     Case: 10-41276     Document: 00511617559         Page: 1     Date Filed: 09/29/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 29, 2011

                                     No. 10-41276                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JEFFREY HUNTLEY,

                                                  Plaintiff–Appellant,
v.

BAYER MATERIALSCIENCE, L.L.C.,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:10-CV-10


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff Jeffrey Huntley sued his employer, Bayer MaterialScience, L.L.C.
(Bayer), under the Federal Employers Liability Act and the Texas Railroad
Liability Act for injuries he sustained in the course of his employment on a rail
car switch crew. The district court granted summary judgment in Bayer’s favor.
We affirm.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-41276

                                         I
      Bayer is a chemical company that manufactures isocyanates and
polycarbonate    “intermediates” at its Baytown Facility (Facility), an
approximately 1,600 acre industrial park. Bayer’s site logistics department is
responsible for the movement of product and raw materials within the Facility.
During the relevant time period, the department’s responsibilities included
sorting and switching rail cars delivered to the Facility by either Union Pacific
Railroad (Union Pacific) or Burlington Northern Santa Fe Railway (BNSF), and
distributing those rail cars to the various process units within the Facility. The
rail cars were loaded with product, and Bayer switch crews took the cars back
to a central point within the Facility (termed the Runaround), from which Union
Pacific or BNSF delivered the product throughout the United States.
      Within the Facility, which Bayer owns, several unrelated chemical
processing companies (Lessees) lease sites where their materials are processed.
The Lessees are Bayer suppliers, but also sell at least some materials to other
consumers. Pursuant to individual contractual arrangements between Bayer
and each Lessee, Bayer performs switching and transportation services for the
Lessees within the Facility similar to those conducted with respect to Bayer’s
own processing units. Specifically, Bayer moves loaded rail cars owned by the
Lessees from their respective plants to the Runaround where Union Pacific or
BNSF enters the Facility, “couples up” with the rail cars, and takes them to their
final destination. When the Lessees’ rail cars are delivered to the Runaround
by Union Pacific or BNSF, Bayer sorts, switches, and delivers them to the
appropriate Lessee. The Lessees compensate Bayer for this service under the
terms of the individual contracts. The Lessees have their own contractual
arrangements with Union Pacific and BNSF to transport their products in
interstate commerce from the Facility.



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       In addition to providing these contractual transportation services to the
Lessees, on two occasions Bayer also provided limited rail service to its neighbor,
electric utility HL&P. Specifically, Bayer transported equipment to an HL&P
power station located adjacent to the Facility by utilizing a Bayer switch engine
to move rail cars owned by third parties through Bayer’s property and onto
HL&P’s property. Bayer did not receive any compensation for these services.
       Huntley was employed by Bayer as a site logistics technician on a rail car
switch crew at the Facility. His job duties “involved sorting rail cars using a
switch engine on a rail spur” within the Facility as part of the delivery of the
cars to the various processing units. On February 29, 2008, Huntley was
injured while performing switch crew duties, resulting in the amputation of one
leg at the knee and additional injuries to his other leg and foot.
       At the time of the incident, Bayer subscribed to a workers’ compensation
policy covering the employees at the Facility. Huntley does not dispute that he
was notified of the policy at the beginning of his employment in September 2005
and did not opt out of such coverage. After the incident, Bayer notified its
insurance carrier, which accepted the claim. Huntley accepted and continues to
receive workers’ compensation benefits under Bayer’s policy.
       Huntley initially sued Bayer and several others in state court. After a
transfer of venue, Bayer filed a motion for summary judgment. Before the
motion was heard, Huntley filed a motion for nonsuit and the case was
dismissed. Shortly thereafter, Huntley filed the underlying suit in federal court,
alleging Bayer is liable for his injuries under the Federal Employers Liability
Act1 (FELA) and the Texas Railroad Liability Act2 (TRLA).



       1
           45 U.S.C. § 51.
      2
        Former TEX. REV. CIV. STAT. § 6439 (repealed 2009) (current version at TEX. TRANSP.
CODE § 112.152).

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      Bayer moved for summary judgment on two grounds. First, Bayer argued
that Huntley could not maintain a cause of action against it under the FELA
because Bayer was not a “common carrier” under the statute as required for
FELA liability. Second, Bayer contended that Huntley’s receipt of workers’
compensation benefits was his exclusive remedy for his injuries under the Texas
Workers’ Compensation Act3 (TWCA) and that he therefore could not recover
under either the FELA or the TRLA.
      The district court granted the motion, holding that Bayer, as a matter of
law, was not a common carrier subject to FELA liability. This holding was based
on the court’s following conclusions: (1) Bayer’s railroad services do not link two
common carriers; (2) Bayer utilizes its rail tracks to connect common carriers to
other processing plants (the Lessees) on its Facility; (3) the use of its switch
engines for the convenience of the Lessees and HL&P did not further the
contractual obligations of a common carrier; (4) Bayer’s rail services were not
services that a common carrier had contracted with others to perform as part of
its mission; and (5) Bayer merely connects common carriers to its Facility for the
benefit of itself and its Lessees. The court did not address whether the TWCA
barred Huntley’s claims. Nevertheless, the court entered a final judgment based
on the summary judgment order, and Huntley filed this appeal.
                                              II
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.4 Summary judgment is
appropriate when the record reflects that there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.5


      3
          TEX. LAB. CODE § 406.034.
      4
          James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008).
      5
          FED. R. CIV. P. 56(a).

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                                        No. 10-41276

“The evidence and inferences from the summary judgment record are viewed in
the light most favorable to the nonmovant.”6
                                               A
       The FELA provides in pertinent part that “[e]very common carrier by
railroad while engaging in [interstate] commerce . . . shall be liable in damages
to any person suffering injury while he is employed by such carrier in such
commerce . . . 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.”7 An early
but still-cited Supreme Court definition of “common carrier by railroad” is “one
who operates a railroad as a means of carrying for the public.”8 A more recent
definition, put forth by a district court and utilized by this court in developing
considerations for identifying a common carrier, provides:
             “A common carrier has been defined generally as one who
       holds himself out to the public as engaged in the business of
       transportation of persons or property from place to place for
       compensation, offering his services to the public generally. The
       distinctive characteristic of a common carrier is that he undertakes
       to carry for all people indifferently, and hence is regarded in some
       respects as a public servant.”9
       In Lone Star Steel Co. v. McGee (Lone Star), we discussed the longstanding
recognition of classes of rail carriers that are not considered “common carriers”
subject to the FELA. For example, a company that maintains a “plant facility,”
i.e., “a complicated intra-plant railroad system” by which the company moves its
own goods and does not offer the railroad’s use to the public, is not a common


       6
       McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 288 (5th Cir. 2008) (quotation
marks and citation omitted).
       7
           45 U.S.C. § 51.
       8
           Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187 (1920).
       9
        Lone Star Steel Co. v. McGee, 380 F.2d 640, 643 (5th Cir. 1967) (quoting Kelly v. Gen.
Elec. Co., 110 F. Supp. 4, 6 (E.D. Pa.), aff’d, 204 F.2d 692 (3d Cir. 1953)).

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                                     No. 10-41276

carrier.10     Common carriers are also distinguished from so-called “private
carriers,” described as follows:
      [A] private carrier is one who, without making it a vocation, or
      holding himself out to the public as ready to act for all who desire
      his services, undertakes, by special agreement in a particular
      instance only, to transport property from one place to another either
      gratuitously or for hire. He carries only for persons with whom he
      has an initial contract, and assumes no obligation to carry for
      others . . . .11
      Utilizing these general definitions and categories, we identified four
considerations “of prime importance in determining whether a particular carrier
is a common carrier”: (1) actual performance of rail service; (2) the service being
performed is part of the total rail service contracted for by a member of the
public; (3) the entity is performing as part of a system of interstate rail
transportation by virtue of common ownership between itself and a railroad or
by a contractual relationship with a railroad, and hence is deemed to be holding
itself out to the public; and (4) remuneration for the services performed is
received in some manner, such as a fixed charge from a railroad or by a percent
of the profits from a railroad.12
      It is undisputed that Bayer actually performs rail service, satisfying the
first Lone Star consideration. However, the parties vigorously disagree as to the
application of the remaining three considerations. Bayer contends that the
application thereof demonstrates conclusively that it is not a common carrier,
but rather is an “in-plant carrier” that operates rail services only on its own
property and in furtherance of its chemical business, and does not carry for the



      10
           Id. at 644.
      11
         Id. at 645 (quoting Ward Transport, Inc. v. Publ Utils. Comm’n, 376 P.2d 166, 169
(Colo. 1962)).
      12
           Id. at 647.

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                                    No. 10-41276

general public. At most, Bayer contends, it is a “private carrier” conducting rail
services for a limited number of entities pursuant to individual contracts, and
thus is not a common carrier subject to the FELA. Huntley, on the other hand,
argues that “Bayer’s railroad provided the only link between the Lessees and the
system of interstate rail transportation” and that Bayer’s provision of rail
services to the unrelated Lessees for a fee took Bayer out of the “plant carrier”
category and rendered it a common carrier.
      In applying the Lone Star considerations, it is helpful to review the facts
in that case, including their similarities to and distinctions from the facts at
hand. Like Bayer, Lone Star owned a large plant complex with an intricate
system of rail trackage within the complex.13         Various industries, whose
operations were integrated with Lone Star’s overall operation, maintained
facilities within the plant.14 The main railroad line of Texas & Northern Railway
Company (T & N), a common carrier performing rail services for, inter alia, Lone
Star and the other industries within the complex, extended to a “classification
yard” just inside the plant.15 And like the underlying case, additional rail service
was necessary for transportation between the classification yard and the
“pertinent consignee’s siding or industry track.”16
      Unlike the facts at hand, however, this additional rail service was
“included in the line haul freight rate charged by T & N,” was provided by both
Lone Star and T & N, and was charged regardless of which entity performed the
service.17 Moreover, Lone Star was essentially the sole owner of T & N—Lone


      13
           Id. at 642.
      14
           Id.
      15
           Id.
      16
           Id.
      17
           Id. at 643.

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                                        No. 10-41276

Star owned 3,308 shares of the 3,313 common shares issued by T & N—and
therefore “receive[d] in the form of dividends a part of the rate charged the
industries by T & N.”18 In holding Lone Star was a common carrier, we
explained: “In light of the rail services Lone Star has performed, the fact that
such services are actually rendered in fulfillment of T & N’s obligations as a
carrier, and giving consideration to . . . the close connection between the two
companies and their mutual dependence on each other, we conclude that both
Lone Star and T & N are operating, jointly, a railroad system which constitutes
each of them a common carrier.”19
       The distinctions between the facts in Lone Star and those at hand
significantly affect the second and third Lone Star considerations. As to the
second consideration, the service being performed by Bayer is not “part of the
total rail service contracted for by a member of the public.”20 Bayer and the
Lessees each had individual contracts with Union Pacific and BNSF to transport
their rail cars to and from the Facility. There is no evidence, however, that
Union Pacific and BNSF were contractually responsible to the Lessees for the
rail services Bayer provided to them within the Facility; in other words, Bayer
“did not provide services that the common carrier[s] had contracted to
perform.”21
       We relied on a similar distinction in McCrea v. Harris County Ship
Channel Navigation District, a case in which the District maintained railroad

       18
            Id. at 647.
       19
            Id. at 648-49.
       20
            Id. at 647.
       21
          Kieronski v. Wyandotte Terminal R.R.Co., 806 F.2d 107, 110 (6th Cir. 1986) (holding
that operator of railroad line on property originally owned by operator’s parent company was
not a common carrier, despite the fact that the railroad line connected to a common carrier and
that the operator performed switching services on the property for unrelated entities that had
purchased portions of the property from the operator’s parent company).

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                                         No. 10-41276

trackage at two facilities where the District was responsible for unloading
incoming cargo, temporary storage, and conveyance of the cargo to vessels for
loading.22 We noted that a customer shipping cargo from the facilities served by
the District “does not receive the services of the . . . District by virtue of his
shipment contract with a railroad”; rather, the customer was required to make
independent arrangements with and pay an additional charge to the District to
have the rail cars moved and unloaded.23 Similarly, in this case the Lessees do
not receive Bayer’s services by virtue of their shipment contracts with Union
Pacific and BNSF, and they are required to pay a separate fee under a separate
contract with Bayer to have their rail cars moved to their plants within the
Facility.24
       Citing Bayer’s contract with Hexion, one of the Lessees, Huntley argues
that “Bayer’s agreements to provide rail services to the Lessees required that it
contract with the connecting railroads to move rail cars that were either sent by
the public at large to the Lessees via Union Pacific or BNSF, or that were sent
by the Lessees via Bayer’s railroad into interstate commerce.” A review of the
Bayer–Hexion contract, however, demonstrates that it simply permitted Hexion
to receive and ship products at the Facility pursuant to “applicable agreements
with the railroad” and authorized Bayer to perform switching services at the



       22
            423 F.2d 605, 607-08 (5th Cir. 1970).
       23
            Id. at 609.
       24
          See also Willard v. Fairfield S. Co., 472 F.3d 817, 819 (11th Cir. 2006) (rail service
operator Fairfield, which had direct contracts with individual customers with facilities located
on its property to transport products within the confines of the property, was not a common
carrier despite the fact that it was a subsidiary of a common carrier); Nichols v. Pabtex, Inc.,
151 F. Supp. 2d 772, 779 (E.D. Tex. 2001) (rail operator had arrangement with common carrier
whereby operator made “throughput” bids to shipping companies that included one charge for
transportation, storage, loading, and unloading services, and operator allocated proceeds
between itself and common carrier without customer’s knowledge; thus, operator provided part
of the total rail service contracted for and was itself a common carrier).

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                                        No. 10-41276

Facility for a fee. Moreover, it is undisputed that Bayer in fact did not and does
not “contract with the connecting railroads” to move the Lessees’ rail cars within
the Facility. It contracts only with the Lessees for such services. Finally, the
fact that Bayer leased two sections of track outside its Facility from common
carriers is immaterial, as Bayer’s “right to use a portion of the track . . . w[as]
merely for the convenience of the plants [within the Facility] and in no way
furthered the contractual obligations of the common carrier.”25 Thus, Bayer did
not provide part of the total rail service contracted for by the Lessees.
      Nor, under the third consideration, was Bayer “performing as part of a
system of interstate rail transportation by virtue of common ownership between
itself and a railroad or by a contractual relationship with a railroad, and
hence . . . deemed to be holding itself out to the public” as a common carrier.26
It is undisputed that there is no common ownership interest between Bayer and
any railroad, including Union Pacific and BNSF. And as discussed above, Bayer
does not have a contractual relationship with Union Pacific or BNSF under
which Bayer is obligated to perform any rail services. Rather, Bayer’s contracts
with those two carriers involve their transportation of Bayer’s rail cars to
various locations throughout the country in exchange for a fee paid by Bayer.
Moreover, other than the two occasions on which Bayer provided rail services to
HL&P for no fee and apparently as a courtesy (by transporting rail cars owned
by third parties through Bayer’s property and onto HL&P’s adjacent property),
there is no evidence that Bayer has ever provided or offered to provide rail
services to anyone other than the companies who lease land within the Facility.




      25
        Kieronski, 806 F.2d at 109-10 (citing Duffy v. Armco Steel Corp., 225 F. Supp. 737
(W.D. Pa. 1964)).
      26
           Lone Star Steel Co. v. McGee, 380 F.2d 640, 647 (5th Cir. 1967).

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                                         No. 10-41276

      Relying on United States v. California27 and United States v. Brooklyn
Eastern District Terminal,28 Huntley asserts that Bayer is part of an interstate
rail transportation system because Bayer’s railroad provides a necessary link to
common carrier railroads.                Bayer’s railroad, however, is significantly
distinguishable from the California-owned State Belt Railroad deemed by the
Supreme Court to be a common carrier under the Safety Appliance Act in
California, as that railroad “parallel[ed] the water front of San Francisco
harbor,” “extend[ed] onto some forty-five state-owned wharves,” “serve[d]
directly about one hundred and seventy-five industrial plants,” “ha[d] track
connection with one interstate railroad, and, by wharf connections with freight
car ferries, link[ed] that and three other interstate rail carriers with freight
yards in San Francisco leased to them by the state.”29 Nor does Bayer’s railroad
resemble the railroad at issue in Brooklyn Eastern District Terminal, in which
the Terminal contracted with ten interstate railroads and several steamship
companies to transport cargo between the Terminal’s freight station (where the
common carrier railroads began and ended) and the Brooklyn docks, and was
paid by the railroad or steamship company to do so.30 Instead, like the railroad
in Kieronski, Bayer did not link together common carriers, but “merely connected
the plants [within the Facility] in a manner typical of in-plant systems”
notwithstanding the fact that it was paid separately by the Lessees to do so.31
      With regard to the fourth consideration, receipt of remuneration for the
services performed, it is undisputed that the Lessees paid Bayer directly for the


      27
           297 U.S. 175 (1936).
      28
           249 U.S. 296 (1919).
      29
           297 U.S. at 181.
      30
           249 U.S. at 301-02.
      31
           Kieronski, 806 F.2d at 109.

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                                         No. 10-41276

intra-Facility rail services Bayer performed and that Bayer received no payment,
either directly or indirectly, from Union Pacific or BNSF. Again, on the two
occasions Bayer provided rail service to HL&P it neither charged nor received
any payment. The parties strenuously disagree over whether remuneration for
the rail services performed must come from a railroad, as opposed to directly
from the customer, in order for the operator to qualify as a common carrier. We
need not make this determination here because, even assuming remuneration
by a railroad is not required, the fact that Bayer was paid by the Lessees is
insufficient to transform Bayer into a common carrier under the circumstances
of this case.      Rather, “[t]he system looks, at most, like a private carrier
arrangement, with [Bayer] holding itself out solely to those businesses that
owned [plants] within the [Facility].”32
       In sum, application of the Lone Star considerations demonstrates as a
matter of law that Bayer was not “one who holds himself out to the public as
engaged in the business of transportation of persons or property from place to
place for compensation, offering his services to the public generally.”33 Bayer did
not provide rail services that a common carrier was otherwise obligated to
perform; did not share ownership with a common carrier; did not contract with
a common carrier to provide rail services; did not link common carriers together;
performed rail services within the Facility only for itself and for a small number
of unrelated entities who lease property within the Facility owned by Bayer; and
performed such services for the Lessees pursuant to individual contracts and
assumed no obligation to carry for others.                 Accordingly, Bayer was not a


       32
          Id. at 110; see also Willard v. Fairfield S. Co., 472 F.3d 817, 822-23 (11th Cir. 2006)
(noting, in finding that Fairfield was not a common carrier, that “the companies within
Fairfield’s property pay Fairfield directly” for rail services, “Fairfield does not collect payment
from any common carrier railroad, and it does not hold itself out to the public for a fee”).
       33
         Lone Star Steel Co., 380 F.2d at 643 (quoting Kelly v. Gen. Elec. Co., 110 F. Supp. 4,
6 (E.D. Pa.), aff’d, 204 F.2d 692 (3d Cir. 1953)).

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                                         No. 10-41276

“common carrier by railroad” under the FELA, and the district court correctly
granted summary judgment in Bayer’s favor on Huntley’s FELA claim.
                                              B
       Because Bayer is not a common carrier as a matter of law, we need not
address Bayer’s alternative argument that the TWCA bars Huntley’s FELA
claim. As to the TRLA claim, in his briefing to this court Huntley did not raise
or argue the issue of whether the district court erred in granting summary
judgment on that claim. Accordingly, he has waived the issue.34
                                     *        *         *
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       34
         In re Southmark Corp., 163 F.3d 925, 934 n.12 (5th Cir. 1999); see also United States
v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“[I]t has long been the rule in this circuit
that any issues not briefed on appeal are waived.”).

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