Hinrichs

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------X

THOMAS R. HINRICHS,

Plaintiff, MEMORANDUM AND ORDER

-against- CV 23-1771 (AYS)

BROOKHAVEN TERMINAL OPERATIONS,

LLC., BROOKHAVEN RAIL LLC,

BROOKHAVEN RAIL FREIGHT SERVICES LLC,

and SILLS ROAD REALTY LLC,

Defendants.

------------------------------------------------------------------X

APPEARANCES:

LAW OFFICES OF PHILIP P. VOGT, PLLC

Attorneys for Plaintiff

BY: PHILIP PATRICK VOGT, ESQ.

ELIZABETH CHIATTO, ESQ.

5 Penn Plaza, 23rd Floor

New York, New York 10001

MORRIS DUFFY ALONSO & FALEY

Attorneys for Defendant Brookhaven Terminal Operations, LLC

BY: DANIELLE J. REISS, ESQ.

LYNN GOLDER, ESQ.

KENNETH PITCOFF, ESQ.

MICHAEL ADAM CZOLACZ, ESQ.

101 Greenwich Street, Ste. 22nd Floor

New York, New York 10006

GORDON REES SCULLY MAUNSHKANUI, LLP

Attorneys for Defendant Brookhaven Rail, LLC

BY: LEE HENIG-ELONA, ESQ.

One Battery Park Plaza, 28th Floor

New York, New York 10004

290 W. Mt. Pleasant Avenue, Ste. 3310

Livingston, New Jersey 07039

RUSKIN MOSCOU FALTISCHEK, PC

Attorneys for Defendants Brookhaven Rail Freight Services LLC and

Sills Road Realty LLC

BY: JONATHAN C. SULLIVAN, ESQ.

ROSS J. KARTEZ, ESQ.

1425 RXR Plaza, East Tower 15th Floor

Uniondale, New York 11556

SHIELDS, Magistrate Judge:

Plaintiff Thomas R. Hinrichs (“Plaintiff” or “Hinrichs”), a former employee of Defendant

Brookhaven Terminal Operations, LLC (“BTO”) commenced this action seeking damages for

injuries allegedly suffered during the course of his employment. See generally Plaintiff’s

Complaint (the “Complaint”) appearing as Docket Entry herein (“DE”) 1. Plaintiff alleges that he

was injured while working for BTO at the Brookhaven Rail Terminal, located in Yaphank, New

York (the “Terminal”). In addition to naming BTO as a Defendant, Plaintiff also names: (1)

Brookhaven Rail, LLC (“Brookhaven Rail” or “Rail”); (2) Brookhaven Rail Freight Services,

LLC (“Freight”) and Sills Road Realty, LLC (“Sills Road”).

BTO is the only Defendant sued pursuant to the Federal Employers Liability Act, 45

U.S.C. §51 (the “FELA”). All other Defendants are alleged to be liable pursuant to State law.

Plaintiff’s FELA claim against BTO is thus the sole basis for Federal jurisdiction. The parties

take opposing positions as to whether or not BTO is a proper FELA Defendant. While all agree

that BTO was Plaintiff’s employer, they dispute whether BTO is a “common carrier” within the

meaning of FELA. If BTO is not a FELA common carrier, it cannot be liable under that statute; if

it is, FELA and its concomitant liability standards apply. In view of this core legal dispute the

parties were directed to engage in limited and expedited discovery tailored to the question of

whether BTO is a FELA common carrier. That discovery is now complete.

There are presently three dispositive motions before the Court. As forecasted, BTO

moves for summary judgment as to Plaintiff’s FELA claim. DE [55]. Rail moves to dismiss or

for summary judgment, DE [54], as have Freight and Sills Road, DE [61]. All Defendants argue

that BTO is not a common carrier and therefore seek dismissal of the FELA claim. Rail seeks

summary judgment on the issue of negligence liability. BTO, Freight and Sills Road reserve their

rights to dispute such liability. DE [61-14]. The Court rejects Rail’s invitation to rule on liability

at this time. Instead, it holds that the only issue ripe for adjudication at this juncture is whether or

not BTO is a FELA common carrier. All other claims will rise or fall on the outcome of merits

discovery that has yet to take place. Therefore, without further discussion as to Plaintiff’s

common law claims (and without commenting on Plaintiff’s credibility, work history or the way

in which he carried out his tasks) the Court denies without prejudice any motion for summary

judgment on the issue of liability.

As to the viability of the FELA claim, the Court holds for the reasons set forth below that

BTO is a common carrier within the meaning of FELA. Accordingly, to the extent that the

motions to dismiss and/or for summary judgment are based on the common carrier argument

they are denied. The merits of all of Plaintiff’s claims will now proceed to discovery.

BACKGROUND

I. Basis of Facts Recited Herein

In support of their motions the parties each filed a statement of facts in accordance with

Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern

Districts of New York. To the extent that the statements are properly supported by citation to

evidence which would be admissible pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure, the factual allegations are taken therefrom. Giannullo v. City of New York, 332 F.3d

139, 139 (2d Cir. 2003). Unless otherwise stated the facts set forth below are not in dispute.

II. Factual Background

A. The Plaintiff and the Incident Forming the Basis of the Complaint

Plaintiff was, at all relevant times, an employee of BTO. The incident forming the basis

of the Complaint (the “Incident”) occurred on December 20, 2021 when Plaintiff was performing

work at the Terminal. He was driving a truck owned by BTO when, in a single vehicle accident,

the truck hit a raised edge of an iron grate drain cover, resulting in Plaintiff’s claimed injuries.

See DE [54-1] at ¶ 4.

Defendants dispute Plaintiff’s description of his duties, as well as his explanation of the

Incident. They also accuse Plaintiff of lying during his deposition. See DE [61-14] at 16-17. The

parties have not yet engaged in full discovery with respect to these matters. The Court assumes

therefore, for the purposes of these motions, that the Incident took place as Plaintiff describes,

and that he was injured as a result thereof. As the discussion below makes clear, the Court need

neither credit nor discredit Plaintiff’s recitation of his duties, or how the Incident occurred, in

reaching its decision herein. Instead the Court must focus on the business conducted at the

Terminal.

B. The Business of Transloading at the Terminal

Transloading is the business of receiving materials from a shipper, typically via rail, and

facilitating their transportation to a final destination. The Terminal is a freight transload facility

that accepts products shipped by Rail. DE [55-6] at ¶ 2. It is a 28 acre property that consists of a

yard, a small office building, a storage building, and a rail track. DE [55-6] at ¶ 4. Incoming

freight arrives at the Terminal via an interchange between the New York and Atlantic Railroad

(the “NY & Atlantic RR”) and Brookhaven Rail. The interchange is located at a mainline switch

located on the Terminal’s property where it abuts the Long Island Railroad. DE [55-6] at ¶ 5.

The Terminal offers both transloading and warehouse services for a variety of customers.

Products handled include lumber, cement, flour and petroleum. Goods arrive at the Terminal

from multiple locations throughout the country. Certain materials are stored in a silo or

warehoused prior to further shipping. Transloading work at the Terminal is performed either by

BTO or a third-party vendor. All materials received at the Terminal are ultimately shipped out

of the Terminal, mostly by truck, to businesses in Nassau, Suffolk, Brooklyn, Queens and the

Bronx.

Business at the Terminal is conducted pursuant to contracts entered into between

customers and Freight, as discussed below. While Freight appears to be the contracting entity,

BTO states that service contracts are entered into between Terminal customers and either BTO or

Freight. DE [55-6] at ¶ 16. In any event, these contracts make clear that Terminal customers are

not charged via railroad tariffs, but pursuant to the terms of their contracts. DE [61-9] at ¶ 17.

BTO states that it was their customers’ responsibility to “arrange for their freight to be shipped to

the Terminal by railroad.” DE [55-6] at ¶ 17. Relying on the exemplar agreement discussed

below, Plaintiff states Freight is the entity that “arranges for rail transportation through

Brookhaven Rail and other North American rail carriers” and that Freight (which is wholly

owned by BTO) or its designees, acts a shipper’s agent in arranging transportation services for its

Customers on rail carriers.” DE [60] at ¶ 17.

III. Defendants

A. Brookhaven Rail

Brookhaven Rail is a “short line” railroad that moves rail cars back and forth between the

Long Island Railroad main line (where it is interchanged with the NY & Atlantic RR) and the

Terminal. It is the only Defendant that all agree is a FELA common carrier. Despite this status,

Rail cannot be liable to Plaintiff under FELA because it was not Plaintiff’s employer. Plaintiff

does not argue otherwise. Neither BTO nor Freight had any involvement or control over Rail’s

operations. DE [60] 1. Unlike BTO, Freight and Sills Road, Rail has no corporate relationship

with any of the other Defendants.

Rail operates on the grounds of the Terminal pursuant to an agreement with Freight. That

agreement is the “Amended and Restated Railroad Operating Agreement and Sublicense

Agreement dated October 21, 2021” (the “Sublicense Agreement”). The Sublicense Agreement

divides responsibilities at the Terminal between Rail and Freight (or its designee) for “rail” and

“non-rail” services. Rail is responsible for “rail” services. Freight is responsible for “non-rail

services”. This division of responsibilities is achieved by allowing Rail to sublicense assets at the

Terminal from Freight, including railroad tracks, switches and connecting railroad track. This

aspect of the agreement between Rail and Freight allows Rail (according to Defendants) to be the

entity that performs “railroad services” at the Terminal, while Freight performs transloading

services. See DE [61-9] at ¶¶ 20-21. The Sublicense Agreement states that Rail has the right,

inter alia, to operate leased assets at the Terminal as a common carrier. Id. at ¶ 22.

In addition to the licensing of Terminal “rail” assets, the Sublicensing Agreement allows

Rail to use those assets to use its diesel engines to move rail cars arriving from the NY &

Atlantic RR to their proper Terminal transloading location. This placement of rail cars is referred

to as “spotting”. The location where cars are spotted depends upon their content. Rail states that

it is the sole entity responsible for moving rail cars over the tracks at the Terminal and their

interchange on the national rail system. It further states that its responsibility for moving rail cars

ends when they are uncoupled and unloaded at the Terminal, and resumes when empty cars are

1 Rail also states that it did not “did not own, maintain, or control the Terminal yard” and

had no knowledge of the raised iron grate that is alleged to have caused Plaintiff’s accident.

These are matters that go to the issue of negligence, if any, of Rail. They are not relevant to the

present motion.

re-coupled to Rail’s engines. While BTO was Plaintiff’s employer for work performed at the

Terminal, it did not employ the rail crew that collected cars deposited at the Terminal by NY &

Atlantic RR and positioned them for transloading. DE [55-6] at ¶ 15; DE [60] at ¶ 15. Those

individuals were employed by Rail.

With the exception of one customer discussed by the parties, Rail is paid for its services

pursuant to rates set forth in its contract with NY & Atlantic RR. Those rates are based on

publicly posted tariffs. DE [61-9] at ¶ 25. Unlike all other Defendants, Rail is licensed by the

United States Surface Transportation Board (the “STB”) as a common carrier that is regulated by

the Federal Railroad Administration (the “FRA”). Rail employees receive disability and

retirement benefits under the Railroad Retirement Act (the “RRA”).

B. Sills Road

Sills Road is corporately related to both BTO and Freight. Specifically, Sills Road is the

corporate parent and owner of BTO which, in turn, is the parent company of Freight. DE [61-9]

at ¶ 2. Sills Road owned the real property and improvements at the Terminal. It did not own

engines or transport people. Plaintiff did not work for Sills Road. All agree that at the time of

Plaintiff’s employment by BTO, Sills Road was not a common carrier.

Presumably to shed light on the common carrier issue, Sills Road states that it once

sought permission from the STB to operate as a common carrier by railroad at the Terminal,

through one or more of its subsidiaries. Its STB application was opposed by Rail on the ground

that Sills Road was improperly trying to displace Rail as the operator of its railway line. DE [61-

9] at ¶ 31. Sills Road’s STB application was denied under the procedure that it sought to utilize

because, according to the denial, its application was not “routine, uncomplicated and non-

controversial”. DE [61-9] at ¶ 32. While Sills Road could have renewed its application under a

different procedure, it chose not to do so. DE [61-9] at ¶ 32.

C. BTO

As noted, BTO’s corporate parent is Sills Road. BTO is the corporate parent and owner

of Freight. BTO was responsible for the premises and operations at the Terminal, including

transloading and warehousing. It did not own or operate any locomotives or engines or transport

people. Nor did BTO employ locomotive engineers, conductors, signalmen or track workers. DE

[60] at ¶¶ 12-13. As noted, the crew that collects rail cars for spotting, transloading, subsequent

collection and re-coupling are employed by Rail. BTO has no involvement or control over Rail’s

operations. DE [60].

At all times relevant hereto, BTO was managed by Tom Miller (“Miller”), who was the

Terminal manager. DE [55-6] at ¶ 6. Miller submitted a declaration in support of BTO’s motion,

wherein he describes the business of BTO. Also before the Court is the Declaration and

deposition of Andrew Kaufman who was, at all relevant times, Sills Road’s president. Both

Miller and Kaufman state that BTO, through Freight, billed its customers directly pursuant to

written agreements. Unlike Rail, neither BTO nor Freight billed their customers via tariffs. As

manager, Miller supervised approximately seven employees (including Plaintiff) who were

tasked, inter alia, with performing as-needed labor around the Terminal grounds, transloading

cement by connecting a hose from the tanker truck to the tanker railcar, and weighing incoming

and outgoing trucks. DE [55-6] at ¶ 8-9; see DE [55-6] at ¶ 10.

BTO states that its employees do not pay into or receive benefits under the RRA. Plaintiff

disagrees with this statement. He refers to a 2016 decision of the Railroad Retirement Board (the

“RRB”), the governing body of the RRA. That decision, made years before Plaintiff was

employed by BTO, held that it was an employer under the RRA. Defendants challenge the

relevance of the 2016 decision, stating that it relied on a then-existing corporate structure at the

Terminal, when an entity known as Oakland Transportation Holdings LLC (“Oakland”) had an

ownership interest in both Rail and Sills Road. That structure placed BTO under common

ownership with Rail. Oakland has since sold its interest in BTO to Sills Road. A stated goal of

this transfer, according to Defendants, was to allow for the separation of rail and non-rail

services at the Terminal, as described above in the Court’s description of Rail.

D. Freight

Freight is a wholly owned subsidiary of BTO. There is no dispute that Freight did not

own engines or transport people. There is also no dispute that Plaintiff was employed by BTO,

and not by Freight. Freight takes the position that it had no involvement over the operation of the

Terminal. It characterizes itself, instead, as the corporate entity that entered into contracts with

customers who utilized the transloading services performed by BTO at the Terminal. Freight has

produced an exemplar of a contract that Freight would enter into with customers seeking to use

services performed by BTO at the Terminal. That document is properly before the Court as

annexed to the Declaration of Plaintiff’s counsel submitted in opposition to Defendants’ motions.

See Exhibit 4 to Declaration of Philip P. Vogt (“Vogt Decl.”); DE [54-9] at ¶ ¶ 22-26 (the

“Exemplar Contract”).

The Exemplar Contract describes Freight as an “operator of a rail freight terminal and

transloading facility commonly known as [the Terminal].” It states that Freight “holds itself out

to the public as offering to provide transportation and other specified services with regard to

certain bulk materials and other products . . . .” Id. The Exemplar Agreement goes on to state that

it “applies to all shipments tendered for intermodal or highway transport transportation by

[Freight].” The term “intermodal” is defined to include transportation using both rail and

highway transportation through rail and motor transportation providers, or any entity that Freight

engages to provide or arrange for transportation. Id. Freight states that it “arranges for rail

transportation through [Rail] and other North American rail carriers” and that it, or its designee,

“acts as shipper’s agent in arranging transportation services for [customers] on rail carriers.” Id.

Plaintiff does not contradict Freight’s statement regarding corporate form and ownership.

However, relying on the assertion that Freight has no employees or payroll, Plaintiff denies

Freight’s statements regarding its functions, and concludes that all work at the Terminal was

performed by either BTO or other contractors. DE [60] at ¶ 11 (responding to BTO Rule 56.1

Statement). DE [60] at ¶ 6 (responding to Freight and Sills Rule 56.1 Statement). Despite the fact

that it employed no one, Freight, the wholly owned subsidiary of BTO, states that it (and not

BTO) was the entity responsible for non-rail services such as unloading freight cars,

transloading, stevedoring and warehousing of goods.

DISCUSSION

I. Legal Principles: Standards on Summary Judgment

“Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” ING Bank N.V. v.

M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.

56(a)). In ruling on a summary judgment motion, the district court must first “determine whether

there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007); see also Ricci v. DeStefano, 557 U.S. 557,

129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009). “A fact is material if it might affect the

outcome of the suit under the governing law.” Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18,

25 (2d Cir. 2015).

In reviewing the record to determine whether there is a genuine issue for trial, the court

must “construe the evidence in the light most favorable to the non-moving party,” Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017),

and “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in

favor of the party opposing summary judgment.” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d

30, 45 (2d Cir. 2019). “A genuine issue of material fact exists if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Pollard v. New York Methodist

Hosp., 861 F.3d 374, 378 (2d Cir. 2017). “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci,

557 U.S. at 586.

“Summary judgment is warranted, ‘after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In such a situation, there can be ‘no genuine

issue as to any material fact, ’since a complete failure of proof concerning an essential element of

the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23. “The

moving party is ‘entitled to a judgment as a matter of law ’because the nonmoving party has

failed to make a sufficient showing on an essential element of her case with respect to which she

has the burden of proof.” Celotex, 477 U.S. at 323, 106 S. Ct. 2548. With these standards in

mind, the Court turns to discuss the legal principles to be applied and the merits of the motion.

II. Standards Under FELA

A. FELA

FELA is “a broad remedial statute” which exists “to provide a federal remedy for railroad

workers who suffer personal injuries as a result of the negligence of their employer”. Atchison,

Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561–62 (1987) (internal quotation marks

omitted). It is to be broadly construed to achieve its objective. While a FELA plaintiff must

prove the traditional common law elements of negligence of duty, breach, foreseeability, and

causation, their burden in showing causation and negligence is lighter than it would be at

common law. Tufariello v. Long Island R. Co., 458 F.3d 80, 87 (2d Cir. 2006). The issue of

whether a FELA defendant used reasonable care is normally a question for the jury. Moreover,

“the right of the jury to pass on this issue must be liberally construed.” Sinclair v. Long Island

R.R., 985 F.2d 74, 77 (2d Cir. 1993). Accordingly, under FELA, a “case must not be dismissed at

the summary judgment phase unless there is absolutely no reasonable basis for a jury to find for

the plaintiff.” Gadsden v. Port Auth. Trans-Hudson Corp., 140 F.3d 207, 209 (2d Cir. 1998).

B. Common Carrier

FELA applies only to employees who work for a “common carrier by railroad” engaged

in interstate or foreign commerce. Greene v. Long Island R. Co., 280 F.3d 224, 229 (2d Cir.

2002), cert. denied, 538 U.S. 1031 (2003); see 45 U.S.C. § 51. When addressing the common

carrier issue courts frequently begin their analyses by citing to Wells Fargo Co. v. Taylor, 254

U.S. 175, 188 (1920), as well as the somewhat more recent case of Edwards v. Pacific Fruit

Express Co., 390 U.S. 538 (1968). See, e.g., Sampson v. GATX Corp., 547 F. App’x 369, 375

(5th Cir. 2013); Smith v. Rail Link, Inc., 697 F.3d 1304, 1308 (10th Cir. 2012); Lone Star Steel

Co. v. McGee, 380 F.2d 640 (5th Cir, 1967); Greene, 280 F.3d at 230; Gomez v. H&M Int’l

Transp., Inc., 2021 WL 236596, * 6 (D.N.J. Jan. 25, 2021). Courts have also considered the

common carrier definition in statues other than FELA, such as the Safety Appliance Act (“SAA”)

or the Interstate Commerce Act (the “ICA”). See Lone Star, 380 F.2d at 648 (considering

common carrier status under FELA and the SAA); Southern Pac. Term. Co. v. ICC, 219 U.S.

498, 523 (1911) (considering common carrier status under FELA and the ICA). Also relevant are

certain Circuit-specific tests for determining whether a defendant is a FELA common carrier.

E.g., Kieronski v. Wyandotte Term. R. Co., 806 F.2d. 107 (6th Cir. 1986); Lone Star, 380 F.2d at

647. Overlaying all of these tests, factors and considerations is the broad remedial intent to be

furthered when interpreting FELA.

In Wells Fargo, the Supreme Court defined the term “common carrier” to mean “one who

operates a railroad as a means of carrying for the public—that is to say, a railroad company

acting as a common carrier.” Wells Fargo, 254 U.S. at 188. In Wells Fargo, the Supreme Court

held that the defendant express shipping company which purchased carriage on an unaffiliated

railroad was not itself a “common carrier by railroad” within the meaning of FELA. This was

because Wells Fargo was not the operator of the railroad “in accord with the ordinary acceptation

of the words,” which would be “enforced by the mention of cars, engines, track, roadbed, and

other property pertaining to a going railroad....” Id. at 187–88.

In Edwards v. Pacific Fruit Express Co., 390 U.S. 538, the Court held that the owner of a

company that leased its refrigerator cars to railroads for transport of perishable products was not

a common carrier within the meaning of FELA. The company there was characterized as among

those engaged in “a number of activities and facilities which, while used in conjunction with

railroads and closely related to railroading, are yet not railroading itself.” Id. at 540. Accordingly,

the refrigerator car leasing company in Pacific Fruit was not a FELA common carrier.

Relying mostly on Pacific Fruit, the Tenth Circuit held that a joint venture between a

company involved in grain storage and a lessor of a commercial warehouse was not a common

carrier. See Sullivan v. Scouler Grain Co. of Utah, 930 F.2d 798, 800-01 (10th Cir. 1991). The

venture in Scouter received and stored grain that was shipped via railroad. Although the entity

owned or leased miles of track, hundreds of railroad cars and several switch engines, those acts

were not dispositive to the question or whether it was a “going railroad” and it was nonetheless

held not to be a common carrier. Id. See also Smith v. Rail Link, Inc., 697 F.3d 1304, 1308 (10th

Cir. 2012) (common carrier question focuses on what the defendant does, and “asks more simply

whether the defendant sought to be held liable under FELA operates a railroad that carries for the

public”). Scouter makes clear that the mere presence of the tools of the railroad trade, i.e., tracks,

switches and engines, is not dispositive to the common carrier question.

The Fifth Circuit has developed a four factor test for determining whether an entity is a

FELA common carrier. Lone Star, 380 F.2d at 647. Those four factors are:

• Whether the defendant actually performs rail service;

• Whether the service being performed is part of the total rail service contracted for

by a member of the public;

• Whether the entity is performing as part of a system of interstate rail

transportation by virtue of common ownership between itself and a railroad or by

a contractual relationship with a railroad, and hence such entity is deemed to be

holding itself out to the public, and

• The manner in which the entity is paid for the services it performs, i.e., whether

such renumeration is a fixed charge from a railroad or by a percent of its profits.

Lone Star, 380 F.2d at 647. See e.g., Sampson, 547 F. App’x at 375-76 (applying Lone

Star factors and holding that company engaged in business of maintaining, repairing and leasing

rail cars was not a common carrier). Lone Star has been characterized as setting forth a set of

“considerations”, rather than a strict common carrier test. See Scouter, 930 F.2d at 801.

In Kieronski v. Wyandotte Term. R. Co., 806 F.2d. 107 (6th Cir. 1986), the Sixth Circuit

synthesized prior cases and found it helpful to focus on three categories of businesses to decide

the common carrier question. The two categories of businesses that were observed to fall outside

of the definition of common carriers were: (1) in-plant facilities and (2) private carriers.

Kieronski, 806 F.2d at 109. Businesses included in the former category included one in which the

defendant used its own tracks to transport material and equipment from one place to another. Id.;

see, e.g., Wahl v. Watco Cos., Inc., 458 S.W.3d 857 (Mo. Ct. App. 2015); Duffy v. Armco Steel

Corp., 225 F. Supp. 737, 737-38 (W.D. Pa. 1964). The second Kieronski category. i.e., private

carriers, were also noted to fall outside of the common carrier definition. Such companies are

those which haul for others, but only pursuant to individual contracts entered into separately with

each customer. Id. The third category identified by the Sixth Circuit, which it noted was

“invariably” held to be a common carrier, was described as a “linking” carrier. Kieronski, 806 F.

2d at 109. A businesses falling into this category is held to be a common carrier because it is “the

linking entity [that] has become a vital part of the common carrier system and, therefore,

becomes a common carrier.” Id. Accord Gomez, 2021 WL 236596 (common carrier performs

tasks that are inter alia, an “integral part of each railroad line . . . .”) (quoting, United States v.

Brooklyn Eastern Terminal, 249 U.S. 296, 305-07 (1919).

Closer to home and to the facts herein, is the earlier Supreme Court decision in United

States v. Brooklyn E. Dist. Terminal, 249 U.S. 296 (1919). There, the Court considered whether

the defendant Brooklyn Eastern District Terminal (the “Brooklyn Terminal”) was a common

carrier railroad within the Hours of Service Act (the “HSA”). The HSA, like FELA, applied to

employers defined as “common carriers”. The Brooklyn Terminal acted as an intermediary spot

for goods en route to their ultimate destination, receiving carloads of freight from railroads and

transporting that freight to terminal docks for further shipment. See Brooklyn E. Dist. Terminal,

249 U.S. at 284. The critical and simply stated question for the Court as to the common carrier

status of the Brooklyn Terminal was “what it does.” Brooklyn E. Dist. Terminal, 294 U.S. at 304.

And, as the Supreme Court found - what it the Brooklyn Terminal did - was transport goods; its

services were public in nature and of the kind ordinarily performed by a common carrier.

Brooklyn E. Dist. Terminal, 249 U.S. at 304-05.

Also important to the Court’s decision in Brooklyn E. Dist. Terminal was the broad

interpretation that Congress intended when enacting the HSA. The HSA was a statute “devised,”

inter alia, “for the protection of employees.” Brooklyn E. Dist. Terminal, 249 U.S. at 286.

Relying on this clear intent as well as the type of services performed at the Brooklyn Terminal,

the Court held that the defendant was, for purposes of the HSA, a common carrier. Not

dispositive to the common carrier question in Brooklyn E. Dist. Terminal were the facts that the

terminal did not hold itself out as a “common carrier” or file tariffs with the Interstate Commerce

Commission. Brooklyn E. Dist. Terminal, 249 U.S. at 284-85; 303-04. Also not dispositive was

the entity’s corporate “character or declared purposes.” Id. at 304; accord Lone Star, 380 F.2d at

648.

Neither the Lone Star nor the Kieronski factors have been adopted in this Circuit. Lone

Star was, however, cited with approval by the Second Circuit in Greene. See Greene, 280 F.3d at

234-36. In Greene, the Second Circuit held that the Metropolitan Transit Authority (the “MTA”)

was a FELA common carrier. Id. at 240. Like other courts, the Second Circuit observed that

companies which “merely supply the railroad with equipment such as refrigeration cars are not

carriers within the meaning of FELA”. Greene, 280 F.3d at 235. Citing to Brooklyn E. Dist.

Terminal, the Second Circuit also observed that even companies in “nonrailroad businesses” may

be common carriers “when they constitute necessary links to railroads that are common carriers.

Id.

Broad congressional intent in enacting FELA also informed the Second Circuit’s decision

in Greene. As to corporate form, the Greene court stated that “corporate ownership of a

subsidiary and overlapping offices and directorates are not, without more, sufficient to impose

liability on the parent for conduct of the subsidiary under a statute that does not itself pierce the

corporate veil. Still, a parent corporation might be liable for operations of its subsidiary in its

own right as operator where the parent ‘actively participated in, and exercised control over, the

operations of [a] facility’”. Greene, 280 F.3d at 234.

With all of these cases in mind the Court turns to their application to the business of

BTO.

III. Disposition of the Motion

At the outset the Court dispenses with any argument relying on the corporate distance

between Freight and BTO. BTO is Plaintiff’s employer, and Freight’s corporate parent. While it

was Freight that entered into the Sublicense Agreement with Rail, Freight has no employees. It

was therefore BTO, presumably as Freight’s “designee” under the Sublicense Agreement, that

performed all services at the Terminal. Similarly, while Freight is the entity that entered into

contracts with customers that used the Terminal, the activities at the Terminal were conducted by

BTO. Ultimately, it is not the corporate relationships that matter to disposition of the pending

motions. The issue presented here is not whether Freight can be held liable as a FELA employer.

That is a question for another day. The only issue presently and properly before the Court is

whether the transloading operations conducted at the Terminal are those of a FELA common

carrier or instead, those that are used only “in conjunction with railroads and closely related to

railroading” but not “railroading itself.” Pacific Fruit, 390 U.S. at 540. Focusing on what BTO

“does”, as required in Supreme Court and Second Circuit precedent, this Court holds that BTO is

indeed a FELA common carrier.

Most on point to the Court’s holding is the Supreme Court’s decision in Brooklyn E. Dist.

Terminal. There, as here, the entity at issue provided a necessary link in the interstate movement

of goods. Thus, the Brooklyn Terminal received carloads of freight from railroads and

transported that freight to its docks for further shipment. See Brooklyn E. Dist. Terminal, 249

U.S. at 284. Like BTO, the Brooklyn Terminal acted as an intermediary spot for goods received

by rail and on their way to their ultimate destinations. Brooklyn Terminal was a spot between a

railroad and docks; BTO is an intermediary stop between a railroad and trucks. Both the

Brooklyn Terminal and BTO provide links to transit that are necessary to find common carrier

status. See Greene, 280 F.3d at 235 (companies in “nonrailroad businesses” may be common

carriers “when they constitute necessary links to railroads that are common carriers).

Also directly on point is a recent FELA case holding that a company providing

intermodal services was a FELA common carrier. In Gomez v. H&M Int’l Trasnp., 2021 WL

236596 (D.N.J. 2021), the District Court for the District of New Jersey held that the defendant

employer was a FELA common carrier. The employer in Gomez was the Croxton Intermodal

Terminal (the “Croxton Terminal”). Like BTO, the Croxton Terminal provided intermodal

services to a railway. The services in Gomez involved unloading rail cars and placing them on

truck chassis for ultimate ground delivery to their intended destinations. Gomez, 2021 WL

236596 at *6. The business of the intermodal entity in Gomez was “to facilitate the rail services”

provided by the railway common carrier to its customers. Id. at *7. Finding that the services

provided by the Croxton Terminal were closely analogous to those provided by the Brooklyn

Terminal, the Gomez court held the defendant intermodal transporter to be a FELA common

carrier. This Court agrees with the holding in Gomez in holding that a transloader such as BTO,

which offers its services to the public to provide a link between a railway and further

transportation, is a FELA common carrier. This conclusion is supported by Gomez and

compelled by Brooklyn E. Dist. Terminal.

Applying the factors developed by other Circuits also supports this Court’s holding as to

the common carrier status of BTO. As to the Lone Star factors, BTO’s transloading service is

consistent with the second such factor, which considers whether the Terminal worked as “part of

the total rail service contracted by a member of the public.” Lone Star, 380 F.2d at 647. While

BTO moves goods to their final destination mostly via truck, it provides services to a variety of

customers – members of the public - who contract to move their goods to the New York area via

rail. Relatedly, the third Lone Star factor also leans in favor of finding common carrier status.

That factor asks whether BTO performs services “as part of a system of interstate rail

transportation by, inter alia, a contractual relationship with a railroad . . . .” Id. Customers

contracting for the use of the Terminal’s services have agreed initially to move their goods to

New York via rail. They cannot, as a practical matter, move their goods beyond the Terminal

without engaging the transloading services provided there by BTO. The Sublicense Agreement

with Rail allows it to use the Terminal to further the transportation of goods. That the equipment

used is leased to Rail does not change the characterization of what the Terminal does. See

Scouler, 930 F.2d at 800-01

Also supporting this Court’s holding is the Sixth Circuit test in Kieronski. BTO’s

intermediary role in the movement of goods places it squarely within the category of businesses

identified by Kieronski which are held to be common carriers. Such businesses, referred to as

“linking” carriers are “invariably” conferred with common carrier status. Kieronski, 806 F.2d at

109. Indeed, Brooklyn E. Dist. Terminal was cited by the Kieronski court when describing this

category of business.

Arguing against common carrier status Defendants note that BTO is not paid pursuant to

a public tariff schedule. But this fact, like the existence of the Sublicense Agreement, does not

change the nature of the business conducted at the Terminal. While the method that a customer is

charged may weigh in favor of a finding of common carrier status, this factor is in no way

dispositive of the common carrier question. Importantly, it does not carry the day when the actual

business of BTO is considered. Because that business is a linking rail service, offered to

members of the public that find it convenient and profitable to ship their goods to New York via

rail and then truck, the method of payment does not defeat a finding that BTO is a common

carrier. Accord Gomez, 2021 WL 236596 at *7.

Further, as the Supreme Court has long held, common carriers offer their services to the

public at large. And this is how BTO offer its Terminal services. BTO does not work for a single

customer or simply store goods. Thus, this is not a case where common carrier status is defeated

because the company at issue offers services to a single customer. See, e.g., Rail Link, 697 F.3d

at 1310 (defendant company held not to be a common carrier where it did business with only a

single client). Instead, BTO offers its transloading services to a variety of customers. As noted

above, customers contract with railroads to move their goods to the New York area. It is difficult

to imagine how shippers would expect their goods to reach customers without the transloading

services provided at the Terminal by BTO.

The Court recognizes that BTO does not employ locomotive engineers, conductors,

signalmen or track workers. Nor does it transport people. It does, however, employ individuals

who work to perform the transloading services offered at the Terminal. Which, it bears repeating,

is a facility that provides a publicly available link in the interstate movement of goods. While

ownership of locomotives, tracks and switching devices may be relevant to the common carrier

question, these factors are not dispositive of the issue. See Scouler, 930 F.2d at 800-01 (holding

that entity was not a common carrier despite the facts that it owned and operated tracks, engines

and switching equipment); see also Rail Link, 697 F.3d at 1309. Indeed, in Wells Fargo the Court

held that the common carrier finding was “enforced by the mention of cars, engines, track,

roadbed, and other property pertaining to a going railroad”, but this was not dispositive of the

question. Wells Fargo, 254 U.S. at 187–88.

The Court affords no weight to Sills Road’s argument regarding its failed attempt to

operate as a common carrier at the Terminal. A close look at the facts surrounding this attempt

reveals that Sills Road’s request was denied because the STB did not agree with the procedural

path that Sills Road took before that entity. After Sills Road’s request was denied, it decided not

to pursue the application further. The STB made no merits finding as to the common carrier

status of a transloader doing business at the Terminal. The Court is similarly unconvinced that

the decision in N.Y. & Atl. Ry. Co. v. Surface Transp. Bd., 635 F3d 66 (2d Cir. 2011) has any

application here. That case involved an appeal of a decision of the STB. It was a not a FELA case

and applied no standards that are at issue here.

BTO’s own description of its business supports the Court’s holding that the Terminal is a

common carrier facility that provides a link between goods arriving via rail and various

destinations in the New York area. See DE [57-5]. the Terminal’s webpage, produced during

discovery herein (the “Webpage”) describes the Terminal as a “multi-modal rail freight facility

on Long Island to provide rail-based shipping, warehousing, and logistic services to this critical

U.S. market”. DE [57-5]. Thus, the Terminal is described as a “vital part” of the common carrier

network that begins throughout the country for boarding on the NY & Atlantic RR, through the

BTO Terminal, and then on to their final destinations via truck or rail. Indeed, the Webpage touts

the Terminal as a “freight facility that provides rail-based shipping, warehousing and Logistics

Services via the Terminal’s ‘connection to the national rail network’” and describes the Terminal

as a “conduit to the country’s short line and regional railroad network . . . .” DE [57-5]; See

generally DE [54-9] at ¶ 28. It matters not, as argued by Defendants, that the Webpage was

created when Oakland Transportation (a recognized common carrier) had an ownership interest

in BTO and has not been since updated. See DE [61-14] at 19. This fact does not change the

nature of the operations at the Terminal. Nor does it change the fact that those operations are

conducted by BTO, Plaintiff’s employer.

Finally, as noted by virtually every court called upon to interpret the statute, FELA is “a

broad remedial statute”. It is liberally construed “to provide a federal remedy for railroad

workers who suffer personal injuries as a result of the negligence of their employer.” Atchison,

Topeka & Santa Fe Ry. Co., 480 U.S. at 561–62. This liberal construction is further support for

the Court’s holding. Were the facts of this case closer, this construction would tip the balance in

favor of a finding that the Terminal is a common carrier. Even in the absence of any tie-breaking

consideration, the Terminal services compel the conclusion that it is a common carrier.

Accordingly, as an employee of BTO, the Terminal’s operator, Plaintiff is entitled to FELA’s

protection.

CONCLUSION

For the foregoing reasons, this Court denies Defendants’ various motions to dismiss

and/or for summary judgment appearing as Docket Nos. 54, 55 and 61 herein. The parties are

directed to go forward with discovery as to the merits of Plaintiff’s claims. Such discovery - fact

and expert - is to be complete within the next six months, at which point the parties may engage

in additional dispositive motion practice or prepare their joint pretrial order so that this matter

may proceed to trial.

Dated: Central Islip, New York

December 4, 2025

/s/ Anne Y. Shields

Anne Y. Shields

United States Magistrate Judge