Campbell v. BNSF Railway Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0101p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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MICHAEL CAMPBELL,
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Plaintiff-Appellant,
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-
No. 09-5614
v.
,
>
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BNSF RAILWAY COMPANY f/k/a THE
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BURLINGTON NORTHERN & SANTA FE
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RAILWAY COMPANY,
Defendant-Appellee. -
N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 07-02286—Jon Phipps McCalla, Chief District Judge.
Argued: March 3, 2010
Decided and Filed: April 9, 2010
Before: KEITH, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL
ARGUED: David G. Mills, MILLS & ASSOCIATES, Cordova, Tennessee, for
Appellant. Kenneth O. Cooper, DOMICO KYLE, PLLC, Memphis, Tennessee, for
Appellee. ON BRIEF: David G. Mills, MILLS & ASSOCIATES, Cordova, Tennessee,
for Appellant. Kenneth O. Cooper, Jessica M. Hackett, DOMICO KYLE, PLLC,
Memphis, Tennessee, for Appellee.
_________________

OPINION
_________________

GRIFFIN, Circuit Judge. While employed by Pacific Rail Services, LLC
(“PRS”), plaintiff Michael Campbell was injured when the railroad transport vehicle he
was driving was rear-ended at a rail yard owned by defendant BNSF Railway Company
f/k/a The Burlington Northern & Santa Fe Railway Company (“BNSF”). In this

1
No. 09-5614 Campbell v. BNSF Ry. Co. Page 2

negligence action, Campbell alleges that he was an “employee” of BNSF for purposes
of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. The district
court disagreed and granted BNSF’s motion for summary judgment, holding that there
was no master-servant relationship between BNSF and PRS or between BNSF and
Campbell. In this appeal, Campbell challenges that ruling and two others: the district
court’s grant of summary judgment to BNSF on Campbell’s claim that the agreement
between BNSF and PRS was designed to circumvent FELA, contrary to 45 U.S.C. § 55,
and its denial of Campbell’s request to amend his complaint to add a claim for civil
conspiracy based upon its determination that the statute of limitations had run. For the
reasons that follow, we affirm the judgment of the district court.

I.

PRS operates intermodal rail facilities for railroad companies throughout the
United States.1 On May 1, 2003, PRS entered into a three-year Intermodal Facility
Services Agreement (“Intermodal Agreement”) with BNSF at BNSF’s terminal in
Memphis, Tennessee. The Intermodal Agreement required PRS to do the following:
load and unload BNSF’s railcars; transport trailers, containers, and chassis;2 stack
chassis; inspect, monitor, direct, and track equipment, shipments, and personnel passing
through the terminal’s checkpoint; manage and reconcile inventory; oversee the
container yard; ensure the proper securement and documentation of hitches, container
locking devices, and railroad tracks; and operate the lights, pole gates, and derails.

In fulfilling its duties, PRS had to “provide the necessary supervisors and support
personnel to ensure the facilities run Safely, Efficiently and Effectively” for up to 24
hours per day, seven days a week. Regarding PRS’s hiring decisions, the Intermodal
Agreement prohibited unlawful discrimination, required PRS to perform background
checks, and forbade PRS from assigning to the terminal any employee who had been
convicted of various crimes or who was not a citizen of, or not lawfully permitted to

1
“Intermodal” operations are those involving “the loading and unloading of trailers and containers
onto railcars.”
2
A chassis is a structural frame supporting containers and boxes and pulled by a tractor.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 3

work in, the United States. PRS also had to appoint employees to particular managerial
and supervisory positions and, with BNSF’s approval, could allocate additional
personnel to them at agreed upon compensation rates. To meet its staffing obligations,
PRS assigned approximately 140 of its employees to the terminal. Regarding the status
of PRS’s employees, the Intermodal Agreement provided:

It is the intention of Railroad Company and Contractor that Contractor
shall at all times be and operate as an independent contractor to Railroad
Company and nothing herein contained shall be construed as inconsistent
with that status. Contractor shall employ, direct, and supervise all
persons performing any service hereunder, and such persons shall be and
remain the sole employees of and subject to the control, direction, and
supervision of Contractor, and not the employees of nor subject to
direction, control, and supervision of Railroad Company.

In contrast to PRS’s 140 employees, BNSF employed a single worker at the
terminal, Andrew Scott Jenkins, who was BNSF’s hub manager. Jenkins was charged
with observing PRS workers to insure their timely completion of work and adherence
to BNSF’s safety protocols. Although Jenkins had “discussions” with PRS about which
tracks needed to be cleared and spotted, PRS managers and supervisors were responsible
for directing their employees in the specifics of their jobs, assigning containers to rail
cars, and coordinating and tracking the work. Jenkins also had no authority to hire, fire,
discipline, train, evaluate, or supervise PRS employees; those responsibilities were left
to PRS’s terminal and ramp managers, who held regular safety meetings for PRS
workers and maintained exclusive control over their work schedules. PRS employees
wore hard hats and safety vests bearing the PRS logo, were not members of the same
union as BNSF employees, and did not participate in railroad retirement plans.

Assisting PRS workers were BNSF’s computers and its real-time software
program, OASIS. Only PRS could input information into OASIS; BNSF was limited to
viewing the data entered.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 4

The primary equipment PRS used to perform its work were 32 or 33 hostlers.3
Each hostler cost $60,000 new and $20,000 used. PRS also owned eight pick-up trucks
and provided all radio equipment.

BNSF, on the other hand, owned four overhead cranes, two side cranes, and two
side chassis cranes. Each crane cost approximately $1.5 million. BNSF also furnished
office, maintenance, and repair space for PRS, and it provided a phone system, a copy
machine, and most of the office desks. PRS had its own fax machine, paid for its
internet service provider, and owned some of the desks and chairs. Although PRS did
not pay rent to BNSF, the lift rate reflected the office and equipment benefits PRS
received – absent them, PRS would have charged four times the negotiated rate.

The Intermodal Agreement mandated that PRS employees comply with BNSF’s
safety and environmental rules, traffic control requirements, speed limits, and operating
policies. Hostlers were to be furnished with devices that restricted their speed to no
more than 25 mph. PRS employees had to wear protective equipment, and all vehicles
had to be equipped with emergency flashers, flashing strobe lights, and approved steel
cages or bars. PRS also had to prepare and implement an environmental management
plan and comply with numerous internal and external publications. When an accident
resulting in injury or damage occurred, PRS was required to notify BNSF. The
Intermodal Agreement could be terminated by BNSF if PRS failed to properly load or
secure containers or trailers to railcars or chassis or furnished incorrect data regarding
loading and unloading times.

BNSF paid PRS an agreed upon rate for each “lift to or from a railcar” and
monthly compensation amounts for each service. PRS was also eligible for a monthly
incentive payment based upon its performance.

The amounts PRS billed to BNSF generally covered PRS’s expenses for each
month but not always. PRS was responsible for damage beyond normal wear and tear

3
A hostler is a six-wheeled tractor used to transport trailers during the loading and unloading of
trains.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 5

it caused to the terminal, and it was required to reimburse or pay a penalty to BNSF for
misdirected shipments, improperly loaded or secured units, failure to complete work
timely and appropriately, and supplying incorrect data.

The Intermodal Agreement contained numerous indemnity provisions, including
an express indemnity clause protecting and indemnifying BNSF from the “strict
liability” resulting from violations or alleged violations of federal, state, and local laws,
FELA being expressly named. PRS also had to purchase a number of insurance policies,
including FELA coverage, with the endorsement naming BNSF as the “Alternate
Employer.” The Intermodal Agreement clarified that “Alternate Employer” was “used
solely as an insurance term of art” and that PRS was “in no way intending or evidencing
an alternate or dual employment relationship with” BNSF. The workers’ compensation
and employer’s liability insurance policies had to contain specific waivers of the
insurance company’s subrogation rights against BNSF, and PRS agreed to waive its right
of recovery for all claims and suits against BNSF.

Campbell was a PRS hostler driver. His hostler was equipped with a radio
owned by PRS and a BNSF-owned computer running the OASIS software. Using
OASIS, Campbell selected a container, and OASIS apprised him of its location. With
his hostler, Campbell then transported the container to the designated rail car, where it
was lifted onto a train by a BNSF-owned crane. Throughout his shift, Campbell’s
supervisors communicated with him via his radio.

BNSF had no input regarding PRS’s decision to hire Campbell. Campbell
received his safety training from PRS’s safety director, and a PRS employee taught him
how to drive a hostler. At one point during his employment with PRS, Campbell was
disciplined by PRS for a work-related incident. BNSF had no knowledge that the
infraction occurred.

On April 28, 2006, the day of the accident, PRS employee Michael Kutscher was
Campbell’s direct supervisor. Prior to Campbell’s shift, Kutscher conducted his
customary shift meeting for all hostler drivers, including Campbell, in which he provided
instructions about their work for that day and how the work should be completed. No
No. 09-5614 Campbell v. BNSF Ry. Co. Page 6

BNSF employee was present at the meeting. That morning, a PRS hostler rear-ended
Campbell’s hostler, causing injury to Campbell. Thereafter, Campbell reported the
accident to his PRS supervisor and completed a PRS accident/injury report. Campbell
received Worker’s Compensation benefits from PRS through its insurance carrier.

On April 20, 2007, Campbell filed a complaint for personal injury against BNSF
in the United States District Court for the Western District of Tennessee. The complaint,
which alleged negligence, asserted that BNSF was Campbell’s “actual employer” and
that PRS “was a merely nominal independent contractor[.]” According to the complaint,
the “purpose” of the Intermodal Agreement “was to allow BNSF to exempt itself from
liability created by the FELA[.]”

On September 29, 2008, BNSF filed a motion for summary judgment arguing,
in part, that Campbell was not its employee and therefore could not recover under FELA.
On December 23, 2008, while BNSF’s summary judgment motion was pending,
Campbell filed a motion for leave to file a first amended complaint, which: (1) set forth
more detailed allegations supporting Campbell’s claim that he was BNSF’s sub-servant,
(2) sought to withdraw his claim for ordinary negligence, and (3) asserted a claim for
punitive damages. The district court granted Campbell’s first two requests but denied
his request to seek punitive damages on the ground that FELA did not provide for
punitive damages.

Thereafter, Campbell filed a request to reconsider the district court’s denial of
his punitive damages claim, which also doubled as a motion for leave to file a second
amended complaint adding a state-law conspiracy claim. The district court denied
Campbell’s requests, holding that an amendment adding a conspiracy claim was futile
because the one-year statute of limitations period had run.

On April 22, 2009, the district court granted BNSF’s motion for summary
judgment. Campbell timely appeals.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 7

II.

Campbell argues that the district court erred in holding that he was not BNSF’s
“employee” under FELA. We review the district court’s grant of summary judgment de
novo. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009).

FELA provides the exclusive remedy for employees of interstate railroads to
recover from a railroad for injuries incurred during the course of their employment.
Wabash R.R. Co. v. Hayes, 234 U.S. 86, 89-90 (1914). FELA states, in relevant part:

Every common carrier by railroad while engaging in commerce between
any of the several States . . . shall be liable in damages to any person
suffering injury while he is employed by such carrier in such commerce
....

45 U.S.C. § 51. FELA thus applies to (1) a “common carrier by railroad” and (2) a
person “employed” by that railroad carrier. The parties agree that PRS is not a “common
carrier by railroad” and that BNSF is. To recover under FELA then, Campbell must
show that he was BNSF’s employee.

“[T]he words ‘employee’ and ‘employed’ in [FELA] [are] used in their natural
sense, and were intended to describe the conventional relation of employer and employe
[sic][,]” that is, a “master-servant” relationship “to be determined by reference to
common-law principles.” Kelley v. S. Pac. Co., 419 U.S. 318, 323 (1974) (citation and
internal quotation marks omitted). The United States Supreme Court has stated that,
under the common law,

there are basically three methods by which a plaintiff can establish his
“employment” with a rail carrier for FELA purposes even while he is
nominally employed by another. First, the employee could be serving as
the borrowed servant of the railroad at the time of his injury. Second, he
could be deemed to be acting for two masters simultaneously. Finally,
he could be a subservant of a company that was in turn a servant of the
railroad.

Id. at 324 (internal citations omitted). Campbell concedes that only the last method –
“subservant of a company that was in turn a servant of the railroad” – applies. To
No. 09-5614 Campbell v. BNSF Ry. Co. Page 8

prevail under this theory, Campbell must demonstrate that he was acting as BNSF’s
servant at the time of his accident. See id. at 325.

In determining whether a plaintiff was a subservant of a company that was in turn
a servant of the railroad under FELA, the Supreme Court has looked to the Restatement
(Second) of Agency. Id. at 324 (“While [section 220(2) of the Restatement] is directed
primarily at determining whether a particular bilateral arrangement is properly
characterized as a master-servant or independent contractor relationship, it can also be
instructive in analyzing the three-party relationship between two employers and a
worker.”); see also Warrington v. Elgin, Joliet & E. Ry. Co., 901 F.2d 88, 90 (7th Cir.
1990). Section 220(1) of the Restatement (Second) of Agency defines a “servant” as “a
person employed to perform services in the affairs of another and who with respect to
the physical conduct in the performance of the services is subject to the other’s control
or right to control.” Section 220(2) “recites various factors that are helpful in applying
that definition.”4 Kelley, 419 U.S. at 324. In addition to the Restatement (Second) of

4
The factors include:
[1] the extent of control which, by the agreement, the master may exercise over the
details of the work;
[2] whether or not the one employed is engaged in a distinct occupation or
business;
[3] the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without
supervision;
[4] the skill required in the particular occupation;
[5] whether the employer or the workman supplies the instrumentalities, tools, and
the place of work for the person doing the work;
[6] the length of time for which the person is employed;
[7] the method of payment, whether by the time or by the job;
[8] whether or not the work is a part of the regular business of the employer;
[9] whether or not the parties believe they are creating the relation of master and
servant; and
[10] whether the principal is or is not in business.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 9

Agency criteria, Campbell relies upon factors used by the Internal Revenue Service. See
Rev. Rul. 87-41, 1987-1 C.B. 296.5

Campbell’s attempt to characterize himself as BNSF’s employee fails. The
undisputed evidence demonstrates that BNSF had no right to control, nor did it attempt
to exercise control over, the manner and details of PRS’s work. See Kelley, 419 U.S. at
325. In fact, BNSF did not have the personnel in place to do so – it employed a single
worker, Andrew Scott Jenkins, at the terminal. Jenkins did not work 24 hours a day,
seven days a week at this around-the-clock operation requiring 140 PRS employees, and
his role was limited to observation, rather than control.

PRS employed its own managers and supervisors. Those personnel held safety
meetings before each shift, and they coordinated, directed, and assigned the work to be
performed. BNSF had no authority in the crucial areas of hiring, training, evaluating,
disciplining, and terminating PRS employees; those tasks were exclusively under PRS’s
control.

BNSF also played little, if any, role in Campbell’s accident. In this regard, PRS
employed Campbell and the worker who rear-ended him, and it owned both of the
hostlers involved in the accident. Campbell was trained to drive his hostler by another
PRS employee. PRS disciplined Campbell on a prior occasion, and revealingly, BNSF
had no knowledge of it. Only Campbell and other PRS workers entered information into
the OASIS program, which coordinated and tracked their work that day. Only PRS
managers and supervisors gave Campbell his job instructions.

Nor could PRS be properly characterized as BNSF’s alter ego. PRS had
substantial business relationships outside of its dealings with BNSF, and it operated
several intermodal rail facilities for various companies throughout the United States.

5
The IRS factors pertain to: instructions; training; integration; services rendered personally;
hiring, supervising, and paying assistants; continuing relationship; set hours of work; full time required;
doing work on employer’s premises; order or sequence set; oral or written reports; payment by hour, week,
month; payment of business and/or traveling expenses; furnishing of tools and materials; significant
investment; realization of profit or loss; working for more than one firm at a time; making service available
to general public; right to discharge; and right to terminate.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 10

The Intermodal Agreement did not require PRS or any of its employees to work
exclusively for BNSF, and PRS had complete authority over its employees’ schedules.
PRS could employ or assign any number of workers to the terminal, and its actions, in
large part, determined its profits. PRS was paid per lift. Moreover, the 32 to 33 hostlers
PRS owned, at a cost of $20,000 to $60,000 each, constituted a substantial expenditure
atypical of a servant; and if a hostler broke, PRS would have borne the financial loss.
Although BNSF provided PRS with office, maintenance, and repair space, as well as
various amenities, these benefits were bargained for under the Intermodal Agreement.
PRS would have charged four times its rates had BNSF not provided them.

All of this evidence demonstrates overwhelmingly that PRS controlled, and had
the exclusive right to control, its employees as BNSF’s independent contractor.
Campbell’s arguments to the contrary are without merit. BNSF’s “restrictions” upon
PRS’s hiring practices, specifically, its prohibitions against employing terminal workers
with criminal records or without authorization to work in the United States, do not
demonstrate BNSF’s right to control PRS. To be sure, many, if not most, employers
place identical limitations on employment, and these minimal screening criteria did not
circumscribe PRS’s applicant pool in any significant way or compel PRS to hire or
assign to the terminal applicants who were selected by BNSF.

Similarly unavailing is Campbell’s argument that BNSF controlled PRS by
requiring it to adhere to anti-discrimination laws. Compliance with the law was not a
BNSF mandate; rather, it was a legislative command.

PRS’s obligation to conform to BNSF’s safety requirements; produce an
environmental compliance plan; perform security inspections after loading; adhere to
BNSF’s internal and external publications; complete its loading and unloading
operations in accordance with BNSF’s hub standards and transportation plan; and submit
proficiency audits were mutually agreed upon practices that merely insured worker and
premises safety. It was certainly reasonable for BNSF, the rail yard property owner, to
be concerned about workers performing potentially hazardous work on its land.
Significantly, PRS was responsible for implementing these policies on a daily basis,
No. 09-5614 Campbell v. BNSF Ry. Co. Page 11

conducting safety meetings before each shift, supervising its employees, and insuring
their safe and adequate performance while on the job. See Kelley, 419 U.S. at 331
(“[T]he District Court found no [] day-to-day supervision that would support a finding
that petitioner and his coworkers were, in effect, employees of the railroad.”) (emphasis
added).

Contrary to Campbell’s implied characterization, BNSF’s OASIS software was
not a “big brother” keeping watchful eye over PRS or controlling how PRS performed
its work; rather, it coordinated the work of both companies. See id. at 330 (stating that
“contacts” between a railroad company and its contractor “may indicate, not direction
or control, but rather the passing of information and the accommodation that is obviously
required in a large and necessarily coordinated operation.”). BNSF’s contacts with the
software was passive – it could only view the data but could not enter it as a means to
control PRS’s work.

Campbell’s argument that BNSF controlled PRS by imposing upon it “onerous”
indemnification and insurance requirements is likewise untenable. Campbell neither
cites authority nor makes any persuasive argument that a company which hires another
to perform intense manual labor on its premises must forego certain protections so as not
to risk being considered an employer under FELA. In any event, protection from
liability does not constitute control over the manner and details of a contractor’s work.

The two cases upon which Campbell relies, Baker v. Texas & Pac. Ry. Co., 359
U.S. 227 (1959) and Breaux & Daigle, Inc. v. United States, 900 F.2d 49 (5th Cir. 1990),
are distinguishable from the present case. Baker was hired by a contractor for a railroad,
and his “work consisted of ‘grouting,’ or pumping sand and cement into the roadbed to
strengthen and stabilize it.” 359 U.S. at 227. When he was struck by a train and killed
while working, his representatives filed suit under FELA, arguing that Baker was an
employee of the railroad company. Id. The district court held that Baker was not a
railroad employee as a matter of law, but the Supreme Court reversed and held:

[T]he petitioners introduced evidence tending to prove that the grouting
work was part of the maintenance task of the railroad; that the [rail]road
No. 09-5614 Campbell v. BNSF Ry. Co. Page 12

furnished the material to be pumped into the roadbed; and that a
supervisor, admittedly in the employ of the railroad, in the daily course
of the work exercised directive control over the details of the job
performed by the individual workmen, including the precise point where
the mixture should be pumped, when they should move to the next point,
and the consistency of the mixture. The railroad introduced evidence
tending to controvert this and further evidence tending to show that an
employment relationship did not exist between it and Baker at the time
of the accident. An issue for determination by the jury was presented.

Id. at 228-29. In contrast to Baker, no BNSF employee “in the daily course of the work
exercised directive control over the details of the job performed by the individual [PRS]
workmen[.]” Id. (emphasis added). Thus, there is no genuine issue of material fact that
would justify submission to a jury in the present case. Cf. Warrington, 901 F.2d at 91
(affirming the district court’s directed verdict against a plaintiff on his claim that he was
a subservant of an employer that was in turn a servant of the railroad because the
evidence showed that the railroad had no control over the contractor’s movement of cars
between and along tracks using bulldozers owned by the contractor).

Breaux & Daigle, Inc. is also distinguishable because the issue there was
employer tax liability, not liability under FELA. More importantly, Breaux & Daigle,
Inc. involved a two-party relationship between an employer (a crab meat processor and
seller) and its workers (crab meat pickers), not a three-party relationship between two
employers and a worker as in the present case. The distinction is significant. The crab
meat pickers in Breaux & Daigle, Inc., unlike the PRS employees, were not under the
control of an intervening corporate entity separate and apart from their alleged
“employer.”

The facts in the present case are similar to those in Sullivan v. Consolidated Rail
Corp., 459 N.E.2d 513 (Ohio 1984). In Sullivan, the plaintiff was employed by
Pennsylvania Truck Lines, Inc. (“PTL”), a wholly-owned subsidiary of a railroad. Id.
at 514. He was injured while loading trailer vans onto railroad cars owned by the
railroad. Id. Although the railroad company did not have direct supervisory control over
the plaintiff’s actions, the plaintiff argued that his work was “sufficiently under the
control of the railroad to bring him within coverage of the FELA.” Id. A “Terminal
No. 09-5614 Campbell v. BNSF Ry. Co. Page 13

Services Agreement” was “the only mode of control” the railroad had over the plaintiff’s
conduct. Id. In affirming the trial court’s grant of summary judgment to the railroad on
the ground that the plaintiff was not its employee, the Supreme Court of Ohio stated:

We have no difficulty in determining from the record that PTL is an
agent of its parent company. A finding of agency is not tantamount,
however, to a finding of a master-servant relationship, as the traditional
right to control test would be met only if it were shown that the role of
the subsidiary company was that of a conventional common-law servant.
The record clearly demonstrates that appellee did not have the right to
control the daily operations of PTL or its employees. The companies
were sufficiently distinct in organization and responsibility. Employees
of the railroad did not play a significant supervisory role in the loading
and unloading of railroad cars. In fact, only in the rare absence of a PTL
supervisor did appellee’s employees control the activities of PTL
employees. We believe the interaction between companies, in the main,
rises only to the passing of information and coordination which is
required in such a large operation.
We hold, therefore, that a railroad is not liable under the FELA for
injuries to an employee of its wholly owned subsidiary corporation when
the railroad did not possess the right to control the employee’s action, but
did control other aspects of the subsidiary’s business.

Id. at 515 (citation omitted); see also Dominics v. Illinois Cent. R.R. Co., 934 F. Supp.
223, 226-27 (1996) (S.D. Miss. 1996) (holding that a worker employed by a railroad
grinding contractor was not an employee of the railroad company under FELA as a
matter of law because, although the railroad provided a rail supervisor to follow the
grinding train and insure that any sparks caused by the grinding operation did not set
anything on fire, the railroad did not supervise the contractor’s employees).

For these reasons, we hold that the district court did not err in granting summary
judgment to BNSF on Campbell’s FELA claim because Campbell was not BNSF’s
employee.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 14

III.

Campbell argues that the Intermodal Agreement declaring PRS an independent
contractor was intended to circumvent FELA and is therefore void under 45 U.S.C. § 55.
He also asserts that § 55 bars BNSF from asserting its defense that Campbell was not its
employee. 45 U.S.C. § 55 provides, in relevant part:

Any contract, rule, regulation, or device whatsoever, the purpose or
intent of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter [45 U.S.C. § 51 et seq.], shall
to that extent be void[.]

The district court granted summary judgment to BNSF on these issues, holding
that § 55 “was ‘intended to bar a defense, presented in a suit for damages under FELA,
based upon an employee’s relinquishment of rights under FELA’ and ‘was not intended
to afford a cause of action, separate from that for recovery of damages for injury under
FELA, against an employer that engages in a device to exempt itself from FELA
liability.’” (quoting Bay v. W. Pac. R.R. Co., 595 F.2d 514, 516 (9th Cir. 1979)).
According to the district court, Campbell’s § 55 claim failed because BNSF “did not
assert the [Intermodal Agreement] as a defense to [Campbell’s] claims; furthermore,
[Campbell] was not a party to the [Intermodal Agreement] and has not shown how the
agreement in any way constitutes a ‘relinquishment’ of his rights.”

In his appeal of these issues, Campbell merely restates his arguments addressing
whether he was BNSF’s employee under FELA. He also implies that BNSF and PRS
conspired to exempt BNSF from FELA liability. However, Campbell cites no authority
allowing him to either assert a cause of action based upon 45 U.S.C. § 55 or invoke the
statute to eliminate BNSF’s non-employee defense. In fact, Campbell’s assertion that
the Intermodal Agreement was intended to exempt BNSF from FELA liability merely
begs the primary question – whether PRS and Campbell were BNSF’s servants. As we
held previously, the district court did not err in ruling that they were not. For these
reasons, we hold that the district court did not err in its summary judgment dismissal of
Campbell’s 45 U.S.C. § 55 “claim” and in permitting BNSF’s non-employee defense.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 15

IV.

Campbell contends that the district court’s denial of his request to amend his
complaint to add a claim for civil conspiracy under Tennessee law was erroneous. The
proposed amendment alleged that BNSF conspired with PRS to avoid FELA liability.
In denying Campbell’s request to amend, the district court held that: (1) allowing the
amendment would be futile because the one-year statute of limitations had run; (2) the
discovery rule did not toll the limitations period; and (3) the proposed amendment did
not relate back to the filing date of the original complaint under Federal Rule of Civil
Procedure 15(c).

When the district court denies a motion to amend on futility grounds, we review
that ruling de novo. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 437 (6th Cir. 2008). An amendment is futile if it would not
survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). To overcome a Rule
12(b)(6) dismissal, “the complaint’s ‘[f]actual allegations must be enough to raise a right
to relief above the speculative level,’ and ‘state a claim to relief that is plausible on its
face.’” Tam Travel, Inc. v. Delta Airlines, Inc., 583 F.3d 896, 903 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)) (internal
citation omitted) (alteration in original). In addition, “we may affirm on any grounds
supported by the record even if different from the reasons of the district court.” Dixon
v. Clem, 492 F.3d 665, 673 (6th Cir. 2007) (citation and internal quotation marks
omitted).

We affirm the district court’s denial of Campbell’s motion to amend on the
ground that Campbell has failed to state a plausible claim for civil conspiracy under
Tennessee law.6 “It is well settled in Tennessee that the tort of civil conspiracy requires
underlying wrongful conduct, and that conspiracy, standing alone, is not sufficient to
support a cause of action[.]” Greene v. Brown & Williamson Tobacco Corp., 72 F.

6
Because the proposed amended complaint does not state a claim for civil conspiracy, it is
unnecessary for us to decide whether the proposed complaint is also time-barred.
No. 09-5614 Campbell v. BNSF Ry. Co. Page 16

Supp. 2d 882, 887 (W.D. Tenn. 1999). “If the underlying wrongful conduct is found to
be not actionable then the conspiracy claim must also fail.” Id. In the present case,
Campbell’s allegations do not plausibly suggest that the business arrangement between
BNSF and PRS, in which PRS agreed to perform loading and unloading work for BNSF,
was wrongful and an actionable conspiracy under Tennessee law.

V.

For these reasons, we affirm the judgment of the district court.7

7
In his reply brief, Campbell argues that the district court erred by entering summary judgment
on his initial complaint which, according to Campbell, was a “dead pleading” because it was subsequently
amended. BNSF has moved to strike Campbell’s reply brief, asserting that Campbell failed to raise the
issue in his response to the motion for summary judgment and in his initial appellate brief. In view of our
disposition, we choose not to address the issue and deny as moot the motion to strike.