Bjornson v. Soo Line R.R. Co.

Decision Date24 August 2015
Docket NumberCivil No. 14-4596 (JRT/SER)
PartiesLONNIE BJORNSON and SHARON BJORNSON, Plaintiffs, v. SOO LINE RAILROAD CO., a Minnesota corporation d/b/a Canadian Pacific Railway, and GLENWOOD HOSPITALITY, INC., a Minnesota corporation d/b/a Scottwood Motel, Defendants.
CourtU.S. District Court — District of Minnesota

Louis Edward Jungbauer, YAEGER & JUNGBAUER BARRISTERS PLC, 2550 University Avenue West, St. Paul, MN 55114, and Christopher W. Bowman, YAEGER & JUNGBAUER BARRISTERS PLC, 4601 Weston Woods Way, St. Paul, MN 55127, for plaintiff.

Steven J. Erffmeyer and Kimberly L. Johnson, ARTHUR, CHAPMAN, KETTERING, SMETAK & PIKALA, PA, 81 South Ninth Street, Suite 500, Minneapolis, MN 55402, and Tracey Holmes Donesky and Margaret M. Bauer Reyes, STINSON LEONARD STREET LLP, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402, for defendant Soo Line Railroad Company.

Deborah C. Eckland, GOETZ & ECKLAND PA, 615 First Avenue N.E., Suite 425, Minneapolis, MN 55413, and Scott R. Johnson, GOETZ & ECKLAND PA, 43 Main Street S.E., Suite 505, Minneapolis, MN 55414, for defendant Glenwood Hospitality, Inc.

This is a negligence action brought by Lonnie and Sharon Bjornson against his employer Soo Line Railroad Company ("CP") and Glenwood Hospitality, Inc.("Scottwood Motel"), after he slipped and fell in a bathtub at the Scottwood Motel in Glenwood, Minnesota. In response to Bjornson's complaint, CP asserted several affirmative defenses. Lonnie Bjornson1 moved to strike CP's Affirmative Defense 12, Affirmative Defense 14, and Affirmative Defense 15. On June 15, 2015, United States Magistrate Judge Steven E. Rau issued a Report and Recommendation ("R&R") recommending that the Court deny Bjornson's motion to strike Affirmative Defense 12 but grant the motion to strike Affirmative Defense 14 and Affirmative Defense 15.

This matter is now before the Court on CP's objections to the R&R. Specifically, CP objects to the Magistrate Judge's recommendation that this Court grant Bjornson's motion to strike Affirmative Defense 14. The Court has reviewed de novo the portions of the R&R to which CP objects. 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2). Because the Court concludes that neither the Railroad Labor Act ("RLA") nor Bjornson's collective bargaining agreement ("CBA") trigger the election of remedies provision of the Federal Railroad Safety Act ("FRSA"), the Court will overrule CP's objections and adopt the R&R.


On November 3, 2011, Lonnie Bjornson slipped and fell in a bathtub in the Scottwood Motel while on work-related travel for his employer, CP. (Am. Compl. ¶¶ 1,8, Feb. 27, 2015, Docket No. 32.) Afterward, Bjornson noticed that several protective slip-proof strips were missing from the bottom of the bathtub. (Id. ¶ 9.) He alleges that he sustained injuries to his back, neck, right arm, and right shoulder in the fall, causing him to miss two months of work. (Id. at ¶¶ 11, 14.) His injuries lingered for two years, requiring continued medical treatment and chiropractic therapy to address his pain. (Id. ¶¶ 14-15.)

On September 29, 2013, Bjornson attempted to contact his managers at CP to obtain approval for leave from work so that he could attend a doctor's appointment related to his November 2011 injury. (Id. ¶ 15.) Bjornson alleges that he made multiple attempts to contact management about his request for time off, but no one answered the phone and he was unable to communicate his request in time to provide sufficient notice to take leave. (Id. ¶¶ 15-16.) When he finally reached his managers, they denied his leave request. (Id. ¶ 16.) In order to keep his doctor's appointment, Bjornson took a sick day even though he was denied his request for a personal day. (Id.) CP then investigated him for "laying off under false pretenses" and "failure to protect service." (Id. ¶ 17.) Following the investigation, CP placed a reporting violation on Bjornson's record and gave him a five-day suspension. (Id. ¶ 21.) CP recorded the investigation, reporting violation, and suspension on Bjornson's record, allegedly "creating a potential for blacklisting." (Id.)

In response, Bjornson filed a grievance for a violation of the CBA, but his grievance was unsuccessful. (Mem. in Supp. of Mot. to Strike at 4-5, Dec. 17, 2014, Docket No. 12.) Under the RLA, a railroad employee may appeal an adverse CBAdetermination to the National Railroad Adjustment Board for review. 45 U.S.C. § 153. Bjornson appealed his grievance determination pursuant to the RLA, and his appeal was denied. (Decl. of Christopher W. Bowman in Supp. of Pl.'s Mot. to Strike Affirmative Defenses Pursuant to Fed. R. Civ. P. 12(f), Ex. B (letter from defense counsel to plaintiffs' counsel) at 6, Dec. 17, 2014, Docket No. 13.)

He also filed this action against CP, alleging that they violated the FRSA by reprimanding him for seeking time off to receive medical treatment for injuries suffered on the job, which is a protected activity. (Am. Compl. ¶¶ 18-21); see also 49 U.S.C. § 20109(a)(4). Additionally, Bjornson asserts that the injuries he suffered are the result of his employer's negligence for failing to provide a safe work environment as required by the Federal Employers Liability Act ("FELA"). (Am. Compl. ¶¶ 10-11.) Bjornson also names as a defendant Scottwood Motel, for negligence in failing to provide safe accommodations. (Id. ¶¶ 25-26.)

In its answer to Bjornson's amended complaint, CP asserts twenty-five affirmative defenses. (CP's Answer to Pl.'s Am. Compl. ("Answer") at 7-10, Mar. 16, 2015, Docket No. 37.) Bjornson moves to strike three affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f)2: (1) Affirmative Defense 12 states that "Plaintiff's claim is barred, in whole or in part, by operation of 49 U.S.C. § 20109(d)"; (2) Affirmative Defense 14 asserts that "Plaintiff's claim is barred by the election of remedies provision codified at49 U.S.C. § 20109(f)"; and (3) Affirmative Defense 15 asserts that "[t]his court lacks jurisdiction to hear Plaintiff's claims and/or Plaintiff has failed to state a claim due to his failure to comply with the requirements set forth in 29 C.F.R. § 1982.114." (Mot. to Strike Certain Affirmative Defenses at 9, Dec. 17, 2014, Docket No. 10.)

On June 15, 2015, United States Magistrate Judge Steven E. Rau issued an R&R recommending denial of the motion to strike Affirmative Defense 12. (R&R at 6-8, 22, June 15, 2015, Docket No. 43.) The Magistrate Judge recommended granting the motion to strike Affirmative Defenses 14 and 15. (Id. at 8-22.) CP timely objected to the portion of the R&R evaluating Affirmative Defense 14. (Def.'s Objections to Portions of the Magistrate's R&R ("Objections") at 4, June 29, 2015, Docket No. 44.) This matter is now before the Court on CP's objections.


Upon the filing of a report and recommendation by a magistrate judge, a party may "serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). "The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections." Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific butmerely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error. See, e.g., Martinez v. Astrue, No. 10-5863, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19, 2011) (citing cases from numerous other jurisdictions); Fed. R. Civ. P. 72 advisory committee's note, subd. (b) ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").


CP objects to the R&R's recommendation to strike Affirmative Defense 14. In Affirmative Defense 14, CP asserts that Bjornson's grievance appeal under the RLA and the election of remedies provision of the FRSA combine to prevent him from alleging a violation of the FRSA in this action. 49 U.S.C. § 20109(f). In other words, CP argues that Bjornson is barred from seeking relief in federal court on a claim he already raised under the RLA. Further, CP insists that there is no controlling case law from the Eighth Circuit on the FRSA election of remedies provision in this context, and the Court should not strike Affirmative Defense 14 because it "fairly presents a question of law or fact which the court ought to hear." Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (internal quotation marks omitted).

Under Federal Rule of Civil Procedure 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A district court enjoys "liberal discretion" under this rule. Stanbury Law Firm, P.A. v. I.R.S.., 221 F.3d 1059, 1063 (8th Cir. 2000). Notably,"striking a party's pleadings is an extreme measure," and motions to strike under Rule 12(f) "are viewed with disfavor and are infrequently granted." Id. A motion to strike should be granted "if the result is to make a trial less complicated or otherwise streamline the ultimate resolution of the action." Daigle v. Ford Motor Co., 713 F. Supp. 2d 822, 830 (D. Minn. 2010). A court may strike a defense as legally insufficient if the defense asserted is "foreclosed by prior controlling decisions or statutes." E.E.O.C. v. Prod. Fabricators, Inc., 873 F. Supp. 2d 1093, 1097 (D. Minn. 2012) (quoting Holt v. Quality Egg, LLC, 777 F. Supp. 2d 1160, 1169 (N.D. Iowa 2011)). Accordingly, if there...

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