Kyser v. Connecticut Southern RR et al
RULING (see attached) denying 15 Motion for Leave to File Third-Party Complaint by defendant Connecticut Southern Railroad. Signed by Judge Charles S. Haight, Jr. on July 3, 2013. (Dorais, L.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
JOHN W. KYSER,
3:13 - CV - 86 (CSH)
CONNECTICUT SOUTHERN RAILROAD
and GENNESEE & WYOMING, INC.,
JULY 3, 2013
RULING ON MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT
HAIGHT, Senior District Judge:
Plaintiff John W. Kyser brings this action to recover damages for injuries he sustained while
working as a trainman for defendants Connecticut Southern Railroad (“CSO”) and Gennesee &
Wyoming, Inc. (“Gennesee”), t/a Gennesee Western Railroad, (collectively, “Defendants”) on
November 18, 2011. On that date, at approximately 2:30 a.m., Plaintiff engaged in the removal of
a handbrake from a tanker car of a train located at a chemical plant in Wallingford, Connecticut.
Doc. #1, ¶ 10. Plaintiff alleges that, as a result of Defendants’ negligence, the handbrake
“malfunctioned and would not properly release,” causing Plaintiff to sustain “serious, painful and
permanent personal injuries.”1 Id. He seeks recovery for said injuries under the Federal Employer’s
Plaintiff prays for “a sum in excess of . . . $150,000.000,” based on his personal
injuries, which he alleges include injuries “to his body, . . its bones, cells, tissues, nerves, muscles
and functions,” “injuries to his spine, ribs, chest, back and torso,” and “rib fracture, [and] nerve
damage.” Doc. #1, ¶ 12. Plaintiff further alleges that he ?has been diagnosed with reflex
sympathetic dystrophy syndrome,” has undergone “a series of epidural injections and will be having
a spinal cord stimulator surgically inserted.” Id.
Liability Act, 45 U.S.C. § 51, et seq., and the Federal Safety Appliances Act, 49 U.S.C. § 20301,
et seq., which, in conjunction, impose absolute and mandatory duties upon railroad carriers to keep
certain appliances and equipment on railroad cars in the prescribed condition.2
Defendants contend that Plaintiff’s damages and injuries were sustained due to “his own
carelessness and negligence in that he continued to attempt to loosen the handbrake which he claims
was excessively stiff and difficult to release and did not stop performing the task and seek
assistance.” Doc. #12 (“Answer”), p. 2 (“First Affirmative Defense”). They also assert that
defendant Gennesee & Wyoming, Inc. is a separate and distinct corporation from CSO, so that
Gennesee has no potential liability in this action. Doc. #10, p. 3. Furthermore, Defendants contend
that the incident of November 18, 2011 was not the cause, in whole or part, of Plaintiff’s claimed
injuries. Id. See also Doc. #12, p. 2 (“Third Affirmative Defense”) (“If the plaintiff sustained the
damages and injuries as alleged then same were caused in whole or part by the acts of a third party
occurring on November 22, 2011.”); Doc. #15-1 (Proposed “Third Party Complaint against InfraMetals Co.”), p. 3, ¶ 8 (“The injuries the Plaintiff claims to have sustained on November 18, 2011
were aggravated or wholly caused by the incident of November 22, 2011.”).
Pending before the Court is the motion of defendant CSO for leave to file a third party
complaint against Infra-Metals Company (“Infra-Metals”) on the ground of indemnity. Doc. #15.
“In the case of a railroad employee engaged in interstate commerce, the right of action
[for injuries sustained due to improperly maintained equipment] is found in FELA.” 11 Am. Jur.
Trials 397 (Westlaw update May 2013). “The Safety Appliance Acts . . . are considered
substantively, if not in form, as amendments to the Federal Employers’ Liability Act . . . [so that]
an employee injured by virtue of a violation of the Safety Appliance Acts . . . may bring suit under
FELA, charging violation of [that] statute as the ground of recovery.” Id.
CSO bases its motion on the underlying premise that Plaintiff’s injuries, if any, actually stem from
an incident that occurred on November 22, 2011 – four days after Plaintiff’s removal of the
allegedly defective handbrake on November 18, 2011. CSO’s theory is that the negligence of InfraMetals caused the November 22, 2011 incident and Infra-Metals must indemnify CSO for any
damages relating to that incident.
Specifically, CSO asserts that Plaintiff “completed his shift on November 18, 2011 and
completed each of his scheduled shifts in the days following.” Id., p. 1. Then, on November 22,
2011, he “was involved in an incident in which he jumped off a moving train car just before it
collided with construction equipment that was fouling the tracks. ” Id. That “construction equipment
was being operated by an employee of Infra-Metals.” Id., p. 2. On November 26, 2011, Plaintiff
reported both the November 18 and 22 incidents to CSO for the first time. Id.
CSO represents that Infra-Metals had exclusive control over the condition which gave rise
to the November 22, 2011 incident, the operation of a “man lift” on the tracks. Id. Therefore, it was
the “negligence of Infra-Metals [that] was the direct and immediate cause of the alleged accident and
resulting injuries of the Plaintiff” on November 22, 2011. Id. In sum, “[i]f any negligence other
than the Plaintiff’s negligence caused the November 22, 2011 incident, it was the active negligence
of Infra-Metals that was the cause.” Id.
Furthermore, CSO asserts that “at all relevant times, CSO and Infra-Metals were parties to
a Trackage Agreement,” under which Infra-Metals was required to indemnify CSO for “all
liabilities, claims, costs and reasonable attorney fees resulting from any and all property damage,
personal injuries or deaths, including employees and agents of Railroad [CSO] and Industry [InfraMetals] . . . caused by or arising out of [Infra-Metals]’s failure to perform any of its obligations under
this Agreement, [including] the presence, maintenance, use or removal of the Sidetrack” upon which
the November 22, 2011 incident occurred. Id. See also Doc. #15-1 (“Trackage Agreement”), p. 17,
¶ 17 (“Indemnity”). In sum, CSO asserts that because “some or all of the injuries the Plaintiff
claims in this lawsuit were caused by the incident of November 22, 2011,” that “incident was the
result of Infra-Metals’ negligence,” and Infra-Metals agreed to indemnify CSO for all such claims
arising from the presence, maintenance and/or use of the Sidetrack, CSO should be permitted to
serve a summons and complaint upon Infra-Metals pursuant to Rule 14(a)(1), Fed. R. Civ. P. See
Doc. #15-1, p. 2-6 (two-count “Third Party Complaint,” asserting common law and contractual
Plaintiff has not responded to CSO’s motion to implead Infra-Metals. The prescribed
response period of twenty-one days following filing of the motion has expired and Plaintiff has
proffered no objection. See D. Conn. L. Civ. R. 7(a)(1) (“Unless otherwise ordered by the Court,
all memoranda in opposition to any motion shall be filed within twenty-one (21) days of the filing
of the motion . . .”).
Under Federal Rule of Civil Procedure 14(a)(1), “[a] defending party may, as third-party
plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part
of the claim against it.” By design, Rule 14(a) “promote[s] judicial economy by eliminating the need
for a defendant to bring a separate action against a third-party who may be secondarily or
derivatively liable to the defendant for all or part of the plaintiff’s claim.” Hines v. Citibank, N.A.,
96 CV 2565(RJW), 1999 WL 440616, *2 (S.D.N.Y. June 28, 1999) (citation omitted). Nonetheless,
“the right to implead third parties is not automatic,” Consolidated Rail Corp. v. Metz, 115 F.R.D.
216, 218 (S.D.N.Y.1987); and the decision whether to permit a defendant to implead a third party
rests within the sound discretion of the trial court, Kenneth Leventhal & Co. v. Joyner Wholesale
Co., 736 F.2d 29, 31 (2d Cir. 1984) (per curiam).
Subject Matter Jurisdiction
Before examining the substance of the third party claims, it is incumbent on the Court to
determine whether there is adequate subject matter jurisdiction over the third party claims.3 An
impleader claim, as every other claim in federal court, must be assessed individually to confirm the
existence of a proper basis for federal subject matter jurisdiction. See Caterpillar, Inc. v. Lewis, 519
U.S. 61, 66 n. 1 (1996) (“Once federal subject matter jurisdiction is established over the underlying
case between [plaintiff] and [defendant], the jurisdictional propriety of each additional claim is to
be assessed individually.”) (emphasis added). “[W]hether a court has subject matter jurisdiction over
a third-party . . . , is distinct from an assessment of the propriety and merits of an impleader action.”
Bank of India v. Trendi Sportswear, Inc., 239 F.3d 428, 438 (2d Cir.2000).
In the present action, there is “federal question” subject matter jurisdiction over the Plaintiff’s
main action in that Plaintiff includes claims arising under federal statutes, namely the FELA, 45
U.S.C. § 51, et seq., and Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq. See 28 U.S.C.
§ 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
With respect to the proposed third party claims, however, CSO alleges only common law
The Court notes that CSO failed to address subject matter jurisdiction in either the
motion for leave to file a third party complaint or the proposed Third Party Complaint itself.
claims, “common law indemnification” and “contractual indemnification,” which arise under state
law. On its face, the Third Party Complaint presents no facts or circumstances which potentially
give rise to a federal claim under the Constitution or federal statute. In the absence of “federal
question” jurisdiction, there generally must be subject matter jurisdiction based on “diversity of
citizenship” for the claims to proceed. The party bringing the action must establish that the plaintiff
and defendant are “citizens of different States” and “the matter in controversy exceeds the sum or
value of $75,000.” See 28 U.S.C. § 1332(a)(1).
With respect to the proposed impleader, CSO has failed to allege sufficient facts to establish
diversity of citizenship of the parties. Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall
be deemed to be a citizen of any State by which it has been incorporated and of the State where it
has its principal place of business.” CSO has merely alleged that “CSO was a railroad corporation
existing under the laws of the State of Delaware” and “at all relevant times, the Third-Party
Defendant, Infra-Metals, was a corporation existing under the laws of the State of Georgia.” Doc.
#15-1, ¶¶ 1-2. CSO fails to specify whether CSO and Infra-Metals were incorporated in more than
one state – i.e., in states other than Delaware and Georgia, respectively. Also, CSO fails to provide
the location of the principal places of business of CSO and Infra-Metals. Based on the deficient
factual allegations of the Third Party Complaint, the Court cannot determine whether “diversity”
subject matter jurisdiction exists over the third party claims.
As to jurisdictional amount, Plaintiff claims damages in excess of $150,000 in his Complaint,
Doc. #1, p. 4; and CSO’s Third Party Complaint requests “indemnification against any judgment
which may be rendered against CSO,” Doc. #15-1, p. 6. By implication, the jurisdictional amount
of $75,000 may be met, although not explicitly delineated, in the Third Party Complaint. CSO has,
however, failed to pray explicitly for an amount exceeding $75,000.
In the absence of “federal question” or established “diversity” subject matter jurisdiction over
a third party complaint, the Court next turns to examine whether supplemental jurisdiction exists
under 28 U.S.C. § 1367.4 That statute provides that “in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.
§ 1367(a) (emphasis added). “Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.” Id. Consistent with the Supreme Court’s holding in
United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), claims over which supplemental
jurisdiction is asserted and the original action must arise from a “common nucleus of operative fact.”
As set forth supra, Plaintiff’s underlying action includes federal claims under FELA, 45
U.S.C. § 51, et seq., and the Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq. If the
claims in the proposed Third Party Complaint arise from the same nucleus of operative fact as
Plaintiff’s Complaint, the Court may exercise supplemental jurisdiction. See, e.g., Coale v. MetroNorth R.R. Co., No. 3:08–CV–01307 (CSH), 2009 WL 212063, at * 1-2 (D.Conn. Jan. 29, 2009)
(recognizing supplemental jurisdiction with respect to interstate railroad carrier’s third-party
common law indemnity claim in relation to plaintiff railroad worker’s personal injury action under
the FELA); McMillan v. Equifax Credit Information Services, Inc., 153 F.Supp.2d 129, 131
See, e.g., RBS Citizens, N.A. v. Portugal, No. 3:10 CV 1306, 2011 WL 4101475, at *5
(D.Conn. Sept. 14, 2011) (“Since diversity is lacking, the Court has no independent basis for
jurisdiction of these [third party] claims beyond its authority to consider them pursuant to
supplemental jurisdiction.”) (internal quotations and citation omitted).
(D.Conn. 2001) (where plaintiff borrower alleged bank violated Fair Credit Reporting Act and bank
alleged such violations were result of son’s fraudulent use of plaintiff’s personal identifying
information,“the Court conclude[d] that the alleged acts of the son [we]re sufficiently related to the
original case to provide supplemental jurisdiction over the [bank’s] third-party claims”).
The Second Circuit has held that “disputes are part of the same case or controversy within
§ 1367 when they derive from a common nucleus of operative fact.” Achtman v. Kirby, McInerney
& Squire, LLP, 464 F.3d 328, 335 (2d Cir.2006) (internal quotations omitted). “In determining
whether two disputes arise from a common nucleus of operative fact, [the Second Circuit has]
traditionally asked whether the facts underlying the federal and state claims substantially overlapped
or the federal claim necessarily brought the facts underlying the state claim before the court.” 464
F.3d at 335 (internal quotations and punctuation omitted).
In the case in suit, it is clear that the disputes are not part of the same case or controversy.
The main claim in the Complaint and the proposed impleader action arise from two distinct sets of
facts. The main claim is directed to an incident that took place on November 18, 2011, involving
Plaintiff’s removal of an allegedly defective handbrake. Plaintiff asserts that Defendants negligently
maintained said handbrake.
The impleader action is addressed to a track-related accident that
occurred on November 22, 2011. CSO claims that Infra-Metals negligently operated a “man lift”
on the Sidetrack (“Track 1952), causing Plaintiff to jump out of a moving train before it collided
with the lift that was “fouling Track 1952.” Doc. #15-1, ¶ 7. The impleader action seeks
indemnification for injuries Plaintiff sustained on November 22, 2011. The only fact in common
in both actions is that Plaintiff was allegedly injured on both occasions.5 The actions do not overlap
or derive from a common nucleus of operative fact.
Although supplemental jurisdiction may extend to third party claims based on
indemnification, the indemnification must relate to damages sought in the main action. Here, the
impleader relates solely to injuries stemming from a separate, later occurrence. Consequently, the
Court does not have supplemental jurisdiction over the Third Party Complaint. See, e.g., Azevedo
v. Club Getaway, Inc., No. 3:06–cv–1222 (VLB), 2008 WL 350479, at * 2 (D.Conn. Feb. 7, 2008)
(declining to exercise supplemental jurisdiction “[a]s there is no common nucleus of operative facts,
nor any overlap between the facts necessary to prove the claims in the complaint and the third party
Furthermore, even if CSO were able to plead additional facts necessary to establish diversity
Although CSO acknowledges in the Third Party Complaint that Plaintiff’s claims stem
from the November 18, 2011 incident, Doc. #15-1, ¶¶ 5-6, CSO plainly seeks recovery from InfraMetals for Plaintiff’s damages that were “aggravated or wholly caused by the incident of November
22, 2011,” id., ¶¶ 7-8.
In Azevedo, 2008 WL 350479, plaintiff filed a negligence action for personal injuries
she allegedly sustained while riding on a boat owned or operated by defendants. The defendants
then impleaded their insurers, asserting claims of negligence, bad faith, breach of fiduciary duty,
breach of contract, and willful, wanton and reckless conduct in the creation of an insurance policy
for defendants. Despite an express watercraft exclusion in the insurance policy at issue, defendants
claimed that the insurers “may be liable for all or a portion of the plaintiff’s claims.” 2008 WL
350479, at *1. In holding that there was no supplemental jurisdiction over the third party claims,
Judge Bryant explained:
The claims in the complaint and third party complaint are completely separate and
distinct. There is no overlap. They involve different allegations of facts involving
different actors and time periods. The evidence necessary to prove the claims would
be found in different documents and offered through different witnesses.
Id., at *2. In the absence of the requisite “common nucleus of operative facts,” the court lacked
subject matter jurisdiction and the third party complaint was necessarily dismissed. Id.
jurisdiction or the Court employed an exceedingly broad brush to sweep the third party claims within
the factual nucleus of the main Complaint, thereby accepting supplemental jurisdiction, the proposed
third party claims could still not proceed. Federal Rule 14(a) of Civil Procedure only permits a
defendant to file a third party complaint against a party that “may be liable to it for all or part of the
claim against it.” As set forth below, Rule 14(a) does not permit the proposed third party claims.
Standard for Impleader - Rule 14(a), Fed. R. Civ. P.
It is well-settled that a third-party action, also known as an impleader action, “must be
dependent on, or derivative of, the main . . . claim.” Bank Of India v. Trendi Sportswear, Inc., 239
F.3d 428, 438 (2d Cir.2000). The Second Circuit has explained that a defending party may assert
a third party claim when either (1) the third party’s liability is “dependent upon the outcome of the
main claim” or (2) the third party is “potentially secondarily liable as a contributor to the defendant.”
Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29. 31 (2d Cir. 1984). See also Siemens
Westinghouse Power Corp. v. Dick Corp, 299 F. Supp. 2d 242, 248 (S.D. N.Y. 2004) (“The crucial
characteristic of a Rule 14 claim is that defendant is attempting to transfer to the third-party
defendant the liability asserted against him by the original plaintiff. In other words, the outcome of
the third-party claim must be contingent on the outcome of the main claim[.]”) (internal quotations
and citations omitted); 6 Charles Alan Wright & Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 1446, at 377 (3d ed.) (“A third-party claim may be asserted under Rule
14(a)(1) only when the third party’s liability is in some way dependent on the outcome of the main
claim or when the third party is secondarily liable to the defending party.”).
Generally, the traditional grounds for a third-party action are indemnification, contribution,
or subrogation. Doucette v. Vibe Records, Inc., 233 F.R.D. 117, 120 (E.D.N.Y. 2005). See also
Federal Practice and Procedure § 1446 (“The secondary or derivative liability notion is central,” such
that impleader is often successfully used “when the basis of the third-party claim is indemnity.”).
“A third-party complaint is a narrow device and cannot be used to bring in other matters that may
have some relationship to the case.” Doucette , 233 F.R.D. at 120.
In the case at bar, CSO seeks to implead Infra-Metals on the ground that, under common law
and pursuant to an explicit “Tracking Agreement,” Infra-Metals is bound to indemnify CSO for
Plaintiff’s injuries, which CSO contends were actually sustained as the result of the November 22,
2011 track incident. In general, as set forth supra, indemnity is a valid and recognized basis upon
which to implead a third party. However, CSO’s present motion is problematic in that the
indemnity sought relates to damages from an incident outside of the Complaint. Therefore, the
outcome of the third party claim is not contingent upon the outcome of Plaintiff’s main claims; and
contingency is a crucial element for impleader under Rule 14(a), Fed. R. Civ. P.
Put simply,, CSO seeks to implead Infra-Metals for injuries stemming from an incident
which is not the basis of Plaintiff’s claims. Plaintiff seeks damages only for injuries resulting from
his attempted removal of a faulty handbrake on November 18, 2011. Nowhere in Plaintiff’s
Complaint does he reference or describe the November 22, 2011 track-related incident during which
he allegedly “ jumped off a moving train car just before it collided with construction equipment that
was fouling the tracks.” Doc. #15, p. 1. Any injuries stemming from the track-related incident do
not form the basis for his present claim. In sum, the Complaint does not address the same
transaction or occurrence which gives rise to the claims in the proposed Third Party Complaint.
Furthermore, CSO does not allege facts in the proffered Third Party Complaint to suggest
that Infra-Metals is potentially secondarily liable as a contributor with respect to the damages
resulting from the handbrake incident. CSO does not assert that Infra-Metals had any responsibility
for or involvement with the allegedly faulty handbrake on November 18, 2011. Rather, CSO’s sole
argument to implead Infra-Metals is that Infra-Metals is liable for injuries sustained by Plaintiff in
a separate incident involving the Sidetrack. Because Plaintiff seeks recovery only for alleged
injuries arising from removal of the handbrake, the indemnity agreement between CSO and InfraMetals does not come into play.
Rule 14(a) dictates that a defending party may only serve a third party complaint on a
nonparty if that nonparty “is or may be liable to [the defendant] for all or part of the claim against
it” – not for claims outside of the complaint. See, e.g., Tyson v. Cayton, No. 88 Civ. 8398(JFK),
1990 WL 209381, at *3 (S.D.N.Y. Dec.10,1990) (throwing out third party tort and antitrust claims
of boxing manager and management companies against promoter Don King where their outcome
was not contingent on resolution of main claim by “Iron Mike” Tyson for breach of contract against
managers); Doucette, 233 F.R.D. at 120-21 (dismissing third party complaint as improper under Rule
14(a) where third party claims of Vibe Records for, inter alia, tortious interference with contractual
relations, civil conspiracy and copyright infringement against other recording and entertainment
companies were neither “derivative of or dependent on the liability asserted” in plaintiff singer’s
main claims for breach of contract against Vibe).
To make matters clear, the Court does not mean to say that the actual cause of Plaintiff’s
alleged injuries in the present action is not relevant or important. If the jury, as finder of fact,
determines that Plaintiff’s alleged injuries actually stem in whole or in part from incidents outside
the handbrake removal on November 18, 2011 – including, but not limited to, the track-related
incident on November 22, 2011 – CSO will not be held liable for such injuries in this action.
Plaintiff must prove that the damages he seeks actually resulted from the handbrake incident, which
forms the basis of his claims. Only injuries arising from the claims within his Complaint may
comprise the potential bases for an award of damages in this action. Damages stemming from other
occurrences, if any, will be offset.7
The proposed Third Party Complaint is improper under Rule 14(a). The Court will deny
CSO’s motion to implead Infra-Metals because it is neither dependent upon nor derivative of the
main claim in suit.
For all of the foregoing reasons, the Court DENIES CSO’s “Motion for Leave to File Third-
Party Complaint” (Doc. #15) against Infra-Metals. Plaintiff has failed to establish subject matter
jurisdiction and the Court lacks supplemental jurisdiction over the proposed third party claims.
Furthermore, the third party claims may not, in any event, proceed under Federal Rule of Civil
Procedure 14(a) in that they are not dependent upon the outcome of Plaintiff’s claims.
It is SO ORDERED.
Dated: New Haven, Connecticut
July 3, 2013
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
SENIOR UNITED STATES DISTRICT JUDGE
Furthermore, the pleadings are now closed in this action. The deadline for filing motions
to amend the Complaint, May 1, 2013, has expired. Doc. #11. Therefore, absent a motion for leave
to amend, demonstrating either “the opposing party’s written consent” or reasons why “justice so
requires” amendment, the Complaint shall remain as filed. See Fed. R. Civ. P. 15(a)(2).
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