The opinion of the court was delivered by: Herndon, Chief Judge
On October 24, 2008, Plaintiff Travis Harrison ("Plaintiff") filed a three count complaint against Defendants Illinois Central Railroad Company, a corporation ("Illinois Central"), Tate & Lyle Ingredients Americas, Inc., also d/b/a Tate & Lyle, also d/b/a Tate & Lyle Americas, Inc. ("Tate & Lyle"), and Ameritrack Railroad Contractors, Inc. ("Ameritrack"). (Doc. 2). Plaintiff's complaint consists of three counts: Count I is brought against Illinois Central pursuant to FELA; Count II is brought against Tate & Lyle for the condition of its premises; and Count III is brought against Ameritrack for negligence in performing its work and maintaining its worksite (Doc. 2).
On November 11, 2008, Defendant Tate & Lyle filed a combined motion and brief to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) (Doc. 8). Specifically, Defendant Tate & Lyle moved to dismiss Count II of Plaintiff's complaint because Plaintiff had not alleged that Defendant was a common carrier by railroad or that Plaintiff was an employee of Defendant as required by the Federal Employer's Liability Act ("FELA"). 45 U.S.C. § 51 et. seq.. Defendant Tate & Lyle also moved to dismiss Count II because paragraph 9 of Count II alleged violations of the Track Safety Standards contained in 49 C.F.R. § 213 et. seq.. The Standards do not apply to tracks located inside an installation which is not part of the general railroad system of transportation (Doc. 8 at ¶ 11). See also 49 C.F.R. §213.1. Defendant Tate & Lyle maintains that Plaintiff has not alleged that any railroad track which is part of the general railroad system of transportation was involved in Plaintiff's accident (Doc 8 at ¶ 12).
Subsequently, on December 24, 2008, Defendant Ameritrack Railroad Contractors, Inc. ("Ameritrack") filed a combined motion and brief to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) (Doc. 27). Ameritrack sought to dismiss Count III of Plaintiff's complaint for the same reasons as Tate & Lyle. Specifically, Ameritrack sought to dismiss Count III because Plaintiff had not alleged that Defendant was a common carrier by railroad nor had Plaintiff alleged that he was an employee of Defendant as is required by FELA (Id. at ¶ 5-8). Further, Defendant Ameritrack argued in paragraph 9 of Count III Plaintiff failed to state a claim alleging violation of the Track Safety Standards. 49 C.F.R. § 213 et. seq..
Plaintiff failed to mention that a railroad track was associated with his injury and Plaintiff failed to allege that any railroad track that was part of the general railroad system of transportation was associated with his accident (Doc. 27 at ¶ 11-13).
Plaintiff requested an extension of time to file responses to Defendants' motions which the Court granted (Docs. 17 & 31). On March 30, 2009, Plaintiff filed timely responses to Defendants' respective motions (Docs. 58 & 59). Plaintiff stated that Defendant Tate& Lyle and Plaintiff agreed that Paragraph 9 of Count II should be stricken because investigation and discovery has revealed that the property where the accident occurred was not part of the general railroad system of transportation (Doc. 58). Plaintiff also stated that Defendant Ameritrack agreed that Paragraph 9 of Count III should be stricken for the same reasons (Doc. 59). Plaintiff further argued that the remainder of Count II and Count III should not be dismissed because the remainder of the Counts state a cause of action of negligence (Doc 58 p. 4; Doc. 59, p. 4).
On April 22, 2009, Defendant Illinois Central Railroad Company ("Illinois Central") filed a combined motion and brief for partial judgment on the pleadings pursuant to Rule 12(c) (Doc. 78). Specifically, Defendant Illinois Central moved for judgment on the pleadings for paragraph 8 of Count I, which alleged that Defendant Illinois Central had violated Track Safety Standards found in 49 C.F.R. § 213. Similar to Defendants Ameritrack and Tate & Lyle, Defendant Illinois Central argued that Plaintiff failed to mention that any railroad track that was part of the general railroad system of transportation was involved in his accident (Id. at ¶8).
Plaintiff filed a response, conceding that Paragraph 8 of Count I could not succeed and moving to strike Paragraph 8 from Count I.
A. Motions to Dismiss Pursuant to Rule 12(b)(6)
Defendants Tate & Lyle and Ameritrack bring their motions to dismiss pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for failure to state a claim.
When ruling on a motion to dismiss for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under FEDERAL RULE OF CIVIL PROCEDURE 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED.R. CIV.P. 8(a)(2). In a recent opinion issued on May 21, 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555, 127 S.Ct. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d. 209 (1986)). The Seventh Circuit has read the Bell Atlantic decision to impose "two easy-to-clear hurdles":
First, the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the...claim is and the grounds upon which it rests.' Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ...