Evans v. Union Pacific Railroad Company

Filing 57

ORDER striking as untimely 40 Defendant's Motion and Brief for Partial Dismissal Pursuant to Fed. R. Civ. P. 12(b)(1). The parties shall file simultaneous trial briefs on the statute of limitations issue on or before 5/4/2015. By Judge William J. Martinez on 4/21/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1732-WJM-BNB
JEFFREY R. EVANS,
Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant.

ORDER STRIKING AS UNTIMELY DEFENDANT’S MOTION
FOR PARTIAL DISMISSAL PURSUANT TO RULE 12(b)(1)

Plaintiff Jeffrey R. Evans (“Plaintiff”) brings this action against his employer,
Defendant Union Pacific Railroad Company (“Defendant”), under the provisions of the
Federal Employers’ Liability Act (“FELA”), 35 U.S.C. §§ 51 et seq., to recover damages
for spinal injuries allegedly suffered while working in the course and scope of his
employment for Defendant. (ECF No. 1.) This matter is set for a five-day jury trial to
commence on May 11, 2015, with a Final Trial Preparation Conference on April 29,
2015. (ECF Nos. 37 & 39.) Before this Court is Defendant’s Motion and Brief for
Partial Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Motion”). (ECF
No. 40.) For the reasons set forth below, Defendant’s Motion is stricken as untimely.
I. DISCUSSION
Plaintiff is a locomotive conductor who has worked for Defendant, a common
carrier engaged in interstate transportation, for over thirty years. (Compl. (ECF No. 1)
¶ 5.) On July 1, 2013 Plaintiff filed his Complaint alleging that he suffered spinal

injuries, both as a result of exposure to severe lateral shocks and jolts in the cab of one
of Defendant’s locomotives on December 5, 2012, and as a result of repetitive and
cumulative trauma. (Compl. ¶¶ 6–7.)
On October 21, 2013, a Scheduling Order was entered which set a May 21, 2014
deadline for dispositive motions. (ECF No. 12 at 10.) Two subsequent amendments to
the scheduling order did not affect the dispositive motions deadline, and no dispositive
motions were filed by that date. (ECF Nos. 17 & 20.) On July 21, 2014, a Final Pretrial
Order was entered which listed no anticipated dispositive motions from either party.
(ECF No. 36 at 8.)
Nevertheless, on March 10, 2015, Defendant filed the instant Motion seeking
dismissal of the cumulative injury portion of Plaintiff’s FELA claims pursuant to Rule
12(b)(1). (ECF No. 40.) Plaintiff filed a response on March 31, 2015, noting a lack of
clarity in this Circuit as to whether the statute of limitations in a FELA case is a
jurisdictional prerequisite to suit. (ECF No. 41 at 11.) On April 14, 2015, Def endant
filed its reply, arguing that the Fifth Circuit definitively established that FELA’s statute of
limitations is jurisdictional. (ECF No. 46 at 5-7 (citing Emmons v. S. Pac. Transp. Co.,
701 F.2d 1112, 1117 (5th Cir. 1983)).)
As is apparent from the procedural history set forth above, Defendant’s Motion is
patently untimely under the Scheduling Order. However, by moving under Rule
12(b)(1), Defendant has framed its challenge to Plaintiff’s cumulative trauma claim as a
challenge to this Court’s subject matter jurisdiction, and such a challenge may be raised
at any time. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct.
1197, 1202 (2011). Thus, whether Defendant’s Motion may be stricken as untimely or
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whether the Court must consider the Motion’s merits depends on whether it truly raises
a jurisdictional question. (See ECF No. 12 at 10.)
The U.S. Supreme Court has “urged that a rule should not be referred to as
jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter
or personal jurisdiction.” Henderson, 131 S. Ct. at 1202. “[T]he Court ha[s], in
particular, explained time and again that statutes of limitations are not always—and,
indeed, presumptively are not—jurisdictional.” Barnes v. United States, 776 F.3d 1134,
1145–46 (10th Cir. 2015) (emphasis in origina) (citing Sebelius v. Auburn Reg’l Med.
Ctr., __ U.S. __, 133 S. Ct. 817, 824 (2013)); see also Henderson, 131 S. Ct. at 1203
(“Among the types of rules that should not be described as jurisdictional are what we
have called ‘claim-processing rules.’ . . . Filing deadlines . . . are quintessential
claim-processing rules.”). However, because Congress may specify a filing deadline as
a jurisdictional condition, the Court must determine whether Congress so intended in
the statute at issue here. Barnes, 776 F.3d at 1146 (citing Auburn Reg’l, 133 S. Ct. at
824). If the statute contains a “‘clear’ indication that Congress wanted the rule to be
‘jurisdictional,’” whether through direct language or through similar treatment of a
parallel requirement, the jurisdictional indication will govern. Henderson, 131 S. Ct. at
1203. “[A]bsent such a clear statement, [the Supreme Court] ha[s] cautioned, ‘courts
should treat the restriction as nonjurisdictional in character.’” Auburn Reg’l, 133 S. Ct.
at 824 (quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 502 (2006)).
The parties’ briefing on this question ignores the Supreme Court’s prescribed
test for determining whether a statute of limitations is jurisdictional, focusing instead on

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the related question of whether the statute of limitations is an affirmative defense that
must be asserted by a defendant, or whether it is an element of the plaintiff’s case.
(See ECF Nos. 41 at 11–12; 46 at 5–7.) This latter question is easily resolved, as the
Tenth Circuit has explicitly held that a FELA plaintiff bears the burden of proving that his
claim was filed within the statute of limitations. Matson v. Burlington N. Santa Fe R.R.,
240 F.3d 1233, 1235 (10th Cir. 2001). Accordingly, the statute of limitations is an
element of a FELA plaintiff’s prima facie case, not an affirmative defense that may be
waived if not timely asserted by a defendant.
However, this does not answer the question at issue here, namely whether a
plaintiff’s failure to file a FELA claim within the statute of limitations deprives the trial
court of federal jurisdiction. Defendant relies on Emmons, arguing that the Fifth Circuit
has held that the FELA limitations period is a jurisdictional condition, but Emmons
contains no such explicit holding; rather, the Fifth Circuit established only that
compliance with the limitations requirement is an element of the claim rather than an
affirmative defense. 701 F.2d at 1117–18. The statutory provision at issue, 45 U.S.C.
§ 56, both discusses the limitations period and explains that federal courts shall have
jurisdiction, but it does not indicate that the limitations period is jurisdictional in
character. Compare 45 U.S.C. § 56 with 28 U.S.C. § 2401 (stating jurisdictional time
limit for waiver of sovereign immunity in tort claims against the United States). In short,
neither party has cited any clear indication by Congress that the FELA limitations period
was intended to be jurisdictional, and the Court has f ound none. Accordingly, pursuant
to the test articulated in Auburn Regional, the Court must treat the limitations period as

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nonjurisdictional in character. 133 S. Ct. at 824.
Because FELA’s limitations period is not jurisdictional, Defendant’s challenge
under that statute of limitations was subject to the Scheduling Order’s dispositive
motions deadline. (ECF No. 12 at 10.) The instant Motion was filed nearly ten months
after that deadline, and therefore it shall be stricken as untimely. The statute of
limitations issue will remain a question to be determined at trial.
However, the parties’ briefs have made clear that this issue merits particular
attention in this case. Accordingly, the parties shall restate their positions on the statute
of limitations issue in trial briefs, to be filed on or before May 4, 2015, and which the
Court will consider in ruling on the issue at trial.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion and Brief for Partial Dismissal
Pursuant to Fed. R. Civ. P. 12(b)(1) (ECF No. 40) is hereby STRICKEN. The parties
shall file simultaneous trial briefs on the statute of limitations issue on or before May 4,
2015.
Dated this 21st day of April, 2015.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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