United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Gottschall, United States District Judge.
Taylor (“Taylor”) filed a two-count complaint in
state court, containing a count brought under a provision of
the Federal Employees' Liability Act, 45 U.S.C. § 51
(“FELA”) and a common law negligence count,
alleging that defendant, Norfolk Southern Railway Company
(“NS”), is liable to him under FELA for injuries
he suffered on January 18, 2016 in NS' Calumet Yard. NS
removed this case to this court, alleging that Taylor's
FELA claim is frivolous. Taylor moves to remand. Based on the
following analysis, the court concludes that NS has raised a
substantial question on Taylor's FELA claim and provides
him with an opportunity to supplement the record in response
to the evidence attached to NS' response to his motion to
alleges that although his actual employer was ITS
Technologies and Logistics (“ITS”), he was at the
time of the accident serving “as a contractor for the
railroad; or he was the joint employee of the railroad and
ITS TECHNOLOGIES AND LOGISTICS; or he was the subservant of
ITS TECHNOLOGIES AND LOGISTICS that was the servant of the
railroad.” (Compl. ¶ 5, ECF No. 2, Ex. A.) Taylor
alleges that he was called to a meeting by a NS employee at
the Calumet yard and was “performing a task integral to
the operation of the railroad, ” rendering him an
employee of the railroad for purposes of FELA. (Compl.
¶¶ 6, 7.)
removed the case to federal court. While acknowledging that
removal of a FELA action is prohibited by 28 U.S.C. §
1445(a), LaDuke v. Burlington N.R. Co., 879 F.2d
1556, 1561 (7th Cir. 1989), removal is permitted where it has
been established “beyond dispute” that there is
no legitimate FELA claim, Lackey v. Atlantic Richfield
Co., 990 F.2d 202, 208 (5th Cir. 1993). Put another way,
if the plaintiff's FELA claim, as pleaded in a complaint
filed in state court, “is frivolous, ” remand
should be denied, but “a claim cannot be said not to
arise under the FELA . . . merely because it is found in the
end not to be a meritorious claim.” Hammond v.
Terminal R.R. Ass'n of St. Louis, 848 F.2d 95, 97
(7th Cir. 1988) (citations omitted); accord Bunnell v.
Union Pac. R.R. Co., No. 07-cv-0686-MJR-DGW, 2007 WL
4531513, at *1 (S.D. Ill.Dec. 19, 2007).
argues that in this case, “there exists no reasonable
basis in fact or in law to support a claim by Plaintiff
against Norfolk Southern under the FELA.” (Notice
Removal ¶ 6, ECF No. 2.) FELA, NS properly asserts,
covers only employees of the railroad “or, if not a
direct employee, either a borrowed servant, dual servant or
employee of a subservant of the railroad.”
(Id. ¶ 7.) Taylor was none of those things, NS
response to Taylor's Motion to Remand, NS has offered
various affidavits which aver:
James Taylor was at no relevant time an employee of NS.
(Alderman Aff. ¶ 5, ECF No. 2-2.)
James Taylor has been an employee of ITS since February 21,
1994, and he held the position of Operations Manager at ITS
at the time of his accident on January 18, 2016. The primary
responsibility of an Operations Manager at the Calumet Yard
is planning, directing, and coordinating all ITS activities
relative to the loading and unloading of containers on
railroad cars. (Bath Aff. ¶ 8, ECF No. 2-3.)
provides terminal services to common carriers by rail. Its
employees work at various intermodal yards pursuant to
agreements between ITS and the railroads serving those yards.
(Bath Aff. ¶ 3.) ITS has a contract with NS at its
Calumet Yard, the place of Taylor's injury, where ITS
leases a portion of the yard for the operation of an
intermodal terminal. (Id. ¶ 2.)
is not and has never been a subsidiary of NS. (Bath Aff.
None of the agreements between ITS and NS allow NS to manage
ITS personnel or ITS operations, or allow NS to direct ITS in
its operations or the management and utilization of its
employees. (Id. ¶ 6.) NS had no authority to
supervise ITS employees and did not supervise ITS Operations
Managers such as Taylor. (Id. ¶ 12.)
Taylor was injured by a hostler truck owned and maintained by
ITS. (Bath Aff. ¶ 13.) The hostler truck was being
operated by Robert Gutierrez, an employee and agent of ITS.
(Id. ¶ 15.) Gutierrez reported to and was under
the control of the ITS Trailer Shop Manager at the Calumet
Yard. The Trailer Shop Manager reported to the ITS Terminal
Manager, not to anyone at NS. (Id. ¶ 16.) The
hostler truck was carrying a chassis, which struck Taylor.
The chassis was owned by TRAC, a chassis supplier.
(Id. ¶ 24.)
decided how many men would work on projects at the Calumet
Yard, how many machines should be used and which employees
would operate which pieces of equipment. These decisions were
driven by NS forecasts of the anticipated volume of rail