McDonald v. Kansas City Southern Railway Company
ORDER AND REASONS granting 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah S. Vance on 5/3/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
INDIVIDUALLY & AS PERSONAL
REPRESENTATIVE OF ESTATE OF
JOHNNIE MCDONALD, DECEASED
KANSAS CITY SOUTHERN
SECTION “R” (3)
ORDER AND REASONS
Defendant Kansas City Southern Railway Company (“KCS”) moves
under Rule 12(b)(6), or alternatively for summary judgment, to enforce a
settlement agreement with plaintiff Sharon McDonald, individually and as
the personal representative of the Estate of Johnnie McDonald. 1 Because
McDonald agreed to settle her claims for $135,000, the Court grants
defendant’s motion for summary judgment.
Plaintiff alleges that Johnnie McDonald, her late husband, worked as
a diesel mechanic and laborer for defendant KSC from 1970 to 2005.2
R. Docs. 9 at 1, 9-1 at 1.
R. Doc. 1 at 1-2.
Plaintiff further alleges that during that time, defendant negligently exposed
Mr. McDonald to various carcinogenic or toxic substances, ultimately
causing his premature death from lung and colon cancer. 3
On October 7, 2015, plaintiff sent an email to a KSC employee
demanding ten million dollars as compensation for the loss of her husband
and the suffering he endured as a result of his exposure to harmful
substances while working for KSC. 4
On November 10, 2015, the KSC
employee emailed plaintiff to say:
This is to confirm our telephone conversation today (Nov. 10,
2015) and our verbal agreement to settle Mr. Johnnie L.
McDonald’s claims regarding alleged career exposure and/or
injury and “all claims” related to Mr. McDonald’s employment
with the Kansas City Southern Railway Company (KCSR) for a
gross amount of $135,000.00. 5
Plaintiff replied on November 2, 2015 by email stating: “This is an
acknowledgement of receipt of the proposed settlement of $135,000.00 in
which I accept.” 6 The KSC employee responded that written documents
reflecting the settlement would be sent to plaintiff for her signature.7
R. Doc. 1 at 2-4.
R. Doc. 9-2 at 2.
R. Doc. 9-3 at 2.
R. Doc. 9-4 at 2.
R. Doc. 9-3 at 2.
Plaintiff did not sign any documents, but rather, after about two months,
attempted to reject the settlement.8
On October 31, 2016, plaintiff sued defendant seeking recovery under
the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 (2012),
personally and on behalf of her deceased husband.9 Defendant now moves
to dismiss plaintiff’s claim under Federal Rule of Civil Procedure 12(b)(6),
arguing that plaintiff entered into a binding settlement agreement that bars
plaintiff’s suit. 10 Plaintiff responds, and argues in part that defendant’s
motion should be converted to a motion for summary judgment, and plaintiff
should be given additional time for discovery. 11
Converting to Motion for Summary Judgment
In considering a motion to dismiss for failure to state a claim, a court
must typically limit itself to the contents of the pleadings, including their
attachments. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000). “If, on a motion under 12(b)(6) or 12(c), matters outside the
R. Doc. 10-1 at 2.
R. Doc. 1 at 4.
R. Doc. 9.
R. Doc. 10.
pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). 12 But uncontested documents referred to in the pleadings may be
considered by the court without converting the motion to one for summary
judgment, even when the documents are not physically attached to the
complaint. See Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 313 (5th Cir. 2002) (finding that the district court properly
considered documents not attached to the complaint in ruling on a Rule 12(c)
motion). A court also may consider documents attached to a motion to
dismiss without converting it to a summary judgment motion if the
documents are referred to in the complaint and are central to the plaintiff’s
For further explanation of what constitutes “matters outside the
pleadings,” see 5C Wright & Miller, Fed. Prac. & Proc. Civ. § 1366 (3d ed.):
Most federal courts . . . have viewed the words “matters outside
the pleading” as including any written or oral evidence
introduced in support of or in opposition to the motion
challenging the pleading that provides some substantiation for
and does not merely reiterate what is said in the pleadings.
Memoranda of points and authorities as well as briefs and oral
arguments in connection with the motion, however, are not
considered matters outside the pleadings for purposes of
conversion. The same is true for various types of exhibits that are
attached to the pleading, matters of which the district court can
take judicial notice, and items of unquestioned authenticity that
are referred to in the challenged pleading and are “central” or
“integral” to the pleader’s claim for relief.
claim. Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.
2004) (citation omitted).
In its motion to dismiss, defendant asks the Court to consider several
emails purporting to show that plaintiff entered a binding settlement
agreement. The materials attached to defendant’s 12(b)(6) motion are not
referred to in plaintiff’s complaint. When a party bases a motion to dismiss
on matters outside the pleadings, the court has discretion either to accept the
extraneous material and convert the motion to dismiss into a motion for
summary judgment, or to decide the motion, as defendant styled it, under
the principles of Rule 12(b)(6). See Isquith for and on Behalf of Isquith v.
Middle South Utilities, Inc., 847 F.2d 186, 194 (5th Cir. 1988) (recognizing
district court’s options); 5C Wright & Miller, Fed. Prac. & Proc. Civ. § 1366
(3d ed.) (“[F]ederal courts have complete discretion to determine whether or
not to accept the submission of any material beyond the pleadings that is
offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby
converting the motion, or to reject it or simply not consider.”).
The Court finds that conversion to summary judgment will “facilitate
the disposition of the action” by allowing the Court to resolve the question of
whether a binding settlement agreement was reached. See 5C Wright &
Miller, Fed. Prac. & Proc. Civ. § 1366 (3d ed.) (recognizing that a district court
is likely to accept extra-pleading material and convert a motion to dismiss
into a motion for summary judgment when the material is comprehensive
and will enable a rational determination of a Rule 56 motion); Woods v. City
of Galveston, 5 F.Supp.2d 494, 497 (S.D. Tex. 1998). Therefore, the Court
will consider the email exhibits attached to defendant’s motion as matters
outside the pleadings and convert defendant’s 12(b)(6) motion into a motion
for summary judgment.
If a motion to dismiss is converted into a motion for summary
judgment, the “nonmovant is entitled to the procedural safeguards of Rule
56.” Isquith, 847 F.2d at 195 (citation omitted). One of these safeguards is
that “[t]he motion shall be served at least ten days before the time fixed for
the hearing.” Fed. R. Civ. P. 56(c). In other words, the nonmovant must have
notice and at least ten days before summary judgment is rendered to submit
additional evidence in opposition. Benchmark Electronics, Inc. v. J.M.
Huber Corp., 343 F.3d 719, 725 (5th Cir. 2003). The court need not explicitly
inform the nonmovant that the motion will be converted; it is sufficient that
the nonmovant have notice that the court could consider material outside of
the pleadings. Isquith, 847 F.2d at 195-96.
Here, the requirement has been satisfied. Plaintiff received notice that
the court could consider material outside the pleadings when defendant
submitted exhibits with the motion to dismiss. See Isquith, 847 F.2d at 19596. Plaintiff submitted a response ten days later, and the submission date
for the motion was another thirteen days after that. 13 Plaintiff has been on
notice that the Court could consider material outside the pleadings for more
than the required ten days, satisfying the procedural safeguards
accompanying a motion for summary judgment.
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).
All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth
ultimate or conclusory facts and conclusions of law are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
See R. Docs. 9 at 2, 10-1 at 9.
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
If the dispositive issue is one on which the movant will bear the burden
of proof at trial, the movant “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).
The nonmoving party can then defeat the motion by either countering with
evidence sufficient to demonstrate the existence of a genuine dispute of
material fact, or “showing that the moving party's evidence is so sheer that it
may not persuade the reasonable fact-finder to return a verdict in favor of
the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).
C. Time For Discovery
Plaintiff requests additional time for discovery. Federal Rule of Civil
Procedure 56(d) governs requests for additional time for discovery before
consideration of a pending motion for summary judgment. It permits a
district court to deny or defer consideration of a motion for summary
judgment, allow time to take discovery, or “issue any other appropriate
order” when “a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.”
Fed. R. Civ. P. 56(d). The party seeking a continuance “may not simply rely
on vague assertions that additional discovery will produce needed, but
unspecified, facts.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)
(quoting Sec. & Exch. Comm’n v. Spence & Green Chem. Co., 612 F.2d 896,
901 (5th Cir. 1980)). Instead, the party seeking to continue a motion for
summary judgment to obtain further discovery must demonstrate (1) “why
he needs additional discovery” and (2) “how the additional discovery will
create a genuine issue of material fact.” Krim v. BancTexas Grp., Inc., 989
F.2d 1435, 1442 (5th Cir. 1993). In other words, the plaintiff must identify
specific facts, susceptible of collection, and indicate how those facts “‘will
influence the outcome of the pending summary judgment motion.’” McKay
v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014) (quoting Raby,
600 F.3d at 561)).
Plaintiff does not identify what specific facts she seeks, much less
explain how those unspecified facts will influence the outcome of KCS’s
summary judgment motion. Plaintiff’s desire for additional information,
without more, does not warrant a continuance under Rule 56(d). Rule 56(d)
“does not condone a fishing expedition where a plaintiff merely hopes to
uncover some possible evidence of [value].” Duffy v. Wolle, 123 F.3d 1026,
1041 (8th Cir. 1997) (internal quotation omitted); see also Jason v. Parish of
Plaquemines, No. 16-2728, 2016 WL 4623050, at *4-5 (E.D. La. Sept. 6,
2016) (denying plaintiff’s request to defer consideration of motion for
summary judgment because plaintiff gave “nothing more than a ‘speculative
hope’ that discovery might provide plaintiff with information supporting his
claims”) (quoting Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d
1560, 1567 (Fed. Cir. 1987)).
Additionally, even if plaintiff’s motion did specifically identify facts
that would affect the outcome of the pending summary judgment motion,
Rule 56(d) requires that plaintiff make this showing by affidavit or
declaration. Plaintiff’s failure to attach such an affidavit is sufficient grounds
to deny her motion. See Scotch v. Letsinger, 593 F. App’x 276, 278 (5th Cir.
2014) (“Because Scotch did not submit either an affidavit or a declaration,
the district court did not err in denying Scotch’s request.”); Leza v. City of
Laredo, 496 F. App’x 375, 377-78 (5th Cir. 2012) (affirming denial of Rule
56(d) motion because movant did not present affidavit or declaration); see
also Sandusky Wellness Ctr., LLC v. Medco Health Sols, Inc., 788 F.3d 218,
226 (6th Cir. 2015). Accordingly, plaintiff’s request for additional time for
discovery is denied.
“The right to trial by jury is a basic and fundamental feature of our
system of federal jurisprudence and [the right] is part and parcel of the
remedy afforded railroad workers under [FELA].” Dice v. Akron, C. & Y. R.
Co., 342 U.S. 359, 363 (1952) (internal quotations omitted). Nonetheless,
the Court has the inherent power to recognize, encourage, and enforce
settlement agreements reached by the parties. Bell v. Schexnayder, 36 F.3d
447, 449-50 (5th Cir. 1994) (citing CIA Anon Venezolana de Navegacion v.
Harris, 374 F.2d 33, 35-36 (5th Cir. 1967)). Accordingly, a FELA plaintiff is
free to settle and release her claims rather than proceed to trial. See, e.g.,
Maynard v. Durham & S. Ry. Co., 365 U.S. 160, 161 (1961). The “validity of
releases under [FELA] raises a federal question to be determined by federal
rather than state law.” Id.; see also Mid-South Towing Co. v. Har-Win, Inc.,
733 F.2d 386, 389 (5th Cir. 1984) (“Questions regarding the enforceability
or validity of [settlement] agreements are determined by federal law—at least
where the substantive rights and liabilities of the parties derive from federal
Under federal law, settlement agreements and compromises are
contracts. Guidry v. Halliburton Geophysical Services, Inc., 976 F.2d 938,
940 (5th Cir. 1992). The interpretation of an unambiguous contract, whether
written or oral, is a question of law. Id. Courts accord the words of an
unambiguous contract their plain meaning.
Roberts v. Williams–
McWilliams Co., Inc., 648 F.2d 255, 264 (5th Cir. 1981). A determination
that a contract is ambiguous a question of law. Guidry, 976 F.2d at 940.
Although the validity of federal settlements must be determined under the
federal law of settlement agreements, that law is “undeveloped” and “largely
indistinguishable from general contract principles under state common law.”
In re DEEPWATER HORIZON, 786 F.3d 344, 354 (5th Cir. 2015).
Accordingly, treatises and state contract law cases are instructive in
interpreting purported settlements of federal claims. Id.
A binding agreement exists only when there is a manifestation of
mutual assent, which ordinarily takes the form of an offer and its acceptance.
Restatement (Second) of Contracts § 22 (Am. Law Inst. 1981); E.N. Bisso &
Son, Inc. v. World Marine Transport & Salvage, 1996 WL 28520, *3 (E.D.
La. 1996) (“It is indisputable that, after an offer is made, a voluntary
expression of assent by the offeree is all that is necessary to create a
contract.”). Whether the parties intended to and did enter into a contract is
generally an issue of fact. Scaife v. Associated Air Center, Inc., 100 F.3d 406,
410 (5th Cir. 1996) (applying Texas law); Caseilles v. Taylor Rolls Royce,
Inc., 645 F.2d 498, 502 (5th Cir. 1981) (applying Florida law). But where, as
here, the parties’ writings are purported to embody a binding agreement,
then “the question of whether an offer was accepted and a contract was
formed is primarily a question of law for the court to decide.” Scaife, 100 F.3d
The uncontroverted facts confirm that plaintiff entered into a binding
settlement agreement with KCS.
A KCS employee emailed plaintiff to
“confirm” the parties’ “verbal agreement to settle Mr. Johnnie L. McDonald’s
claims regarding alleged career exposure and/or injury and ‘all claims’
related to Mr. McDonald’s employment . . . for a gross amount of
$135,000.00.”14 Plaintiff responded: “This is acknowledgment of receipt of
the proposed settlement of $135,000.00 in which I accept.”15 This written
communication evinces the manifestation of mutual assent required to bind
To resist this conclusion, plaintiff describes the agreement as
“preliminary” and notes that she never signed a formal release. But under
federal law “a settlement is valid and enforceable even if it contemplates the
parties signing a release at a later date unless the parties explicitly provide
that a valid contract will not be formed until the parties execute a formal,
finalized agreement.” In re DEEPWATER HORIZON, 786 F.3d at 355.
Accordingly, “[e]ven if one party ultimately fails to execute or sign the final[,]
formal release documents, that does not void the original agreement or
render it deficient from the outset.” Id.
This principle is illustrated by the Third Circuit’s decision in Good v.
The Pennsylvania Railroad Company. 384 F.2d 989 (3d Cir. 1967). In that
case, after plaintiff’s attorney consulted with his client, he telephoned
acceptance of a settlement offer to defense counsel. Id. at 990. Later, “when
R. Doc. 9-3.
R. Doc. 9-4.
defendant transmitted the customary form of release, plaintiff refused to sign
it and disavowed the settlement.” Id. The case went to trial, resulting in a
substantial verdict for the plaintiff. Id. The trial court nonetheless entered
judgment N.O.V. on the ground that the settlement barred recovery. Id.
The Third Circuit upheld this decision, finding that the parties’ oral
settlement agreement “expressed the intention to settle the case for the
agreed amount and was valid and binding despite the absence of any writing
or formality.” Id. That plaintiff sued under FELA did not alter the result
because “[t]he obligation to remain bound by a valid agreement of settlement
duly entered into by counsel with the authority of his client is one which
pervades the law and applies to injured railroad employees as well as all
other contracting parties.” Id.; see also Callen v. Pennsylvania R. Co., 332
U.S. 625, 630 (1948) (“[T]he releases of railroad employees stand on the
same basis as the releases of others. One who attacks a settlement must bear
the burden of showing that the contract he has made is tainted with
invalidity, either by fraud practiced upon him or by a mutual mistake under
which both parties acted.”).
Finally, plaintiff argues that the jury should decide whether she
entered into a binding settlement agreement. In support, she cites Turner v.
Burlington Northern Railroad Company. 771 F.2d 341 (8th Cir. 1985). In
Turner, the plaintiff brought personal injury claims under FELA and
defendant counterclaimed for specific performance of an alleged settlement
agreement. Id. at 342. Plaintiff contested the settlement on the grounds that
his attorney had settled his case without authorization. Id. at 345.
The Eighth Circuit held that the trial court did not err in granting a jury
trial on defendant’s counterclaim. Id. at 345. In doing so, the court rejected
the defendant’s argument that because its counterclaim “sought specific
performance [of the settlement agreement], an equitable remedy, [the issue]
was properly triable to the court and not to a jury.” Id. at 343. Turner does
not stand for the proposition that all disputes concerning FELA releases
must be tried before a jury. Moreover, Turner involved a factual dispute over
whether plaintiff gave his attorney authority to settle his claim. See id. at 345
(“Reasonable persons could differ as to whether Turner’s statements and
actions constituted an express authorization to his attorneys to accept
unambiguously gave her consent to the settlement.
uncontroverted evidence before the Court demonstrates that the parties
entered into a binding settlement agreement, defendant is entitled to
For the foregoing reasons, defendant The Kansas City Southern
Railway Company’s motion to dismiss is GRANTED. Plaintiff’s claims are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this _____ day of May, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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