United States District Court, D. New Mexico
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before the Court pursuant to Fed.R.Civ.P. 16.
who will try this action:
Plaintiff: Jonathan S. Harris Laura B. De La Cruz Schechter,
McElwee, Shaffer & Harris, LLP 3200 Travis,
3rd Floor Houston, Texas 77006 Telephone: (713)
524-3500 Facsimile: (866) 696-5610 firstname.lastname@example.org
Defendant: Manuel Lucero Assistant United States Attorney
District of New Mexico 201 3rd Street, Suite 900
Albuquerque, New Mexico 87103 Telephone: (505) 224-1467
Facsimile: (505) 346-7296 Manny.email@example.com
JURISDICTION AND RELIEF SOUGHT
Subject Matter Jurisdiction
Was this action removed or transferred from another
Yes X No
Is subject matter jurisdiction of this Court
X Uncontested ___ Contested
Asserted basis for jurisdiction
Federal Question ___ Diversity X
Other Statutory Provision(s) Invoked: 28 U.S.C. §
Personal Jurisdiction and Venue
Is personal jurisdiction contested?
X Uncontested ___ Contested
Is venue contested?
X Uncontested ___ Contested
Are the proper parties before the Court?
X Uncontested ___ Contested
Identify the affirmative relief sought in this
Plaintiff seeks: Plaintiff seeks damages for physical pain
and mental anguish in the past and future; lost earnings in
the past and loss of future earning capacity; physical
impairment in the past and future; physical disfigurement in
the past and future; and, reasonable medical expenses in the
past and future. Plaintiff also seeks damages for his
injuries by way of pre-judgment and post-judgment interest
payments for all damages he has suffered and have accrued by
the time of judgment.
Defendant seeks: Final judgment in favor of Defendant,
dismissal of the above-styled and numbered cause of action in
its entirety with prejudice, Defendant's costs, if any,
and all such other, further and different relief, at law or
in equity, to which Defendant may be entitled.
BRIEF DESCRIPTION OF NATURE OF CLAIMS/DEFENSES
Plaintiff's claims: This is a personal injury
claim stemming from a Union Pacific train colliding with a
U.S. Army vehicle that was crossing the train tracks on June
25, 2014 in the state of New Mexico. At the time of the
incident, Plaintiff was operating the locomotive. The United
States Army was participating in a military convoy when a
U.S. Army truck stopped and left part of its truck on the
railroad tracks. Plaintiff attempted to stop the locomotive,
but it ultimately crashed into the military truck. The impact
of the collision between the military truck, weighing at
least 53, 100 lbs., and the locomotive caused the military
truck to be lifted from the ground. As a result of the
impact, Plaintiff's body was thrusted forward, causing
him to strike the throttle, and then thrusted backwards,
causing him to hit the wall. The impact caused Plaintiff to
sustain injuries to his body, including, his head, lower
back, neck, knees, and shoulders.
alleges that the United States Army failed to yield the right
of way at the crossing and violated the Railroad-Highway
Grade Crossing rules. Plaintiff contends that on the occasion
in question, Defendant violated the duty owed to Plaintiff to
exercise ordinary care in the operation of a motor vehicle.
Plaintiff alleges that the Defendant is liable for the
actions of its governmental personnel and employees, who were
acting in the course and scope of their employment in
furtherance of the interests of Defendant. Plaintiff alleges
the Defendant was negligent by operating a vehicle without
paying adequate attention, by failing to control speed, by
failing to clear all vehicles from an active railroad track,
by leaving a vehicle on an active railroad track, and by
failing to maintain a lookout for Plaintiff. Defendant's
actions or omissions in the occurrence constitute negligence
and negligence per se. Said negligence proximately caused the
occurrence and Plaintiff's injuries and damages.
Defendant's defenses: On June 25, 2014 the
United States Army was transferring equipment from New Mexico
to Oklahoma via convoy. While passing through Alamogordo, New
Mexico the convoy was crossing railroad tracks in the city
when the convoy came to a stop. One vehicle was stopped on
the tracks when they realized a train was approaching.
Military personnel exited the vehicle to help guide the
driver off the tracks. The vehicle was moved off the tracks
to a point where they believed the train could pass. The
train scraped by the vehicle causing minor damage to the
military vehicle and the train. No claim for property damage
has been made by the railroad regarding the train. If any
physical injury to the Plaintiff is claimed, the injuries
would be minimal based on the physics of the impact. There is
no causal connection between the minimal impact and injuries
claimed by the Plaintiff.
further asserts the following specific defenses in this
1. Defendant, through its employees, agents, and servants,
acted at all relevant times with due care and diligence, and,
therefore, Defendant could not have breached any actionable
duty owed to Plaintiff.
2. Defendant affirmatively asserts that Plaintiff has failed
to state a claim upon which the relief they seek may be based
and, further, Defendant denies that Plaintiff is entitled to
any relief arising from any of the events as alleged in the
3. The injuries and damages alleged by Plaintiff in the
Complaint, which injuries and damages are denied, were not
proximately caused by a negligent or wrongful act or omission
of an employee, agent, or agency of the United States acting
in the scope of his federal employment.
4. Any injuries and damages allegedly sustained by Plaintiff,
were due, in whole or part, to Jose Acosta's own
negligent acts or omissions, or those of others, known or
unknown, over whom Defendant had no control.
5. If Defendant was negligent, which is expressly denied,
under the FTCA, the comparative negligence or fault of Jose
Acosta should be used to offset in whole or in part any
recovery by Plaintiff against Defendant, and Defendant may
only be held responsible for its proportionate share of the
fault, if any. Defendant affirmatively asserts that, to the
extent Plaintiff may or will recover monies and/or benefits
from the United States government for injuries they sustained
based on the same set of facts at issue in this case,
Defendant is entitled to an offset of any award made herein.
6. Plaintiff has failed to mitigate any damage claims that
relate to future employment claims raised in the
administrative claim or at trial.
FACTUAL CONTENTIONS UNDERLYING CLAIMS/DEFENSES
Stipulated Factual Contentions
parties agree to the following facts listed separately below:
1. The incident forming the basis of this lawsuit took place
on June 25, 2014 in Alamogordo, New Mexico.
2. At the time of the incident, Plaintiff was an engineer
aboard a Union Pacific train traveling on the railroad tracks
in Alamogordo, New Mexico.
3. At the time of the incident, the United States Army was
participating in a military convoy that was transferring
equipment from New Mexico to Oklahoma.
Contested Material Facts
a. At, or immediately prior to, the time of the incident, the
military convoy in question came to a stop on the railroad
b. At, or immediately prior to, the time of the incident, a
U.S. Army truck was left with its rear extending onto the on
the railroad tracks.
c. Immediately prior to the incident, Plaintiff repeatedly
sounded his whistle and applied the emergency brakes to avoid
d. At the time of the incident, the United States Army failed
to yield the right of way at the crossing.
e. At the time of the incident, Defendant violated the
Railroad-Highway Grade Crossing rules.
f. At the time of the incident, Defendant failed to control
g. Prior to crossing, the Defendant failed to clear all
vehicles from the active railroad track.
h. At the time of the incident, Defendant failed to maintain
a proper lookout for Plaintiff.
i. During the incident, the Union Pacific train and Army
j. At the time of the occurrence, Defendant failed the duty
it owed to Plaintiff to exercise ordinary care in the
operation of a vehicle.
k. Defendant's acts and omissions in the occurrence
constitute negligence and/or negligence per se.
l. Defendant's negligent conduct was the proximate cause
of the occurrence at issue.
m. Defendant's acts or omissions are the proximate cause
of the injuries and damages sustained by the Plaintiff.
n. At the time of the occurrence, Defendant failed the duty
it owed to Plaintiff to keep a proper lookout and maintain