Ratledge v. Norfolk S. Ry. Co.

• Decision Date: 25 July 2013
• Docket Number: No. 1:12–CV–402.,1:12–CV–402.
• Citation: 958 F.Supp.2d 827
• Parties: George RATLEDGE, Plaintiff, v. NORFOLK SOUTHERN RAILWAY CO. and Bull Moose Tube Co., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

958 F.Supp.2d 827

George RATLEDGE, Plaintiff,

v.NORFOLK SOUTHERN RAILWAY CO. and Bull Moose Tube Co., Defendants.

No. 1:12–CV–402.

United States District Court, E.D. Tennessee.

July 25, 2013.

William G. Colvin, William G. Colvin PLLC, Chattanooga, TN, William C. Tucker, Jr., Petway, Tucker & Barganier, L.L.C., Birmingham, AL, for Plaintiff.

Alison B. Martin, Kevin D. Hudson, Larry L. Cash, Michael James Dumitru, Miller & Martin, PLLC, Chattanooga, TN, Jeffrey S. Berlin, Sidley Austin LLP, Washington, DC, Angela H. Smith, William R. Johnson, Moore, Ingram, Johnson & Steele, LLP, Marietta, GA, Charles E. Pierce, Moore Ingram Johnson & Steele, LLP, Knoxville, TN, for Defendants.

MEMORANDUM

CURTIS L. COLLIER, District Judge.

Before the Court is Defendant Bull Moose Tube Company's (“Bull Moose”) motion to dismiss for lack of jurisdiction (Court File No. 22). Plaintiff George Ratledge (“Plaintiff”) responded to Bull Moose's motion (Court File No. 34), and Bull Moose replied to Plaintiff's response (Court File No. 38). Bull Moose argues the Court lacks personal jurisdiction over it because, although it maintains contacts with Tennessee, the injury in this case occurred outside the State of Tennessee. Bull Moose seeks dismissal on subject-matter jurisdiction grounds as well. Bull Moose also argues, for the first time in its reply brief, Plaintiff has failed to establish proper venue. For the following reasons, the Court concludes the requirements of personal jurisdiction and subject-matter jurisdiction have been met. Moreover, Bull Moose misreads the venue statute, and venue properly lies in the Eastern District of Tennessee. Accordingly, the Court will DENY Bull Moose's motion (Court File No. 22).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Norfolk Southern Railway Company (“NSR”) is a common carrier engaged in shipping by rail. NSR maintains a facility in Hamilton County, Tennessee called the DeButts Yard facility. Plaintiff was employed as a “carman” by NSR at the DeButts facility between 1971 and 2010.

On January 7, 2010, Plaintiff was sent to inspect a load of steel at a Trenton, Georgia facility operated by Bull Moose. Typically, employees would enter the Bull Moose facility through two large roll-up doors. On the day in question, however, the doors were closed due to cold weather. Plaintiff entered through a different door, on the side of the building. Plaintiff turned left after walking through the door and hit his head against a metal support beam. Although Plaintiff was wearing a hard hat, his head and neck were injured by the blow.

Plaintiff felt merely rattled at first and continued with his duties. By the following morning, Plaintiff's condition became more serious. He informed NSR Senior General Foreman Terry Sayers about the incident and requested the proper injury forms. Sayers informed Plaintiff NSR would fire Sayers as foreman if Plaintiff filled out the injury forms. He told Plaintiff to postpone reporting the injury in order to determine whether it might improve on its own. Plaintiff obliged, feeling he might be fired himself if he disobeyed.

However, by the following Monday, January 11, 2010, Plaintiff decided he could suffer no longer and confronted Sayers again. He was told to wait once more, and if he did decide to report the injury, to change the date of the injury to the report date, rather than January 7, 2010. On the same day, Plaintiff discussed the injury with NSR General Foreman Robert Steed, who stated he would discuss the situation with Sayers. Plaintiff continued to work in spite of the pain.

By Wednesday, January 13, 2010, the pain had become too severe to ignore, complete with numbness and tingling in his right arm, and Plaintiff told Sayers he must seek medical attention. Sayers notified NSR Division Manager of Mechanical Operations Kevin Krull. Plaintiff also finally filled out the injury forms, correctly listing January 7, 2010 as the date of injury. Plaintiff was then transported to Work Force Corporate Health Services where Michael Gaither, NSR's physician, treated him. He assessed Plaintiff with (1) degenerative disc disease in the cervical spine; (2) right shoulder pain; (3) muscle spasm; and (4) head contusion questionable concussion. Gaither prescribed Naprosyn, Flexeril, Lortab, and a Computed Tomography (“CT”) scan. He released Plaintiff to work with restrictions, including no pushing, no pulling, no lifting over fifteen pounds with his right arm, no lifting with outstretched right arm, and limiting use of his right arm.

After he returned from treatment, Krull, Sayers, Steed, and other NSR employees interviewed Plaintiff about the circumstances of his injury. Krull told Plaintiff NSR could not accommodate his restrictions, and he would be unable to return to work until cleared by NSR's Medical Department. The interviewers then initiated an investigation. They measured Plaintiff in full safety garb, including a hard hat and safety boots, and measured his height at 79.5 inches from the floor to the top of his hard hat.¹ They measured Plaintiff in a “slouched” position, approximating his height at the time he struck the support beam. When Krull, Sayers, and Steed visited the Bull Moose facility, they measured the distance between the floor and the support beam Plaintiff claimed to have struck. The top support beam was 74 inches from the floor, while the bottom support beam was 71.75 inches from the floor. They also noticed cobwebs on the support beam but did not find any white residue on Plaintiff's hard hat. Performing a crude experiment, they struck Krull's own hard hat against a similar beam, which resulted in some residue transference.

The cohort concluded Plaintiff could not have sustained his injury as he reported it to them during the interview. They decided to place Plaintiff “out of service” pending a formal disciplinary hearing. On January 15, 2010, Plaintiff received a charge letter with two charges: (1) failing to properly and timely report an injury in violation of “General Rule N”; and (2) falsification of an injury. The late reporting charge was dropped after Krull discovered Sayers and Steed prevented Plaintiff from timely reporting his injury.

An investigative hearing was held on September 9, 2010, during which Plaintiff submitted the findings of a retained expert, Dr. Tyler Kress. He was not, however, represented by counsel. Although Plaintiff and his retained expert were denied access to the Bull Moose facility to conduct an independent investigation, Dr. Kress concluded Plaintiff's height decreased three inches during regular stride, which resulted in the lower part of his hard hat being 71 inches from the floor. This was roughly the height of the bottom support beam as measured by the investigators. Dr. Kress also noted Plaintiff may, as many do, slouch as he walks, in which case the effective height of the lower part of his hard hat would be less than 71 inches. Dr. Kress also concluded hard-hat impacts do not typically leave visible evidence due to the type of plastic used to produce them.

In spite of this report, the NSR investigation concluded Plaintiff falsified his injury. NSR terminated Plaintiff's employment on October 8, 2010. On November 30, 2010, Plaintiff's union representative appealed his dismissal to NSR's Director of Labor Relations, D.L. Kerby on the grounds the investigative hearing was not fair and impartial and violated Rule 29 of the Controlling Agreement. The appeal was denied on January 28, 2011. Plaintiff then sought relief from the Public Law Board, which concurred with the guilty decision on June 21, 2011, but found a permanent dismissal unwarranted in light of Plaintiff's extensive service. The Board ordered Plaintiff be reinstated with seniority intact, but did not award him payment for lost time. Plaintiff is, however, disabled from his normal duties.

Earlier, on March 17, 2010, Plaintiff filed a complaint with the Regional Administrator of Occupational Safety & Health Administration (“OSHA”) pursuant to the FRSA, 49 U.S.C. § 20109, and the DOL's implementing regulations, 29 C.F.R. Part 1982. He amended his complaint on October 13, 2010, in which he alleged NSR retaliated against him and interfered with his medical treatment. On July 18, 2012, the OSHA Regional Administrator found in Plaintiff's favor, and awarded him compensatory damages, punitive damages, attorney's fees, and other relief. On August 8, 2012, NSR objected to these findings and requested a hearing before the Office of the Administrative Law Judges of the DOL. Plaintiff notified the DOL on October 23, 2012 he intended to file suit in U.S. District Court.

Also, after receiving the charge letter but before the September hearing, Plaintiff filed a complaint with the U.S. Department of Transportation, Federal Railroad Administration (“FRA”). On November 29, 2010, the FRA informed Plaintiff NSR violated federal regulations when it “harassed and intimidated” him between January 7 and January 13, 2010. See49 C.F.R. § 225.33. ² The FRA also concluded NRS violated regulations when it did not allow Plaintiff to file an initial injury report, see id., and when it did not document the injury on its required monthly report, see49 C.F.R. § 225.11.

Plaintiff filed a personal injury suit against NSR and Bull Moose in the Circuit Court of Hamilton County on August 26, 2010, asserting some of the claims alleged in this case. He voluntarily dismissed that action without prejudice on November 27, 2012. Shortly thereafter, on December 26, 2012, Plaintiff filed the instant action. Plaintiff brings four claims: (1) negligence against NSR pursuant to 45 U.S.C. § 51; (2) retaliation by NSR in violation of the FRSA, 49 U.S.C. § 20109(a), and its implementing regulations; (3) interference with treatment against NSR in violation of the FRSA, 49 U.S.C. § 20109(c), and its implementing regulations; and (4) negligence against Bull Moose pursuant to state common law or...