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Gossom v. Union Pacific Railroad Co.

United States District Court, W.D. Kentucky, Paducah Division

September 3, 2019

JESSICA GOSSOM, as Administratrix of the Estate of Joshua Shimkus, Deceased, and as Next-Friend of A.S. and M.S., minors PLAINTIFF


          Greg N. Stivers, Chief Judge.

         This matter is before the Court on Motions to Dismiss filed by Defendants Tennessee Valley Authority (“TVA”), Thomas Weatherby (“Weatherby”), and Brian Kirk Egner (“Egner”) (DN 10), and Defendant Progress Rail Services Corporation (“Progress”) (DN 53), Progress' Motion to Strike (DN 68), and Plaintiff's Motion for Leave to File Belated Response (DN 71). The motions are ripe for adjudication. For the reasons provided below, the motions to dismiss and the motion for leave are GRANTED, and the motion to strike is DENIED AS MOOT.

         I. BACKGROUND

         Decedent Joshua Shimkus (“Shimkus”) was employed as a laborer by a contractor performing work for TVA in Kentucky. (Compl. ¶ 21, DN 1-1). Plaintiff Jessica Gossom (“Plaintiff”) is Shimkus' former spouse, the administratix of his estate and the mother of his two minor children, A.S. and M.S. (Compl. ¶¶ 1-2).

         On December 10, 2017, Shimkus was operating a vacuum truck as part of a crew cleaning up a derailment and coal spill after the hopper doors on one of the railcars had opened. (Compl. ¶¶ 24, 28). Plaintiff alleges Progress had inspected the rail car prior to the derailment. (Compl. ¶ 25). Plaintiff further alleges Weatherby and Egner were also involved in this clean-up. (Compl. ¶ 25).

         As part of the clean-up, Shimkus had to go beneath the railcar with a vacuum hose from his truck. (Compl. ¶ 27). While underneath the car and between the open hopper doors, Weatherby allegedly directed Egner to activate the pneumatic valve and close the hopper doors which caught and crushed Shimkus, causing his death. (Compl. ¶¶ 27, 29). Plaintiff has asserted several claims stemming from this tragic incident. Relevant to the present motions, Plaintiff first asserts claims for negligence against Weatherby and Egner for failing to exercise reasonable care in operating the pneumatic valve controlling the hopper doors. (Compl. ¶¶ 34-39). Plaintiff also asserts negligence claims against TVA, both directly and under a theory of respondeat superior, and against Progress for its alleged failure to properly inspect the rail car. (Compl. ¶¶ ¶¶ 40-47, 96-100). Plaintiff further contends Progress breached its duty by failing to provide Shimkus' direct employer with “adequate and necessary advice, guidance, policies, procedures, tools, equipment, safety budget and other resources for purposes of enabling [Shimkus' employer] to safely conduct[] its operations and tasks.” (Compl. ¶ 106).

         TVA moved to dismiss the claims asserted against Weatherby and Egner in this case because they were acting within the scope of their employment with TVA at the time of the incident, so they are precluded from suit under 16 U.S.C. § 831c-2. (Def.'s Mem. Supp. Mot. Dismiss 1-2, DN 10-2). Plaintiff does not appear to dispute that Weatherby's and Egner's dismissal is appropriate, but requests the Court to do so without prejudice. (Pl.'s Resp. Def.'s Mot. Dismiss 1-3). TVA responded to state that it does not oppose dismissing Weatherby and Egner without prejudice. (Def.'s Reply Mot. Dismiss 4, DN 59).

         On April 3, 2019, Progress moved to dismiss the claims asserted against it arguing that this Court lacks personal jurisdiction over Plaintiff's claims against it because its allegedly negligent inspection of the railcar occurred in February 2017 in Alliance, Nebraska-approximately nine months before the incident at issue in this case. (Def.'s Mem. Supp. Mot. Dismiss 2, DN 53-1). In response, Plaintiff contends that this Court has personal jurisdiction over Progress because “[t]here is a reasonable and direct nexus between those acts and omissions” and the injury occurring in Kentucky.[1] (Pl.'s Resp. Def.'s Motion Dismiss 5, DN 66). Progress then moved to strike Plaintiff's Response as violating Local Rule 7.1(c) for being filed more than 21 days after she received service of Progress' Motion to Dismiss. (Def.'s Mem. Supp. Mot. Strike 1, DN 68-1). In responding to Progress' Motion to Strike, Plaintiff attributes her tardiness to “inadvertence.” (Pl.'s Mot. Leave File Resp. 1, DN 71).


         A. TVA's Motion to Dismiss Weatherby and Egner

         TVA is an executive branch corporate agency and instrumentality created by and existing pursuant to the TVA Act of 1933. TVA v. Hill, 437 U.S. 153, 157 (1978). Because TVA is an executive branch agency of the United States, its employees are considered federal employees. See Jones v. TVA, 948 F.2d 258, 262 (6th Cir. 1991) (citation omitted). As such, TVA employees are entitled to the same immunity from tort suits as other federal employees. United States v. Smith, 499 U.S. 160, 169 (1991); 16 U.S.C. § 831c-2; 28 U.S.C. § 2679(b)-(d).

         The Federal Employees Liability Reform and Tort Compensation Act of 1988 (“FELRTCA”) provides that, except for claims of constitutional torts, an action against TVA “is ex[c]lusive” and precludes any action against a TVA employee based upon the employee's alleged “negligent or wrongful act or omission” while acting within the scope of his or her TVA employment. 16 U.S.C. § 831c-2(a)(1)-(2). When TVA certifies that a “defendant employee was acting within the scope of his . . . employment at the time of the incident out of which the claim arose, ” the action against the employee “shall be deemed an action against the [TVA] . . . and the [TVA] shall be substituted as the party defendant.” Id. § 831c-2(b)(1). “Any other civil action or proceeding arising out of or relating to the subject matter against the employee . . . is precluded without regard to when the act or omission occurred.” Id. § 831c-2(a)(1). Moreover, cases applying relevant provision of the FELRTCA conclude that non-constitutional tort against a TVA employee based on acts or omissions within the scope of their employment with TVA are precluded and must be dismissed. See Mulcahy v. Fields, No. 5:07CV-39-R, 2007 WL 4119040, at *1 (W.D. Ky Nov. 14, 2007) (substituting TVA as a party defendant on claims lodged against individually named defendant).

         TVA attaches a certification attesting that Weatherby and Egner were acting within the scope of their employment with TVA at the time the incident in this case occurred. (Defs.' Mot. Dismiss Ex. 1, DN 10-1). This certification is conclusive. 16 U.S.C. § 831c-2(b)(1).Plaintiff does not dispute that the FELRTCA instructs the Court to name TVA as defendant in Weatherby and Egner's place, so the Court will grant TVA's Motion and dismiss Weatherby and Egner as parties to this case.

         Plaintiff requests the Court dismiss her claims against Weatherby and Egner without prejudice because discovery has not yet occurred, and it would be “premature” to exonerate Weatherby and Egner when further information might come out in discovery relating to their work with other Defendants in this case. (Pl.'s Resp. Defs.' Mot. Dismiss 2, DN 36). Plaintiff further contends that Weatherby and Egner's interests would be protected if the Court dismissed without prejudice because any final judgment for or against TVA would act as a complete bar to any further action against them individually. (Pl.'s Resp. Defs.' Mot. Dismiss 2). On this topic, TVA does not take issue with Plaintiff's request and cites several cases demonstrating that courts are not consistent in dismissing parties under the FELRTCA with or without prejudice. (Defs.' Reply Mot. Dismiss 3, DN 59). Because the parties do not ...

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