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Taylor v. Norfolk Southern Railway Co.

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

February 1, 2017

JAMES TAYLOR, Plaintiff,


          Joan B. Gottschall, United States District Judge

         This case comes before the court on plaintiff James Taylor's (“Taylor”) motion to remand to the state court from which the defendant, Norfolk Southern Railway Co. (“NS”), removed it. For the reasons that follow, the motion is granted.

         I. BACKGROUND

         In his complaint filed in state court, Taylor pleaded a claim under a provision of the Federal Employees' Liability Act, 45 U.S.C. § 51 (“FELA”) and a common law negligence claim stemming from an alleged accident that occurred on January 18, 2016 in the Calumet Yard at which Taylor worked. Taylor pleaded in his state-court complaint 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.) In its notice of removal, NS asserted that “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.) NS attached three affidavits to its notice of removal to substantiate its assertion. (ECF Nos. 2-3 and 2-4.) Taylor moved to remand.

         On October 25, 2016, the court considered Taylor's state-court complaint and NS' affidavits. Applying Kelley v. S. Pac. Co., 419 U.S. 318, 324 (1974), the court concluded that “[d]efendant has adequately put in issue the question of whether Taylor has a legitimate FELA claim or has done nothing more than name the statute.” (Slip Op. at 6.) Rather than permit jurisdictional discovery, the court gave Taylor leave to amend his complaint “to specify, if he can, the basis at the time of removal for his FELA claim.” Id. at 7.

         Taylor has filed his Second Amended Complaint (ECF No. 26), and the parties have submitted supplemental briefing. NS has also filed supplemental affidavits and evidence.


         In 28 U.S.C. § 1445(a), Congress prohibited the removal to a federal district court of ““[a] civil action in any State court against a railroad or its receivers or trustees, arising under [the FELA].” LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1561 n. 9 (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).

         FELA makes “[e]very common carrier by railroad . . . liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. Taylor has consistently plead in this action that ITS, not NS, was his employer at all relevant times. (2d Am. Compl. ¶ 4.) NS does not challenge Taylor's allegation that it is a “common carrier by railroad” to which FELA applies. (See 2d Am. Compl. ¶ 2.) Consequently, as this court explained in its previous order on this motion, Taylor can establish his employment with NS for FELA purposes in three ways: first, by showing that he was a borrowed servant of the railroad at the time of his injury; second, if he could be deemed to have been acting for two masters simultaneously; or third, if he was a subservant of a company that was a servant of the railroad. Kelley, 419 U.S. at 324. “Critical to the analysis of both the borrowed servant and the dual servant theory is the issue of control.” Gowdy v. Norfolk S. Ry. Co., No. 07-CV-0365-MJR, 2007 WL 1958592, at *5 (S.D. Ill. July 2, 2007) (citing Kelley, 419 U.S. at 325-26). Taylor's state-court complaint included threadbare recitals of each possibility in the alternative. (See Compl. ¶ 5.) The court determined that these recitals did not withstand scrutiny under federal pleading standards, given NS' evidence. See Slip Op. at 5-6 (applying rule that complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court must now decide, in light of NS' evidence, whether Taylor's Second Amended Complaint meets that standard.

         III. ANALYSIS

         The second amended complaint and NS' original and supplemental evidence provide a fair amount of detail about NS and ITS' relationship and question of control under the FELA. Some facts appear to be disputed, but the court's task on a motion to remand is to determine only whether plaintiff's claim is frivolous, see Hammond, 848 F.2d at 97 (citations omitted). As the conflict between Taylor's well-pleaded allegations on the one hand and NS' evidence on the other is sufficient to create a jury question on employment under Seventh Circuit law, NS has not demonstrated that Taylor's FELA claim is frivolous.

         A. The Allegations in Evidence

         The court begins with the allegations in Taylor's Second Amended Complaint (ECF No. 26). Taylor pleads that his “job duties were primarily concerned with the rail operation in that he was a working supervisor of the rail car loading and unloading operation.” (2d Am. Compl. ¶ 8.) In language nearly identical to the state-court complaint, Taylor alleges that “was ordered to a meeting by a NS employee at a NS yard . . . to discuss rail operations . . ., including the loading/unloading of a train” when he was struck. (Id. ¶ 6.) Putting aside conclusory allegations of control (e.g., 2d Am. Compl. ¶¶ 7, 10, 28, 29), Taylor alleges that: (1) NS owned the sideloader cranes Taylor used to load and unload railcars (¶ 9); (2) NS controlled when and to which tracks inbound trains were assigned, subject to some input from Taylor (¶ 11); (3) different tracks at the Calumet Yard required different methods of loading and unloading (¶ 11); (4) NS decisions about to which tracks a train was assigned effectively determined what equipment was used and how many ITS employees would be involved in loading and unloading (¶¶ 12, 16, 20); (5) Taylor had to use blue signal flags and switch keys provided by NS to “lock out” a track while loading and unloading was underway (¶¶ 21-24); and (6) Taylor traveled to NS' buildings in the yard and worked with NS employees to coordinate schedules and the loading and unloading of trains (¶¶ 17-18). Taylor's second amended complaint also includes this allegation:

Plaintiff was a working manager; his job duties included working closely with the NS operations department and NS car department; operations controlled the movement of trains; car department controlled the inspection, repair and availability of train cars to be loaded. Plaintiff managed the sideloaders, operators and spotters used to unload train. Plaintiff also was called upon to unlock the containers and trailers on the train cars by climbing on the train cars; to spot for the sideloaders and to operate the sideloaders. Plaintiff would perform the actual work as opposed to manage the work at the command of the NS operation managers. NS ...

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