Smith v. Norfolk Southern Railway Company

Full title: ROBERT T. SMITH, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant

Court: United States District Court, C.D. Illinois, Urbana Division

Date published: Apr 8, 2009

Case No. 09-CV-2051 (C.D. Ill. Apr. 8, 2009)

Opinion

Case No. 09-CV-2051.

April 8, 2009

OPINION

MICHAEL McCUSKEY, District Judge

This case is before the court for ruling on the Motion to Remand (#10) filed by Plaintiff, Robert T. Smith. This court has carefully considered Plaintiff's Motion, Plaintiff's Brief in Support (#11), and the Response in Opposition to Plaintiff's Motion to Remand (#13) filed by Defendant, Norfolk Southern Railway Company. Following this court's careful and thorough consideration of the issues raised and the documents provided, Plaintiff's Motion to Remand (#10) is GRANTED as to Plaintiff's request for remand to state court and DENIED as to Plaintiff's request for an award of his expenses, including attorney fees.

FACTS

On January 12, 2009, Plaintiff filed a two-count Complaint in the circuit court of Macon County (Case No. 09-L-5) against Defendant. In Count I, Plaintiff alleged that, on or about March 15, 2007, although technically employed by Road Rail Services, Inc., he was an "employee" of Defendant for purposes of the Federal Employers' Liability Act (FELA). Plaintiff alleged that Road Rail Services, Inc. was a servant of Defendant and, therefore, Plaintiff was a sub-servant of Defendant. Plaintiff also alleged that employees of Defendant exercised direct control, or had the right to exercise control over Plaintiff in his work. Plaintiff alleged that, on March 15, 2007, while employed by Defendant, "he was caused to injure his neck, back, and right shoulder while raising the deck of a railcar with inadequate and insufficient tools and manpower." Plaintiff alleged that his injury was caused by one or more negligent acts on the part of Defendant and sought damages pursuant to FELA. In Count II, Plaintiff alleged that he was a "joint employee" of Defendant for purposes of FELA. Plaintiff again alleged that his injury was caused by one or more negligent acts on the part of Defendant and sought damages pursuant to FELA.

On February 20, 2009, Defendant filed a Notice of Removal (#1). Defendant stated that this court has jurisdiction based upon diversity under 28 U.S.C. § 1332. This was because Defendant is a citizen of Virginia, Plaintiff is a citizen of Illinois, and the amount in controversy exceeds $75,000. Defendant acknowledged that 28 U.S.C. § 1445 prohibits removal of FELA claims to federal court. Defendant argued, however, that the indisputable facts in this case demonstrate that there exists no reasonable basis in fact and law to support Plaintiff's claims against Defendant under FELA. Defendant argued that the undisputed evidence demonstrates that Plaintiff was not an employee of Defendant at the time of the accident and was instead employed by Road Rail Services, Inc. Defendant argued that, because Plaintiff was never a railroad employee, he cannot bring a FELA claim against Defendant.

Defendant attached exhibits to its Notice of Removal, including: (1) a copy of Plaintiff's Complaint, (2) a copy of a letter from the assistant HR director at Road Rail Services, Inc. which stated that Plaintiff was employed by Road Rail Services, Inc. until January 2008 and received workers' compensation benefits for his March 2007 injury; (3) a copy of a June 5, 2004, Multi-Level Railcar Prepping Contract between Defendant and Road Rail Services, Inc.; (4) a copy of Contractor Safety guidelines; and (5) the affidavit of Michael Hilmes, dated February 20, 2009. In his affidavit, Hilmes stated that the is Defendant's District Claim Agent responsible for this case. Hilmes also stated that no employee of Defendant controlled or had the right to control Plaintiff's day to day performance of his work for Road Rail Services, Inc. at the time of Plaintiff's alleged accident. Hilmes stated that Defendant did not supervise Plaintiff's day to day actions at the time of the alleged accident. Hilmes also stated that the other exhibits attached to the Notice of Removal were true and accurate copies.

On March 13, 2009, Defendant filed a Motion for Summary Judgment (#8) and a Memorandum of Law in Support (#9). The exhibits attached to Defendant's Memorandum were the same exhibits Defendant had attached to its Notice of Removal except that Defendant did not attach another copy of Plaintiff's Complaint. Defendant contended that Plaintiff was never a railroad employee for FELA purposes and could not bring a FELA claim against Defendant. Defendant argued that it was therefore entitled to summary judgment on Plaintiff's Complaint.

On March 18, 2009, Plaintiff filed a Motion to Remand (#10) and a Brief in Support (#11). Plaintiff argued that, because he brought a properly plead FELA claim, this action is not subject to removal under 28 U.S.C. § 1445(a). Plaintiff argued that Defendant's allegations regarding Plaintiff's employment status should be dealt with in Macon County with proper motions. Plaintiff also requested an order awarding him his actual expenses, including attorney fees, incurred as a result of the removal. In his Brief, Plaintiff stated that it is his contention that, at the time of his injury, he was a borrowed servant of Defendant. Plaintiff stated that he conceded that a summary judgment motion may be well taken in Macon County after discovery has been conducted. Plaintiff argued that "this issue should only be litigated in plaintiff's chosen forum." Plaintiff attached as exhibits several orders entered in other district courts in similar cases.

On March 30, 2009, Defendant filed a Response in Opposition to Plaintiff's Motion to Remand (#13). Defendant argued that removal was proper in this case because Plaintiff's FELA claim is baseless. Defendant noted that Plaintiff has admitted that his FELA claim may not withstand scrutiny on summary judgment. Defendant therefore argued that Plaintiff's Motion to Remand should be denied. Defendant attached copies of additional exhibits related to Plaintiff's employment at Road Rail Services, Inc. Defendant also argued that, if this court grants Plaintiff's request for remand, an award of attorney fees and costs would be inappropriate because Defendant's position was reasonable, substantially justified, and made in good faith.

ANALYSIS

The question before this court is whether this case was properly removed; if not, this court has no jurisdiction to decide Defendant's Motion for Summary Judgment and the case must be remanded to the circuit court of Macon County. See Hammond v. Terminal R.R. Ass'n. of St. Louis, 848 F.2d 95, 96-97 (7^th Cir. 1988). The central jurisdictional question is whether 28 U.S.C. § 1445(a) renders Plaintiff's Complaint nonremovable. See Gowdy v. Norfolk S. Ry. Co., 2007 WL 1958592, at *1 (S.D. Ill. 2007).

This court's analysis must begin with FELA, 45 U.S.C. §§ 51- 60. Enacted over 100 years ago, FELA created a tort remedy for railroad workers injured on the job. Lancaster v. Norfolk W. Ry. Co., 773 F.2d 807, 812 (7^th Cir. 1985); Gowdy, 2007 WL 1958592, at *1. FELA holds a rail carrier liable for the reasonably foreseeable negligence of its officers, agents and employees, and a FELA plaintiff "can get to the jury with even slight evidence of negligence." Gowdy, 2007 WL 1958592, at *1,quoting Lancaster, 773 F.2d at 818, 820. State and federal courts enjoy concurrent subject matter jurisdiction over FELA claims. 45 U.S.C. § 56. But "defendants are not allowed to defeat a FELA plaintiff's choice of a state forum by removing the action to federal court." LaDuke v. Burlington N. R. Co., 879 F.2d 1556, 1561 (7^th Cir. 1989). Congress expressly provided, in 28 U.S.C. § 1445(a), that a state court civil lawsuit filed against a railroad under FELA "may not be removed to any district court of the United States." 28 U.S.C. § 1445(a); LaDuke, 879 F.2d at 1561 n. 9.

Defendant's argument, however, is that Plaintiff's claims do not fall within FELA. See Gowdy, 2007 WL 1958592, at *1. A claim does not arise under FELA "merely because the plaintiff names that statute in his complaint." Hammond, 848 F.2d at 97.

When a plaintiff has alleged a claim that is not removable pursuant to 28 U.S.C. § 1445(a), the Court can look beyond the pleadings to determine whether plaintiff has any chance of prevailing on the nonremovable claim. If the plaintiff cannot under any circumstances prevail, then the nonremovable claim is said to be "fraudulent", and the Court can ignore the nonremovable claim for determining removal jurisdiction.

Hutton v. Consol. Grain Barge Co., 170 F. Supp. 2d 844, 846 (C.D. Ill. 2001), citing Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5^th Cir. 1993).

In Gowdy, United States District Judge Michael J. Reagan considered a motion to remand a FELA case and determined that it is appropriate for the district court to look beyond the complaint and consider other evidence in ascertaining whether jurisdiction lies. Gowdy, 2007 WL 1958592, at *3-4. Judge Reagan then discussed the evidence provided by the defendant rail carrier in that case, which included evidence that the plaintiff was employed by Caliber Auto Transfer and had listed Caliber Auto Transfer as his employer on his worker's compensation claim. Gowdy, 2007 WL 1958592, at *4. In addition, the evidence included an agreement showing that Caliber was an independent contractor responsible for supervising each person working on the loading project and the affidavit of Douglas Pickle which stated that the defendant lacked the right to control the plaintiff's actions in the day-to-day performance of his work. Gowdy, 2007 WL 1958592, at *5.

Judge Reagan stated, however, that "[i]t is possible for an injured worker to demonstrate that a rail carrier, while not directly employing him, still exercised such control over his employment that he should be considered `employed' by the carrier for FELA purposes." Gowdy, 2007 WL 1958592, at *4. Judge Reagan noted that, in Williams v. Shell Oil Co., 18 F.3d 396 (7^th Cir. 1994), the Seventh Circuit listed the various ways a worker can be "employed" by a rail carrier for FELA purposes. Gowdy, 2007 WL 1958592, at *4. The Seventh Circuit stated:

First, the employee could be serving as the borrowed servant of the railroad at the time of this injury. . . . Second, he could be deemed to be acting for two masters simultaneously. . . . Finally, he could be a subservant of a company that was in turn a servant of the railroad.

Williams, 18 F.3d at 400, quoting Kelley v. S. Pacific Co., 419 U.S. 318, 324 (1974). Judge Reagan then explained:

Stated another way, plaintiffs nominally employed by non-FELA entities (like Gowdy, who is employed by Caliber) may nonetheless recover from railroad companies under three circumstances: (1) if the plaintiff is a borrowed servant of the railroad, (2) if the plaintiff works for two employers (his own and a railroad) simultaneously, or (3) if the plaintiff's employer is a servant of the railroad, so the plaintiff is a "subservant" of the railroad.

Gowdy, 2007 WL 1958592, at *5, citing Larson v. CSX Transp., Inc., 835 N.E.2d 138, 142 (Ill.App.Ct. 2005); see also Bunnell v. Union Pacific R.R. Co., 2007 WL 4531513, at *3 (S.D. Ill. 2007).

Judge Reagan concluded, based upon the evidence provided by the defendant, "it does not necessarily follow that Norfolk Southern did not actually exercise control over Gowdy's daily tasks" and "the record leaves open the possibility that both Norfolk Southern and Caliber substantially controlled Gowdy's work-related activities." Gowdy, 2007 WL 1958592, at *5 (emphasis in original). Judge Reagan concluded that the evidence did not preclude the conclusion that Gowdy was a borrowed servant, a dual servant or a subservant of Norfolk Southern. Gowdy, 2007 WL 1958592, at *5. Judge Reagan pointed out that, in Williams, the Seventh Circuit expressed reluctance to decide such a fact-intensive question against the plaintiff/worker. Gowdy, 2007 WL 1958592, at *6, citing Williams, 18 F.3d at 400. Judge Reagan stated, "[b]ecause Gowdy's complaint properly pleads all the elements of a FELA claim and the record before the Court (beyond the complaint) leaves open the possibility that Gowdy has a cognizable FELA claim, the Court cannot ignore the removal bar contained in 28 U.S.C. § 1445." Gowdy, 2007 WL 1958592, at *6 (emphasis in original); see also Bunnell, 2007 WL 4531513, at *3. Judge Reagan therefore granted the plaintiff's motion to remand.Gowdy, 2007 WL 1958592, at *6.

This court finds Judge Reagan's analysis extremely persuasive. This court further finds that the evidence presented by Defendant in this case is very similar to the evidence presented to Judge Reagan in Gowdy. Moreover, in this case, also, Plaintiff's Complaint properly pled all the elements of a FELA claim. Therefore, this court concludes, as Judge Reagan did in Gowdy, that the evidence presented by Defendant leaves open the possibility that Plaintiff could have a cognizable FELA claim, especially considering the fact-intensive nature of the question before this court. This court cannot conclude that Plaintiff's claim is "fraudulent" so that this court can ignore the nonremovable claim for determining removal jurisdiction. Cf. Hutton, 170 F. Supp. 2d at 846-47 (court concluded that the evidence established that the plaintiff could not prevail on his claim under the Jones Act so removal was proper). Accordingly, Plaintiff's Motion to Remand (#10) is GRANTED as to Plaintiff's request for remand to state court. This case is remanded to the circuit court of Macon County.

This court notes that, in his Motion to Remand, Plaintiff has also requested his actual expenses, including attorney fees, incurred as a result of the removal. This court concludes, however, that Defendant had an objectively good faith basis for the removal, so Plaintiff is not entitled to an award of attorney fees and costs. See Lott v. Pfizer, Inc., 492 F.3d 789, 794 (7^th Cir. 2007); Gowdy, 2007 WL 1958592, at *6.

IT IS THEREFORE ORDERED THAT:

(1) Plaintiffs' Motion to Remand (#10) is GRANTED in part and DENIED in part.

(2) Plaintiff's request for remand is granted and this case is remanded to the circuit court of Macon County, Illinois.

(3) Plaintiff's request for an award of expenses, including attorney fees, is DENIED.

(4) This case is terminated.