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Taylor v. Norfolk Southern Railway Co.

United States District Court, N.D. Illinois, Eastern Division

October 25, 2016

JAMES TAYLOR, Plaintiff,


          Joan B. Gottschall, United States District Judge.

         James 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 remand.

         I. Background

         Taylor 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.)

         NS has 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).

         NS 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 argues.

         In response to Taylor's Motion to Remand, NS has offered various affidavits which aver:

         (1) James Taylor was at no relevant time an employee of NS. (Alderman Aff. ¶ 5, ECF No. 2-2.)

         (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.)

         (3) ITS 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.)

         (4) ITS is not and has never been a subsidiary of NS. (Bath Aff. ¶ 5.)

         (5) 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.)

         (6) 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.)

         (7) ITS 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 traffic, ...

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