DALY v. NORFOLK SOUTHERN RAILROAD COMPANY et al

Filing 33

LETTER OPINION. Signed by Judge William J. Martini on 8/19/10. (gh, )

DALY v. NORFOLK SOUTHERN RAILROAD COMPANY et al

Doc. 33

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
M A R T I N LU T H E R KIN G JR . FED E R A L BLD G . & U . S . C O U R T H O U S E 5 0 W A L N U T STR E E T , P.O . BO X 419 N E W A R K , N J 07101-0419

[phone]

WILLIAM J. MARTINI JUDGE

L E T T E R OPINION A u g u s t 19, 2010

A la n L. Krumholz K ru m h o lz Dillon PA 5 7 4 Summit Avenue S u ite 402 J e rs e y City, New Jersey 07306 (Attorney for Plaintiff Rhonda Daly) A la n Muraidekh H o d g s o n Russ LLP 6 0 East 42nd Street 3 7 th Floor N e w York, New York 01065 (Attorney for Defendant Norfolk Southern Railroad Company)

RE:

D a ly v. Norfolk Southern Railroad Company, et al. C iv . No. 09-4609 (WJM)

D e a r Counsel: T h is is a wrongful death and survival action, brought under the Federal Employee L ia b ility Act ("FELA"). Defendant Norfolk Southern Railroad Company ("Norfolk S o u th e rn " ) filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 1 2 (b )(6 ), arguing that Plaintiff failed to plead that Sean Daly, the decedent, was an " e m p lo ye e " of Norfolk Southern as required for FELA liability. There was no oral a rg u m e n t. Fed. R. Civ. P. 78. For the reasons that follow, Defendant Norfolk Southern's m o tio n to dismiss is denied.

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I.

BACKGROUND

S e a n Daly was an employee of Intermodal Ramp Management, Inc. (" In te rm o d a l" ), assigned to work at a Norfolk Southern site in Elizabeth, New Jersey on A u g u s t 11, 2008. (Am. Compl. ¶ 6.) While at this work site, Daly was crushed to death b y a piece of machinery. Following his death, Daly's wife, Plaintiff Rhonda Daly, b ro u g h t the instant action against Norfolk Southern and Intermodal in the New Jersey S u p e rio r Court as the administrator of her husband's estate. Norfolk Southern then re m o v e d the action to federal court,1 and on March 2, 2010, Plaintiff filed an amended c o m p la in t. The instant motion to dismiss pertains to this amended complaint. II. D ISC U S S IO N

P la in tif f Rhonda Daly's three-count amended complaint seeks recovery under F E L A on behalf of: (1) Sean Daly, for the personal injuries and pain suffered as a result o f the accident; (2) herself, for loss of consortium and pecuniary loss;2 and (3) Sean D a ly's children, for emotional and pecuniary damages. Defendant Norfolk Southern m o v e s to dismiss this complaint in its entirety, arguing that Plaintiff has failed to plead th e requisite elements of a FELA cause of action. A. R u le 12(b)(6) Standard In evaluating a motion to dismiss for failure to state a claim, a court may consider o n ly the complaint, exhibits attached to the complaint, matters of public record, and u n d is p u te d ly authentic documents if the plaintiff's claims are based upon those d o c u m e n ts . See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1 1 9 6 (3d Cir. 1993). All allegations in the complaint must be taken as true and viewed in th e light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); T r u m p Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir.

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Intermodal has not filed an answer or otherwise appeared in this action.

Plaintiff concedes in her briefing that the loss of consortium claim set forth in count two is unavailing under FELA. See Pl.'s Mem. 29; see also Kelsaw v. Union Pacific R. Co., 686 F.2d 819, 820 (9th Cir. 1982) (holding that injured railroad worker's spouse could not recover for loss of consortium under FELA); Quitmeyer v. Southeastern Penn. Transp. Auth., 740 F. Supp. 363, 370 (E.D. Pa. 1990) (same). Accordingly, Plaintiff's loss of consortium claim is dismissed. Conversely, since pecuniary damages are recoverable under FELA, Plaintiff's demand for such in counts two and three shall not be dismissed. See In re Complaint of J.A.R. Barge Lines, L.P., 307 F. Supp. 2d 668, 671 n.2 (W.D. Pa. 2004); see also Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 70 (1913). 2

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1998). This assumption of truth is inapplicable, however, to legal conclusions couched as f a c tu a l allegations or to "[t]hreadbare recitals of the elements of a cause of action, s u p p o rte d by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2 0 0 9 ). A lth o u g h a complaint need not contain detailed factual allegations, "a plaintiff's o b lig a tio n to provide the `grounds' of his `entitlement to relief' requires more than labels a n d conclusions, and a formulaic recitation of the elements of a cause of action will not d o ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations m u s t be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F .3 d 59, 64 (3d Cir. 2008). Furthermore, a claim has "facial plausibility when the p la in tif f pleads factual content that allows the court to draw the reasonable inference that th e defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (2009) (c itin g Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a `p ro b a b ility requirement' ... it asks for more than a sheer possibility..." Iqbal, 129 S.Ct. at 1 9 4 9 (2009). B. " E m p lo ym e n t" Element Under FELA T o plead a cause of action under FELA, the plaintiff must set forth the following e le m e n ts : (1) the defendant is a common carrier by railroad engaged in interstate c o m m e rc e ; (2) the plaintiff [or here, the decedent] was employed by the defendant and a s s ig n e d to perform duties which furthered such commerce; (3) plaintiff's [decedent's] in ju rie s were sustained while the plaintiff [decedent] was employed by the common c a rrie r; and (4) the injuries resulted from the defendant's negligence. See 45 U.S.C. § 51; F e lto n v. Southeastern Penn. Transp. Auth., 952 F.2d 59, 63 (3d Cir. 1991). Defendant N o rf o lk Southern contends that this action must be dismissed for failure to state a claim s in c e Sean Daly was not "employed" by the railroad. Thus, this motion turns on the s e c o n d and third FELA elements, requiring the Court to determine whether Plaintiff has s u f f ic ie n tly pled that Sean Daly was employed by Norfolk Southern. The complaint does not allege that Sean Daly was directly employed by Norfolk S o u th e rn ; however, direct employment is not required to satisfy the second and third F E L A prongs. The employment requirement is also satisfied by those who serve as (1) a b o rro w e d servant; (2) a dual servant; or (3) a sub-servant of the railroad. See Kelley v. S o u th e r n Pac. Co., 419 U.S. 318, 324 (1974). In her amended complaint, Plaintiff alleges th a t Sean Daly was "employed" as a sub-servant of Norfolk Southern. (Am. Compl. ¶ 5.) In support of this allegation, Plaintiff states that: "Norfolk Southern and Intermodal were e n g a g e d in a contractual relationship with one another under which Intermodal performed f u n c tio n s , duties, and activities on behalf of the railroad operations of Norfolk Southern." 3

(Am. Compl. ¶ 3.) Further, on the day of the accident, the complaint asserts that Sean D a ly worked for Intermodal at a facility owned by Intermodal and Norfolk Southern and th e equipment involved in the accident under the control of Intermodal and Norfolk S o u th e rn . (Am. Compl. ¶¶ 6, 8.) In response, Norfolk Southern disputes Plaintiff's assertion that Sean Daly was a s u b -s e rv a n t and invites the Court to consider facts and argument extrinsic to the amended c o m p la in t through the Affidavit of Maureen Severini and the Declaration of Alan M u ra id e k h .3 For the purposes of a Rule 12(b)(6) motion, however, the Court must c o n f in e itself only to the complaint, exhibits attached to the complaint, matters of public re c o rd , and undisputedly authentic documents if the plaintiff's claims are based upon th o s e documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1 1 9 2 , 1196 (3d Cir. 1993). Thus, viewing Plaintiff's allegations as set forth in the complaint in the light most f a v o ra b le to her, the Court finds that Plaintiff has sufficiently pled that Daly was " e m p lo ye d " by Norfolk Southern. Plaintiff has alleged that Daly was the sub-servant of N o rf o lk Southern as an employee of Intermodal. (Am. Compl. ¶ 5.) While Norfolk S o u th e rn would have Plaintiff make more detailed factual allegations regarding Daly's s u p e rv is io n and management at the site, no such particularized allegations are required at th is procedural juncture. Instead, these are facts more appropriate for development th ro u g h discovery. While Plaintiff perhaps could have pled her FELA claim more a rtf u lly, the Court finds nonetheless that Plaintiff has stated a FELA claim for relief. III. C O N C L U S IO N

F o r the foregoing reasons, Defendant Norfolk Southern's motion to dismiss is D E N I E D . An Order follows this Letter Opinion.

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

For example, the Severini Affidavit and Muraidekh Declaration detail work conditions at the Norfolk Southern site around the time of Daly's fatal accident. See, e.g., Severini Aff. ¶¶ 6, 18; Muraidekh Decl. 7, 14. Such allegations are clearly outside the pleadings in this instance and cannot be considered on a motion to dismiss. Further, this Court declines to convert Defendant's 12(b)(6) motion into a motion for summary judgment. 4

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