EAST PALESTINE — In a legal filing last week, Norfolk Southern asked a federal court to toss out the bulk of the East Palestine City Schools lawsuit against the railroad.

In a partial motion to dismiss the district’s complaint, Norfolk Southern asks that claims of loss of property tax revenue based on anticipated diminished home values, loss of income tax revenue, inducing panic through disorderly conduct, breach of contract and promissory estoppel — to enforce the railroad to make good on a purported promise of a community wellness center — be dismissed.

Norfolk Southern denies such a promise was made in the motion filed on Monday. Instead, it said any talks related to a wellness center were just that — talks.

“[East Palestine City Schools] seeks millions for the creation and construction of a community wellness and development center that the district claims Norfolk Southern promised to fund through a gift,” the motion stated. “The district does not — and cannot — allege the existence of a written contract and instead relies on purported oral promises, which are not supported by any legal consideration, and reflect, at best, nothing more than preliminary and abstract discussions.”

On April 30, the law firm Peiffer Wolf Carr Kane Conway & Wise filed a multi-million dollar lawsuit against Norfolk Southern on the district’s behalf for what superintendent James Rook called “broken promises” and what the board of education claims the railroad failed to do following the 2023 train derailment and chemical release.

At the heart of the suit is whether or not Norfolk Southern should be compelled to follow through on a proposed $30 million wellness center and the relocation of school athletic facilities — a concept Rook said was completely initiated by Norfolk Southern.

According to East Palestine Schools, conversations between the railroad and the district concerning the wellness center were held on a regular basis throughout 2023, 2024 and into 2025, before slowing and then stopping completely.

The district also insists the concept for the proposed wellness center advanced past talks — a contractor and architect were hired by Norfolk Southern, soil samples were taken, the location for the center was chosen and a decision by Norfolk Southern that the athletic facilities would have to be relocated was made.

The district said Norfolk Southern executives flew from Atlanta and took school officials to other wellness centers in the area that had been built by the same local contractor hired by the railroad to build one in East Palestine. Norfolk Southern asked the district to form a steering community, which it did, and encouraged input from students which they offered.

In the motion to dismiss, Norfolk Southern argues none of that equates to a binding agreement. Instead the railroad’s motion refers to”alleged vague and conclusory allegations about oral conversations between the parties, none of which establish a legally enforceable promise” and insists the district took no action that led to a financial loss for the schools based “on the alleged breach” regarding the wellness center that never came to fruition.

“The district cannot point to any action it took allegedly in reliance on Norfolk Southern’s alleged promises other than allegedly forming a steering committee, attending meetings with Norfolk Southern, taking a field trip to a community center in another district, and allowing access to district property for surveying,” the motion stated.

As far as the claim that the derailment will reduce property values and thus also reduce the property taxes — as well local income taxes — on which the district relies for funding, Norfolk Southern said that argument is “fatally flawed” and has no legal standing.

“The district posits a theory that solely due to the derailment, it will lose operating revenue in the form of lower property taxes due to the diminution of value of property it does not own, lower local income taxes due to reduced wages it does not earn, and a decrease in student enrollment,” the motion stated. “This fatally flawed claim is speculative, contradicted by publicly available data and is the type of indirect economic loss claim that is barred by the economic loss doctrine as a matter of law.”

The railroad further argued any drop in enrollment suffered by the district was unrelated to the derailment but rather on trend.

‘The district alleges that, according to publicly available data, 243 students enrolled in other districts during the 2023-2024 school year through open enrollment resulting in a $1.5 million financial impact,” the motion stated. “The district neglects to mention that, based on that same publicly available data, an average of 244 East Palestine students chose to enroll in other districts through open enrollment in each of the four academic years prior to the derailment.”

According to Norfolk Southern’s motion, claims of inducing a public panic claim should be tossed because such a charge requires the establishment of “the elements of a criminal act, and provide evidence for each element of the offense and the resulting damages.” The railroad insists the district has provided no such proof and, even if it had, that the lawsuit was filed well beyond the one-year statute of limitations for making such a claim.

The motion also asks the court to strike from the district’s complaint “all excerpts, quotations, figures, and references to the National Transportation Safety Board’s (NTSB) investigation into the rail disaster and its final report. That report cast the railroad in bad light and called into question both the necessity of and motive behind the vent-and-burn of five tank cars of vinyl chloride. The motion cites federal law that states that “no part of report of [the NTSB] related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting in matters mentioned in the report” and Rule 12 of the Federal Rules of Civil Procedure that “permits the court to strike any redundant, immaterial, impertinent or scandalous matter.”

The motion also flat out disputes the district’s claims that Norfolk Southern failed to fully reimburse East Palestine Schools for virtual learning, use of school facilities and services during the emergency response and damages to the track and a district parking lot.

“From the very beginning, following the derailment in February of 2023, Norfolk Southern has provided multifaceted support to the East Palestine City School District,” the motion stated.

That “support” included “$300,000 to directly support the district’s academics, athletics and extracurricular activities and a $750,000 gift” to assist in community engagement “over a 10-year period” that was used to create a public relations and marketing position within the district.

Other compensation, according to the motion, consisted of sponsoring and financially supporting extra-curricular events, donating money to cover lost fundraiser proceeds, providing transportation to clubs and teams, donating games and vending machines, purchasing bike racks, upgrading landscaping, supporting and recognizing teachers, providing free food and beverages, donating equipment and covering expenses for athletic teams and sponsoring or funding field trips.

The motion stated that “in terms of actual costs or expenses incurred by the district attributed to the derailment, Norfolk Southern has paid in excess of $150,000 for work to the high school track and the elementary school parking lot” and was “willing to reimburse the district for its actual reasonable costs and expenses provided that the district has been able to substantiate the same with documentation, which has been an issue.”

The motion makes clear that the railroad intends to fight the accusations leveled in the district’s lawsuit.

“Norfolk Southern deeply regrets the impact this derailment has had on the East Palestine community, and Norfolk Southern remains committed to making things right,” the motion maintained. “At the same time, Norfolk Southern must defend itself against unfounded accusations and legally deficient claims. That is the case here.”

selverd@mojonews.com