United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge
September 24, 2018, Plaintiff Jeffrey Lynn Watson
(“Plaintiff”) brought this action against Norfolk
Southern Railway Company (“Defendant”), under the
Federal Employers' Liability Act (“FELA”)
alleging he sustained workplace injuries resulting from
Defendant's negligence. See generally Doc. 1
(Complaint). On April 17, 2019, Plaintiff filed his First
Amended Complaint. (Doc. 16). Pending before the Court is
Plaintiff's Motion for Leave to File a Second Amended
Complaint (Doc. 28), in which he seeks to add negligence
per se claims based on alleged violations of 49
C.F.R. § 220.47 and 49 C.F.R. § 272 et
seq. Defendant opposes only the addition of a
claim based on 49 C.F.R. § 272 et seq., arguing
futility. (Doc. 31, at 2).
reasons discussed herein, Plaintiff's motion for leave to
amend (Doc. 28) is granted in part and denied in part.
times relevant herein, Plaintiff was employed by Defendant as
a locomotive engineer. (Doc. 16, at ¶2). On November 29,
2015, he was operating a locomotive engine in Fostoria, Ohio
in an area known as the “Iron Triangle”.
Id. ¶6. The “Iron Triangle” is a
section of railroad known for its numerous intersecting
tracks, or “diamonds”. Id. at ¶7.
Plaintiff's train was eastbound on track 1-Main; he had
just cleared a diamond and was traveling around a curve
approaching a second. Id. at ¶9.
Plaintiff's train had a green signal to proceed through
the second diamond. Id. At the same time, a
northbound CSX train approached the same diamond with a red
signal. Id. at ¶10. Plaintiff saw the CSX train
approaching and realized it was not braking. Id. at
¶11. Plaintiff, reasonably fearing a collision,
activated his train's emergency brake and braced for
impact. Id. at ¶13. The CSX train also
activated its emergency brake, and a collision was
“narrowly avoided”. Id. at ¶14.
Plaintiff asserts he sustained mental and emotional injuries
as a result of the incident. Id. at ¶17.
Federal Rule of Civil Procedure 15(a)(2), a court should
grant leave to amend “when justice so requires”.
As the Sixth Circuit has noted, Rule 15(a) “reinforces
the principle that cases ‘should be tried on their
merits rather than the technicalities of the
pleadings.'” Moore v. City of Paducah, 790
F.2d 557, 559 (6th Cir. 1986) (quoting Tefft v.
Seward, 689 F.2d 637, 639 (6th Cir. 1982)); see also
Inge v. Rock Finance Corp., 368 F.3d 930, 937 (6th Cir.
2004). Factors to consider include an undue delay in filing,
lack of notice to the opposing party, bad faith, repeated
failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of the
amendment. Seals v. Gen. Motors Corp., 546 F.3d 766,
770 (6th Cir. 2008). An amendment is futile if it could not
withstand a Federal Rule 12(b)(6) motion to dismiss. See,
e.g., Brown v. Owens Corning Inv. Review
Comm., 622 F.3d 564, 574 (6th Cir. 2010) (citing
Rose v. Hartford Underwriters Ins. Co., 203 F.3d
417, 420 (6th Cir. 2000)); Crutcher v. Court Psychiatric
Clinic, 2017 WL 5514812, at *2 (6th Cir.)
(“Accordingly, Crutcher's proposed amended
complaint could not have survived a Rule 12(b)(6) motion to
dismiss, and the district court properly denied her leave to
amend on the basis of futility.”). A complaint cannot
survive a Rule 12(b)(6) motion to dismiss, if it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “Although no
single factor is dispositive, a finding of futility is
usually fatal to a request for leave to amend a
complaint.” Lipa v. Asset Acceptance, LLC, 572
F.Supp.2d 841, 855 (E.D. Mich.) (citing Miller v. Calhoun
Cty., 408 F.3d 803, 817-18 (6th Cir. 2005)).
Plaintiff seeks to amend his complaint to include a claim
that Defendant was negligent per se for its failure
to comply with 49 C.F.R. § 272 et seq., which
requires railroads to implement a Critical Incident Stress
Plan for certain circumstances. See Doc. 28, at 1,
Doc. 28-2, at 4. Defendant counters that such an amendment
would be futile because the incident at issue is, by
definition, not a “critical incident” under the
regulations, and thus Plaintiff cannot state a claim based on
49 C.F.R. § 272 et seq. upon which relief could
be granted. (Doc. 31-1, at 2-3). For the reasons discussed
herein, the Court agrees with Defendant and denies
Plaintiff's motion for leave to amend to include a
negligence per se claim based on 49 C.F.R. §
272 et seq. (Doc. 28).
purpose of a critical incident stress plan is “to
promote the safety of railroad operations and the health and
safety of railroad employees, especially those who are
directly involved in a critical incident[.]”49 C.F.R.
§ 272.1. Railroads are required to adopt a written
critical incident plan which must be approved by the Federal
Railroad Administration. 49 C.F.R. § 272.5. The plan
must cover individuals employed by the railroad who are
directly involved in a “critical incident”. 49
C.F.R. § 272.7. The regulations define what constitutes
a “critical incident”, which is either:
(1) An accident/incident reportable to FRA under part 225 of
this chapter that results in a fatality, loss of limb, or a
similarly serious bodily injury; or
(2) A catastrophic accident/incident reportable to FRA under
part 225 of this chapter that could be reasonably expected to
impair a directly-involved employee's ability to ...