Cisco v. Norfolk Southern Railway Company
Filing
28
MEMORANDUM OPINION AND ORDER denying as moot defendant's 8 MOTION to Dismiss the original complaint and for a more definite statement; granting Cisco's 21 MOTION to amend the 4/27/2012 13 amended complaint; directing that the secon d amended complaint is filed; and denying without prejudice, as being moot, defendant's 14 MOTION to Dismiss the amended complaint. Signed by Judge John T. Copenhaver, Jr. on 7/11/2012. (cc: attys; any unrepresented party) (taq) (Modified on 7/11/2012 to note the #21 motion to amend is granted) (skh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROGER CISCO,
Plaintiff,
v.
Civil Action No. 2:12-739
NORFOLK SOUTHERN RAILWAY COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is a motion by defendant Norfolk Southern
Railway Company ("Norfolk") to dismiss the original complaint
and for a more definite statement, filed April 16, 2012.
Plaintiff Roger Cisco thereupon filed as of right his amended
complaint on April 27, 2012.
The amended complaint thus
supersedes the original complaint.
It is, accordingly, ORDERED
that the motion to dismiss the original complaint and for a more
definite statement be, and it hereby is, denied as moot.
Norfolk has since filed on May 10, 2012, its motion to
dismiss the amended complaint, which motion is directed toward
the amended complaint filed as of right by Cisco on April 27,
2012.
Cisco then filed on June 1, 2012, his motion to amend the
April 27, 2012, amended complaint.
I.
The amended complaint briefly discusses the factual
bases for the claims alleged.
Norfolk.
In sum, Cisco was employed by
He was injured by a third-party motorist when driving
his personal vehicle while on duty for Norfolk at the time of
the accident.
The material allegations in Cisco's amended
complaint state as follows:
8. On or about May 2, 2011, and for some time prior
thereto, Plaintiff was employed by defendant,
Norfolk[,] as a machine operator and on that date in
the performance of his duties was caused to sustain
the serious, permanent and painful personal injuries,
more particularly hereinafter described when, while on
duty and driving in a privately owned motor vehicle
(POV) with other railroad employees conducting
Defendants business, Plaintiff was involved in a motor
vehicle collision at or near Route 119 in the area of
the Victory Lane gas station, Mingo County, West
Virginia, causing serious injury due to the negligence
and carelessness of the defendant.
9. Among other things, Defendant failed to provide
Plaintiff with a safe workplace in that the railroad
required Plaintiff to use a POV to go from worksite to
worksite to acquire unneeded and unnecessary equipment
on the orders of superiors, failed to properly train
plaintiff and his co-workers on safe driving/riding
practices and failed to warn plaintiff and his
coworkers of unsafe working conditions, some or all of
which lead to the collision at issue when
Plaintiff was distracted by his co-worker while
driving the POV at issue.
(Am. Compl. ¶¶ 8-9).
The amended complaint additionally
includes the following allegation:
The action arises under . . . "The Federal Employers'
2
Liability Act", and under "The Federal Safety
Appliance Act" ["FSA"] . . . and under "The Federal
Boiler Inspection Act" ["FBIA"] . . . .
(Am. Compl. ¶ 5).
The amended complaint fails to allege that
Norfolk is a common carrier by railroad engaged in interstate
commerce.
Norfolk identifies a variety of deficiencies in the
amended complaint, moving to dismiss it on the grounds that (1)
Cisco has not pled Norfolk's common carrier railroad status,
that it was engaged in interstate commerce, and that he was
engaged in furthering such commerce when the injuries occurred,
(2) the allegations of negligence are vague and conclusory and
are "a 'reach' in an effort to find another pocketbook for
recovery," (3) a third party was responsible for Cisco's
injuries sustained while Cisco drove in his privately owned
vehicle, and (4) the claims under the FSA and FBIA fail inasmuch
as the circumstances surrounding the injury did not involve, as
required by law, either a safety appliance on a railroad car or
locomotive or a locomotive, tender, part or appurtenance.
Cisco responded to the motion to dismiss the amended
complaint but additionally moved to file a second amended
complaint.
The proposed second amended complaint omits the FSA
and FBIA claims and alleges the formerly missing common carrier
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and interstate commerce information.
This would leave for
adjudication only the FELA negligence claim.
Norfolk responded in opposition to the motion to file
the second amended complaint.
It principally asserts that the
proposed amendment is futile inasmuch as the proposed second
amended complaint still fails to properly allege a FELA claim.
II.
A.
Governing Standard
A pleading amendment may be denied when it represents
a futile effort to revive a doomed claim.
See Sciolino v.
Newport News, 480 F.3d 642, 651 (4th Cir. 2007)(noting “leave to
amend a pleading should be denied only when the amendment would
be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile.”) (emphasis added).
“if . . . [it]
A proposed amendment is futile
fails to satisfy the requirements of the federal
rules,” such as Rule 12(b)(6).
United States ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir.2008)
(quoting United States ex rel. Fowler v. Caremark RX, LLC, 496
F.3d 730, 740 (7th Cir. 2007)).
The court thus analyzes the
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proposed second amended complaint according to the standards
found in Rules 8 and 12 of the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”
Fed. R. Civ. P.
8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).
Rule
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”
Fed. R. Civ. P. 12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled on other grounds, Twombly, 127 S. Ct. at
1969)); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007).
Additionally, the showing of an “entitlement
to relief” amounts to “more than labels and conclusions . . . .”
Twombly, 127 S. Ct. at 1965.
It is now settled that “a
formulaic recitation of the elements of a cause of action will
not do.” Id.; Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir.
2008).
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The complaint need not, however, "make a case" against
a defendant or even "forecast evidence sufficient to prove an
element" of the claim.
Chao v. Rivendell Woods, Inc., 415 F.3d
342, 349 (4th Cir. 2005) (quoting Iodice v. United States, 289
F.3d 270, 281 (4th Cir. 2002)).
Instead, the opening pleading
need only contain “[f]actual allegations . . . [sufficient] to
raise a right to relief above the speculative level.”
Twombly,
127 S. Ct. at 1965; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009)(noting the opening pleading “does not require ‘detailed
factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”).
Stated
another way, the complaint must allege "enough facts to state a
claim to relief that is plausible on its face."
Id. at 1974;
Giarratano, 521 F.3d at 302. The recent decision in Iqbal
provides some guidance concerning the plausibility requirement:
A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard
is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint
pleads facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement
to relief.’ ”
Rule 8 marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era,
but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions. .
. . Determining whether a complaint states a plausible
6
claim for relief will, as the Court of Appeals
observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere
possibility of misconduct, the complaint has allegedbut it has not “show[n]”-“that the pleader is entitled
to relief.”
Iqbal,
129 S. Ct. at 1949-50 (citations omitted).
As noted in Iqbal, the Supreme Court has consistently
interpreted the Rule 12(b)(6) standard to require a district
court to “‘accept as true all of the factual allegations
contained in the complaint . . . .’”
Erickson, 127 S. Ct. at
2200 (quoting Twombly, 127 S. Ct. at 1965); see also South
Carolina Dept. of Health and Environmental Control v. Commerce
and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004)
(quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
The court is additionally required to “draw[] all reasonable . .
. inferences from those facts in the plaintiff's favor . . . .”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
In order to apply these standards, one must ascertain
the requisite elements of proof for the FELA claim.
statutory source of the claim is 45 U.S.C. § 51.
The
Section 51
provides pertinently as follows:
Every common carrier by
commerce between any of
Territories . . . shall
person suffering injury
railroad while engaging in
the several States or
be liable in damages to any
while he is employed by such
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carrier in such commerce . . . for such injury . . .
resulting in whole or in part from the negligence of
any of the officers, agents, or employees of such
carrier . . . .
45 U.S.C. § 51.
The elements of proof for a FELA claim are
taken from the same jury instruction manual recently mentioned
by the Supreme Court:
First, that the defendant is a railroad engaged in
interstate commerce;
Second, that the plaintiff was an employee of the
defendant in interstate commerce, acting in the course
of his employment;
Third, that the defendant or one of its employees or
agents was negligent;
and
Fourth, that such negligence played a part, no matter
how slight, in bringing about an injury to the
plaintiff.
5 Hon. Leonard B. Sand et al., Modern Federal Jury Instructions
§ 89.02[1] (2012) (cited in CSX Transp., Inc. v. McBride, 131 S.
Ct. 2630, 2643 (2011) (referencing the since-modified ¶ 89.02[1]
as the then- "current model federal instruction").
Our court of appeals has noted "the 'judicially
developed doctrine of liability granted to railroad workers by
the FELA,' including its light burden of proof on negligence and
causation."
Estate of Larkins by Larkins v. Farrell Lines,
Inc., 806 F.2d 510, 512 (4th Cir. 1986) (quoting in part Kernan
v. American Dredging Co., 355 U.S. 426, 439 (1958)).
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It has
further observed that, in order "to further the remedial goals
of the FELA, . . . the Supreme Court has relaxed the standard of
causation by imposing employer liability whenever 'employer
negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.'”
Hernandez v.
Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir.
1999)(quoting, inter alia, Consolidated Rail Corp. v. Gottshall,
512 U.S. 532, 43 (1994)).
The Supreme Court reiterated this approach just last
term in the aforementioned McBride case.
McBride, 131 S. Ct. at
2643 (2011) ("'Under [FELA] the test of a jury case is simply
whether the proofs justify with reason the conclusion that
employer negligence played any part, even the slightest, in
producing the injury or death for which damages are sought.'”)
(quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506
(1957)).
The McBride decision also observed as follows in
discussing the general contours of FELA liability:
“If a person has no reasonable ground to anticipate
that a particular condition . . . would or might
result in a mishap and injury, then the party is not
required to do anything to correct [the] condition.”
If negligence is proved, however, and is shown to have
“played any part, even the slightest, in producing the
injury,” then the carrier is answerable in damages
even if “the extent of the [injury] or the manner in
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which it occurred” was not “[p]robable” or
“foreseeable.”
McBride, 131 S. Ct. at 2643 (footnote omitted).
At the same
time, as noted by our court of appeals in Hernandez, the Supreme
Court in Gottshall "cautioned that the FELA . . . is not to be
interpreted as a workers' compensation statute . . . ."
Hernandez, 187 F.3d at 436-37.
B.
Analysis
In summary, Cisco's proposed second amended complaint
alleges that Norfolk is a common carrier by rail engaged in
interstate commerce.
He further states that he was acting in
furtherance of that commerce at the time of his injuries.
He
also now alleges those injuries were caused by Norfolk's
negligence.
Despite occurrence of the accident while Cisco was
operating his privately owned vehicle, he alleges that Norfolk
required him to use the automobile for work purposes without
training him and his co-workers "on safe driving/riding
practices and fail[ing] to warn plaintiff and his coworkers of
unsafe working conditions, some or all of which lead to the
collision at issue . . . ."
(Sec. Am. Compl. ¶ 10).
These allegations minimally suffice for purposes of
avoiding a futility challenge.
The court, accordingly, ORDERS
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that Cisco's motion to amend the April 27, 2012, amended
complaint, be, and it hereby is, granted.
It is further ORDERED
that the second amended complaint be, and it hereby is, filed
today.
In view of the filing of the second amended complaint,
it is additionally ORDERED that Norfolk's motion to dismiss the
amended complaint be, and it hereby is, denied without prejudice
as being moot.
The court does not foreclose Norfolk from
subsequently seeking relief pursuant to Rule 12 as it relates to
the second amended complaint.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: July 11, 2012
John T. Copenhaver, Jr.
United States District Judge
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