Tersiner v. Union Pacific R. Co.

• Decision Date: 07 June 1990
• Docket Number: Civ. A. No. 89-2299-O.
• Citation: 740 F. Supp. 1519
• Parties: James J. TERSINER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, and Michael Gretencord, d/b/a Penn's Apco, Defendants.
• Court: U.S. District Court — District of Kansas

740 F. Supp. 1519

James J. TERSINER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, and Michael Gretencord, d/b/a Penn's Apco, Defendants.

Civ. A. No. 89-2299-O.

United States District Court, D. Kansas.

June 7, 1990.

COPYRIGHT MATERIAL OMITTED

Henri J. Watson, Kansas City, Mo., William Metcalf, Metcalf & Justus, Topeka, Kan., for plaintiff.

Brian G. Boos, Gehrt & Roberts, Chartered, Topeka, Kan., for Michael Gretencord.

Michael B. Buser, N. Kansas City, Mo., for Union Pacific R. Co.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on the dismissal and summary judgment motions of defendant Michael Gretencord (hereinafter "Gretencord"). Gretencord contends in his motion to dismiss that the court does not have subject matter jurisdiction over the claim asserted against him. The plaintiff, James Tersiner (hereinafter "Tersiner"), claims that the court has pendent jurisdiction over his claim against this defendant. In the motion for summary judgment, Gretencord contends that plaintiff has failed to make a prima facie showing of a breach of duty and proximate or legal causation — two elements essential to establishing actionable negligence on the part of Gretencord. For the reasons stated below, we deny defendant's motions.

I. STATEMENT OF FACTS

Plaintiff, a trackman for Union Pacific Railroad Company (hereinafter "Union Pacific"), instituted an action under the Federal Employers' Liability Act (hereinafter "FELA"), 45 U.S.C. § 51 et seq., against his employer, and requests that the court exercise pendent jurisdiction over defendant Gretencord. Gretencord owns and operates Penn's Apco service station in Garnett, Kansas. Tersiner was working on railroad tracks in the vicinity of Garnett during the summer of 1987. On July 23, 1987, at approximately 8:15 a.m., plaintiff and other members of his work crew arrived at the defendant's station. Tersiner and a co-worker, Craig Thompson (hereinafter "Thompson"), proceeded to Gretencord's "ice house," a refrigerated semitrailer, to pick up some ice, pursuant to their job duties.

Defendant's patrons enter the ice house through a door on the side of the trailer by climbing several steep, corrugated metal stairs leading up to a dock. Plaintiff stood on a wooden pallet at the foot of the dock while Thompson entered the structure to retrieve some ice. Gretencord had placed the pallet at the base of the dock so his customers could avoid stepping in a muddy area immediately adjacent to the dock. Boards or slats on the pallet were separated by spaces ranging from 2¾ to 3½ inches. While Tersiner was reaching for a bag of ice on the dock, he caught his foot between the slats in the pallet and fell backward. Plaintiff claims that he sustained injuries to his right shoulder that required hospitalization and medical treatment, including surgery, physical therapy, and medication.

II. STANDARDS GOVERNING MOTION TO DISMISS

The court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him to relief. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976); Mangels v. Pena, 789 F.2d 836, 837 (10th Cir.1986). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. Id. The issue in reviewing the sufficiency of a complaint is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

III. SUMMARY JUDGMENT STANDARDS

In considering a motion for summary judgment, the court must examine all the evidence in a light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). If the moving party does not bear the burden of proof, he must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2254, 91 L.Ed.2d 265 (1986). This burden is met when the moving party identifies those portions of the record which demonstrate the absence of material fact. Id. at 323, 106 S.Ct. at 2552.

Once the moving party meets these requirements, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleading." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511.

IV. PENDENT JURISDICTION

Defendant Gretencord argues that the court does not have subject matter jurisdiction over claims asserted against him by Tersiner. It is undisputed that Tersiner and Gretencord are both citizens of Kansas and that the claim plaintiff asserts against this defendant is non-federal in nature. Plaintiff contends that the controversy between him and Gretencord as well as the dispute between him and the Union Pacific "derive from a common nucleus of operative facts," and that, if considered "without regard to their federal or state character," the entire case "would normally be joined" in one judicial proceeding.

The analysis dictated by the line of Supreme Court cases, beginning with United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and developed in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), and Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), by which the court must determine whether it may exercise pendent party jurisdiction, is a two-step process. First, the court must decide whether it has the constitutional power to decide plaintiff's lawsuit against the third-party defendant. Under Gibbs, this authority exists, as the plaintiff has correctly pointed out, if the state and federal claims "derive from a common nucleus of operative fact;" if, considered "without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding;" and if the federal issues are "substantial." United Mine Workers v. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138.

Plaintiff was injured while performing his job duties for Union Pacific on Gretencord's premises. While performing these duties, Tersiner was standing on a pallet from which he fell backward and allegedly injured his shoulder. He claims that his employer failed to provide him with a safe place to work and that Gretencord breached an ordinary duty of care and an obligation to warn him of known dangers. It is obvious to the court that this controversy derives from a common nucleus of operative facts. Plaintiff's claim against both defendants grows out of one injury and one chain of events leading to that injury. We are also convinced that it should be tried in one judicial proceeding, regardless of its federal or state character. Since there is no question at this point of the "substantiality of the federal issue," it follows that we have the authority, in a constitutional sense, to hear plaintiff's claim against Gretencord.

The second question is whether examination of the specific statute that confers jurisdiction upon the federal courts suggests that Congress expressly or by implication negated the exercise of jurisdiction over non-federal claims asserted by a plaintiff. See Aldinger v. Howard, supra, 427 U.S. at 16-19, 96 S.Ct. at 2421-23; Owen Equip. & Erection Co. v. Kroger, supra, 437 U.S. at 373, 98 S.Ct. at 2402. We can perceive no such congressional intent, explicit or implicit, in the statutory provision conferring FELA jurisdiction. On the contrary, it was "the clear intent of Congress to give an FELA plaintiff untrammeled choice between state and federal jurisdictions." DeMaio v. Consol. Rail Corp., 489 F.Supp. 315, 316 (S.D.N.Y.1980).

Congress created concurrent jurisdiction over FELA in the federal and state courts and, thereby, allowed a plaintiff to choose the forum in which she would bring her action. See 45 U.S.C. § 56. The purpose of providing the option of a federal forum was to foster a nationwide and uniform system of liberal remedial rules. It is entirely consistent with this congressional policy to permit plaintiff to try his or her entire controversy in a federal forum rather than make that option less desirable by requiring an essentially unitary litigation to be tried in two courts.

Philipson v. Long Island R.R., 90 F.R.D. 644, 645 (E.D.N.Y.1981) (citations omitted). See also Shogren v. Chicago, Milwaukee, St. Paul and Pacific R.R. Co., 630 F.Supp. 233, 234 (D.Minn.1986) (district court exercised pendent party jurisdiction over third-party defendant in personal injury action brought against railroad under FELA). Given the purpose for which concurrent jurisdiction over FELA was created, the court's refusal to hear the entire controversy in the case at bar would make the federal courts less attractive, and thus be contrary to Congress' intent. After carefully considering the parties' arguments, we believe it is appropriate under these circumstances for the...