Rayburn et al v. CSX Transportation, Inc.
MEMORANDUM-DECISION AND ORDERED, that CSXs Motion (Dkt. No. 37) is DENIED; and it is further ORDERED, that Niagaras Motion (Dkt. No. 27), is GRANTED; and it is further ORDERED, that CSXs Third-Party Complaint (Dkt. No. 8-1) is DISMISSED with prejudice. Signed by Senior Judge Lawrence E. Kahn on October 31, 2017. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRIAN RAYBURN, et al.,
CSX TRANSPORTATION, INC.,
CSX TRANSPORTATION, INC.,
-againstNIAGARA MOHAWK POWER
MEMORANDUM-DECISION AND ORDER
Plaintiffs Brian and Kayla Rayburn commenced this action against defendant CSX
Transportation, Inc. on December 6, 2016, by filing a complaint in the New York State Supreme
Court in St. Lawrence County. Dkt. No. 2 (“Complaint”). CSX removed the action to this Court
on January 17, 2017. Dkt. No. 1 (“Notice of Removal”). CSX impleaded Niagara Mohawk
Power Corporation, Brian Rayburn’s employer, as a third-party defendant on January 26, 2017.
Dkt. No. 8-1 (“Third-Party Complaint”). Niagara moved for a judgement on the pleadings on
April 7, 2017. Dkt. No. 27 (“Niagara’s Motion”). CSX filed a declaration in partial opposition on
May 19, 2017, and also requested that the Court dismiss its third-party action without prejudice.
Dkt. No. 37 (“CSX’s Motion”). For the following reasons, CSX’s Motion is denied, and
Niagara’s Motion is granted.
On May 20, 2016, Mr. Rayburn was working in Gouverneur, New York, as an employee
of Niagara. Compl. ¶¶ 7, 12.1 Plantiffs allege that as part of his job, he used a ladder to access a
utility pole owned by CSX in order to work on the electrical power lines attached to it. Id.
¶¶ 12–16. The power lines were owned by Niagara and provided electricity to CSX’s railroad
crossing. Id. ¶¶ 10–15. Plaintiffs further allege that the utility pole broke while Mr. Rayburn was
accessing it, causing him to fall to the ground and to sustain “significant personal injuries.” Id.
¶¶ 17–19. Mr. Rayburn now sues CSX for negligence, id. ¶¶ 23–27, and New York State labor
law violations, id. ¶¶ 29–34. Mrs. Rayburn seeks damages for the loss of “love, compassion and
services of her husband.” Id. ¶¶ 37–39. CSX raises a number of defenses to Plaintiffs’ claims,
including that any injuries to Mr. Rayburn were a result of his culpable conduct and that Mr.
Rayburn assumed the risk. Dkt. No. 6 (“Answer”) ¶¶ 6, 8.
On January 16, 2017, CSX brought a third-party action against Niagara as Mr. Rayburn’s
employer and owner of the electrical power lines, seeking indemnification. Third-Party Compl.
¶ 16. CSX alleges that Niagra’s negligence caused Mr. Rayburn’s injuries, id. ¶ 22, and that
The Complaint alleges that Mr. Rayburn was “an employee of National Grid, an
electricity and gas utility company.” Compl. ¶ 9. However, it was later determined that Mr.
Rayburn was actually an employee of Niagara. Dkt. No. 27-1 (“Cost Declaration”) ¶ 5; see also
Dkt. No. 27-2 (“2014 Wages Summary”).
“agreements and understandings were in place whereby” Niagara would seek permission from
CSX before accessing the pole in question, id. ¶ 8. Niagara argues, among other defenses, that
CSX’s claims are barred by New York State Workers’ Compensation Law § 11, which precludes
third-party indemnification of employers, absent limited exceptions. Dkt. No. 21 (“Answer to
Third-Party Complaint”) ¶ 37. Niagara moved for judgment on the pleadings, arguing that
employer indemnification is barred by the Workers’ Compensation Law and that CSX has not
alleged either a grave injury or an express indemnification agreement, which would allow for
indemnification. Niagara’s Mot.
On May 17, 2017, CSX submitted a letter to the Court offering to execute a stipulation
dismissing the Third-Party Complaint without prejudice. Dkt. No. 36 (“Letter Brief”). Niagara
rejected the offer, instead offering to accept a dismissal with prejudice. Dkt. No. 37-2 (“Cost
E-mail”). Following this exchange, CSX responded to Niagara’s Motion on May 19, 2017.
CSX’s Mot. CSX again requested that the Court dismiss the Third-Party Complaint without
prejudice because CSX did not yet know if Mr. Rayburn sustained grave injuries that would
allow CSX to indemnify Niagara under New York law. Id. ¶¶ 11–12.
A. Voluntary Dismissal by Court Order
Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, “an action may be dismissed
at the plaintiff’s request only by court order, on terms that the court considers proper . . . . Unless
the order states otherwise, a dismissal under this paragraph is without prejudice.” “[D]ismissals
are at the district court’s discretion.” D’Alto v. Dahon Cal. Inc., 100 F.3d 281, 283 (2d Cir. 1996)
(citing Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990)).
In considering when dismissal without prejudice would be proper, “[t]wo lines of
authority have developed” in the Second Circuit. Camilli v. Grimes, 436 F.3d 120, 123 (2d Cir.
2006). The first “line indicates that such a dismissal would be improper if ‘the defendant would
suffer some plain legal prejudice other than the mere prospect of a second lawsuit.’” Id. (quoting
Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 217 (1947)). The second “line indicates that the
test for dismissal without prejudice involves consideration of various factors, known as the
Zagano factors.” Id. (citing D’Alto, 100 F.3d at 283; Zagano, 900 F.2d at 14). In Zagano, the
Second Circuit, noting that “[v]oluntary dismissal without prejudice is . . . not a matter of right,”
outlined five “[f]actors relevant to the consideration of a motion to dismiss without prejudice.”
Zagano, 900 F.2d at 14. These factors are: (1) “the plaintiff’s diligence in bringing the motion;”
(2) “any ‘undue vexatiousness’ on plaintiff’s part;” (3) “the extent to which the suit has
progressed, including the defendant’s effort and expense in preparation for trial;” (4) “the
duplicative expense of relitigation;” and (5) “the adequacy of plaintiff’s explanation for the need
to dismiss.” Id. (citing Bosteve Ltd. v. Marauszwki, 110 F.R.D. 257, 259 (E.D.N.Y. 1986);
Harvey Aluminum, Inc. v. Am. Cyanamid Co., 15 F.R.D. 14, 18 (S.D.N.Y. 1953)). The Zagano
“factors are not necessarily exhaustive and no one of them, singly or in combination with
another, is dispositive.” Kwan v. Schlein, 634 F.3d 224, 230 (2d Cir. 2011).
B. Motion for Judgment on the Pleadings
The standard for a motion for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure“is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006) (citing
Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005)). To avoid dismissal, 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 Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations
contained in a complaint and draw all inferences in favor of the plaintiff. Allaire Corp. v.
Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). Plausibility, however, requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].”
Twombly, 550 U.S. at 556. The plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(quoting Twombly, 550 U.S. at 555). Where a court is unable to infer more than the possibility of
misconduct based on the pleaded facts, the pleader has not demonstrated that he is entitled to
relief, and the action is subject to dismissal. Id. at 678–79. Nevertheless, “[f]act-specific
question[s] cannot be resolved on the pleadings.” Anderson News, L.L.C. v. Am. Media, Inc.,
680 F.3d 162, 185 (2d Cir. 2012) (second alteration in original) (quoting Todd v. Exxon Corp.,
275 F.3d 191, 203 (2d Cir. 2001)). Presented with “two plausible inferences that may be drawn
from factual allegations,” a court “may not properly dismiss a complaint that states a plausible
version of the events merely because the court finds a different version more plausible.” Id.
A. Workers’ Compensation Law Section 11
Whether this case should be dismissed with or without prejudice largely turns on New
York State Workers’ Compensation Law § 11. Section 11 “protects employers by barring
third-party actions against them ‘except in extremely limited, defined circumstances.’” Fleming
v. Graham, 886 N.E.2d 769, 772 (N.Y. 2008) (emphasis in original) (quoting Castro v United
Container Mach. Grp., 761 N.E.2d 1014 (N.Y. 2001)). Because of this, “[a]bsent an express
indemnification agreement, or a ‘grave injury’ as enumerated in Workers’ Compensation Law
§ 11, an employer’s liability for an employee’s on-the-job injury is ordinarily limited to workers’
compensation benefits.” Id. (citing Tonking v. Port Auth. of N.Y. & N.J., 821 N.E.2d 133 (N.Y.
In order to obtain indemnity from Niagara, CSX must show either that (1) Mr. Rayburn
sustained a “grave injury” as defined under § 11, or (2) there was an express indemnification
agreement between the third-party plaintiff and the employer-third-party defendant. N.Y.
Workers’ Comp. Law § 11.
B. Voluntary Dismissal by Court Order
While CSX did not move for voluntary dismissal under Rule 41(a)(2), CSX did notify the
Court of its willingness to dismiss its claims against Niagara, without prejudice, in both a letter
to the Court, Letter Br., and in response, CSX’s Mot. Because “Rule 41(a)(2) does not explicitly
require a formal motion by the plaintiff,” United States v. Cathcart, 291 F. App’x 360, 361 (2d
Cir. 2008), and because Niagara had an opportunity to respond, Dkt. No. 40 (“Niagara Reply”),
the Court will construe CSX’s request as a Rule 41(a)(2) motion.
In considering a voluntary dismissal without prejudice, the Court is not persuaded that
Niagara would not “suffer some plain legal prejudice” if CSX were allowed to voluntarily
dismiss the Third-Party Complaint without prejudice. Camilli, 436 F.3d at 123 (citing Cone, 330
U.S. at 217). The first of the factors, “the plaintiff’s diligence in bringing the motion,” Zagano,
900 F.2d at 14, does not support dismissal. Here, CSX waited until it was “compelled to file” its
opposition to Niagara’s Motion to request dismissal. CSX’s Mot. ¶ 2. CSX contends that it
requested dismissal “[b]ased upon the review of the records provided.” Id. ¶ 6. It does not,
however, appear that CSX has investigated whether Mr. Rayburn sustained a grave injury. CSX
offers no reason why it was unable to request a dismissal any earlier, indicating a lack of
diligence. In waiting until the last day to move for dismissal, CSX was “not diligent in taking
action, but only self-protective.” Krivchenko v. Clintondale Aviation, Inc., No. 13-CV-820, 2014
WL 4684808, at *12 (N.D.N.Y. Sept. 18, 2014).
The second Zagano factor is whether there was “any ‘undue vexatiousness’ on plaintiff’s
part.” 900 F.2d at 14. “Courts define ‘undue vexatiousness’ to mean that the plaintiff acted with
‘ill-motive’ in bringing or maintaining its claims.” Morgan v. Town of Dewitt, No. 12-CV-1136,
2013 WL 5217947, at *5 (N.D.N.Y Sept. 16, 2013) (Kahn, J.) (quoting S.E.C. v. Chakrapani,
Nos. 09-CV-325, 09-CV-1043, 2010 WL 2605819, at *8 (S.D.N.Y. June 29, 2010)). Here, CSX
does not address Niagara’s Motion and has requested a voluntary dismissal without prejudice on
the chance that it can find that Mr. Rayburn suffered a “grave injury” as defined under New
York’s Workers’ Compensation law. CSX’s Mot. ¶¶ 7–9. However, New York courts have held
that when an injured plaintiff has not alleged “that he suffered an injury which may be
characterized as grave within the meaning of the Workers [sic] Compensation Law, [it is]
established, prima facie, that plaintiff did not suffer a grave injury.” Regno v. City of New York,
No. 109524/09, 2010 WL 3940890, at *7 (N.Y. Sup. Ct. Oct. 4, 2010) (collecting cases), aff’d,
931 N.Y.S.2d 71 (App. Div. 2011). Because Mr. Rayburn has not alleged a grave injury and CSX
has not alleged an express indemnification agreement, it is almost certain that Niagra is immune
under § 11. This indicates that CSX is being unduly vexatious and is only requesting dismissal to
avoid an adverse decision. See, e.g., Krivchenko, 2014 WL 4684808, at *12 (“Plaintiffs’ failure
to deny the facts that support Defendant’s summary judgment motion, along with their expressed
desire to have the case dismissed without prejudice so the action can be brought in another
forum, indicate an undue vexatiousness. Plaintiffs do not deny their claim against [the defendant]
lacks merit, yet they seek to preserve their right to raise it again.”).
The next two factors, “the extent to which the suit has progressed, [and] the duplicative
expense of relitigation,” Zagano, 900 F.2d at 14, weigh in favor of voluntary dismissal. These
factors generally “weigh against dismissal without prejudice only if the case has progressed to
an advanced stage, such as the eve of trial, or when discovery is complete and partial dispositive
motions have been adjudicated.” Morehouse v. Clifford, No. 14-CV-1359, 2016 WL 51254,
at *7–8 (N.D.N.Y. Jan. 4, 2016) (citing Zagano, 900 F.2d at 14–15; Jewelers Vigilance Comm.,
Inc. v. Vitale Inc., No. 90-CV-1476, 1997 WL 582823, at *8 (S.D.N.Y. Sept. 19, 1997)). Here,
CSX filed the Third-Party Complaint in January 2017, Third-Party Compl., approximately one
month after Plaintiffs commenced this action. Discovery has only just begun and is not to be
completed until next spring. As Mr. Rayburn’s employer, Niagara will still have expenses
regarding this litigation as they will be subjected to discovery requests as a third-party. However,
the costs of non-party production are generally less than production when defending against a
complaint and risking an adverse judgment.
Although factors three and four favor CSX’s request for dismissal without prejudice, the
fifth factor, “the adequacy of plaintiff’s explanation for the need to dismiss,” Zagano, 900 F.2d at
14, does not. The strongest argument CSX offers in support of dismissal without prejudice is that
it can later implead Niagara if discovery reveals that Mr. Rayburn sustained grave injuries.
CSX’s Mot. ¶ 12. However, this is not compelling because as noted above, when an injured
plaintiff has not alleged “that he suffered an injury which may be characterized as grave within
the meaning of the Workers [sic] Compensation Law, [it is] established, prima facie, that
plaintiff did not suffer a grave injury.” Regno, 2010 WL 3940890, at *7. As such, CSX is not
entitled to discovery now to determine if Mr. Rayburn suffered a grave injury. The fact that CSX
offers no compelling reason why its Third-Party Complaint should be dismissed without
prejudice suggests “that [CSX’s] motion . . . is about [its] desire to avoid judgment. Such is not
the purpose of a motion for voluntary dismissal.” Krivchenko, 2014 WL 4684808, at *4 (citing
Soul Circus, Inc. v. Trevanna Entm’t, Inc., 249 F.R.D. 109, 110 (S.D.N.Y. 2008)). CSX’s delay
in bringing its Motion, coupled with the failure to substantively respond to Niagara’s Motion,
further supports this conclusion.
On balance, the Court concludes that Niagara would “suffer some plain legal prejudice” if
CSX were allowed to voluntarily dismiss the Third-Party Complaint without prejudice. Camilli,
436 F.3d at 123 (citing Cone, 330 U.S. at 217). Therefore, CSX’s Motion is denied.
C. Motion for Judgment on the Pleadings
To survive a motion for judgment on the pleadings, a defendant seeking indemnification
from the plaintiff’s employer must plausibly allege that either that (1) the plaintiff sustained a
“grave injury” as defined under Workers’ Compensation Law § 11, or (2) there was an express
indemnification agreement between the third-party plaintiff and the employer-third-party
defendant. N.Y. Workers’ Comp. Law § 11. Because neither exception applies here, Niagara is
entitled to judgement on the pleadings.2
Under § 11, “grave injury” is defined as
death, permanent and total loss of use or amputation of an arm, leg,
hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia
or quadriplegia, total and permanent blindness, total and permanent
deafness, loss of nose, loss of ear, permanent and severe facial
disfigurement, loss of an index finger or an acquired injury to the
brain caused by an external physical force resulting in permanent total
Id. ¶ 3. Neither CSX nor the Plaintiffs allege that Mr Rayburn sustained a “grave injury” in his
accident. Compl.; Third-Party Compl. As noted above, New York courts have held that when an
injured plaintiff has not alleged “an injury which may be characterized as grave,” is it
established, prima facie, that there was not a grave injury. Regno, 2010 WL 3940890, at *7
(granting summary judgment on the basis that the third-party plaintiff was not entitled to
discovery on the plaintiff’s injuries when the plaintiff did not allege a grave injury).
Because Rayburn does not allege any “grave injuries” and CSX does not introduce any
facts that would “raise a reasonable expectation that discovery will reveal evidence” to show a
grave injury, Twombly, 550 U.S. at 556, CSX’s effort to seek indemnification from Niagara
cannot survive Niagara’s Motion. Therefore, Niagara is entitled to judgment on the pleadings and
the Third-Party Complaint is dismissed.
Section 11 does not “abrogate ‘the power of a third party to recover under express
contractual obligation between the employer and the third party.’” Flores v. Lower E. Side Serv.
Ctr., 828 N.E.2d 593, 596 (N.Y. 2005) (quoting Majewski v. Broadalbin-Perth Cent. Sch. Dist.,
696 N.E.2d 978, 979 (N.Y. 1998)). However, CSX does not allege the existence of an express
contractual agreement between it and Niagara. As there was no agreement, CSX cannot seek
indemnity on this ground.
Accordingly, it is hereby:
ORDERED, that CSX’s Motion (Dkt. No. 37) is DENIED; and it is further
ORDERED, that Niagara’s Motion (Dkt. No. 27), is GRANTED; and it is further
ORDERED, that CSX’s Third-Party Complaint (Dkt. No. 8-1) is DISMISSED with
prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
October 31, 2017
Albany, New York
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