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April 10, 1990


The opinion of the court was delivered by: Spatt, District Judge.



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 [1916]). 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 the statute.

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 ...

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