United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, United States District Judge.
the Court are six motions for summary judgment filed by
Defendants Missouri & Northern Arkansas Railroad Company,
Inc. (“MNA”); RailAmerica, Inc.
(“RA”); and Genessee & Wyoming, Inc.
(“GWI”). (ECF Nos. 23, 29, 35, & 38).
Plaintiffs Shawn Royal and Regina Royalhave filed
responses to each of Defendants’ motions. (ECF Nos. 55,
59, 62, & 65). Defendants have filed replies. (ECF Nos.
73, 75, 77, & 82). The Court finds these matters ripe for
their motions for summary judgment, Defendants assert that
(1) Separate Defendants RA and GWI are entitled to summary
judgement because Plaintiffs cannot establish that they are
subject to personal jurisdiction in Arkansas and the record
fails to support Plaintiffs’ negligence claims against
them (ECF No. 23); (2) Plaintiffs’ FELA claims fail
because Royal is not an employee of a railroad (ECF No. 29);
(3) Defendants owed no duty of care to Royal (ECF No. 35);
and (4) Defendants are entitled to summary judgment on
certain FELA claims, negligence claims, and damages claims
(ECF No. 38).
reasons discussed herein, the Court finds that Summary
Judgment should be granted in favor of Defendants on all of
Plaintiffs’ claims. Because the Court finds that
summary judgment should be granted, it is unnecessary for the
Court to consider Defendants additional motions for summary
judgment regarding preemption (ECF No. 26) and causation (ECF
case involves a number of different entities, and the
relationships of those entities to one another are of
importance in analyzing Defendants’ summary judgment
arguments. The Plaintiffs are Shawn Royal and his wife,
Regina Royal. Shawn Royal is an employee of North American
Railway Services (“NARS”) which performs work on
railroads. NARS entered into a contractual agreement with
RailAmerica (“RA”) to do work on one of
RA’s railroad’s, Missouri and Northern Arkansas
(“MNA”). In 2012, Genesee & Wyominc, Inc.
(“GWI”) acquired RA through a stock-purchase
allege that, on or about September 25, 2012, Plaintiff Shawn
Royal was operating a ballast regulator along MNA’s
tracks when the machine suddenly stopped and he was thrown
into the windshield and then off of the machine. The purpose
of a ballast regulator on a railroad is to pick up
ballast and move it onto the rails. Plaintiff
asserts that the accident occurred because his machine pulled
a large piece of rock, called rip rap, onto the rails and
then ran into the rip rap. In their Complaint, Plaintiffs
allege that Royal was injured as a result of improper track
surfacing, improper ballast, rip rap, obstruction of safe
passage of track machinery, and conditions that violate the
Federal Railroad Safety Act regulations relating to track
safety standards. Plaintiffs seeks relief pursuant to the
Federal Employers’ Liability Act (“FELA”)
and state law negligence for damages incurred from the
motion for summary judgment will be granted if the
“pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact,
and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). To establish that a
genuine issue of material fact exists, the nonmoving party
must show that (1) there is a factual dispute, (2) the
disputed fact is material to the outcome of the case, and (3)
the dispute is genuine. RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 339, 401 (8th Cir.
1995). A dispute is genuine only if a reasonable jury could
return a verdict for either party. Id.; Anderson
v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also
McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510
(8th Cir. 1995).
RAILAMERICA AND GENESEE & WYOMING, INC.
Defendants RA and GWI assert that they are entitled to
summary judgment because Plaintiffs cannot establish that RA
and GWI are subject to personal jurisdiction in the state of
Arkansas. Alternatively, they assert that the record fails to
support Plaintiffs’ negligence claims against them.
Plaintiffs respond that Defendants have ignored corporate
formalities and acted as alter egos of one another, and,
thus, the exercise of personal jurisdiction over RA and GWI
does not offend due process.
Eighth Circuit has not decided whether the defense of lack of
personal jurisdiction may be raised in a summary judgment
motion or whether, by its nature, it must be raised in a
motion to dismiss. Pope v. Elabo GmbH, 588 F.Supp.2d
1008, 1012 (D. Minn. 2008). Other courts have found that a
motion raising the defense of lack of personal jurisdiction
is necessarily a motion to dismiss under Rule 12(b)(2), and
not a motion for summary judgment under Rule 56. See,
e.g., Robinson v. W. NIS Enter. Fund, No.
C97-41, 1999 WL 33656834 (N.D. Iowa Mar. 31, 1999). Treating
the motion as a Rule 12(b)(2) motion to dismiss for lack of
personal jurisdiction is necessary because “[i]f the
court has no jurisdiction, it has no power to enter a
judgment on the merits and [instead] must dismiss the
action.” 10A Wright, Miller & Kane, Civil 3d §
2713, at 239. Accordingly, the Court will treat this summary
judgment motion as a motion to dismiss under Rule 12(b)(2).
where the district court considers evidence outside the
pleadings in ruling on a Rule 12(b)(2) motion, the standards
of Rule 56 apply. Radaszewski by Radaszewski v. Telecom
Corp., 981 F.2d 305, 309-10 (8th Cir. 1992), cert.
denied, 508 U.S. 908 (1993). Consequently, a motion to
dismiss for lack of personal jurisdiction which involves
evidence outside the pleadings may be granted only if the
record, viewed in the light most favorable to the non-moving
party, does not raise any genuine issue of fact material to
the question of personal jurisdiction over the moving party.
GWI argue that dismissal is appropriate because they do not
have sufficient minimum contacts with the state of Arkansas
to fairly subject them to personal jurisdiction, and there is
no basis in the record for piercing MNA’s corporate
veil under the alter-ego approach to establish personal
jurisdiction. Plaintiffs assert that RA wholly owns MNA, a
railroad operating in Arkansas of which RA is in active and
direct control. Plaintiffs assert that the Master Service
Agreement between Royal’s employer, NARS, and RA
demonstrates that RA maintained direct control over the
performance of NARS and its employees on MNA’s tracks
and thus RA is subject to personal jurisdiction in Arkansas.
Plaintiffs assert that the relationship between RA and GWI
raises a fact issue with respect to the propriety of the
Court’s exercise of personal jurisdiction over GWI.
personal jurisdiction is challenged by a defendant, the
plaintiff bears the burden to show that jurisdiction
exists.” Fastpath, Inc. v. Arbela Techs.
Corp., 760 F.3d 816, 820 (8th Cir. 2014). A federal
court sitting in diversity can exercise personal jurisdiction
over a defendant only if doing so comports with both the
long-arm statute of the state in which the federal court is
located and the Due Process Clause of the Fourteenth
Amendment. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 463 (1985); Pecoraro v. Sky Ranch for Boys,
Inc., 340 F.3d 558, 561 (8th Cir. 2003).
“Arkansas’s long-arm statute provides for
jurisdiction over persons and claims to the maximum extent
permitted by constitutional due process.” Pangaea,
Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir.
2011) (citing Ark. Code. Ann. § 16-4-101).
jurisdiction over a defendant is constitutionally permissible
if the defendant has “certain minimum contacts with
[the forum state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457 (1940)). The Eighth
Circuit has established a five-factor test to determine the
sufficiency of a nonresident defendant’s contacts with
the forum state. Dever v. Hentzen Coatings, Inc.,
380 F.3d 1070, 1073 (8th Cir. 2004). The five factors are: 1)
the nature and quality of contacts with the forum state; 2)
the quantity of the contacts; 3) the relation of the cause of
action to the contacts; 4) the interest of the forum state in
providing a forum for its residents; and 5) convenience of
the parties. Id. at 1073-74 (quoting Burlington
Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1102
(8th Cir. 1996)). The Court should give significant weight to
the first three factors. Id. at 1074. A nonresident
corporation’s “affiliations with the State [must
be] so continuous and systematic as to render [it]
essentially at home in the forum state.” Daimler AG
v. Bauman, 134 S.Ct. 746, 761 (2014) (internal
quotations omitted). The Supreme Court has said that it is
only in an exceptional case when a corporation’s
operations in a forum other than its formal place of
incorporation or principal place of business may be so
substantial as to render the corporation at home in that
state. Daimler AG, 134 S.Ct. at 761 n.19.
defendant nonresident parent corporation, personal
jurisdiction may also be based on the activities of the
nonresident corporation’s in-state subsidiary, but only
if the parent “so controlled and dominated the affairs
of the subsidiary that the latter’s corporate existence
was disregarded so as to cause the residential corporation to
act as the nonresidential corporate Defendant’s alter
ego.” Epps v. Stewart Information Servs.
Corp., 327 F.3d 642, 648-49 (8th Cir. 2003). Mere
ownership of a resident company is insufficient to subject
the parent to jurisdiction. Id. at 650. Thus,
Plaintiffs must be able to pierce the corporate veil under
Arkansas law to establish jurisdiction in this way.
Id. at 649.
Arkansas, the doctrine of piercing the corporate veil is
applied when the facts warrant its application to prevent
injustice. Humphries v. Bray, 611 S.W.2d 791, 793
(Ark. App. 1981) (citing Aetna Casualty and Surety
Company v. Stover, 327 F.2d 288 (8th Cir. 1964)).
Piercing the fiction of a corporate entity should be applied
with great caution. Banks v. Jones, 390 S.W.2d 108,
111 (Ark. 1965). It is only when the privilege of transacting
business in corporate form has been illegally abused to the
injury of a third person that the corporate entities should
be disregarded. Rounds & Porter Lumber Co. v.
Burns, 225 S.W.2d 1, 3 (Ark. 1949).
RA is a
Delaware corporation with its principal place of business in
Jacksonville, Florida. RA is not authorized by the Secretary
of State to do business in Arkansas. RA did not own any
property in Arkansas and did not have employees in Arkansas.
RA and MNA were controlled and operated by separate and
distinct boards of directors and employed separate personnel.
acquired RA in 2012. GWI is a Delaware corporation with its
principal place of business in Darien, Connecticut. GWI also
is not authorized by the Secretary of State to do business in
Arkansas, does not own any property in Arkansas, and does not
have any employees in Arkansas. Since GWI’s acquisition
of RA, GWI and MNA ...