The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM DECISION AND ORDER
Plaintiff George T. Lee ("Lee"), an employee of the LIRR,
alleges that from approximately 1987 through 1989, several of his
co-employees, including defendant Mark Paz ("Paz"), "at various
times struck [him] with objects, pushed, kicked, slapped, and in
other ways made forcible and violent contact with" him (Complaint
¶ 8). These individuals also allegedly instilled in Lee the fear
of imminent physical harm (see Complaint ¶ 9), as well as made
continuous threats to Lee regarding the possibility of him losing
his job (see Complaint ¶ 10). These are the only causes of
action alleged against defendant Paz, namely for assault, battery
and intentional infliction of emotional distress.*fn1
In addition to those claims, Lee alleges that these actions
were brought to the attention of the appropriate officials of the
LIRR, who, by refusing or failing to act, were negligent (see
Complaint ¶¶ 13-16). Lee also alleges that other co-employees
defamed him (see Complaint ¶¶ 17-19, 24-27), that defendant
Transportation Telecommunications Union did not fairly represent
him (see Complaint ¶¶ 20-23), and that he was discriminated
against on the basis of age (see Complaint ¶ 28).
Federal court jurisdiction over this action is predicated
solely on the FELA, 45 U.S.C. § 56, as well as pendent
jurisdiction over the state-law claims of defamation, assault,
battery and intentional infliction of emotional distress. There
is no claim of diversity of citizenship.
Paz makes this motion to dismiss under Fed.R.Civ.P. 12(b) on
the ground that no action lies against a co-employee under the
FELA.*fn2 Additionally, Paz seeks the imposition of sanctions
under Rule 11.
At the outset, the Court must first determine whether there
exists subject matter jurisdiction over Lee's claims against Paz
in this action brought under the FELA (see Rhulen Agency, Inc.
v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 [2d Cir.
1990]). There being no claim of diversity, the question presented
is whether there is either federal question or pendent
jurisdiction as a basis for the Court to entertain the action.
(a) Jurisdiction Under the FELA.
The FELA provides, in relevant part, that "[e]very common
carrier by railroad . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier . .
. for such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier" (45 U.S.C. § 51 [emphasis supplied]). Thus, if a
co-worker negligently injures another, by the express terms of
the statute the employer, in this case the LIRR, is liable.
Apart from the express language of the statute, it is well
settled that the "fellow-servant" doctrine has been abrogated by
the FELA "by placing the negligence of a co-employee upon the
same basis as the negligence of the employer" (Chesapeake & Ohio
Ry. Co. v. De Atley, 241 U.S. 310, 313, 36 S.Ct. 564, 565, 60
L.Ed. 1016 ). In an effort to avoid suits between
co-workers, Congress has provided a remedy to an injured employee
of a "common carrier by railroad", by imposing liability upon the
employer based on the doctrine of respondeat superior. Thus,
even though the statute renders a railroad liable for the
negligence of its "officers, agents or employees"
(45 U.S.C. § 51), the FELA imposes liability only on the railroad, and not its
agents or employees (see Lockard v. Missouri Pac. R.R. Co.,
894 F.2d 299, 302 n. 8 [8th Cir. 1990]).
In his third cause of action against the LIRR, Lee alleges that
he advised his superiors of the conduct of Paz and other
co-workers, which they apparently ignored (see Complaint ¶¶
13-16). Although the LIRR's conduct might be actionable if it can
be established that this amounted to negligence within the scope
of the FELA,*fn3 it does not render the co-worker liable under
Accordingly, Paz is not a proper party defendant under the
FELA, and the Court does not have subject matter jurisdiction
over the claims asserted against Paz on the basis of a federal
question. Thus, in the absence of federal question (see
28 U.S.C. § 1331) or diversity (see 28 U.S.C. § 1332)
jurisdiction, the Court must then determine whether ...