Cowden v. BNSF Railway Company

Filing 102

MEMORANDUM AND ORDER re: 96 MOTION for Leave to File First Amended Complaint filed by Plaintiff Kevin D Cowden. Motion is GRANTED. IT IS FURTHER ORDERED that a Second Amended Case Management Order shall issue forthwith. Signed by District Judge E. Richard Webber on March 26, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEVIN D. COWDEN,
Plaintiff,
vs.
BNSF RAILWAY COMPANY,
Defendant.

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Case No. 4:08CV1534 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion for Leave to File First Amended
Complaint [ECF No. 96]. Plaintiff requests that the Court issue an order granting Plaintiff leave
to amend his complaint, pursuant to Fed. R. Civ. P. 15(a)(2).
I.

BACKGROUND
This suit arises out of injuries Plaintiff Kevin D. Cowden (“Plaintiff”) allegedly sustained

while riding in a locomotive owned and operated by Defendant BNSF Railway Company
(“Defendant”), Plaintiff’s employer. On October 6, 2008, Plaintiff filed a Complaint for injuries
to his neck, shoulder, back and spine, alleging, inter alia, that Defendant failed to provide him
with reasonably safe working conditions [ECF No. 1]. Specifically, in his Count I, Plaintiff
contends that Defendant is liable for his injuries under the Federal Employees Liability Act
(“FELA”), 45 U.S.C. § 51 et seq., for negligently failing to provide him with reasonably safe
work conditions, reasonably safe work equipment, and for violating regulations promulgated
under the Locomotive Inspection Act (“LIA”), 49 U.S.C. §20101, et seq., which under the FELA

constitutes negligence per se [ECF No. 58, p. 2].1 Plaintiff’s Count II alleges that Defendant is
strictly liable to Plaintiff under the LIA for violating the aforementioned regulations.2 Id.
Defendant filed a motion for summary judgment on June 11, 2010 [ECF No. 30]. This
Court granted Defendant’s motion on September 7, 2010, concluding that there was no genuine
issue of material fact as to whether Defendant BNSF breached a duty of care owed to Plaintiff.
In granting summary judgment, this Court specifically found that: The LIA does not provide for

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In paragraph 8 of Count I of his original Complaint [ECF No. 1], Plaintiff alleged: On or
about January 14, 2008, the plaintiff was employed by the defendant as a conductor when he
encountered rough track causing him to sustain injuries, while in the performance of his duties,
which were caused by one or more of the following acts of negligence of the defendant acting
through its agents, servants, or employees, singularly or in combination:
a. It failed to provide the plaintiff with reasonably safe conditions to work;
b. It failed provide the plaintiff with reasonably safe equipment to work;
c. It permitted the use of an engine which produced excessive lateral and vertical
motion in violation of 49 C.F.R. §§ 229.7 (a)(1) and (2), .9, .45, and .63
constituting negligence per se;
d. It permitted the use of an engine which was not in proper condition and safe to
operate in the service to which it was put in violation of 49 C.F.R. §§ 229.7 (a)(1)
and (2), .9, .45 and .63 constituting negligence per se;
e. It permitted the use of an engine which had not been adequately inspected in
violation of 49 C.F.R. § 229.23 constituting negligence per se; and
f. It permitted the use of an engine which was not free of conditions that endangered
the safety of the crew in violation of 49 C.F.R. § 229.45 constituting negligence
per se.
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In paragraph 8 of Count II of his original Complaint [ECF No. 1], Plaintiff alleged: On
or about January 14, 2008, the plaintiff was employed by the defendant as a conductor when he
encountered rough track causing him to sustain injuries, while in the performance of his duties,
which were caused by one or more of the following violations of the LIA, singularly or in
combination:
a. It permitted the use of an engine which was not in proper condition and safe to
operate in the service to which it was put in violation of 49 C.F.R. §§ 229.7 (a)(1)
and (2), .9, .45 and .63;
b. It permitted the use of an engine which had not been adequately inspected in
violation of 49 C.F.R. § 229.23;
c. It permitted the use of an engine which was not free of conditions that endangered
the safety of the crew in violation of 49 C.F.R. § 229.45; and
d. It permitted the use of an engine which produced excessive lateral and vertical
motion in violation of 49 C.F.R. §§ 229.7 (a) (1) and (2), .9, .45, and .63.
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an independent cause of action, and Defendant is accordingly entitled to summary judgment on
Plaintiff’s LIA claim [ECF No. 58, at 4]. The Court also determined that Defendant was likewise
entitled to judgment in its favor on Plaintiff’s FELA claim, as there is no evidence in the record
that Defendant violated the alleged LIA regulations, or that it breached a duty owed to Plaintiff
by permitting Plaintiff’s locomotive to pass over the section of allegedly defective track under a
slow order.3 Id. at 11. Plaintiff appealed the Court’s grant of summary judgment to the Eighth
Circuit. On appeal, Plaintiff challenged this Court’s ruling on his claim that Defendant was not
liable under FELA for negligently failing to provide him with reasonably safe working
conditions.4 The Eighth Circuit reversed and remanded the cause for further proceedings, finding
the Court granted summary judgment on an issue not raised or discussed by either party. Cowden
v. BNSF Ry. Co., 690 F.3d. 884, 886 (8th Cir. 2012). On remand, this Court issued an Amended
Case Management Order [ECF No. 86] on October 24, 2012. The Amended Case Management
Order did not provide an extended deadline to amend the pleadings, but did designate a
dispositive motion and discovery deadlines.
Now Plaintiff seeks to amend his original Complaint. In the proposed First Amended
Complaint, Plaintiff adds sixteen specific regulations regarding track conditions, including
alleged violations of ten different regulations promulgated under the LIA, 49 U.S.C. §20101, et

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The Court concluded that relevant regulations promulgated under the Federal Railroad
Safety Act, (“FRSA”), 49 U.S.C. §20101, et seq., provided the sole duty of care owed to Plaintiff
in relation to his claim, ruling that Plaintiff had not demonstrated a failure to comply with the
relevant regulations and therefore failed to establish a breach in Defendant’s duty of care under
the FELA, 45 U.S.C. § 51 et seq. Id. at 11.
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As just noted, this Court’s grant of summary judgment for Defendant also included
Plaintiff’s FELA claim with respect to alleged LIA violations (pertaining to an unsafe engine or
locomotive), as well as Plaintiff’s strict liability claim under LIA. Plaintiff did not challenge
either of these rulings on appeal. See Cowden v. BNSF Ry. Co., 690 F.3d. 884, 887 n.1 (8th Cir.
2012).
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seq. Plaintiff eliminates his allegations regarding the use of an unsafe engine or locomotive
promulgated under the LIA, which were included in Counts I and II of the original Complaint.
Specifically, in the First Amended Complaint [ECF No. 96-1], Plaintiff alleges one Count, which
states in Paragraph 9:
On or about January 14, 2008, the plaintiff was employed by the defendant as a conductor
when he encountered rough track causing him to sustain injuries, while in the
performance of his duties, which were caused by one or more of the following acts of
negligence of the defendant acting through its agents, servants, or employees, singularly
or in combination:
a. It failed to provide the plaintiff with reasonably safe conditions to work[.]
Sub-parts b. through q. of Paragraph 9 now contain allegations pertaining to track maintenance,
classification, support, inspection, etc., and violations of 49 C.F.R. §§ 213.1(a), 213.5(a),
213.9(b), 213.13, 213.103(c)and (d), 213.63, 213.109, and 213.233(b) and (c).
Defendant, in its Response to Plaintiff’s Motion for Leave to File first Amended
Complaint [ECF No. 98], argues that the Court should deny Plaintiff’s Motion as it asks the
Court to act beyond the scope of the Eighth Circuit’s mandate, and fails to satisfy the standards
for amendment under Federal Rules of Civil Procedure 16(b)(4) and 15(a).
II.

STANDARD
Motions To Amend Pleadings implicate the standards for leave to amend under both Rule

15(a) and Rule 16(b) of the Federal Rules of Civil Procedure. See Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008). Under Rule 15(a), when leave to amend is not sought
“as a matter of course,”- i.e., before being served with a responsive pleading or within 20 days
after serving the pleading if no responsive pleading is allowed and trial has not yet been set, see

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Fed. R. Civ. P. 15(a)(1) - leave to amend pleadings should still be “freely given when justice so
requires.” See Fed. R. Civ. P. 15(a)(2). Even under this standard, however, “[a] district court
appropriately denies the movant leave to amend if ‘there are compelling reasons such as undue
delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the non-moving party, or futility of the amendment.’ ”
Sherman, 532 F.3d at 715 (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc.,
406 F.3d 1052, 1065 (8th Cir. 2005); Baptist Health v. Smith, 477 F.3d 540, 544 (8th Cir. 2007).
When leave to amend is sought only after the deadline for amendments in a Rule 16
scheduling order, however, the request for leave to amend also implicates Rule 16(b)'s “good
cause” requirement. Sherman, 532 F.3d at 715 (citing Fed. R. Civ. P. 16(b)(4)). As the court in
Sherman explained,
The interplay between Rule 15(a) and Rule 16(b) is settled in this circuit. In Popoalii v.
Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008), the court stated that “[i]f a party
files for leave to amend outside of the court's scheduling order, the party must show cause
to modify the schedule.” 512 F.3d at 497 (citing Rule 16(b)). . . . Rule 16(b)'s
good-cause standard governs when a party seeks leave to amend a pleading outside of the
time period established by a scheduling order, not the more liberal standard of Rule 15(a).
Id.
Sherman, 532 F.3d at 716. The approach taken in Popoalii is derived directly from the plain
language of Rule 16(b), which states both that district courts must issue a scheduling order
limiting the time to amend the pleadings, and that a scheduling order may be modified only for
good cause. Transamerica Life Ins. Co. v. Lincoln Nat’l Life Ins. Co., 590 F. Supp. 2d 1093,
1098 (N.D. Iowa 2008) (internal citations omitted). When a party seeks to amend a pleading

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after the scheduling deadline for doing so, the application of Rule 16(b)'s good-cause standard is
not optional. Id. To permit district courts to consider motions to amend pleadings under Rule
15(a) without regard to Rule 16(b) “would render scheduling orders meaningless and effectively
... read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.”
Id. (quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)). “The primary
measure of good cause is the movant's diligence in attempting to meet the order's requirements.”
Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001); see also Fed. R. Civ. P. 16(b),
advisory committee note (1983 Amendment) (“[T]he court may modify the schedule on a
showing of good cause if it cannot reasonably be met despite the diligence of the party seeking
the extension.”).
III.

DISCUSSION
Initially, the Court will address Defendant’s argument that Plaintiff’s Motion for Leave to

Amend the Complaint must be denied as it exceeds the scope of the Eighth Circuit’s mandate.
Then, the Court will examine Defendant’s contention that amendment should be denied under
the standards of Rules 15 and 16.
A.

Scope of the Appellate Court’s Mandate

Defendant argues that Plaintiff ‘s Motion for Leave to Amend the Complaint asks the
Court to exceed the scope of the appellate mandate reversing the Court’s grant of summary
judgment and remanding for further proceedings. Defendant reasons that Plaintiff is not
permitted to add new claims regarding track conditions, when the appellate court’s mandate was
to conduct further discovery and reconsider the summary judgment issue. [ECF No. 98, at 13].
Specifically, Defendant states that the Eight Circuit confined the scope of remand to Defendant
establishing that 49 U.S.C. § 20106(a)(2) applies to Plaintiff’s claims at the summary judgment

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stage, and resolving questions of material fact by further discovery. Id. at 12. Defendant argues
that the mandate does not specify or contemplate amending the complaint to add claims. Id.
Plaintiff contends, in his Reply, that there is no limitation in the mandate precluding
amending the Complaint [ECF No. 100, at 12]. Plaintiff then references the language of the
mandate itself, to establish that denial of this Motion would be inconsistent with the Eighth
Circuit’s opinion. The Court agrees, and finds that the proposed amendments in the First
Amended Complaint are within the scope of, and contemplated by the Eight Circuit in ordering
remand.
First of all, as pertinent to the Plaintiff’s Motion to amend and allegations concerning
track maintenance, classification, support, and inspection, the Eighth Circuit’s opinion’s
statement of facts asserted as follows:
“On the day [Plaintiff] sustained his injuries, the portion of the track at issue was under a
‘slow order,’ which was a self-imposed order by the railway company permitting trains to
travel no faster than forty miles per hour over that stretch of track.” [ECF No. 80, at 2].
“[Plaintiff] brought suit in federal court alleging that [Defendant] is liable for his injuries
under the FELA for negligently failing to provide him with reasonably safe working
conditions.” Id. at 3. “[Plaintiff] also offered the expert testimony of Alan Blackwell, a
railway consultant, who prepared a report concerning [Defendant’s] maintenance of the
track,” and concluded that Defendant “violated internal and industry standards of care[,]”
thereby failing “to provide Plaintiff with a reasonably safe work environment.” Id. at 4.
In an Order denying Defendant’s motion to exclude Blackwell’s testimony, this Court
rejected most of Defendant’s arguments, and acknowledged that Blackwell could “opine

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generally about the prudence of [Defendant’s] maintenance efforts and whether they
provided a safe work environment.” Id. at 5.
The Eighth Circuit then held that the Court erred by addressing the dispositive nature of
the Federal Railroad Safety Act (“ FRSA”) regulations for the first time in its summary judgment
order, finding that the record had not been developed with the dispositive nature of FRSA
regulations in mind, and that neither party had advanced evidence directly relevant to the Court’s
conclusions. Id. at 13-14. The Eighth Circuit found the incomplete summary judgment record
required remand for two reasons: 1)Defendant had not met its burden to show § 20106(a)(2)
(FRSA’s express exemption clause) applied to Plaintiff’s claim at the summary judgment stage;
and 2) questions of material fact remained, including evidence of FRSA violations, and disputed
issues of fact about track of conditions. Id. at 14. 5
In its discussion, the Eighth Circuit stated that Plaintiff had not alleged generally that
Defendant allowed its trains to travel at an unsafe speed, but instead alleged “that [Defendant]
failed to maintain a safe workplace, and his filings have consistently linked this unsafe workplace
to [Defendant’s] alleged failure to maintain a safe track.” Id. at 16. The Eighth Circuit noted
that, “[d]espite this distinction, § 213.9,” a regulation that holds railroad accountable for
maintaining certain track conditions based on the speed they set themselves, “may still
substantially subsume Plaintiff’s claim.” Id. “[Plaintiff] alleges that [Defendant] failed to
maintain a safe track, and § 213.9 indicates what condition or ‘class’ the track must meet in order
for a train to operate at forty miles per hour.” Id. “If relevant FRSA regulations establish a

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The Eighth Circuit also noted that “the district court improperly relied on disputed issues
of fact about track conditions to support its alternative ruling denying [Plaintiff’s 59(e)] motion
to amend judgment, and the court did not view the record in a light favorable to the non-moving
party.” Id. at 14.
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railroad’s duty of care, § 213.9 imposes a duty to maintain track quality, not a duty to travel at a
particular speed.” Id. The Eighth Circuit noted that whether Defendant breached its duty to
maintain a safe workplace appeared to depend on other regulations from Chapter 213, including
49 C.F.R. §§ 213.63, 213.109, and 213.1.6 Id. at 17.
The Eighth Circuit concluded that summary judgment was inappropriate because neither
party was on notice that the FRSA regulations would prove dispositive, and neither party
presented evidence related to the relevant regulations. Id. at 18. The Eighth Circuit stated:
On remand, [Defendant] has the burden of persuading the court that particular
regulations meet the standard for preemption set out in § 20106(a)(2). Because
[Plaintiff’s] suit addresses the maintenance of track rather than simply alleging an
excessive-speed claim, it appears likely that relevant regulations will deal more
specifically with track conditions. Even if [Plaintiff] is unable to establish a
genuine issue of fact regarding [Defendant’s] compliance with those regulations,
he ‘must at least be given a chance to try.’ Based on the current record, viewed in
a light most favorable to [Plaintiff], the quality of the track appears to be a
disputed material fact.
Id. at 18-19.
Thus, the Eighth Circuit found the quality of the track to be a disputed material fact, and
contemplated further discovery related to track conditions and regulations on remand. Some of
the regulations (49 C.F.R. sections 213.63, 213.109 and 213.1) set forth in the proposed First
Amended Complaint are the same as those noted by the Eight Circuit, as relevant to the duty of

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The proposed First Amended Complaint alleges violations of regulations 213.63,
213.109, and 213.1.
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care issue on remand. Therefore, Plaintiff’s proposed amendments concerning track
maintenance, classification, support, and inspection fall within the scope of the mandate.
B.

Leave to Amend Under Rule 16(b)(4) and Rule 15(a)

Defendant also argues that Plaintiff’s Motion should be denied under the standards of
Rules 15 and 16. Defendant contends that, as the deadline to amend in the scheduling order
expired on February 2, 2009,7 Plaintiff’s current motion to amend the complaint under Rule 15(a)
is “actually a motion to amend the scheduling order, which requires a showing of “good cause”
under Rule 16(b)(4). [ECF No. 98, at 2]. As such, Defendant maintains that Rule 15 is not the
controlling authority as Rule 16(b)’s good cause standard governs. Id. at 3. Defendant further
asserts that Plaintiff has not made the required showing of good-cause. Id. Defendant argues
that Plaintiff was aware of the alleged need to amend the Complaint in November of 2009,8 but
has made no attempt to explain the delay in seeking amendment, or show good cause under Rule
16 (b)(4) for his delay. Id. at 8.
Plaintiff contends that the current scheduling order did not contain a deadline for
amending the pleadings due to inadvertence.9 [ECF No. 100, at 15]. Plaintiff emphasizes that the
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Defendant further adds that when this matter was remanded to this Court from the Court
of Appeals, and this Court subsequently issued an Amended Case Management Order on October
24, 2012, there was no extended deadline to amend the pleadings included. [ECF No. 98, at 3].
As such, Defendant contends that the original February 2, 2009 deadline is still in place,
rendering the current Motion untimely. Id.
8

It is undisputed that, in November of 2009, pursuant to Plaintiff’s request, Defendant
agreed to the filing of an amended complaint identifying a track defect. [ECF Nos. 97, at 2; 98, at
3-4].
9

Plaintiff adds that the absence of a deadline to amend pleadings in the Amended Case
Management Order renders it “not in compliance” with Rule 16(b)(3)(A). [ECF No. 100, p. 13].
As such, Plaintiff disputes Defendant’s contention that because the Amended Case Management
Order is silent, the previous deadline in the original scheduling order to amend pleadings of
February 2, 2009, is still in place. Id. Plaintiff further points out that Defendant’s argument
cannot be reconciled with the Eighth Circuit’s directive that Plaintiff “be given a chance to prove
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Amended Case Management Order contemplated additional discovery consistent with the
appellate court’s mandate, including the supplementation of expert witness reports. Id. Plaintiff
argues that it is implicit, as the amended scheduling order permits additional discovery on track
regulation violations, that he is also permitted to amend his complaint in pursuing these theories
of liability. Id. Plaintiff adds that he has timely complied with all other scheduling order
deadlines. Id. As discussed above, because this Court finds that the proposed amendments are
within the scope of the Eighth Circuit’s mandate, it would not be inconsistent to allow
amendment of the pleadings, especially in light of the additional discovery contemplated by the
appellate court. Moreover, Defendant’s contention of undue delay and untimeliness in seeking
amendment must be considered in light of the grant of summary judgment on September 7, 2010,
and the ensuing appellate proceedings in this case. After this Court’s grant of summary
judgment, Plaintiff filed a Motion to Amend Judgment under Rule 59(e), which the Court denied
on April 13, 2011 [ECF No. 68]. Plaintiff then filed a notice of appeal with the Court on May 4,
2011, and the appellate mandate was handed down on September 25, 2012. Plaintiff’s failure to
seek leave to amend the Complaint during that time period does not constitute undue delay.
Thus, the Court finds that “good cause” exists to permit amendment under Rule 16(b)(4).
Defendant further argues that, even under the more liberal standard of Rule 15(a), in
which the Court may permit amendment where “justice so requires,” Plaintiff’s Motion must be
denied for undue delay and prejudice to Defendant. [ECF No. 98, at 8]. Defendant cites to
Frank Adam Electric Company v. Westinghouse Electric and Manufacturing Co., 146 F.2d 165,
167 (8th Cir. 1945), in which the court refused to amend defendant’s answer as defendant failed
to show the long delay in seeking amendment resulted from oversight, inadvertence, or excusable

track regulation violations.” Id.
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neglect. Id. at 8-9. Here, Defendant contends that Plaintiff has failed to establish that the alleged
delay in filing his Motion to Amend was due to oversight, inadvertence, or excusable neglect. Id.
at 9. Defendant also argues that undue prejudice will result, as discovery will again be re-opened
to address the sixteen new allegations. Id. at 10. Defendant points out that discovery progressed
to its conclusion twice before Plaintiff raised the claims he now asserts, although he knew of
their existence in November of 2009. Id. Defendant further claims that it has never conducted
discovery or deposed witnesses regarding Plaintiff’s new allegations. Id. at 2. Defendant alleges
that Plaintiff waited until the eleventh hour to raise his claims, in order to thwart discovery and
“sandbag” Defendant. Id. at 12.
In his Reply, Plaintiff contends that, since the day of the incident, Defendant has known
Plaintiff’s injuries were caused by rough track conditions, and that “[t]he allegations in this case
have always asserted unsafe working conditions which created rough track causing injury to the
plaintiff” [ECF No. 100, at 7]. Plaintiff contests Defendant’s statement that it has never
conducted discovery on Plaintiff’s proposed claims, and asserts that extensive discovery has been
conducted concerning the track conditions.10 Plaintiff further maintains that there is no
additional discovery that needs to be taken in this case related to unsafe track conditions, and
notes that Defendant fails to identify specifically the additional discovery it claims will be needed
if amendment is granted. Id. at 11. Plaintiff claims that his proposed First Amended Complaint
does not add new theories of liability, but simply conforms to the evidence, and that allowing
amendment would cause Defendant no undue prejudice. Id. at 7.

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In support of his contention that extensive discovery has taken place on track
conditions, Plaintiff cites to his supplemental answer to Interrogatory 22; the deposition of
Defendant’s corporate designee, Joseph Thornburg; the February 10, 2010 report of Alan
Blackwell, Plaintiff’s “track expert;” and Defendant’s deposition of Blackwell. Id. at 3-6.
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This Court does not find that Defendant will be unduly prejudiced under Rule 15(a) by
granting Plaintiff leave to amend. Plaintiff has shown that discovery is essentially complete, and
Defendant has failed to establish the specific nature of any additional discovery burden. It is
clear from the pleadings, as well as the Eighth Circuit mandate, that track conditions do not
constitute a new theory of liability. Defendant’s argument that Plaintiff’s alleged undue delay in
seeking leave to amend supports denial under Rule 15(a), also fails. Although Plaintiff could
have sought leave at an earlier date, it must also be considered, as noted in the analysis under
Rule 16, that summary judgment was granted on September 7, 2010, and the mandate from the
Court of Appeals was not filed until September 25, 2012. Therefore, the delay in seeking
amendment is excusable. In the absence of a finding of undue delay or prejudice, the Court
concludes that amendment is proper under the liberal standard of Rule 15.
IV.

CONCLUSION
Therefore, under Rule 16(b)(4), the Court finds that Plaintiff has shown good cause to

amend the pleadings, and under Rule 15(a), Defendant has failed to establish undue delay or
prejudice in support of denial. The Court also concludes that the proposed amendments fall
within the scope of the Eighth Circuit’s mandate. As such, the Court will grant Plaintiff’s
Motion for Leave to Amend.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File First Amended
Complaint [ECF No. 96] is GRANTED.
IT IS FURTHER ORDERED that a Second Amended Case Management Order shall
issue forthwith.

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Dated this 26th day of March, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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