49 C.F.R. PART 1111—COMPLAINT AND INVESTIGATION PROCEDURES
Title 49 - Transportation
Authority: 49 U.S.C. 721, 10704, and 11701.
Source: 61 FR 52711, Oct. 8, 1996, unless otherwise noted.
(a) General. A formal complaint must contain the correct, unabbreviated names and addresses of each complainant and defendant. It should set forth briefly and in plain language the facts upon which it is based. It should include specific reference to pertinent statutory provisions and Board regulations, and should advise the Board and the defendant fully in what respects these provisions or regulations have been violated. The complaint should contain a detailed statement of the relief requested. Relief in the alternative or of several different types may be demanded, but the issues raised in the formal complaint should not be broader than those to which complainant's evidence is to be directed at the hearing. In a complaint challenging the reasonableness of a rail rate, the complainant should indicate whether, in its view, the reasonableness of the rate should be examined using constrained market pricing or using the simplified standards adopted pursuant to 49 U.S.C. 10701(d)(3). If the complainant seeks to use the simplified standards, it should support this request by submitting, at a minimum, the following information: (1) A general history of the traffic at issue, including how the traffic has moved in the past, how it currently moves, and how it can and will be moved in the future. This information should address not only the physical movement of the traffic, but the type and level of rates actually used. It should include all carriers (rail and nonrail) that have participated in the transportation of this traffic or could do so. (2) The specific commodity description(s) for the traffic at issue, the shipping characteristics and requirements of the traffic, and the type of railroad cars required or used for the traffic. (3) All origins, destinations, and origin-destination (O-D) pairs involved in the complaint, by commodity type. (4) The amount of traffic involved (by commodity type), including total annual carloadings, average tons per car, number of carloads per shipment, and number of carloads per week or month. (5) Total or average revenue per carload paid to the defendant railroad(s), by commodity type. (6) The feasibility and anticipated cost of preparing a stand-alone cost presentation in the case. (7) An estimate of the other costs to be incurred in pursuing the rate complaint, including preparing necessary jurisdictional threshold and market dominance evidence. (8) The relief sought, including all reparations as well as the level and duration of any rate prescription. (9) The present value of the relief sought. (10) The assumptions, calculations and any documentation necessary to support the responses to the above listed factors. (11) For matters for which voluntary, binding arbitration is available pursuant to 49 CFR part 1108, the complaint shall state that arbitration was considered, but rejected, as a means of resolving the dispute. (b) Multiple causes of action. Two or more grounds of complaint concerning the same principle, subject, or statement of facts may be included in one complaint, but should be stated and numbered separately. (c) Joinder. Two or more complainants may join in one complaint against one or more defendants if their respective causes of action concern substantially the same alleged violations and like facts. (d) Request for access to waybill data. Parties needing access to the Waybill Sample to prepare their case should follow the procedures set forth at 49 CFR 1244.8. [61 FR 52711, Oct. 8, 1996, as amended at 63 FR 2639, Jan. 16, 1998; 67 FR 36822, May 28, 2002] An amended or supplemental complaint may be tendered for filing by a complainant against a defendant or defendants named in the original complaint, stating a cause of action alleged to have accrued within the statutory period immediately preceding the date of such tender, in favor of complainant and against the defendant or defendants. The time limits for responding to an amended or supplemental complaint are computed pursuant to §§1111.4 and 1111.5 of this part, as if the amended or supplemental complaint was an original complaint. A complainant is responsible for serving formal complaints, amended or supplemental complaints, and cross complaints on the defendant(s). Service shall be made by sending a copy of such complaint to the chief legal officer of each defendant by either confirmed facsimile and first-class mail or express overnight courier. The cover page of each such facsimile and the front of each such first-class mail or overnight express courier envelope shall include the following legend: “Service of STB Complaint”. Service of the complaint shall be deemed completed on the date on which the complaint is served by confirmed facsimile or, if service is made by express overnight courier, on the date such complaint is actually received by the defendant. When the complaint involves more than one defendant, service of the complaint shall be deemed completed on the date on which all defendants have been served. An original and ten copies of the complaint should be filed with the Board together with an acknowledgment of service by the persons served or proof of service in the form of a statement of the date and manner of service, of the names of the persons served, and of the addresses to which the papers were mailed or at which they were delivered, certified by the person who made service. If complainant cannot serve the complaint, an original of each complaint accompanied by a sufficient number of copies to enable the Board to serve one upon each defendant and to retain 10 copies in addition to the original should be filed with the Board. [61 FR 52711, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996] (a) Generally. An answer shall be filed within the time provided in paragraph (b) of this section. An answer should be responsive to the complaint and should fully advise the Board and the parties of the nature of the defense. In answering a complaint challenging the reasonableness of a rail rate, the defendant should indicate whether it will contend that the Board is deprived of jurisdiction to hear the complaint because the revenue-variable cost percentage generated by the traffic is less than 180 percent, or the traffic is subject to effective product or geographic competition. (b) Time for filing; copies; service. An answer must be filed within 20 days after the service of the complaint or within such additional time as the Board may provide. The original and 10 copies of an answer must be filed with the Board. The defendant must serve copies of the answer upon the complainant and any other defendants. (c) Cross complaints. A cross complaint alleging violations by other parties to the proceeding or seeking relief against them may be filed with the answer. An answer to a cross complaint shall be filed within 20 days after the service date of the cross complaint. The party shall serve copies of an answer to a cross complaint upon the other parties. (d) Failure to answer complaint. Averments in a complaint are admitted when not denied in an answer to the complaint. An answer to a complaint or cross complaint may be accompanied by a motion to dismiss the complaint or cross complaint or a motion to make the complaint or cross complaint more definite. A motion to dismiss can be filed at anytime during a proceeding. A complainant or cross complainant may, within 10 days after an answer is filed, file a motion to make the answer more definite. Any motion to make more definite must specify the defects in the particular pleading and must describe fully the additional information or details thought to be necessary. If a defendant satisfies a formal complaint, either before or after answering, a statement to that effect signed by the complainant must be filed (original only need be filed), setting forth when and how the complaint has been satisfied. This action should be taken as expeditiously as possible. (a) Service of decision. A decision instituting an investigation on the Board's own motion will be served by the Board upon respondents. (b) Default. If within the time period stated in the decision instituting an investigation, a respondent fails to comply with any requirement specified in the decision, the respondent will be deemed in default and to have waived any further proceedings, and the investigation may be decided forthwith. (a) Procedural schedule. Absent a specific order by the Board, the following general procedural schedule will apply in stand-alone cost cases:
Day 0—Complaint filed, discovery period begins. Day 7 or before—Conference of the parties convened pursuant to §1111.10(b). Day 20—Defendant's answer to complaint due. Day 75—Discovery completed. Day 120—Complainant files opening evidence on absence of intermodal and intramodal competition, variable cost, and stand-alone cost issues. Defendant files opening evidence on existence of product and geographic competition, and revenue-variable cost percentage generated by complainant's traffic. Day 180—Complainant and defendant file reply evidence to opponent's opening evidence. Day 210—Complainant and defendant file rebuttal evidence to opponent's reply evidence. (b) Conferences with parties. (1) The Board will convene a technical conference of the parties with Board staff prior to the filing of any evidence in a stand-alone cost rate case, for the purpose of reaching agreement on the operating characteristics that are used in the variable cost calculations for the movements at issue. The parties should jointly propose a schedule for this technical conference. (2) In addition, the Board may convene a conference of the parties with Board staff, after discovery requests are served but before any motions to compel may be filed, to discuss discovery matters in stand-alone cost rate cases. The parties should jointly propose a schedule for this discovery conference. [61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16, 1996, as amended at 63 FR 2639, Jan. 16, 1998; 68 FR 17313, Apr. 9, 2003] Absent a specific order by the Board, the following procedural schedule will apply in determining whether to grant a request under §1111.1(a) to use the simplified procedures (with the remainder of the procedural schedule to be determined on a case-by-case basis):
Day 0—Complaint filed, discovery period begins. Day 20—Defendant's answer to complaint and opposition to use of simplified procedures due. Day 30—Complainant's response to use of simplified procedures due. Day 50—Board's determination of whether simplified procedures should be used. [63 FR 2639, Jan. 16, 1998] (a) Generally. In all complaint proceedings, other than those challenging the reasonableness of a rail rate based on stand-alone cost, the parties shall meet, or discuss by telephone, discovery and procedural matters within 12 days after an answer to a complaint is filed. Within 19 days after an answer to a complaint is filed, the parties, either jointly or separately, shall file a report with the Board setting forth a proposed procedural schedule to govern future activities and deadlines in the case. (b) Stand-alone cost complaints. In complaints challenging the reasonableness of a rail rate based on stand-alone cost, the parties shall meet, or discuss by telephone, discovery and procedural matters within 7 days after a complaint is filed. The parties should inform the Board as soon as possible thereafter whether there are unresolved disputes that require Board intervention and, if so, the nature of such disputes. [61 FR 52711, Oct. 8, 1996. Redesignated and amended at 63 FR 2639, Jan. 16, 1998]
Title 49: Transportation
PART 1111—COMPLAINT AND INVESTIGATION PROCEDURES
Section Contents
§ 1111.1 Content of formal complaints; joinder.
§ 1111.2 Amended and supplemental complaints.
§ 1111.3 Service.
§ 1111.4 Answers and cross complaints.
§ 1111.5 Motions to dismiss or to make more definite.
§ 1111.6 Satisfaction of complaint.
§ 1111.7 Investigations on the Board's own motion.
§ 1111.8 Procedural schedule in stand-alone cost cases.
§ 1111.9 Procedural schedule to determine whether to use simplified procedures.
§ 1111.10 Meeting to discuss procedural matters.
§ 1111.1 Content of formal complaints; joinder.
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§ 1111.2 Amended and supplemental complaints.
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§ 1111.3 Service.
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§ 1111.4 Answers and cross complaints.
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§ 1111.5 Motions to dismiss or to make more definite.
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§ 1111.6 Satisfaction of complaint.
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§ 1111.7 Investigations on the Board's own motion.
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§ 1111.8 Procedural schedule in stand-alone cost cases.
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§ 1111.9 Procedural schedule to determine whether to use simplified procedures.
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§ 1111.10 Meeting to discuss procedural matters.
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