs 69–73, CSX, the City of Lumberton, and the Drainage

District also had an agreement that CSX would permanently close its gap. This agreement, too,
was intended to directly benefit Plaintiffs and the proposed class.
237.

CSX breached these contracts by:
a. Refusing permission to close the gap in 2016 when Hurricane Matthew
threatened.
b. Refusing permission to close the gap in 2017 when Hurricane Irma
threatened.
c. Refusing permission to close the gap in 2018 when Hurricane Florence
threatened.
d. Making intimidating threats, to City employees and others, on the
occasions including those pleaded above, that people would be sued,
arrested, charged with felony trespass, or otherwise suffer legal
consequences if they attempted to close the gap. These threats were all
false, because the City had the legal right to close the gap, but the effect of
them was real. CSX’s intimidating threats were all the worse because
during such emergencies, the recipients of these threats had no time to test
the merits of the threats in court before the waters would have risen.
e. Generally establishing a pattern of always denying the City’s requests to
close the gap, since at least the time of Hurricane Matthew.
f. Refusing to construct a permanent solution or barrier.

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 238.

As intended third-party beneficiaries of these contracts, Plaintiffs and the

proposed class members have a cause of action against CSX for its breach of contract.
239.

Although Plaintiffs’ damages would not have occurred without some other

moving force—including Hurricanes Matthew and Florence—their damages would not have
occurred but for CSX’s breaches.
240.

CSX’s breaches of the Agreement were a proximate cause of Plaintiffs’ damages,

because those damages flow directly and continuously from CSX’s breaches.
241.

Through CSX’s breaches of the Agreement, Plaintiffs have suffered significant

damages. As to the named Plaintiffs, collectively their losses well exceed a million dollars. As to
the proposed class, the damages are in the millions.
COUNT 2: TORT CAUSE OF ACTION BASED ON A RAILROAD
CORPORATION’S DUTY TO PROTECT THE PUBLIC GOOD
242.

“Railroads are quasi-public corporations, created to serve primarily the public

good and convenience.” Seaboard Air Line R. Co. v. Atlantic Coast Line R. Co., 240 N.C. 495, 514
(1954).
243.

CSX, as the successor to multiple railroad companies chartered by the State, is a

quasi-public corporation, with special powers not held by other corporations, and corresponding
special duties to protect the public.
244.

For example, CSX, like every railroad corporation, has the statutory power to

transport people and goods across the state. N.C. Gen. Stat. § 136-190(8).
245.

CSX, like every railroad corporation, has the right under State law to appropriate

lands and rights therein by condemnation and eminent domain. N.C. Gen. Stat. § 136-190(2).

43
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 43 of 54

 246.

CSX also has the power to construct embankments and to make cuttings into the

earth, even if those works would be outside its right of way. N.C. Gen. Stat. § 136-190(5). CSX
may take “as much more land as may be necessary for the proper construction and security of the
road.” Id.
247.

Similarly, at points where its tracks intersect with highways, CSX has the right to

take lands outside its right of way if it feels that is necessary for its own operation. N.C. Gen. Stat.
§ 136-191.
248.

The reason railroads have these special powers is their obligation to serve the

public good. Along with each of these special powers, however, come special duties.
249.

As an example, CSX’s statutory power to transport people and goods creates a

corresponding public duty to serve the public at large, without favor or discrimination.
250.

And because it has the power to condemn lands as necessary for its own “proper

construction and security,” CSX has the corresponding duty to see that its works are similarly
built for the security of the public.
251.

Because CSX has the power to exceed its chartered right of way to benefit its

interests, CSX has the corresponding duty to see that its actions do not affect the public’s
interests also located outside that right of way.
252.

Based on the initial levee construction, the 1978 Tri-Party Agreement, the

discussions with the City over the years, the publicly available studies on causes of floods, and the
repeated requests from the City to sandbag the gap, CSX had significant knowledge that its gap
posed a threat to the public good.

44
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 44 of 54

 253.

However, CSX violated its duty to protect the public, and it did so in the following

ways:
a. Maintaining its gap in the levee system.
b. Refusing to close the gap, on a permanent basis or even a temporary basis
in the face of impending floods.
c. Rebuilding its line in 2016, after it was damaged by Hurricane Matthew, in
a way that worsened the risk of a future flood, which actually occurred in
2018 with Hurricane Florence.
d. Violating the Tri-Party Agreement as discussed above.
e. Violating its promise to build a permanent solution.
254.

CSX’s breaches of its public duties caused significant damages for the Plaintiffs

and the members of the proposed class. As discussed above, CSX caused damages in the millions
of dollars.
COUNT 3: NEGLIGENCE AND WILLFUL AND WANTON MISCONDUCT
255.

CSX was negligent in owning and operating its gap. CSX had a duty to protect

others, and it negligently breached that duty, causing their harm. Some actions and inactions are
so egregious that CSX’s misconduct rises to the level of willful and wanton misconduct. The
facts supporting CSX’s negligence and willful and wanton misconduct will be discussed together
in this count.
256.

First, the risk of harm from a flood was well-known to CSX, and thus highly

foreseeable to CSX. As pleaded above:

45
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 45 of 54

 a. In 1977 and 1978, CSX (through its predecessor) knew that the levee
system would not work properly, and would in fact channel water across
CSX’s property into the City of Lumberton, if CSX did not close the gap.
CSX knew this because it held discussions with the City and the Drainage
District about this risk, and then signed the 1978 Tri-Party Agreement.
b. In 1977, CSX’s predecessor also agreed to build a permanent solution to
the flooding problem.
c. In connection with the two storms between 2006 and 2010, CSX was
contacted by the City of Lumberton. These contacts were made to CSX’s
roadmasters, Mr. Grooms and Mr. Small. In both cases, the City expressed
the risk that the City would flood without blocking the gap and asked CSX
for help.
d. In 2016, 2017, and 2018, CSX knew that the City wanted to close the gap,
because, again, City personnel were in contact with CSX during each year.
The City took the time to memorialize the contact during the 2017 event in
a letter, and of course the City had to make its concerns clear to CSX by
going to the State to get an order from the Governor in 2018.
e. The horrific flooding during Hurricane Matthew in 2016 was entirely
foreseeable based on these prior events. But after Matthew, CSX had even
more knowledge about the risk of its gap, because Matthew was a vivid
demonstration of what can happen.

46
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 46 of 54

 f. CSX was aware, or should have been aware, of the State reports that called
out the CSX gap as a critical problem in causing flooding in Lumberton.
257.

This knowledge, as well as the knowledge possessed by anyone of ordinary sense,

placed CSX in a position towards Plaintiffs and the class members such that CSX should have
recognized the danger of injury to the property of Plaintiffs and class members, if CSX did not
exercise ordinary care and skill to ensure that the underpass through which its tracks ran could be
blocked on a temporary basis.
258.

CSX’s knowledge gave rise to a common law duty of care owed by CSX to

Plaintiffs and the proposed class members to ensure that CSX’s right of way did not funnel
floodwaters onto their properties and cause injury and damage to Plaintiffs and the proposed
class members.
259.

Further, CSX, by entering into the 1978 Tri-Party Agreement and continuing to

operate the railroad tracks through the I-95 underpass with the above knowledge, undertook a
duty to protect the Plaintiffs and the proposed class by preventing flooding through its right of
way at the I-95 underpass.
260.

CSX also agreed to construct a permanent fix to the problem at the gap.

261.

CSX’s contractual undertakings also gave rise to a common law duty of care owed

by CSX to Plaintiffs and the proposed class members, to prevent flooding.
262.

CSX breached its duties, despite all the knowledge it had of the risks posed by its

gap, in the following ways:
a. Not closing the gap on a permanent basis, by a floodgate or other means.
b. Not permitting the closure of the gap on a temporary and emergency basis.

47
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 47 of 54

 c. Rebuilding its line in 2016, after it was damaged by Hurricane Matthew,
using materials that worsened the risk of a future flood—a flood that
actually occurred in 2018 with Hurricane Florence.
d. Threatening others if they attempted to exercise the contractual rights
granted in the Tri-Party Agreement.
263.

The injuries and damage suffered by Plaintiffs and the proposed class members

were reasonably foreseeable and avoidable if CSX exercised reasonable care in connection with its
right-of-way running under I-95.
264.

Had CSX fulfilled its obligations, temporary measures to prevent flooding

(including sandbags) would have been in place, on time, and sufficient enough to prevent
Plaintiffs’ damages.
265.

Although Plaintiffs’ damages would not have occurred without some other

moving force—including Hurricanes Matthew and Florence—their damages would not have
occurred but for CSX’s breaches of its duties.
266.

CSX’s breaches of the Agreement were a proximate cause of Plaintiffs’ damages,

because those damages flow directly and continuously from CSX’s breaches.
267.

Accordingly, CSX is liable for Plaintiffs’ damages on a theory of ordinary

negligence.
268.

CSX’s misconduct rises to the level of willful and wanton misconduct, however,

because:

48
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 48 of 54

 a. CSX knowingly failed to honor its commitments in the 1978 Tri-Party
Agreement, with the full knowledge that that would risk the safety of the
person or property of the Plaintiffs and proposed class members.
b. Its conduct generally, in operating its line and not closing its gap, was done
with reckless disregard for the rights and safety of the Plaintiffs and
proposed class members.
c. In rebuilding its line after Hurricane Matthew in 2016 and using porous
construction materials, CSX knew that would make it less effective as a
flood barrier, even as it also knew that its railbed was already a dangerous
gap in the levee system. CSX’s rebuilding of the line in this manner
worsened the flooding problem for Plaintiffs and the proposed class. CSX
did this with complete disregard for their safety.
d. CSX’s legal threats, intended to deter the City or others from securing the
town and preventing floods, were malicious and done with the full
knowledge that a flood could result. They were also based on a false
premise because the City had the right to enter CSX’s property and take
action.
269.

The September 2017 voicemail, in which CSX said, “hopefully that storm doesn’t

end up hurting us,” is a prime example of how CSX had full knowledge of the risk it was
knowingly disregarding. This was just one year after Hurricane Matthew demonstrated how
CSX’s gap could hurt people.

49
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 49 of 54

 270.

Accordingly, CSX’s breaches of its duties were wanton and willful, and it is liable

for wanton and willful misconduct.
COUNT 4: TRESPASS AND NUISANCE
ARISING FROM CSX’S INTENTIONAL DIVERSION
OF THE FLOW OF SURFACE WATERS
271.

CSX is liable for trespass, nuisance, and damages in tort, arising from its

intentional diversion of the flow of surface waters.
272.

Well prior to Hurricane Matthew, the City and Drainage District constructed

their levee on the understanding that CSX’s trackbed and property would have a specific
configuration.
273.

This configuration was incorporated into plans for the levee.

274.

The CSX tracks’ configuration was expressly referenced in the Tri-Party

Agreement, as well as being expressly referenced in other documents from the 1977 timeframe.
275.

Thereafter, Plaintiffs, homeowners and businesses, bought and maintained their

properties in Lumberton on the basis that the land was protected from flooding by the levee
(which in turn incorporated in part the CSX property’s configuration).
276.

However, after the washout of the trackbed in 2016, CSX intentionally undertook

to rebuild its property.
277.

In doing so, CSX used large aggregate which changed the porosity of the trackbed.

278.

CSX’s rebuilding project constituted an intentional interference, in that the flow

of surface waters were redirected as a direct result of the rebuilding.
279.

Accordingly, CSX is liable for trespass, nuisance, and damages, arising from this

intentional interference with the usual flow of surface waters.
50
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 50 of 54

 PRAYER FOR RELIEF
Plaintiffs respectfully ask the Court to enter judgment in Plaintiffs’ favor and against
CSX, as follows:


Certifying this action as a class action and appointing Plaintiffs’ counsel to serve
as class counsel.



Awarding Plaintiffs and the class their damages—including compensatory and
consequential damages.



Awarding injunctive relief in the form of an order requiring CSX to no longer pose
a threat to Plaintiffs or the class.



Awarding Plaintiffs and the class exemplary or punitive damages.



Awarding Plaintiffs and the class pre-judgment and post-judgment interest.



Awarding Plaintiffs and the class the costs of prosecuting this action, including
reasonable attorneys’ and experts’ fees.



Granting any other relief the Court deems proper.
DEMAND FOR JURY TRIAL

Plaintiffs demand a jury trial on any issue triable of right by a jury. Fed. R. Civ. P. 38(b).

51
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 51 of 54

 Respectfully submitted,

/s/ Daniel K. Bryson
Daniel K. Bryson (N.C. Bar No. 15781)
Scott C. Harris (N.C. Bar No. 35328)
Matthew Lee (N.C. Bar No. 35405)
Jeremy R. Williams (N.C. Bar No. 48162)
Gary E. Mason
Danielle L. Perry
WHITFIELD BRYSON & MASON, LLP
900 West Morgan St.
Raleigh, NC 27603
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: dan@wbmllp.com
scott@wbmllp.com
matt@wbmllp.com
jeremy@wbmllp.com
gmason@wbmllp.com
dperry@wbmllp.com
Joel R. Rhine (N.C. Bar No. 16028)
RHINE LAW FIRM, P.C.
1612 Military Cutoff Road, Ste. 300
Wilmington, NC 28403
Phone: (910) 772-9960
Fax: (910) 772-9062
Email: jrr@rhinelawfirm.com
Gregory F. Coleman
GREG COLEMAN LAW PC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Phone: (865) 247-0080
Fax: (865) 522-0049
Email: greg@gregcolemanlaw.com

52
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 52 of 54

 William F. Cash III (Fla. Bar No. 68443)
Matthew D. Schultz (Fla. Bar No. 640328)
LEVIN, PAPANTONIO, THOMAS,
MITCHELL, RAFFERTY & PROCTOR, P.A.
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Phone: 850-435-7059
Fax: 850-435-7020
Email: bcash@levinlaw.com
mschultz@levinlaw.com
Counsel for Jimmy Edwards, Robert Hunt, Dolores
Hunt, Clifford McKellar, Jr., and Emma McKellar
Mark R. Sigmon (N.C. Bar No. 37762)
SIGMON LAW, PLLC
5 West Hargett Street, Suite 1001
Raleigh, NC 27601
Phone: (919) 451-6311
Fax: (919) 882-9057
Email: mark@sigmonlawfirm.com
Counsel for Antoinette Moore
Theodore J. Leopold (Fla. Bar No. 705608)
Martha Geer (N.C. Bar No. 13972)
Jay Chaudhuri (N.C. Bar No. 27747)
Adam Langino (Fla. Bar No. 31368)
COHEN MILSTEIN SELLERS & TOLL PLLC
150 Fayetteville Street, Suite 980
Raleigh, NC 27601
Phone: (919) 890-0560
Fax: (919) 890-0567
Email: mgeer@cohenmilstein.com
jchaudhuri@cohenmilstein.com
alangino@cohenmilstein.com
tleopold@cohenmilstein.com
Gary K. Shipman (N.C. Bar No. 9464)
SHIPMAN & WRIGHT, LLP
575 Military Cutoff Road, Suite 106
Wilmington, NC 28405
Phone: (910) 762-1990
Fax: (910) 762-6758
Email: gshipman@shipmanlaw.com
53
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 53 of 54

 K. Robert Davis (N.C. Bar No. 22911)
THE BRITT LAW FIRM, P.C.
107 N. Court Square, Suite 22
Lumberton, NC 28358
Phone: (910) 671-4500
Fax: (866) 780-8245
Email: thebrittlawfirm@yahoo.com
Counsel for West Lumberton Baptist Church, Currie
Chain Saw, Inc., C.J.M. Ventures, Inc., William
Locklear d/b/a Strickland’s Barbershop, TBL,
Environmental Laboratory, Inc., Sammy’s Auto Sales,
Inc., Linda Sampson, and Eric Chavis

54
Case 7:18-cv-00169-BO Document 29 Filed 02/28/19 Page 54 of 54

 SEABOARD COASTLINE RAILROAD COMPANY

Office of Superintendent
3610 Bush Street
Raleigh. North Carolina 27609

 

E. B. WILKES .

October 16, 1978

l-lellbertonofl?Z 

Hr. H. E. Stacy, Jr.

McLean, Stacy, Henry McLean
Attorneys and Counsellors at Law
Southern National Bank Building
Lumberton, North Carolina 28358

Re: Jacob Swamp Water Shed
Lumberton, N. C.

Dear Mr. Stacy:

Enclosed for the records of Robeson County Drainage District
No. is fully executed copy of tri?party agreement dated June 14, 1978,
between Seaboard Coast Line Railroad Company, Robeson County Drainage
District Ho. 1 and the City of.Lumberton, N. C., covering construction
and maintenance of a lO?ft. wide earthen dike on our right of way in the
median strip under the twin overpasses of spanning SR-lShl and our
main track, at a point 760 feet east of Mile Post 5?296, at Lumberton, N. C.
to protect the City of Lumberton from flooding Lumber River.

As previously advised, the agreement does_not recite any monetary
consideration for preparation of agreement or use of right of way; however,
it does provide?that should flooding be contemplated, any expenses incurred
incident to closing and opening said dike across the track and roadbed will
be borne by the licensees, including any costs which may be incurred by
Railroad forces in connection therewith.

Very truly yours,

I

Superintendent

cc: Mr. H. C. Baxley, Director
Department of Public Works
City of Lumberton
P. O. Box 1388
Lumberton, North Carolina 28358
Case 7:18-cv-00169-BO Document 29-1 Filed 02/28/19 Page 1 of 7

Copy of agreement is attached for records of the City.

 UUVLICATE- 9
ORIGINAL 23's 

THIS AGREEMENT, Made this 14th day of June, 1978, by and between the
SEABOARD COAST LINE RAILROAD COMPANY, a Virginia corporation, hereinafter referred
to as Licensor, ROBESON COUNTY DRAINAGE DISTRICT NO. I, a body corporate and
politic under the laws of the State of North Carolina, and the CITY OF LUMBERTON,
a municipal corporation under the laws of the State of North Carolina, herein?
after, together, referred to as Licensees,

WITNESSETH: That Licensor, for and in consideration of the sum of One
Dollar to it in hand paid by Licensees, the receipt of which is hereby acknowle
edged, and of the covenants and agreements hereinafter made and contained on the
part of Licensees to be kept and performed, hereby grants unto Licensees the
right or license to construct and maintain portions of a 6?foot, more or less,
high (IO?foot wide top with 3:1 side .SIOpes) earthen dike "arm's-em

?ner-Dl 

right ofmi?y at or near Lumberton, North Carolina,
at a point 760 feet southeastwardly measured along the center line of Licensor's
main track from Milepost the easterly end and westerly end of said dike,
adjacent to said main track, being at a minimum clearance distance of 15 fce?_
from the center line of said main track; as particularly shown outlined in red on
print of Licenseers?drawing dated April, 1978, Sheet 2 of 3, attached hereto and
made a part hereof; the profile of the portions of said dike being shown also on
said attached print as well as print of Licenseesl drawing dated April, 1978,
Sheet 3 of 3, also attached hereto and made a part hereof.

And Licensees hereby covenant and agree in consideration thereof:

1. Said District shall, at Districts' expense, place and maintain
sand-cement bags on the slopes of said dike, adjacent to said main track, to
prevent erosion, as indicated on said attached prints.

2. Said District shall construct and maintain the portions of said
dike on said right of way at Districts' entire cost and expense and in a manner
in all respects satisfactory to the Division Engineer of Licensor. In the event
said portions of dike shall require repair or renewal, said City shall make Such
repair or renewal at City's expense; and upon the failure of said City so to do,
the said Division Engineer shall given written notice to said City and upon the
failure of said City to make such repair or renewal within 30 days after such
ndtice, Licensor may make all necessary repair or renewal at the cost of said
City, which cost said-City hereby agrees to pay on demand.



-2 3. Said City will, at its expense, at any time, upon 30 days' writtg?_
notice given by Licensor, change and alter the location of said dike to conform
saiaa--w~mhm-eewwrc . .
to any changes or improvements that may be made by Licensor in its tracks or
roadway at said location, or to permit the utilization of Licensor's right of way
for the construction of tracks, buildings or other structures.

A. Licensor shall not be responsible in any manner for loss of or
damage to said portions of dike on said right of way from any cause whatsoever;
and Licensees shall and does hereby assume, and agrees to indemnify and hold
harmless Licensor, its successors and assigns, from and against all loss, costs,
expenses, including attorneys' fees, claims, suits and judgments whatsoever in
connection with injury to or death of any person or persons or loss of or damage
to property caused by or in any way connected with the construction, maintenance,
failure, or presence of said dike on said premises, excepting, however, any loss
or damage caused by the negligence of Licensor, its agents, servants or employees.

Case Document 29-1 Filed 02/2mpliageAZloE7
(3F??(2?hl?l 

Sheet 2

5. Said District will pay to Licensor, on bills rendered by Licensor,
the full amount of all costs and expenses which may be incurred by Licensor in
protecting its track or tracks and maintaining traffic thereover during the
construction of said dike or during any repair, renewal, relocation or removal of

said dike.

6. Licensees will be obligated to assume the responsibility for any
damage to Licensor's right of way which might occur as a reSult of the failure
of said dike.

7. Said District shall install and maintain, above ground and in a
manner and at such locations as may be designated by said Division Engineer,
markers to plainly indicate the location and ownership of said dike.

Said City shall also have the right and privilege of closing
said dike across said track and the roadbed thereof ONLY in the event the City of
Lumberton is in eminent danger of flood and the closing of said dike across
Licensor's property shall be subject to Licensor's Chief Dispatcher being given

at least 12 hours notice prior to such closing.


 

Said City hereby agrees that when the flooding has receded said
City will open said dike across said track and roadbed thereof and that any
expenses incident thereto shall be borne by said City, including, but not limited
to any cost which may be incurred by Licensor in connection therewith.

9. In consideration for the right or license hereby granted, Licensees
hereby agree that said Licensor shall not at any time or in any manner be assessed
with the cost or any part of the cost of the construction, maintenance, use or
presence of said dike on Licensor?s property.

10. It is expressly understood and agreed that this agreement shall
remain in full force and effect so long as the covenant and agreement set forth
herein are kept and performed by the Licensees, and if the Licensees fail to keep
and perform any of such covenants, terms or conditions, then the Licensor reserves
the right to terminate this agreement upon thirty (30) days' notice to the Licensees.
0n termination of this agreement, Licensees expense, vacate the
use of said right 0f way for the purposes herein set forth and restore, under
supervision of Licensor, the land to its original condition, if required by the



Licensor.

2

It is understood and agreed that this agreement shall not be binding
until_it has been authorized or ratified by a proper ordinance or resolution of
the City Council of the City of Lumberton, North Carolina, a certified copy of
which ordinance or resolution is attached hereto and made a part of this agreement.

IN WITNESS WHEREOF the parties hereto have executed this agreement in duplicate
the day and-year first above written. I

Witnesses for Licensor: SEABOARD COAST NE RAILROAD COMPANY


was)

Assistant Vice President


Case Document 29-1 Filed 02/28/19 Page 3 of 7

(Execution r?nni?innpri nn ?ll-mane? 

Witnesses for Licensees:

 

 



 

'Attest

Sheet 3

CITY OF LUMBERTON, NORTH CAROLINA

BY WM 

Meyer

6,

 

44/ (SEAL)
Cler?K? .

ROBESON COUNTY DRAINAGE DISTRICT NO. 1

By (L.S.)
Chai an 

 

Atte 

 

Secret

Case Document 29-1 Filed 02/28/19 Page 4 of 7

 . Form 3530
. Rev. June. 1973??Shect ?i

City Council of the City of Lumberton, North

Carolina held on the 18 day of September 19 78 .
RESOLUTION

Be it resolved by the City Council of the

City offLumbSr?on, North Carolina regular meeting anembhdImat?m

Mayor 881 it}? be. and be hereby is, authorized Lo enter into an agreement with

the SEABOARD COAST LINE RAILROAD COMPANY, 

u?g?my Robeson County Drainage District No. l, and to sign same on behalf of said
City whereby said Railroad Company grants unto said Drainage District and said
City the right or license to construct and maintain portions of an earthen dike
on the right of way of Licensor at or near Lumberton, North Carolina as'particu?
larly described in said agreement, which agreement is_dated June l? ?1978 a copy
of which agreement is filed with this City COuncil. 

7? i. .
ju'Clai-k

7 - If 
02/28/19 Page 5 of 7

I certify the'above to be a true and yrect copy.

Case Document 29-1 File

 
 



 

 

 

 

 

 

 

 

 

 

     

 



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MUNICIPAL BUILDING
114171551150?; dqxot?g Cato?'ua

25338

1501? EAST 5TH STREET

 

orrzc: cir THE MANAGER

OPERATIONAL-PROCEDURES

_Sandbagging Seaboard Coast Line Railroad
. ?and- . 
Veterans of Fbregin Wars Road
under?I?95

October, 1979

Prepared by the City Manager's Office

I Case 7:18-cv-00169-BO Document 29-2 Filed 02/28/19 Page 1 of5

I.

II.

PURPOSE AND INTENT

The purpose of these Operational'Procedures is to affirm beyond any shadow of

_doubt that the Protection of lives and preperty during times of flooding

is a paramount concern 0f the City of Lumberton. This concern serves as the'
foundation for the tremendous investment of public monies and time Spent. 
to construct the dike along the southern bank of the Lumber River. When

it was determined that a window in the dike system existed under at

the Seaboard_Coast Line Railroad and'the Veterans of Foreign Wars Road,
appropriate agreements were reached with the Seaboard Coast Line Railroad 
.permitting sandbagging. IThis concept t6 ?block? or "Secureh'the_window 
was originally, and finally, agreed uponnby the City of Lumberton,.Army

I'Corps of Engineers, Soil Conservation Services and the Federal Insurance
"Gk?w I burr-La - - 
Administration. . .wmmwemil - . 

I?m-1- o! .1

. ?a

 

These operational procedures are intended to provide the public with the

methods and procedures that will-be used to sandbag the window at 1?95r
These procedures are purposefully general in natUre, but;.we feel, are

nspecific enough to achieve the desired ends of providing flood.protection

to-South and West Lumberton.?


Normally,.flooding will be a relatively slow process with adequate warning.

The buildup to flood conditions will take several days, and in the meantime
'progressive situation reports will be available from the Raleigh Weather

Service.

1There is a hiatory of recurring floods in the City of Lumberton. The municipal

Communidations Center receives weather-bulletins from the Raleigh Weather
Bureau._ The warning message tells the expected severity of the flooding,

the affected rivers, when and where flooding will begin. Careful preparation
and prompt response has, and will centinue, to reduce property loss and
ensure personal safety. 

Operational Procedures-that will be followed during flooding, or expected
flooding, are as follows: 

Monitor all weather bulletins from the Raleigh Weather Service.
City Manager is enntacted immediately upon_notification of

.potential flooding along the Lumber River-

.2. City Manager, upon notification that the potential threat of flooding
exists, contacts all department heads, Civil Defense and Red Cross
authorities of the potential threat. A BLUE ALERT is transmitted
by the City Manager to these departments and agencies and they will
be notified of the existing conditions, and any changes in those
conditions. At this point, they are not-required to respond, but
only to make themselves available should the situation develop into
a'nmre serious threat. In order to monitor the Lumber River closely,
?the fiver guage at the Cutler re Bridge will be read every day at
7:00 and?leoo p.m. All readings will be r9ported to
-the City Manager. -

Case Document 29-2 Filed 02/28/19 Page 2 of 5

Rage Two

3, Upon notification that the Lumber River will rise above the 11' 

4.



6.

flood stage, the City Manager will transmit a YELLOW ALERT to all -
agencies placed on stand-by during the BLUE ALERT. A YELLOW ALERT
indicates that_the emergency has grown in site and that it has become
necessary for Pracautionary action to be taken.

Upon notification that a YELLOW ALERT exists, plans-will be made

for the opening of an evacuee Canter and residents in low lying

areas will be relocated as the flood situation demands. Daily
inspections of the dike will be made by the Public Works Department

to assure that all flood-waters are being contained. .Constant monitoring
of the-acession of flood waters in the vicinity of [~95 and the
Seaborard Coast Line Foreign'Wars Road will begin.
The Public Works Department will check the number of sandbags and sand

on hand. Additi_onal bags and sand will be ordered .if- The
Public Works Street Department will be placed on alert? 



.120' msl, the City Manager will transmit a RED ALERT to all.agencies

notified under.the YELLOW ALERT. RED ALERT will be.transmitted
when an extreme emergency situation has arisen. notice will be
sent to the Seaboard Coast Line Railroad advising them to stand by
for a Notice of Closure.

Upon notification that the Lumber River has reached the 120' mark,
the Public Works Department will transport sandbags to the site and will
block the Vetrans of Foreign Wars Road with a sandbag dike to a height
of 126' msl. .

7. Upon notification that the Lumber River has reached the 120.5' 

8.

9.

mark, and is still rising, a Notice of Closure will be sent immediately,

'by telephone and telegraph, to the Chief Dispatcher for the Seaboard

Coast-Line Railroad.

 

Upon expiration of the required twe hour notice to the Seaboard
Coast Line Railroad, and if the Lumber River is still r1sing, the City
Manager_will direct the Public Works Department to begin construction
of the sandbag dike across the railroad tracks. The sandbag dike will
berbuilt to a height of 126' msl. - 

 



fThe Public Rorks Department will maintain an hourly inspection of the

?.?Sahdbag dike'to ensure its integrity. The Lumberton Police Department

,will cordon off the area and patrol it regularly to protect the

sandbag dike from vandals.

10. Upon notification that the Lomber River is receeding,all agencies notified

under the RED ALERT will be notified by the City Manager. Upon notification
that'the Lumber River has receeded to the level of 121? msl, the City
Manager will notify the Seaboard Coast Line Railroad that should
flood.waters continue to receed, the railroad will be reopened.

Case 7:18-cv-00169-BO Document 29-2 Filed 02/28/19 Page 3 of 5

Page_Three

11. Upon notification that the Lumbe_r River has receeded to 120?
'31, and maintained that level, or receeded further for at least
an eight (3) hour period, the City Manager will direct that the
sandbag dike be removed and the Railroad officially notified of the-
reopening. (Should the river rise again, the procedures set forth
in'steps 6-l0 will be reinitiated.)

12. The City Manager will, once the Sandbag dike has been removed,
transmit a thereby relieving the RED ALERT status.

13. Upon nbtification of a YELLOW ALERT by the City Manager, the?

Public Works Department will monitor the'river three (3) times
a-day as set?forth in step_2. Any increase in river depth will be.
reported to the City Manager and appropriate actions will be taken
to ensure_the safety of the area.

14. Upon notification that the Lumber River has receeded to a .level of -
111' msl, the City Manager will downgrade the YELLOW ALERT to a
BLUE ALERT. 

15. Upon notification that the Lumber River has- -receeded to a level of
199' msl, the BLUE ALERT will be terminated.

16. The appropriate number of Sandbags, sand, and equipement will be'
-restocked at the-storage shed at the South?West Fire Station.-

SOP ROUTINE PROCEDURES

In order to maintain a high level of operational efficiency and effectiveness,
periodic in~service training on the techniques of sandbagging, inspections of
materials and. equipment, and review of these emergency procedures are essential.
The following procedures are established as guidelines for the Administration.
and staff to Ensure that their response time and ability to react properly
during.times of flooding will be accurate and effective:'

1. _The City Manager will meet during the first week of each quarter
with all department heads and other emergency agencies to review
these guidelines and procedures. npropriate changes and amendments
I will be made as heeded.

Director will inspect the sandbag storage house
Ifduring the first week of each month for any damage and to enSure
. that enough sandbags, sand, and tools are on hand in case an emergency

does-arise.

3.-The Public_ Works Director will, once every six (6) months conduct a
.one- (1) day in?service training session for the street department
employees. He will have them construct a sandbag dike on city
property. This will ensure that all street department personnel will
be knowledgeable in the techniques of filling and building a sandbag
dike. The routes from the storehouse to the Seaboard Coast Line??
Vetrans of Foreign Wars at I 95 will be diScUssed (see attachment 1)
as well as all other emergenCy_flood procedures.

4. The Public Works Department will constantly monitor the dike to enSure
that__ it is being properly maintained. Any deficiencies such as 

coltaeez: 1.5591- Gama-e9 Qasyasntae: caagem er seeded-

Page Four

S. The culverts? under I- 95 will be- inspected quarterly to ensure that
-they are appropriately blocked- and sealed.

Case 7:18-cv-00169-BO Document 29-2 Filed 02/28/19 Page 5 of 5

2

3

4

5

122

120

HACKETT ST
APPR.

118

120
122
124
126
128
130
132
134
136
138
140
142
144
146

DATE

D

122
124
126
128
130
132
134
136
138
140
142
144
146

I-95 UNDER PASS
FLOODSIDE LOOKING TOWARD PROTECTED SIDE
DESCRIPTION

118118

2
12

118

VF
W

RD

1

144

146

MARK

I-95

144

36+00

35+50

35+00

REQUIRED
DRAINAGE PIPE
WITH SLUICE GATE

215 S CEDAR STREET
LUMBERTON, NC 28358

2

FILE NAME:

FILE NUMBER:

NA

PLAN

ANSI D

CKD BY:

12

T-WALL OR
I-WALL

SIZE:

CRYSTAL RD

CITY OF LUMBERTON
NORTH CAROLINA

CONCRETE OR RIPRAP
SCOUR PROTECTION

SUBMITTED BY:

118

B

DWN BY:

RD

1+00

W

VF

0"

'20

1515 POYDRAS ST STE 2700
NEW ORLEANS, LA 70112

0+50

4

12

AECOM PROJECT PLOT SCALE: PLOT DATE:
No. xxxxxx
NOTED

6

12

CONTRACT NO.:

T-WALL OR
I-WALL

DATE:

'30

50

0+00

RAILROAD GATE (G-1).
SEE S-200 FOR DETAILS

130
128
126
124
122
120

12

0"

1+

132

34+50
8

134

DESIGNED BY:

136

60548477

±46'-0
"

138

SOLICITATION NO.:

142

140

CONCRETE OR RIPRAP
SCOUR PROTECTION

NA

00

2+

RR

144

14
6
14
4
14
2
14
0
13
8
13
6
13
4
13
2
13
0

I-95

AUGUST 2017

X
CS

146

±15'-0"

SWING GATE (G-2).
SEE S-300 FOR DETAILS

148

2+27

33+50

33+00

32+50

32+00

31+50

31+00

30+50

C

34+00

14

8

NOT FOR CONSTRUCTION
PRELIMINARY SUBMITTAL

146

SCALE: 1" = 20'

0+50

1+00

1+50

BFE
EL 123.60

A

EXISTING GRADE
~ EL 119.60

PROFILE ALONG WALL LINE
SCALE: 1" = 20'

20'

10'

0

20'

2+00

135
130
125
120
115
2+27

160
155
150
145
140
135
130
125
120
115
110
105
31+50

EXISTING GRADE
~ EL 146.46

BFE+3
EL 126.60

BFE
EL 123.60

EXISTING GRADE
~ EL 119.64
32+00

32+50

33+00

33+50

PROFILE ALONG C/L I-95 SOUTH

40'

SCALE: 1" = 20'

1"= 20'

34+00

160
155
150
145
140
135
130
125
120
115
110
105
34+50

I-95 UNDERPASS

135
130
125
120
115
0+00

LUMBERTON FLOOD MITIGATION

BFE+3
EL 126.60

SHEET
IDENTIFICATION

C-100

Case 7:18-cv-00169-BO Document 29-3 Filed 02/28/19 Page 1 of 2

 20'
10'
0
20'

B

A

CONCRETE OR RIPRAP SCOUR PROTECTOIN

40'

1"= 20'

Case 7:18-cv-00169-BO Document 29-3 Filed 02/28/19 Page 2 of 2

PROTECTED SIDE

PLAN

S-100

FILE NAME:

FILE NUMBER:
NA

NOT FOR CONSTRUCTION
PRELIMINARY SUBMITTAL

MARK

I-9
DESCRIPTION

DATE

D

ANSI D

SIZE:

CONTRACT NO.:

RD

60548477

TH

R
NO

1515 POYDRAS ST STE 2700
NEW ORLEANS, LA 70112

SOLICITATION NO.:
NA

0"

ND

AECOM PROJECT PLOT SCALE: PLOT DATE:
No. xxxxxx
NOTED

SUBMITTED BY:

CKD BY:

AUGUST 2017

DATE:

W

VF

DWN BY:

REQUIRED DRAINAGE PIPE

45'-

0"

30'-

PIPE BOLLARD

215 S CEDAR STREET
LUMBERTON, NC 28358

CSX RAILROAD GATE G-1

-6"
16'

DESIGNED BY:

7'-1 1
8"

"

2'-5

30' WIDE SWING GATE G-2

0"

0"

APPR.

4

GATE ARRANGEMENT

'-2"
101
20'-

ND

OU
B
TH
OU

32'-

0"

C

"

FLOOD SIDE
18'-

5

5'-3

0
1+0

I-9
3

CITY OF LUMBERTON
NORTH CAROLINA

0

0+5

U
BO

LUMBERTON FLOOD MITIGATION

0

5S
2

7
2+2

0+0

1
5

2+0
0
CONCRETE OR RIPRAP SCOUR PROTECTOIN

CS
XR
R

1+5
0

SCALE: 1" = 20'

SHEET
IDENTIFICATION