Ganus v. Alabama And Gulf Coast Railway LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHELLE L. GANUS, etc., 	)
)
Plaintiff, 	)
)
v. 	) 	CIV. A. NO. 23-0103-TFM-MU
)
ALABAMA & GULF COAST 	)
RAILWAY, LLC, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
On March 31, 2023, Defendant Alabama & Gulf Coast Railway, LLC (“AGR”) filed
a Motion to Dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. (Doc. 4). This motion has been referred to the undersigned
Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72. In its
motion, AGR argues that Plaintiff’s complaint fails to state a claim against it. This issue
has been fully briefed by both parties. (Docs. 4, 11, 12, 21). For the reasons set forth
below, the undersigned Magistrate Judge RECOMMENDS that Defendant AGR’s
motion to dismiss be DENIED.
I. Factual Allegations
On February 23, 2023, Plaintiff Michelle L. Ganus, as Personal Representative of
the Estate of Michael Fisher Ganus, filed a complaint in the Circuit Court of Mobile
County, Alabama, against Defendant AGR and Fictitious Defendants A-Z. (Doc. 1-1 at
p. 7). The action was removed to this Court by AGR on March 27, 2023. (Doc. 1). In her
complaint, Plaintiff sets forth the following factual allegations: On February 25, 2020,
Michael Fisher Ganus (“Ganus”) was an employee of Harbor Rail Services of California,
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Inc. (“Harbor Rail”). (Doc. 1-1 at p. 9; PageID. 20). Harbor Rail was hired by AGR to
provide specialized services for railroad transportation, including, but not limited to
servicing, routine repairing, and maintaining rail cars owned and operated by AGR. (Id.).
Ganus worked on a crew that repaired AGR’s rail cars and loaded/unloaded cross ties
at AGR’s direction. (Id.). Plaintiff alleges that AGR directed, supervised, ordered, and
controlled Ganus in the performance of his duties. (Id.).
On February 25, 2020, Ganus was under the direction and/or supervision of AGR
and was part of a groundcrew directed to operate a lift and unload crossties and to
repair a rail car’s truck set at or near AGR’s railroad property located at 701 Telegraph
Road in Mobile, Alabama. (Id.). To perform the tasks assigned by AGR, the groundcrew
had to use a powered industrial truck with a heavy forklift boom attachment. (Id.). The
safety chain/hook of the boom attachment needed to be secured using a safety hook
with a safety latch (or other securing device) attached back to the safety chain. (Doc. 1-
1 at pp. 9-10; PageID. 20-21). On this date, the safety chain/hook of the boom
attachment was missing the required safety latch or other securing device, and the
forklift boom attachment was not approved for use in conjunction with the industrial
truck which was being used. (Doc. 1-1 at p. 10; PageID. 21). During the repairs, the
groundcrew worked at, near, and under the truck with the forklift boom attachment. (Id.).
Due to the missing safety feature, the forklift boom attachment came off the truck and
fatally struck Ganus in the chest. (Id.).
Both before and at the time of Ganus’s death, AGR and Harbor Rail failed to
implement adequate training and safety procedures in connection with the use of the
industrial truck and boom lift attachment. (Id.).
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II. Standard of Review
Defendant AGR submits that Plaintiff’s claims against it are due to be dismissed,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, because Plaintiff has
failed to state a claim against it upon which relief can be granted. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.... [This
standard] asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. at 678. A complaint is also “subject to dismissal for failure to state a claim ‘when its
allegations, on their face, show that an affirmative defense bars recovery on the claim,’”
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (quoting Cottone v. Jenne, 326
F.3d 1352, 1357 (11th Cir. 2003)), or “when, on the basis of a dispositive issue of law,
no construction of the factual allegations will support the cause of action,” Marshall
Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
In determining whether a claim is stated, the court “must accept the factual
allegations in a complaint as true and construe them in the light most favorable to the
plaintiff.” Almanza v. United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).
However, “[l]egal conclusions without adequate factual support are entitled to no
assumption of truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011). While
the court must usually limit its review and consideration to the complaint itself and
exhibits attached thereto, a “court may consider an extrinsic document if it is (1) central
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to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v.
Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010).
III. Legal Analysis
Plaintiff has sued AGR under the Federal Employers’ Liability Act (“FELA”), 45
U.S.C. § 51, et seq. (Doc. 1-1 at pp. 12-13; PageID. 23-24). Pursuant to the FELA, “a
covered railroad is liable for negligently causing the injury or death of any person ‘while
he is employed’ by the railroad.” DeShong v. Seaboard Coast Line R. Co., 737 F.2d
1520, 1521 (11th Cir. 1984) (citing 45 U.S.C. § 51 (1980)). In Kelley v. Southern Pacific
Co., 419 U.S. 318 (1978), the Supreme Court held that a plaintiff can establish
“employment” with a railroad company as required by the FELA by showing that he was
a borrowed servant, dual servant, or a sub-servant of a company that was a servant of
the railroad at the time of injury. Id. at 324 (cited with approval in DeShong, 737 F. 2d at
1522-23). AGR asserts that the instant complaint fails to state a claim against it
because Plaintiff’s claim that Ganus was an employee, borrowed servant, or dual
servant of AGR or a sub-servant of a company which was a servant of AGR lacks facial
plausibility. Thus, the issue here is whether Plaintiff has plead factual content that
allows this Court to draw the reasonable inference that Ganus was an employee,
borrowed servant, or dual servant of AGR or a sub-servant of a company which was a
servant of AGR.
Having reviewed the allegations of the complaint, the Court finds that Plaintiff has
met this pleading burden. Plaintiff has alleged that Ganus was an employee of Harbor
Rail, and that Harbor Rail was hired by AGR to provide specialized services for railroad
transportation, including, but not limited to servicing, routine repairing, and maintaining
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rail cars owned and operated by AGR. (Doc. 1-1 at p. 9; PageID. 20). Plaintiff further
alleged that Ganus worked on a crew that repaired AGR’s rail cars and loaded/unloaded
cross ties at AGR’s direction. (Id.). Plaintiff asserts that AGR directed, supervised,
ordered, and controlled Ganus in the performance of his duties. (Id.). Plaintiff
specifically alleges that, on February 25, 2020, Ganus was under the direction and/or
supervision of AGR and was part of a groundcrew directed to operate a lift and unload
crossties and to repair a rail car’s truck set at or near AGR’s railroad property located at
701 Telegraph Road in Mobile, Alabama when he suffered an injury that resulted in his
death. (Id.).
Based on its review of the complaint, the Court finds that Plaintiff has offered
factual support for her contention that Ganus was an employee, borrowed servant, or
dual servant of AGR or a sub-servant of a company which was a servant of AGR. The
factual allegations, accepted as true, clearly state a claim that is plausible on its face
and are sufficient to put AGR on notice of the basis of the claim being asserted against
it.1
CONCLUSION
For the reasons stated above, the Court finds that the complaint, when viewed in
the light most favorable to Plaintiff, sets forth sufficient factual allegations, if taken as
1 The parties have offered extrinsic evidence to support their contentions regarding
Ganus’s employment status; however, the Court declines to consider that evidence at
this stage of the proceedings prior to discovery. Accordingly, Plaintiff’s Notice of Filing
and Request for the Court to take Judicial Notice (Doc. 26) is hereby DENIED. In
addition, because the Court has not considered Plaintiff’s Surreply (Doc. 21),
Defendant’s Renewed Motion for Leave to File a Response to Plaintiff’s Surreply and
Notice of Filing (Doc. 27) is DENIED.
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true, to state a claim under the FELA against AGR. Accordingly, the undersigned
Magistrate Judge RECOMMENDS that the motion to dismiss filed by Defendant
Alabama & Gulf Coast Railway, LLC be DENIED.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything in it
must, within fourteen (14) days of the date of service of this document, file specific
written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b); S.D. Ala. Gen. LR 72(c)(1) & (2). The parties should note that under Eleventh
Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. To be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 6th day February, 2024.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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