The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
This is a case of first impression in which defendant Staten Island Rapid Transit Operating Company ("SIRTOA") challenges the existence of federal subject matter jurisdiction over it in a suit brought under the Federal Employers' Liability act, 45 U.S.C. §§ 51-60 ("FELA"). Plaintiff brought this action to recover $500,000 is damages for personal injuries allegedly sustained by him on December 22, 1982 while he was working as a conductor on one of defendant's passenger trains.
Defendant moves for summary judgment based on arguments that (1) this Court lacks subject matter jurisdiction because defendant Staten Island Rapid Transit Operating Authority is not subject to FELA; and (2) even if SIRTOA is subject to FELA, the nature of plaintiff's work for defendant removes him from the scope of the FELA. For the reasons set forth below, defendant's motion for summary judgment is denied in its entirety.
Section 51 of Title 45 of the United States Code describes the kinds of employers and employees who are covered by FELA. That section provides in pertinent part:
Every common carrier by railroad while engaging in commerce between the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such a carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.
Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.
(emphasis added). Defendant challenges jurisdiction under FELA, urging that SIRTOA does not engage in interstate commerce as required by the first paragraph of § 51, nor does plaintiff carry out any duties which further or affect interstate or foreign commerce as described in the second paragraph of that statute.
An overview of the history and function of SIRTOA is helpful to an understanding of defendant's arguments, and is detailed in the affidavit of Lawrence G. Reuter, who has acted as General Superintendent of SIRTOA since June 25, 1983.
Prior to 1953, the Staten Island Rapid Transit Railway Company ("SIRT"), aa subsidiary of the interstate Baltimore & Ohio Railroad ("B&O"), operated three passenger lines on Staten Island. In 1953, SIRT discontinued operation of the north shore and east shore lines, and maintained only the 14.5 mile line between St. George and Tottenville. In Nnovember 1956, SIRT leased the St. George-Tottenville Line to the City of New York ("the City") pursuant to an agreement whereby the City agreed to continue operation of the passenger line and obtained an option to purchase it.
In July 1970, the city exercised its option to buy the St. George-Tottenville Line and, in turn, leased the line to SIRTOA. SIRTOA asserts that this line operates exclusively intrastate as a passenger service, and carries no freight or passengers across state lines. Furthermore, defendant claims that SIRTOA does not connect with any interstate passenger carrier. Thus, defendant argues, SIRTOA does not engage in interstate commerce and is therefore not subject to FELA jurisdiction.
Plaintiff asserts, however, that defendant is engaged in several types of interstate activity which warrant the applicability of FELA. For example, plaintiff notes the daily use of SIRTOA's lines by New Jersey commuters. The most apparent connection between SIRTOA and interstate commerce, however, arises from the continued operation of a SIRT freight train over trackage operated by SIRTOA.
In particular, plaintiff urges that SIRTOA's inspection, maintenance and supervision of SIRT's daily freight train constitutes activity in interstate commerce, as do the profits which SIRTOA derives from the operation of the SIRT train. Defendant admits that it maintains the tracks used by the SIRT freight train, which are the same tracks over which the SIRTOA line operates, but protests that the SIRT freight service has declined to a point where it has no impact on interstate commerce. Defendant states that SIRT presently operates one three or four car freight train which runs only once or twice monthly. SIRTOA further claims that it shares neither personnel nor equipment with the SIRT freight service. The trackage used by ...