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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Lonnie Bjornson,

Civil File No: 14-CV-04596-JRT-SER Plaintiff,

v. Soo Line Railroad Company, a Minnesota Corporation d/b/a Canadian Pacific Railway, and Glenwood Hospitality, Inc. d/b/a Scottwood Motel, a Minnesota corporation,

ANSWER OF DEFENDANT SOO LINE RAILROAD COMPANY D/B/A CANADIAN PACIFIC 1

Defendants.

Defendant Soo Line Railroad Company d/b/a Canadian Pacific Railway (hereinafter “Soo Line” or “Defendant”), for its Answer to Plaintiff’s Complaint, denies each and every allegation, statement, matter and thing contained in the Complaint except as is hereinafter specifically admitted. Soo Line otherwise states and avers as follows: PARTIES 1.

In response to Paragraph 1 of the Complaint, Soo Line admits that Plaintiff

was at all material times an employee of Soo Line. As to the remaining allegations contained in Paragraph 1, Soo Line is without sufficient information or knowledge to

1

The proper entity name for Defendant Soo Line Railroad Company is Soo Line Railroad Company, d/b/a Canadian Pacific and references herein have been modified accordingly.

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form a reasonable belief as to the truth or accuracy of the allegations, and therefore denies the same and places Plaintiff to his strict proof thereof. 2.

In response to Paragraph 2 of the Complaint, Soo Line admits the

allegations contained therein. 3.

In response to Paragraph 3 of the Complaint, Soo Line is without sufficient

information or knowledge to form a reasonable belief as to the truth or accuracy of the allegations contained therein, and therefore denies the same and places Plaintiff to his strict proof thereof. JURISDICTION 4.

In response to Paragraph 4 of the Complaint, the allegations contained

therein call for a legal conclusion to which no responsive pleading is required. However, to the extent a response is deemed necessary, Soo Line admits that the Federal Employers’ Liability Act confers subject matter jurisdiction to this Court to hear claims asserted under the Act.

Soo Line further admits that Plaintiff, in Count II of his

Complaint, purports to bring a claim under the Federal Rail Safety Act. Soo Line states that any further allegations contained in this paragraph related to the FRSA call for legal conclusions to which no response is required. 5.

In response to Paragraph 5 of the Complaint, the allegations contained

therein call for a legal conclusion to which no responsive pleading is required. However, to the extent a responsive pleading is deemed necessary, Soo Line denies such allegations, places Plaintiff to his strict proof thereof, and states that the cited regulation speaks for itself.

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6.

In response to Paragraph 6 of the Complaint, Soo Line admits that it

conducts business in the State of Minnesota and has a registered agent located in the State of Minnesota. Soo Line further states that the allegation that Soo Line has sufficient contacts with this judicial district is a legal conclusion to which no responsive pleading is required. As to the remaining allegations contained in Paragraph 6 of the Complaint, Soo Line is without sufficient knowledge or information to form a reasonable belief as to the truth or accuracy of the allegations and therefore denies the same and places Plaintiff to his strict proof thereof. COUNT I 7.

In response to Paragraph 7 of the Complaint, Soo Line restates and

incorporates by reference its responses to Paragraphs 1-6 above as if fully set forth herein. 8.

In response to Paragraphs 8 and 9 of the Complaint, Soo Line is without

sufficient knowledge or information to form a reasonable belief as to the truth or accuracy of such allegations and therefore denies the same and places Plaintiff to his strict proof thereof. 9.

Soo Line denies the allegations contained in Paragraphs 10 and 11 of the

Complaint, including all subparagraphs thereof, specifically denies any negligence on behalf of Soo Line, and places Plaintiff to his strict proof thereof.

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COUNT II 10.

In response to Paragraph 12 of the Complaint, Soo Line restates and

incorporates by reference its responses to Paragraph 1-11 above as if fully set forth herein. 11.

In response to Paragraph 13 of the Complaint, Soo Line is without

sufficient knowledge or information to form a reasonable belief as to the truth or accuracy of such allegations and therefore denies the same and places Plaintiff to his strict proof thereof. 12.

In response to Paragraph 14 of the Complaint, Soo Line admits only that

Plaintiff returned to work on December 27, 2011 with no work restrictions or limitations. Soo Line is without sufficient information or knowledge to admit or deny the remainder of the allegations therein, and therefore denies the same and places Plaintiff to his strict proof thereof. 13.

Soo Line denies the allegations contained in Paragraph 15 of the

Complaint. Soo Line affirmatively states that Plaintiff contacted Crew Management on September 29, 2013 at 11:10 p.m. and requested a paid personal day on September 30, 2013 to attend a previously scheduled chiropractor appointment. Soo Line otherwise denies the allegations contained in Paragraph 15 as alleged and places Plaintiff to his strict proof thereof. 14.

In response to Paragraph 16 of the Complaint, Soo Line denies as alleged.

Soo Line affirmative states that, due to short notice and staffing needs Soo Line did not grant Plaintiff’s request for a paid personal day for September 30, 2013, and that Plaintiff

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subsequently called in “sick” after his last-minute request for a paid personal day was denied. Soo Line otherwise denies the allegations contained in Paragraph 16 as alleged and places Plaintiff to his strict proof thereof. 15.

In response to Paragraph 17 of the Complaint, Soo Line denies as alleged.

Soo Line affirmatively states that, as indicated by letter to Plaintiff dated October 1, 2013,it conducted a formal investigation/hearing pursuant to the terms of the collective bargaining agreement which governs the terms and conditions of Plaintiff’s employment with Soo Line to determine the “facts and circumstances and to place [his] responsibility, if any, in connection with [Plaintiff’s] alleged failure to protect service on Monday, September 30, 2013 at Enderlin, North Dakota and [his] alleged lay-off under false pretenses with the Crew Management Center.” Soo Line further states that, as evidenced by letter to Plaintiff dated October 18, 2013, it was determined following the hearing and upon review and consideration of the investigative hearing transcript and exhibits that Plaintiff had violated GCOR 1.2.5—Reporting.

Soo Line otherwise denies the

allegations contained in Paragraph 17 as alleged and places Plaintiff to his strict proof thereof. 16.

As to Paragraphs 18 – 20 of the Complaint, the allegations contained

therein call for legal conclusions to which no responsive pleading is required. However, to the extent a response is deemed necessary, Soo Line denies the same, including all subparagraphs therein, and places Plaintiff to his strict proof thereof. 17.

Soo Line denies the allegations contained in Paragraphs 21 – 23, including

all subparagraphs, of the Complaint and places Plaintiff to his strict proof thereof.

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COUNT III 18.

In response to Paragraph 24 of the Complaint, Soo Line restates and

incorporates by reference its responses to Paragraphs 1-23 above as if fully set forth herein. 19.

In response to Paragraphs 25-26 of the Complaint, said paragraphs contain

allegations directed to other parties to which no responsive pleading from Soo Line is required. However, to the extent a response is deemed necessary, Soo Line is without sufficient knowledge or information to form a reasonable belief as to the truth or accuracy of such allegations and therefore denies the same and places Plaintiff to his strict proof thereof. 20.

Soo Line denies the allegations contained in Paragraph 27 of the Complaint

and places Plaintiff to his strict proof thereof. 21.

Soo Line denies the allegations contained in Paragraph 28 of the Complaint

and specifically denies that Plaintiff is entitled to relief in any amount or of any type or nature under 49 U.S.C. 20109, and places Plaintiff to his strict proof thereof. AFFIRMATIVE DEFENSES 1.

The Complaint fails to state a claim upon which damages or other legal

relief, including any equitable relief, can be awarded. 2.

Plaintiff’s claims may be barred, in whole or in part, because Plaintiff’s

alleged injuries and damages, if any, were caused or contributed to by factors and circumstances beyond Soo Line’s control.

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3.

Plaintiff’s alleged injuries and damages were caused or contributed to, in

whole or in part, by actions of Plaintiff and his damages, if any, must be reduced in accordance with law. 4.

Plaintiff’s claims may be barred, in whole or in part, due to his failure to

take reasonable steps to mitigate his alleged damages. 5.

Plaintiff’s claims may be barred, in whole or in part, to the extent his

damages were caused by his own contributory or sole fault. 6.

Plaintiff’s claims may be barred, in whole or in part, because he is not

entitled to damages he may have sustained to the extent said damages were caused by events other than those alleged in Plaintiff’s Complaint. 7.

Plaintiff’s claims may be barred, in whole or in part, because they arise

from physical conditions that pre-existed the incident alleged in the Complaint. 8.

Defendant is entitled to a set off for monies paid or to be paid for the

benefit of Plaintiff or for credits applicable to Plaintiff. 9.

Defendant is entitled to offset for any sums paid or advancements made by

the Railroad Retirement Board or any other entity prior to the final disposition of this action. 10.

Plaintiff’s claims are barred in whole or in part to the extent barred by the

doctrines of consent, waiver, arbitration, abandonment, laches, set off, ratification, accord and satisfaction, preemption, estoppel or other equitable defenses. 11.

Plaintiff’s claims may be barred, in whole or in part, by the doctrine of

spoliation.

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12.

Plaintiff’s claim is barred, in whole or in part, by operation of 49 U.S.C.

§20109(d). 13.

Plaintiff’s claims fail, in whole or in part, to the extent barred by the

applicable limitations period. 14.

Plaintiff’s claim is barred by the election of remedies provision codified at

49 U.S.C. §20109(f). 15.

This court lacks jurisdiction to hear Plaintiff’s claims and/or Plaintiff has

failed to state a claim due to his failure to comply with the requirements set forth in 29 C.F.R. § 1982.114. 16.

Plaintiff was not “following the orders or treatment plan of a treating

physician” when he laid off “sick” on September 30, 2013. Accordingly, Plaintiff did not engage in protected activity as statutorily defined in § 20109 of the Federal Railroad Safety Act. 17.

Plaintiff’s claims fail to the extent he has failed to exhaust administrative

remedies. 18.

Plaintiff is estopped from bringing his claims.

19.

Plaintiff’s claims are barred and preempted, in whole or in part, by the

Railway Labor Act. 20.

Defendant’s actions were at all times based on legitimate, non-

discriminatory business reasons. 21.

Answer.docx

Defendant acted in good faith, and with justification at all times herein.

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22.

Plaintiff’s claims are barred, in whole or in part, to the extent actions or

decisions were made by Defendant pursuant to a bona fide collective bargaining agreement. 23.

Plaintiff’s claims are barred because Defendant would have taken the same

action even in the absence of any alleged protected activity. 24.

Plaintiff’s claims may be barred by any or all of the affirmative defenses

contemplated by the Federal Rule of Civil Procedure 8. The extent to which Plaintiff’s claims may be barred by one or more of the affirmative defenses not specifically set forth above cannot be determined by Defendant until it has had the opportunity to conduct discovery. Defendant, therefore, incorporates all such affirmative defenses as if fully set forth herein. Defendant expressly reserves the right to assert additional defenses as Plaintiff’s claims are clarified in the course of this proceeding. 25.

Plaintiff’s alleged damages, if any, are the result of actions or negligence

committed by third parties not under the control or right of control of Defendant. WHEREFORE, having fully answered Plaintiff’s Complaint, Defendant Soo Line Railroad Company d/b/a Canadian Pacific, prays for the following relief: 1. Plaintiff’s claims against it be dismissed with prejudice; 2. Any and all of Plaintiff’s demands and prayers for relief be denied and dismissed with prejudice; 3. Defendant be awarded its costs and disbursements, including attorneys’ fees and costs; and

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4. The Court grant such other and further relief to Defendant as required under the circumstances or as the Court deems just and equitable. JURY DEMAND Soo Line demands a trial by jury in this matter.

ARTHUR, CHAPMAN, KETTERING, SMETAK & PIKALA, P.A.

Dated: December 1, 2014

s/Kimberly L. Johnson Kimberly L. Johnson (Atty ID #324589) Steven J. Erffmeyer (Atty ID#276534) 500 Young Quinlan Building 81 South Ninth Street Minneapolis, MN 55402-3214 P: (612) 339-3500 F: (612) 339-7655 [email protected] [email protected] And Tracey H. Donesky (Atty ID# 0302727) Greta Bauer Reyes (Atty ID# 0391100) STINSON LEONARD STREET LLP 150 South Fifth Street Suite 2300 Minneapolis, MN 55402 P: 612-335-1479 F: 612-335-1657 [email protected] Attorneys for Defendant Soo Line Railroad Company d/b/a Canadian Pacific

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