United States District Court, W.D. Kentucky, Paducah Division
JESSICA GOSSOM, as Administratrix of the Estate of Joshua Shimkus, Deceased, and as Next-Friend of A.S. and M.S., minors PLAINTIFF
UNION PACIFIC RAILROAD COMPANY; LEXAIR, INC.; PROGRESS RAIL SERVICES CORPORATION; WILLIAMS PLANT SERVICES, LLC; WORLEYPARSONS GROUP; TENNESSEE VALLEY AUTHORITY; THOMAS WEATHERBY; BRIAN KIRK EGNER; and AESOME ENERGY & CONSTRUCTION, INC. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, United States District Court Chief Judge
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.
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).
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).
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).
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).
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).
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. (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).
TVA's Motion to Dismiss Weatherby and
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).
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).
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 ...