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Watson v. Norfolk Southern Railway Co.

United States District Court, N.D. Ohio, Western Division

August 16, 2019

JEFFREY LYNN WATSON, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY CO., Defendant.

          MEMORANDUM OPINION AND ORDER

          James R. Knepp II United States Magistrate Judge

         Introduction

         On 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)[1].

         For the reasons discussed herein, Plaintiff's motion for leave to amend (Doc. 28) is granted in part and denied in part.

         Background

         At all 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.

         Standard of Review

          Under 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)).

         Discussion

          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).

         The 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 ...

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