United States District Court, E.D. Missouri, Eastern Division
CHARM KOSIN, as the personal representative of the Estate of Marvin H. Kosin, Jr., deceased, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
and through his employment as a carman/welder for defendant
Union Pacific Railroad Company, decedent Marvin H. Kosin,
Jr., was exposed to various substances, including chemicals,
solvents, diesel fuels, exhausts, and dusts. Kosin developed
metastatic bladder cancer and died April 16, 2014. In this
action brought under the Federal Employers' Liability Act
(FELA), 45 U.S.C. §§ 51, et seq.,
Kosin's estate claims that Union Pacific's negligence
caused Kosin's cancer, which eventually led to his
premature death. The action was originally filed in the
Central District of Illinois on April 10, 2017, and was
transferred to this district on September 19, 2017. While the
matter was pending in Illinois, Union Pacific filed a motion
to dismiss the amended complaint and the motion remains
pending. I will deny the motion.
initial matter, I note that Union Pacific seeks to dismiss
the amended complaint under Fed.R.Civ.P. 12(b)(1), (2), and
(6). Although Rule 12(b)(1) governs dismissal for lack of
subject-matter jurisdiction, Union Pacific makes no argument
nor cites any authority demonstrating why a federal district
court does not have subject-matter jurisdiction over this
FELA action. Accordingly, I will deny the motion to dismiss
to the extent it is brought under Rule 12(b)(1). To the
extent the motion is brought under Rule 12(b)(2) for lack of
personal jurisdiction, the motion is now moot given that
plaintiff conceded transfer to this district where personal
jurisdiction is present, and the case has since been
Pacific also seeks to dismiss the amended complaint under
Rule 12(b)(6) for failure to state a claim, and specifically,
for failure to state sufficient facts to show that the action
was brought within FELA's three-year statute of
limitations or to show that plaintiff's allegations give
rise to a claim that meets all the necessary elements of a
FELA cause of action. For the following reasons, I will deny
these aspects of the motion as well.
bar by a statute of limitations is an affirmative defense,
which the defendant must plead and prove. See John R.
Sand & Gravel Co. v. United States, 552 U.S. 130
(2008); Fed.R.Civ.P. 8(c). A defendant does not render a
complaint defective by pleading an affirmative defense.
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
Therefore, the possible existence of a statute of limitations
defense is not ordinarily a ground for Rule 12(b)(6)
dismissal unless the complaint itself establishes the
defense. Joyce v. Armstrong Teasdale, LLP, 635 F.3d
364, 367 (8th Cir. 2011) (quoting Jessie v. Potter,
516 F.3d 709, 713 n. 2 (8th Cir. 2008)). The complaint here
states that within three years of its filing, plaintiff
learned that Union Pacific's negligence caused or
contributed to cause Kosin's cancer, and the complaint
was brought within three years of Kosin's death. On its
face, therefore, the complaint itself does not foreclose the
possibility that plaintiff can successfully rebut Union
Pacific's statute of limitations defense. I will
therefore deny the motion to dismiss to the extent it is
based on this affirmative defense.
respect Union Pacific's argument that the amended
complaint fails to plead sufficient substantive facts to
state a FELA claim, I have reviewed the complaint in light of
the relevant standard and find that plaintiff has adequately
alleged the necessary elements and is entitled to conduct
discovery and present evidence in support of the claim.
Whether plaintiff may ultimately be entitled to relief on the
claim is not properly before me at this stage of the
IT IS HEREBY ORDERED that defendant Union
Pacific Railroad Company's Motion to Dismiss Amended
Complaint  is denied in part, and denied as moot in part,
as provided in this Memorandum and Order.
case will be set for a Rule 16 scheduling conference by
 The purpose of a motion to dismiss
under Fed.R.Civ.P. 12(b)(6) is to test the legal sufficiency
of the complaint. When considering a Rule 12(b)(6) motion, I
assume the factual allegations of the complaint to be true
and construe them in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989). To survive
dismissal, a complaint must contain “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To
survive a motion to dismiss, the complaint need not contain
“detailed factual allegations, ” but it must
contain facts with enough specificity “to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. The issue in determining a
Rule 12(b)(6) motion is not whether the plaintiff ...