Giard et al v. Ouellette et al
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 6 Motion for Judgment on the Pleadings filed by Brett Ouellette, 23 Findings and Recommendations, 8 Motion to Remand filed by Mary Giard, Homer L. Giard. ; granting 6 Motion for Judgment on the Pleadings; denying 8 Motion to Remand; adopting Findings and Recommendations re 23 Findings and Recommendations. Signed by Judge Richard F. Cebull on 3/4/2013. (CAA, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HOMER GIARD and MARY
ORDER RE: FINDINGS
AND RECOMMENDATIONS OF
U.S. MAGISTRATE JUDGE
BRETT OUELLETTE and
SANTA FE RAILWAY COMPANY,
Plaintiffs bring a single cause of action under Montana Code Annotated §
39-2-703 against BNSF and Brett Ouellette, a BNSF field manager in the Medical
and Environmental Health department. They allege Oullette mismanaged Homer
Giard's medical condition and his request to return to work after an injury. Mary
Giard's loss of consortium claim is based on the same allegations and is also
brought under§ 39-2-703.
This action was originally brought in Montana's Thirteenth Judicial District
Court, Yellowstone County, but Defendants removed to this Court on the grounds
that Oullette was fraudulently joined to defeat diversity jurisdiction. Doc. 1.
Defendants have now moved for judgment on the pleadings dismissing Oullette
(doc. 6) and Plaintiffs have moved for remand (doc. 8). Both motions address the
issue of whether Plaintiffs state a valid claim against Oullette. As this case was
assigned to United States Magistrate Carolyn S. Ostby for pretrial proceedings
under Rule 72(b) Fed.R.Civ.P., she entered Findings and Recommendations (doc.
23) on both motions.
Judge Ostby recommends that the motion to remand be denied and that
Ouellette be dismissed from this action because the statute through which
Plaintiffs complain, Mont. Code Ann. § 39-2-703, has never been held to impose
personal liability on an employee of a railroad and because Plaintiffs failed to
sufficiently plead that Ouellette was "operating a railroad" as the statute requires.
Plaintiffs filed specific written objections to the Findings and Recommendations
within 14 days as provided 28 U.S.C. § 636(b )(1 ), Rule 72(b )(2), and L.R. 72.3.
Doc. 24. Defendants then filed a timely response. Doc. 25. Accordingly, the
Court must make a de nova determination of those portions of the Findings and
Recommendations to which objection is made. 28 U.S.C. § 636(b)(l). After
reviewing the parties arguments in light of the applicable case law and the plain
language of the statute, the Court concludes that Judge Ostby's recommended
disposition of the motions must be affirmed because § 39-2-703 does not impose
personal liability on railroad employees
Section 39-2-703 provides in relevant part:
A person or corporation operating a railway or railroad in this state is
liable for all damages sustained by any employee of the person or
corporation in consequence of the neglect of any other employee of
the person or corporation or by the mismanagement of any other
employee and in consequence of the willful wrongs, whether of
commission or omission, of any other employee of the person or
corporation when the neglect, mismanagement, or wrongs are in any
manner connected with the use and operation of a railway or railroad
on or about which the employee is employed.
Judge Ostby concluded that no case had ever held a railroad employee personally
liable under this statute and that the only close case was Moyse v. Northern Pac.
Ry. Co., 108 P 1062, 1068 (Mont.191 O)(applying Rev.Code, § 5251). Just six
days after Judge Ostby concluded that Moyse did not interpret§ 39-2-703 to
impose personal liability on railroad employees, this Court unknowingly held the
opposite in Carman v. BNSF, CV-12-77-BLG-RFC, 2012 WL 5430983 (Nov. 7,
2012). Upon further review, this Court concludes that Moyse, as with many old
opinions, is ambiguous at best and that reading it to hold that § 39-2-703 imposes
personal liability on employees of railroads would lead to absurd results. This
must be why Moyse is the only case in the history of§ 39-2-703 that can be
interpreted to impose personal liability on railroad employees for mismanagement.
Carman held as follows:
In Moyse, the plaintiff alleged the yard foreman was personally
negligent under the precursor statute for failing to secure rail cars that
broke loose and crashed into the caboose the plaintiff was sleeping in.
Id. at 1064-65. The Court expressly noted that "[flor this lapse of
duty the defendant company is liable, as is also the defendant [yard
foreman]; for, for the time being, he stood in the place of the
company, and it was his personal duty to see that the proper
precautions were observed." Id. at 1068. Moyse is therefore
consistent with the plain language of the statute. Accordingly, the
Court concludes that supervisory employees of railroads can be
personally liable under§ 39-2-703, even though§ 39-2-701(1)
requires that the railroad indemnify the employee for losses incurred
during the lawful discharge of work-related duties.
2012 WL 5430983, *3. In concluding that Moyse does not authorize personal
liability for railroad employees under § 39-2-703, Judge Ostby determined that
plaintiff in Moyse alleged a common law negligence claim against the individual
defendants and in addition to a§ 39-2-703 claim against the railroad. Doc. 23,
p. l 0. Although the opinion does not expressly say so, Judge Ostby concluded a
common law negligence claim had been alleged from the following language:
The complaint is framed upon the theory that the defendant company
is liable to the plaintiff, as one of its employes, for injuries received
while engaged in the discharge of his duties, through the negligence
of other employes, and that the other defendants are liable because
they were personally guilty of the acts of negligence which caused the
Moyse, 108 P. at 1065. But Plaintiffs argue that Judge Ostby ignored the next line
of this quote: "It declares upon the statute which abolishes the fellow servant rule.
[Mont Code. Ann. § 39-2-703.] 1 According to Plaintiff, this means the Moyse
plaintiff brought only one cause of action under§ 39-2-703. In this Court's view,
both interpretations are possible. As such, especially considering that it is an
ancient case that was not been cited in any published decision from 1959 to 2012,
Moyse has no precedential value in this case.
Setting aside Moyse, there is no authority for the proposition that § 39-2703 imposes personal liability on employees of railroads. As such, the Court is
left with the language of the statute. In interpreting a statute, the Court must
ascertain and effectuate legislative intent by first looking to the words of the
statute, giving them their ordinary, common sense meaning. Abrahim & Sons
Enterprises v. Equilon Enterprises, LLC, 292 F.3d 958, 961 (9th Cir. 2002).
Section 39-2-703 provides for the liability of persons or corporations operating a
railway. The common sense meaning of operate does not include a mere employee
of the railroad. Rather, it means the person or corporation who owns the railroad.
A contrary construction would be absurd and ifthat were the purpose of the statute
there would be published decisions applying it in that manner. Further, the
In 1909, § 39-2-703 was codified at Rev. Codes, Section 5251.
Court's construction is consistent with the title of the statute: "Liability of railway
corporation for negligence of fellow servants." See Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206, 212 (1998)(although title of the statute
cannot limit the plain meaning of the text, it can be used when it sheds light on
ambiguous word or phrase).
Having concluded that § 39-2-703 does not provide for personal liability of
railroad employees, Plaintiffs fail to state a legally cognizable cause of action
against Ouellette. Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116,
1121-22 (9th Cir. 2008) (claim is subject to dismissal if it lacks legally cognizable
theory). Plaintiffs' motion to remand must therefore be denied and Defendant's
motion to dismiss must be granted. Had Plaintiffs alleged a common law
negligence cause of action against Ouellette, this result could be different, as
recognized by Judge Ostby. See doc. 23, p.13, n.2. But the propriety of removal
is determined by the complaint at the time the notice of removal was filed,
Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939), and at the time of removal,
Plaintiffs did not state a valid claim against Ouellette.
Accordingly, IT IS HEREBY ORDERED Plaintiffs' motion to remand
(doc. 8) is DENIED and Defendant's Motion for Judgment on the Pleadings (doc.
7) is GRANTED.
The Clerk of Court shall notify the parties and Judge Ostby of the entry of
day of March, 2013.
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