United States District Court, D. Nebraska
RONALD D. MADDEN, Plaintiff,
ANTON ANTONOV & AV TRANSPORTATION, INC., and BNSF RAILWAY COMPANY, Defendants
For Ronald D. Madden, Plaintiff: Donald F. D'Antuono, LEAD ATTORNEY, SCHNELL, D'ANTUONO LAW FIRM, Denver, CO; Jeffrey E. Chod, Patrick S. O'Brien, LEAD ATTORNEYS, O'BRIEN, CHOD LAW FIRM, St. Louis, MO.
For Anton Antonov, AV Transportation, Inc., Defendants: David C. Mullin, LEAD ATTORNEY, FRASER, STRYKER LAW FIRM, Omaha, NE.
For BNSF Railway Company, Defendant: Nichole S. Bogen, Thomas C. Sattler, LEAD ATTORNEYS, SATTLER, BOGEN LAW FIRM, Lincoln, NE.
For BNSF Railway Company, Cross Claimant: Nichole S. Bogen, Thomas C. Sattler, LEAD ATTORNEYS, SATTLER, BOGEN LAW FIRM, Lincoln, NE.
For AV Transportation, Inc., Anton Antonov, Cross Claimants: David C. Mullin, LEAD ATTORNEY, FRASER, STRYKER LAW FIRM, Omaha, NE.
For BNSF Railway Company, Cross Defendant: Nichole S. Bogen, Thomas C. Sattler, LEAD ATTORNEYS, SATTLER, BOGEN LAW FIRM, Lincoln, NE.
MEMORANDUM AND ORDER
John M. Gerrard, United States District Judge.
This case arises from a collision between a train belonging to BNSF Railway Company and conducted by plaintiff Ronald D. Madden, and a truck driven by defendant Anton Antonov for AV Transportation (collectively, " Antonov" ). This matter is before the Court on Antonov's motion to dismiss or strike (filing 61) portions of BNSF's cross-claim (filing 33). For the reasons discussed below, the Court will deny Antonov's motion.
The following facts are drawn from Madden's operative complaint (filing 18) for background purposes only. On February 15, 2012, Madden was conducting a BNSF locomotive, heading toward a railroad crossing in Custer County, Nebraska. Filing 18 at ¶ 5. At that time, a large grain silo facility was being built adjacent to the railroad crossing. Filing 18 at ¶ 17-18. The facility was being built by BNSF together
with The Andersons, Inc.
As the train being conducted by Madden was heading toward the crossing, Antonov's truck was crossing the tracks. Filing 18 at ¶ 5. Antonov was hauling a piece of large equipment, and although his truck made it across the tracks in time, his trailer did not, and it was struck by the train. Madden suffered serious injuries as a result of the collision. Filing 18 at ¶ 5.
Madden brings state common law negligence claims against Antonov, and a claim against BNSF under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq. Madden alleges that Antonov was negligent in, among other ways, failing to maintain a proper lookout and failing to stop at the crossing. Filing 18 at ¶ ¶ 9-12. Madden's FELA claim alleges, among other things, that BNSF failed to provide him with a reasonably safe place to work. Filing 18 at ¶ 33. Madden also alleges that the layout of the crossing at issue made it particularly dangerous, especially given the increased traffic due to construction near the intersection. Filing 18 at ¶ 6. So, Madden claims, BSNF should have taken steps to prevent this accident, such as implementing a " slow order" for trains, placing better warning devices or signs at the crossing, and coordinating with The Andersons or other authorities to maintain a lookout or safety signal and to generally improve safety at the crossing. Filing 18 at ¶ 33.
BNSF brings cross-claims against Antonov for negligence, equitable indemnification, equitable subrogation, and contribution. Filing 33 at ¶ ¶ 35-43. BNSF claims that it has incurred, and will continue to incur, damages in the form of Madden's medical bills and in attorney fees and costs spent investigating and defending Madden's claims. Filing 33 at 32-34, 40. In addition to requesting an award of fees incurred in defending Madden's claims, BNSF also seeks an award of fees spent prosecuting its cross-claim against Antonov. In response, Antonov has moved to dismiss or strike BNSF's claims for equitable indemnification and subrogation (but not its claim for contribution), as well as both parts of BNSF's request for attorney fees.
STANDARD OF REVIEW
I. Motion to Dismiss - Rule 12(b)(6)
A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). The plaintiff (or here, cross-claimant) must plead factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
The Court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 555-57. In contrast to factual allegations, courts are not required to accept as true a ...