Blanchard v. Union Pacific Railroad Company

Filing 25

ORDER granting 12 Motion to Dismiss. The Court DISMISSES with prejudice defendant's counterclaim. The Court DIRECTS the Clerk of the Court to enter judgment at the close of the case. See Order for details. Signed by Judge David R. Herndon on 2/1/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RANDALL S. BLANCHARD,
Plaintiff,
v.

No. 15-0689-DRH

UNION PACIFIC RAILROAD CO.,
Defendant.

MEMORANDUM and ORDER

HERNDON, District Judge:
I.

Introduction and Background

Now before the Court is plaintiff/counterdefendant Randall S. Blanchard’s
motion to dismiss the railroad’s counterclaim (Doc. 12). Blanchard contends that
the counterclaim should be dismissed with prejudice as it fails to state a claim and
that “the filing and pursuit of the Counterclaim herein violates 45 U.S.C. §§ 55 and
60 and the public policy expressed in the FELA, as it is an attempt at a set-off and is
a ‘device’ through which Counterplaintiff seeks to exempt itself from its liability
under FELA; furthermore, it is a ‘device,’ the purpose or intent of which is to
prevent Counterplaintiff’s employees from furnishing voluntary information
regarding the accident on May 25, 2013.” Obviously, Union Pacific opposes the
motion contending that it has a right to recover from its employee the sums it is
required to pay others because of its employee’s negligence (Doc. 16). Based on
the following, the Court agrees with Blanchard and GRANTS the motion to dismiss
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the counterclaim (Doc. 12).
On June 23, 2015, Randall S. Blanchard filed a two count first amended
complaint against Union Pacific Railroad Company (“Union Pacific”) pursuant to
the Federal Employer’s Liability Act, (“FELA”), 45 U.S.C. § 51, et seq., (Count I) and
pursuant to the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701, et seq.,
(Count II) (Doc. 5).

Blanchard seeks damages for bodily injury he suffered on or

about May 25, 2013, as a result of a train collision which occurred while Blanchard
was working within the course and scope of his employment as a locomotive
engineer with Union Pacific. Specifically, the train that Blanchard was operating
collided at a railroad crossing near Chaffee, Missouri with a BNSF Railway freight
train.

Thereafter, Union Pacific filed its answer (Doc. 8) and a counterclaim

against Blanchard for damages it “has sustained or will sustain in the future as a
result of the damage to person, property, and equipment involved in this
accident….” (Doc. 9).
II.
A

motion

under Rule

Analysis

12(b)(6) tests

whether

the

complaint

states

a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637
(7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the
defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).
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Under federal notice-pleading standards, a plaintiff's “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id. Stated differently,
“a complaint must contain sufficient factual matter, accepted as true, to 'state
a claim to relief that is plausible on its face.”' Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

the

misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 570, 556 (2007)). “In reviewing the
sufficiency of a complaint under the plausibility standard, [courts must] accept the
well-pleaded facts in the complaint as true, but [they] 'need[ +] not accept as true
legal conclusions, or threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.”' Alam v. Miller Brewing Co., 709 F.3d
662, 665–66 (7th Cir. 2013) (quoting Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009)).
The FELA provides that railway employees enjoy a right of recovery for injury
or death resulting in whole or in part from the negligence of any of the officers,
agents or employees of the common carrier by railroad by whom said employees
are employed. 45 U.S.C. § 51. In Sinkler v. Missouri Pacific Railroad Co., 356 U.S.
326 (1958), the Supreme Court stated that the FELA:
was a response to the special needs of railroad workers who are daily
exposed to the risks inherent in railroad work and are helpless to
provide adequately for their own safety. The cost of human injury, an
inescapable expense of railroading, must be borne by someone, and
the FELA seeks to adjust that expense between the worker and the
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carrier.

Id. at 329 (citations omitted). The FELA provides injured workers with their
exclusive remedy against their employers for injuries resulting from their
employer’s negligence. New York Central Railroad Co. v. Winfield, 244 U.S. 147,
151-52 (1917). To further the humanitarian purpose of the FELA, Congress
eliminated several common-law tort defenses that had traditionally restricted
recovery by injured workers. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542
(1994).
Section 5 of the FELA provides:
Any contract, rule, regulation, or device whatsoever, the purpose or
intent of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter, shall to that extent be void:
Provided, That in any action brought against any such common carrier
under or by virtue of any of the provisions of this chapter, such
common carrier may set off therein any sum it has contributed or paid
to any insurance, relief benefit, or indemnity that may have been paid
to the injured employee or the person entitled thereto on account of the
injury or death for which said action was brought.
45 U.S.C. § 55.
Section 10 of the FELA provides in part:
Any contract, rule, regulation, or device whatsoever, the purpose or
intent, or effect of which shall be to prevent employees of any common
carrier from furnishing voluntarily information to a person in interest
as to the facts incident to the injury or death of any employee, shall be
void.
45 U.S.C. § 60.
The Court notes, as the parties do, that the Seventh Circuit Court of Appeals
has not addressed this exact issue and that there is a split among the circuits on
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this issue. 1 Here, the Court agrees with plaintiff and finds that the counterclaim
must be dismissed.

The Court is persuaded that the reasoning and rationale

utilized by the undersigned in In re National Maintenance & Repair, Inc.,
09-0676-DRH, Doc. 42, is correct and equally applicable to the FELA and the facts
of this case.

In that case, the Seventh Circuit in affirming the undersigned held

that “combining a property-damage counterclaim with a limitation of liability in
order to wipe out a substantial personal injury claim under the Jones Act is a
liability-exempting device forbidden by the Act.” Deering v. Nat’l Maint. & Repair,

Inc., 627 F.3d 1039, 1048 (7th Cir. 2010)(Posner, J). While Deering examined
decisions from a number of other circuits (see footnote one below) and the State of
Washington and the issue decided was not relevant to the issue of concern in the
case at bar, the discussion therein is instructive for the matters at hand. The

Deering Court discusses the statutory construction of the fifth section of the FELA,
the principal focus of the dispute here, and seems to find favor with the author,
William P. Murphy, “Sidetracking the FELA: The Railroads’ Property Damage
Claims,” 69 Minn. L.Rev. 349. In examining the issue of why Congress wasn’t
simply very specific about disallowing counterclaims, rather than leaving the courts
of the succeeding years to interpret the language of any device whatsoever, Murphy
pointed out, and the 7th Circuit alluded to, the reality of the day. On page 371 of
1 The Court respectfully disagrees and declines to follow the First, Fourth, Fifth, and Eighth
Circuits’ decisions holding that an employer, in an action under the FELA or Jones Act, may pursue
a counterclaim against the employee for damage to the employer’s property. See Sprague v. Boston
and Maine Corp., 769 F.2d 26 (1st Cir. 1985); Cavanaugh v. Western Maryland Ry. Co., 729 F.2d
289 (4th Cir. 1984); Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 2005); Nordgren v.
Burlington Northern R. Co., 101 F.3d 1246 (8th Cir. 1996).

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the article, the author points out that one would not expect, in 1906 and 1908,
Congress to anticipate “setoffs sounding in assumpsit could be raised against
injured workers suing in trespass on the case. Moreover, the prevalence of the
contributory negligence bar in pre-FELA common law also explains Congress’
failure to enact an express prohibition of employers’ property damage
counterclaims in FELA suits.” 69 Minn. L.Rev. 349 at 371.
Based on the rationale from Deering and the cases cited below, the Court
finds that counterclaim of the case at bar is “a ‘device’ calculated to intimidate and
exert economic pressure on Blanchard, to curtail and chill his rights and ultimately
to exempt the railroads from liability under FELA.”

Cavanaugh, 729 F.2d at

295-96 (1984) (Hall, J. dissent) 2; Stack v. Chi., Milwaukee, St. Paul and Pac. R.R.,
94 Wash.2d 155, 615 P.2d 457 (1980)(The Washington Supreme Court similarly
found that employer negligence counterclaims violate Section 5 of FELA because
such suits limit employer liability, as employees would then be reluctant to file
FELA actions); Kozar v. Chesapeake & Ohio Ry., 320 F.Supp. 335, 383-85 (W.D.

2 Specifically, Judge Hall found:
In my view, the railroads’ counterclaim is a “device” calculated to intimidate and exert economic
pressure upon Cavanaugh, to curtail and chill his rights, and ultimately to exempt the railroads from
liability under the FELA. Here, as in Stack, the railroads’ counterclaim violates 45 U.S.C. § 55
“because the ultimate threat of ‘retaliatory’ legal action would have the effect of limiting [the
railroads’] liability by discouraging employees from filing FELA actions. Further, it would have the
effect of reducing an employee’s FELA recovery by the amount of property damage negligently caused
by the employee.” To allow the railroads’ counterclaim to proceed would pervert the letter and spirit
of the FELA and would destroy the FELA as a viable remedy for injured railroad workers. The result
sought by the railroads, and accepted by the majority, defies common sense and is repugnant to the
general goal of the FELA to compensate railroad workers for injuries negligently inflicted by their
employers.
Cavanaugh, 729 F.2d at 296, C.J. Hall, dissenting (citations omitted).

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MI. 1970)(Use of coercive tactics to discourage resort to FELA litigation creates
“impermissible chill on rights created by Congress,” which chill extends not only to
FELA plaintiffs, but to all employees and their families-leading to intolerable
results); Yoch v. Burlington N.R.R., 608 F.Supp. 597, 598 (D. Colo. 1985)(District
Court adopted Stack’s rationale in dismissing $5 million property damage
counterclaim that when injured railroad worker asserts claim under FELA,
railroad defendant may not counterclaim for property damage caused in
occurrence which gave rise to the employee’s injuries or death.); Waisonovitz v.

Metro-North Commuter Railroad 462 F.Supp.2d 292 (D. Conn. 2006)(Railroad,
which was liable for injuries sustained by employee in a train accident, was barred
from seeking contribution or indemnification under FELA from a co-employee);

Illinois Central Gulf Railroad Co. v. Haynes, 592 So.2d 536 (Ala. 1991)(Employer
could not maintain a third-party complaint against co-employee of injured worker
for indemnity for amounts it might be required to pay worker for his personal
injuries when the claim arose out of the same operative facts giving rise to the
worker’s FELA claims). Thus, the Court concludes that allowing the counterclaim
violates 45 U.S.C. § § 55 & 60, and the public policy reflected in the FELA. Ruling
the way Union Pacific argues and as the other circuit courts did “will not only
contravene the law, but will place an insurmountable chill on the longstanding
rights of admiralty and rail workers to pursue their on duty injury claims. If an
injured worker has to fear a counter-claim every time he or she pursues the right to
bring a suit for that injury, that worker will be less likely to exercise that right.” In
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re National Maintenace & Repair, Inc., 09-676-DRH; Doc. 42, p. 7.
III.

Conclusion

Accordingly, the Court GRANTS Blanchard’s motion to dismiss Union
Pacific Railroad Company’s counterclaim (Doc. 12). The Court DISMISSES with
prejudice Union Pacific Railroad Company’s counterclaim (Doc. 9). The Court
DIRECTS the Clerk of the Court to enter judgment reflecting the same at the end of
the case.
IT IS SO ORDERED.
Signed this 1st day of February, 2016.

Digitally signed
by Judge David
R. Herndon
Date: 2016.02.01
16:02:05 -06'00'

United States District Judge

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