Taylor v. Norfolk Southern Railway Company

Filing 32

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 2/1/2017. Mailed notice(mjc, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES TAYLOR,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant.

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Case No. 16 C 5551
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
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.
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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.
II. LEGAL STANDARD
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

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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

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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
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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 managers
often ordered plaintiff to do the actual physical work in addition to
the management of the loading and unloading of trains to expedite
the process.
(2d Am. Compl. ¶ 14)
NS, on the other hand, endeavors to show that a clear line physically and operationally
separated ITS’ and NS’ activities at the Calumet Yard. A map of the yard submitted by NS
shows a gravel road bisecting the Calumet Yard. (ECF No. 27-3 Ex. A.) According to NS’
evidence, this road separates the yard into two, distinct halves: NS conducts its operations on the
east side, and ITS operates on the west side, which it leases from NS. (See Bath Suppl. Aff. ¶¶
6–9, 16–18, ECF No. 27-3.; Lanning Suppl. Aff. ¶ 16, ECF No. 27-2.) In supplemental
affidavits, ITS’ Regional Vice President, Chicago, and NS’ Hub Manager, Chicago Intermodal
Operations, aver that, with the exception of a trailer at the entry on the yard’s west side, NS
maintains all of its permanent buildings on the yard’s east side while ITS keeps all of its trailers
on the west side. (Bath Suppl. Aff. ¶¶ 8-9; Lanning Suppl. Aff. ¶ 18.) ITS maintains the
equipment used for loading and unloading and remains contractually free to use its own
equipment and repair other equipment on the ITS side of the yard. (See ECF Bath Suppl. Aff. ¶¶
10–14.)
B. Taylor’s FELA Claim Is Not Frivolous
The Seventh Circuit considered whether a plaintiff’s claim that he was a borrowed (some
Illinois courts use the word ‘loaned’) servant or joint employee should go to a jury in Williams v.
Shell Oil Co., 18 F.3d 396 (7th Cir. 1994). ANCO Insulators, Inc. hired the plaintiff in Williams
as a laborer for a project at a Shell Oil facility. See id. at 398. The district court entered
judgment as a matter of law that Shell was not his employer, and the Williams court reversed.
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See id. at 399, 400. Applying Illinois law, it concluded that the questions of employment under
all three categories listed in Kelley were for the jury. Id. at 400 (citing Am. Stevedores Co. Inc. v.
Indus. Comm’n, 97 N.E.2d 329 (Ill. 1951)) (other citations omitted). The Williams court
reasoned that:
Here, the issue of whether the plaintiff was a loaned servant is a
close question. Although there is strong evidence supporting the
district court's conclusion that ANCO was the plaintiff's sole
employer, we are hesitant to conclude that as a matter of law
because it is such a fact intensive question. Both Shell and ANCO
apparently followed a strict “chain of command” for the most part
in giving work orders. However, Shell supervisors kept a close eye
on the work and the plaintiff alleges they were not hesitant to take
command at times and direct the contractor's workers. Based upon
the district court's consideration only of the loaned servant
doctrine, requiring total power of control, and not dual
employment which allows for shared control, we believe that the
plaintiff would be entitled to have a trial on the issue of
employment if he can sustain a cause of action as to each
remaining element.
Id. Though Williams is not a FELA case, courts in this circuit have looked to it when deciding
motions to remand in which a FELA plaintiff’s pleading of railroad employment is disputed.
See, e.g., Smith v. Norfolk S. Ry. Co., No. 09-CV-2051, 2009 WL 960684, at *3 (C.D. Ill. Apr. 8,
2009); Gowdy, 2007 WL 1958592, at *4.
In the case at hand, as in Williams, the conflicting evidence presents a close, factual
question on NS’ control of Taylor. Physical separation can weigh in favor of finding separate
employment under the FELA. See, e.g., Felton v. Se. Penn. Transp. Auth., 952 F.2d 59, 64–65
(3d Cir. 1991) (holding that record did not show joint employment in part because “[t]here is a
notable lack of physical integration between the CTD and the Regional Rail Division”). Though
further factual development would be helpful, Taylor’s contentions that NS’ role in scheduling
rail cars’ arrival times and track assignments controls the conditions of his employment appears
strained. Does an air traffic controller become a gate agent’s joint employer by assigning a flight
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to a gate? Generally, “global oversight is insufficient, as is cooperation and consultation in
coordinated operations” to create a fact question on employment. Larson v. CSX Transp., Inc.,
835 N.E.2d 138, 142 (Ill. App. Ct. 2005) (citing Ancelet v. Nat’l R.R. Passenger Corp., 913 F.
Supp. 968, 970–71 (E.D. La.1995)).
Nevertheless, Taylor’s allegation that NS supervisors sometimes broke the close chain of
command at the Calumet Yard and ordered him to perform loading work himself stands
uncontradicted by competent evidence. (See 2d Am. Compl. ¶ 14 (final sentence).); see also
Bunnell, 2007 WL 4531513, at *4 (comparing complaint’s allegations and plaintiff’s affidavit
confirming allegations with defendant’s evidence and granting motion to remand). NS’ regional
manager, Steven Lanning, states in his supplemental affidavit that “[i]f a railroad Trainmaster
has an issue that involved intermodal operations, he communicates with the [NS] Intermodal
Manager, or the [NS] Division Manager, or me. He would not get involved with ITS.” (ECF No.
27-2 ¶ 7.) Even if this statement can be viewed in a light favorable to NS as reflecting official
policy, Lanning’s affidavit does not demonstrate that he has personal knowledge of the day-today operations at the Calumet Yard and, therefore, whether the purported policy is followed or,
as Taylor alleges, NS employees sometimes direct Taylor to load and unload cars personally.
(See id. ¶¶ 1, 5 (averring that his office is located at 347 W. 47th Street, Chicago, IL, and stating
that division manager in charge of Calumet Yard does not work at that site on a daily basis)).
Put another way, Lanning’s affidavit does not demonstrate that he has the personal knowledge
needed to create a factual dispute about Taylor’s allegations that NS employees sometimes
ordered him to perform loading work. 1 See Simpson v. Franciscan Alliance, Inc., 827 F.3d 656,

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Taylor also alleges that “[t]he work performed by plaintiff historically was performed by railroad employees.” (2d
Am. Compl. ¶ 19.) NS disputes this assertion. (Lanning Suppl. Aff. ¶ 19, ECF No. 27-2.) The court need not, and
does not, resolve this factual dispute, but it notes that ITS operates as NS’ contractor at its three other locations in

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662 (7th Cir. 2016) (finding insufficient evidence of personal knowledge because the witness
“d[id] not explain how she possibly could possess personal knowledge” of information usually
“kept between the employee and the supervisor”); Ani-Deng v. Jeffboat, LLC, 777 F.3d 452, 455
(7th Cir. 2015) (holding human resource manager’s affidavit failed to show how she had
personal knowledge of the “real reason” the plaintiff’s immediate supervisor demoted him).
In sum, then, NS has adduced some evidence that NS and ITS were physically separated
and maintained separate operations. But in well-pleaded allegations, Taylor sets forth facts that,
if true, show that NS “supervisors kept a close eye on the work and the plaintiff alleges they
were not hesitant to take command at times and direct the contractor's workers.” Williams, 18
F.3d at 400. In Williams, the Seventh Circuit held that a jury should decide the question of
employment in materially similar circumstances. See id.; see also Kottmeyer v. Consol. Rail
Corp., 424 N.E.2d 345 (Ill. App. Ct. 1981) (holding evidence presented fact question for jury
based on evidence that plaintiff worked for railroad subsidiary, railroad owned premises, and
railroad’s terminal manager sometimes told plaintiff and other employees of subsidiary to work
more quickly and check contents of trailers).
Since Taylor has pleaded enough facts to send the question of employment to a jury, 2
even when weighed in light of NS’ conflicting evidence, his FELA claim is not frivolous. See
Smith, 2009 WL 960684, at *3; Gowdy, 2007 WL 1958592, at *4; cf. Bunnell, 2007 WL
the Chicago area. (See Bath Suppl. Aff. ¶ 3, ECF No. 27-3 (explaining that operating agreement governs operations
at other three locations).)
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Taylor also alleges that he was on his way to a meeting NS employees “ordered” him to attend when he was
injured. (2d Am. Compl. ¶ 6). NS’ evidence sheds little further light on the meeting’s purpose. To be a borrowed
servant, the Restatement says that a person must be “employed to perform services in the affairs of another and who
with respect to the physical conduct in the performance of the services is subject to the other's control or right to
control.” Staschke v. Grand Trunk W. R.R. Inc., No 96 C 5755, 1998 WL 245867, at *2 (N.D. Ill. Apr. 24, 1998)
(quoting Restatement (Second) of Agency § 220 (1957) (defining “servant”)). NS has not shown at this point that a
reasonable fact finder would be precluded from finding that Taylor was serving NS when the accident allegedly
occurred. See id. at *4 (denying summary judgment because plaintiff submitted evidence that railroad dispatcher
told him where to enter its track, and he was injured while he attempted to operate railroad’s switch at the crossing).

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4531513, at *3–4 (granting motion to remand under Williams based on allegations and plaintiff’s
affidavit that railroad had right to fire him and controlled, among other things, specific job
duties, hours, and equipment used).
IV. CONCLUSION
For the reasons given above, Plaintiff’s motion to remand (ECF No. 7) is granted. This
case is remanded to the Circuit Court of Cook County, Illinois, in accordance with 28 U.S.C. §
1445(a).

Date: February 1, 2017

/s/
Joan B. Gottschall
United States District Judge

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