Burnside v. Railserve, Inc.
ORDER REMANDING CASE TO STATE COURT; Granting 11 MOTION to Remand and Denying 11 MOTION for Attorney Fees and Costs filed by Trent Burnside. Signed by Honorable Susan O. Hickey on October 23, 2012. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CASE NO. 1:12-CV-01025
Before the Court is Plaintiff Trent Burnside’s Motion to Remand and for Attorney’s Fees
and Costs. (ECF No. 11). Defendant has responded (ECF No. 16), and Plaintiff has replied. (ECF
Nos. 20 & 21).1 The matter is ripe for the Court’s consideration. For the following reasons, the
motion will be granted in part and denied in part.
Plaintiff was coupling a railcar to a locomotive on June 19, 2011 at the Georgia-Pacific
plant in Crossett, Arkansas when the railcar and locomotive came together and crushed his arm.
The arm was badly damaged—doctors had to amputate it below the elbow. Plaintiff was
employed by Defendant when the accident happened, and on February 10, 2012, he filed suit
against Defendant for negligence under the Federal Employers Liability Act (“FELA”), 45
U.S.C. § 51 et seq. Defendant removed the case to this Court on March 16, 2012, and Plaintiff
moved a month later, on April 16, 2012, for the Court to remand the case to Ashley County
Circuit Court. That motion is now before the Court.
The parties do not seriously disagree that diversity jurisdiction exists in this case;
Plaintiff is an Arkansan, Defendant is a Georgian, and Plaintiff’s injuries appear to be worth
The Court has also considered Plaintiff’s Notice of Newly Discovered Facts. (ECF No. 24).
more than $75,000. Ordinarily, that would make the case removable to federal court. 28 U.S.C. §
1332(a) (providing federal jurisdiction where the parties are diverse and more than $75,000 is in
However, FELA claims like Plaintiff’s are by statute irremovable. 28 U.S.C. § 1445(a).
They are irremovable, that is, unless the allegations in a FELA complaint are “so baseless,
colorable,2 and false that the assertion thereof constitute[s] a fraud on the jurisdiction of the
federal court.” Farmers’ Bank & Trust Co. v. Atchison, Topeka & Santa Fe Ry. Co., 25 F.2d 23,
31 (8th Cir. 1928). Defendant argues that Plaintiff’s allegations are fraudulent, and that
jurisdiction thus lies properly in federal court. Therefore, the present motion turns on one
question: “Are the allegations of the plaintiff’s petition so baseless and colorable as to constitute
a fraudulent attempt to defeat the jurisdiction of the federal court?” Leonard v. St. Joseph Lead
Co., 75 F.2d 390, 395 (8th Cir. 1935).
To keep the case in federal court, Defendant must shoulder the burden of proving that
Plaintiff’s allegations are a fraud. Boyle v. Chicago, Rock Island & Pac. Ry. Co., 42 F.2d 633,
635 (8th Cir. 1930). Any doubts, therefore, “are to be resolved in favor of the plaintiff.” Id. “If it
is a fairly doubtful question as to whether or not [the allegation is fraudulent], then there [can] be
no fraud in the plaintiff’s complaint.” Geffers v. Chicago, Burlington & Quincy R.R. Co., 25 F.2d
774, 775 (D. Minn. 1928). “[D]efendant[’s] burden of persuasion,” then, “is a heavy one.”
Lackey v. Atlantic Richfield Co., 990 F.3d 202, 207 (5th Cir. 1993). Defendant “must show that
there is no possibility that plaintiff would be able to establish a cause of action.” Id.
In early-to mid-20th century cases, “colorable” carried not only a sense of plausibility or validity, but also a sense
of deceptiveness and fraud. See “colourable ǀ colorable, adj.,” OXFORD ENGLISH DICTIONARY,
http://www.oed.com/view/Entry/36600#eid0 (last visited Sept. 26, 2012).
What is a “common carrier”?
The controversial allegation in this case is Plaintiff’s claim that Defendant is a “common
carrier,” a necessary part of a FELA claim. 45 U.S.C. § 51; Norfolk S. Ry. Co. v. Sorrell, 549
U.S. 158, 165 (2007). A common carrier is “one who operates a railroad as a means of carrying
for the public….” Iverson v. S. Minnesota Beet Sugar Coop., 62 F.3d 259, 262 (8th Cir. 1995)
(quoting Edwards v. Pac. Fruit Express Co., 390 U.S. 538, 540 (1968)). A common carrier:
holds himself out to the public as engaged in the business of transportation of
persons or property from place to place for compensation, offering his services to
the public generally. The distinctive characteristic of a common carrier is that he
undertakes to carry for all people indifferently, and hence is regarded in some
respects as a public servant.
Kieronski v. Wyandotte Terminal R.R. Co., 806 F.2d 107, 108 (6th Cir. 1986) (internal quotation
Among other considerations, courts faced with a common-carrier question look at
whether the subject railroad: 1) actually performs rail service; 2) performs the service as a part of
a service package for which a member of the public contracts; 3) performs the service under the
common ownership of a company that does hold itself out to the public as a rail carrier; and 4) is
paid for the service. Iverson, 62 F.3d 262–63 (quoting Lone Star Steel Co. v. McGee, 380 F.2d
640, 647 (5th Cir. 1967)). If all those considerations are met, that suggests that the subject
railroad is a common carrier. Another way to decide the question is to find where the railroad fits
in a four-category division consisting of: 1) in-plant facilities (which are not common carriers);
2) private carriers (which are not common carriers); 3) linking carriers (which are common
carriers); and 4) in-plant operations that share common-carrier features (which are common
carriers). Kieronski, 806 F.2d at 109.
In looking at the definitions and considerations above, two observations become pertinent
to the present case. One, “[i]ndustries operating in-plant rail facilities for their own benefit and
not operating transportation to the public for a fee are not considered common carriers.” Iverson,
62 F.3d at 263. Nor are plant owners who offer in-plant services to plant lessees, even if the
lessees pay the plant owner for the service. Huntley v. Bayer MaterialScience, L.L.C., 452 Fed.
Appx. 453, 454–55 (5th Cir. 2011). And two, “[t]here is difficulty ofttimes in determining
whether a party is [a common carrier] and each case is governed largely by its particular facts.”
Farmers’ Bank, 25 F.2d at 29.
Whether Defendant is a common carrier
Turning to the facts at hand, the Court finds that Defendant’s carrier status is too much in
dispute to label Plaintiff’s assertion a fraud. Defendant claims that, at the place Plaintiff was hurt,
it provides only in-plant switching services. It denies that it loaded or unloaded cars or
transported cargo for Georgia Pacific or for any other railroad. It also denies being paid to ship
Plaintiff, though, claims that a web of corporate relations—albeit a complicated one, as
the Court sees it—ties Defendant to Georgia Pacific and to entities that plainly are common
carriers. Plaintiff further notes that Defendant employs many workers qualified for railroad
positions, and that Defendant is well connected to members of various railroad associations and
In short, Defendant makes a narrow argument, and Plaintiff makes a wide one. Both
arguments have merit. On the one hand, “[w]hether a transportation agency is a common carrier
depends not upon its corporate character or declared purposes, but upon what it does.” Lone Star
Steel Co., 380 F.2d at 648 (quoting United States v. California, 297 U.S. 175, 181 (1936)). On
the other hand, an entity’s corporate clothing is not irrelevant. The Lone Star Steel Co. defendant
ultimately lost on the basis of its corporate structure. Kiernoski, 806 F.2d at 109 (“Lone Star
became, in effect, part of the common carrier by virtue of Lone Star’s ownership of the common
carrier, combined with Lone Star’s performance of the common carrier’s duties.”).
The parties’ positions are each reasonable enough and at odds enough to preclude saying
that Plaintiff’s common-carrier allegation is a fraud and a ruse. This is backed up by the split
among courts that have considered Defendant’s status. Two courts have found Defendant not to
be a common carrier: Ashworth v. Railserve, Inc., No. 09-09-00187-CV, 2010 WL 2172377
(Tex. Ct. App. May 27, 2010); and Allen v. Railserve, Inc., No. CIV. A. 00-3135, 2001 WL
1352323 (E.D. La. Oct. 31, 2001). Another, however, has found Defendant to be a common
carrier. Benavidez v. Burlington N. Santa Fe Corp., No. G-07-00105, Doc No. 131, at 17–18
(S.D. Tex. Apr. 29, 2008).
It is “a fairly doubtful question as to whether or not” Defendant is a common carrier.
Farmers’ Bank, 25 F.2d at 29. Accordingly, “there could be no fraud on the part of plaintiff in so
pleading.” Id. The question whether Defendant is a common carrier is an open one. The
particular facts governing the question need tending and careful attention. That attention is not
proper at so early a point in the case, and the need for it only goes to show that Plaintiff cannot
be taken to have pleaded the allegation fraudulently.
For the above reasons, the Court finds that Defendant has not shouldered the heavy
burden of showing that “there is no possibility that plaintiff would be able to establish a cause of
action.” Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). The Court is not
convinced that Plaintiff’s FELA claims “must be regarded as so baseless and colorable as to
constitute a fraudulent attempt to defeat the jurisdiction of a federal court.” Farmers’ Bank, 25
F.2d at 29. In the absence of fraudulent pleading, this FELA case must be heard in state court. 28
U.S.C. § 1445(a). Accordingly, Plaintiff’s Motion to Remand (ECF No. 11) should be and
hereby is GRANTED. This case is hereby REMANDED to Ashley County Circuit Court for
The Court does not find an award of fees under 28 U.S.C. § 1447(c) warranted.
Defendant did not lack “an objectively reasonable basis for seeking removal.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005). Therefore, Plaintiff’s Motion for Attorney’s Fees (ECF
No. 11) should be and hereby is DENIED.
IT IS SO ORDERED, this 23rd day of October, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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