1 TRANSCRIBED FROM DIGITAL RECORDING

 2 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

 3 EASTERN DIVISION 

 4 JUSTIN D. REED, ) 

 ) 

 5 Plaintiff, ) 

 )

 6 vs. ) No. 12 C 873 

 ) 

 7 NORFOLK SOUTHERN RAILWAY COMPANY, a )

Virginia corporation doing business )

 8 as Norfolk Southern Railway, ) Chicago, Illinois 

 ) November 15, 2012 

 9 Defendant. ) 9:49 A.M. 

 10 TRANSCRIPT OF PROCEEDINGS - Status 

BEFORE THE HONORABLE JEFFREY T. GILBERT, Magistrate Judge 

 11

APPEARANCES:

 12

For the Plaintiff: MS. JENNIFER WEISS 

 13 53 West Jackson Boulevard 

 Suite 505 

 14 Chicago, Illinois 60604 

 15 For the Defendant: SIDLEY AUSTIN LLP 

 One South Dearborn Street 

 16 Chicago, Illinois 60603 

 BY: MR. JAMES STANTON WHITEHEAD

 17

 18 PAMELA S. WARREN, CSR, RPR 

Official Court Reporter

 19 219 South Dearborn Street

Room 1928

 20 Chicago, Illinois 60604

(312) 294-8907 

 21

NOTE: Please notify of correct speaker identification. 

 22 FAILURE TO SPEAK DIRECTLY INTO THE MICROPHONE MAKES PORTIONS 

UNINTELLIGIBLE.

 23

 24

 25

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Case: 1:12-cv-00873 Document #: 55 Filed: 06/27/13 Page 1 of 13 PageID #:382
 1 (Proceedings held in open court:) 

 2 THE CLERK: 12 C 873, Reed versus Norfolk Southern 

 3 Railway Company.

 4 MR. WHITEHEAD: Good morning, your Honor. James 

 5 Whitehead for defendant Norfolk Southern.

 6 THE COURT: Good morning, Mr. Whitehead.

 7 MS. WEISS: Good morning, your Honor. Jennifer Weiss 

 8 on behalf of plaintiff, Mr. Reed, in this matter.

 9 THE COURT: Hi, Ms. Weiss. 

 10 I do see you teed up this jurisdictional issue in 

 11 front of the district judge.

 12 MR. WHITEHEAD: That's right. The -- the briefing 

 13 will be complete today. We file our reply memorandum yet today 

 14 and --

 15 THE COURT: I saw that.

 16 MR. WHITEHEAD: -- it is a dispositive motion. If we 

 17 are successful in it, that will -- that will end the case. If 

 18 it is not, we have a discovery cutoff at the end of February.

 19 THE COURT: Right.

 20 MR. WHITEHEAD: And the parties have informally agreed 

 21 to stay discovery until we hope we get an early ruling from 

 22 Judge Coleman. But if not, we'll fire away with discovery in 

 23 order to be compliant with that February 28th deadline.

 24 MS. WEISS: Your Honor, if I may add one thing in 

 25 terms of -- one of the other significant movements that has 

2

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 1 been made in this mater since the last time that we were before 

 2 you is that the arbitrator has in fact made a decision in this 

 3 matter, and he has made a decision in favor of the plaintiff 

 4 here.

 5 THE COURT: Uh-huh.

 6 MS. WEISS: And one -- a few of the things that the 

 7 arbitrator in fact did provide is that he -- he forced the 

 8 rehire of Mr. Reed in this matter, but he did not award, if you 

 9 could correct me if I am wrong --

 10 MR. WHITEHEAD: Uh-huh.

 11 MS. WEISS: -- a front pay in this matter.

 12 So the only issues --

 13 MR. WHITEHEAD: For the back pay. 

 14 MS. WEISS: Okay. Back pay, I apologize.

 15 The only issues here are attorneys's fees, back pay, 

 16 compensatory damages, as well as punitive, your Honor. And so 

 17 with respect to that, the company did not win on that matter. 

 18 So -- as well as the MSJ which is, as of today, being fully 

 19 briefed.

 20 So what plaintiff in this matter is asking for is a 

 21 settlement conference because of the attorneys's fees that are 

 22 going to, you know, accrue in this matter. They may overtake 

 23 the value of the case, depending on how long this case 

 24 continues to go. 

 25 And so Mr. Lee, the lead counsel in this case, is 

3

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 1 really eager to move forward in settlement just so that that 

 2 does not happen in fact.

 3 THE COURT: Is this news to you, Mr. Whitehead, or are 

 4 you --

 5 MR. WHITEHEAD: No. Well, the suggestion for 

 6 settlement conference is news. But the facts are essentially 

 7 are corrected. The arbitrator ruled that Mr. Reed had in fact 

 8 been engaged -- had violated the Norfolk Southern work rule, 

 9 and therefore discipline was appropriate. But he converted his 

 10 dismissal into a two-and-a-half year unpaid suspension. 

 11 So there is a back pay issue that then gets teed up in 

 12 this case --

 13 THE COURT: Uh-huh.

 14 MR. WHITEHEAD: -- as well as a request for other 

 15 relief.

 16 As I think we informed your Honor when we were here 

 17 before, I think that the concept of a settlement conference is 

 18 premature because we have this motion for summary judgment 

 19 pending that will be dispositive if in fact it is granted. I 

 20 think it may well be sensible that if the Judge denies summary 

 21 judgment, before we go at each other from a discovery 

 22 perspective, we at least have counsel-to-counsel discussions 

 23 about whether or not the railroad has any interest in 

 24 settlement.

 25 From the railroad's perspective, of course, Mr. Reed 

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 1 had his day in court before the arbitrator, and he -- he got 

 2 reinstated. In fact he has been reinstated, but he did not get 

 3 back pay. And so whether the railroad has an interest in 

 4 resolving this matter for some amount, to save attorneys's fees 

 5 will be something that we'll have to discuss down the road. 

 6 But it -- I don't believe the railroad would be interested in a 

 7 settlement conference now until we get a ruling as a matter of 

 8 law on this dispositive election of remedies defense.

 9 THE COURT: Well, the election of remedies defense 

 10 will either throw the plaintiff out of federal court or not.

 11 MR. WHITEHEAD: Right.

 12 THE COURT: But it won't -- if it throws the plaintiff 

 13 out of federal court, then I don't know what your remedies are 

 14 Ms. Weiss with respect to anything else.

 15 Let me interrupt for a second --

 16 MR. WHITEHEAD: Uh-huh.

 17 THE COURT: -- because I'm not going to do a shotgun 

 18 settlement conference where one party raises the issue on a 

 19 status hearing and the other party hasn't even consulted with 

 20 their client about whether to have a settlement conference. 

 21 I'm not going to -- you know, I understand the logic of your 

 22 position. You won at the arbitration. There is a back pay 

 23 issue and attorneys's fees. We would like not to have to go 

 24 through extensive discovery here. I heard Mr. Whitehead say 

 25 that if the motion stays under advisement for some -- the 

5

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 1 motion for summary judgment stays under advisement for some 

 2 period of time in front of Judge Coleman, then they are going 

 3 to fire away with discovery, you're going to respond by moving 

 4 of stay discovery because nothing should be done until you make 

 5 -- you figure out the motion for summary judgment.

 6 MS. Weiss: There is one more piece that's very 

 7 important in this. Opposing counsel said that Mr. Reed had his 

 8 day in court, and that is the primary issue that was -- had 

 9 been briefed. And that in fact is very clear in the case law 

 10 that he in fact did not have his day in a court because what 

 11 you have got when you have got a collective bargaining 

 12 agreement at issue in an arbitration, you're going before the 

 13 arbitrator on the terms and conditions in that collective 

 14 bargaining agreement. You do not have your day in court 

 15 as -- as a litigant before the arbitrator. It is on the terms 

 16 and conditions of that CBA. It is not in terms and conditions 

 17 on the law as it is before circuit court. It is on contractual 

 18 provision. So, no, he has not had his day in court, first of 

 19 all.

 20 Secondly, with respect to the substance of this 

 21 matter, we talk about the accrual of attorneys's fees. If we 

 22 move forward on the -- in the MSA -- or excuse me, the MSJ, you 

 23 can tell I divorce law as well, marital settlement agreement. 

 24 If we move forward with respect to the summary judgment motion 

 25 here, there necessarily will be an increase in attorneys's 

6

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 1 fees. However, I understand and I absolutely understand that 

 2 he has to speak to his client.

 3 However, as he said to you, he has been on notice, 

 4 they have been on notice. The idea of a settlement conference 

 5 is absolutely not a surprise to them. So that's what I would 

 6 (unintelligible).

 7 THE COURT: But here's the deal as I understand it. 

 8 If the defendant is successful in their motion, you may or may 

 9 not have a settlement conference, but it is not going to be in 

 10 front of me, in the district court, right, because there would 

 11 be could no case here any more if -- and in terms of the 

 12 plaintiff incurring attorneys's fees, you have already 

 13 responded to the motion for summary judgment. The defendant is 

 14 filing a reply today.

 15 MS. Weiss: I understand.

 16 THE COURT: Sounds to me it is going to sit for a bit 

 17 in front of Judge Coleman.

 18 MS. Weiss: I understand.

 19 THE COURT: It may sit for a while in front of Judge 

 20 Coleman. And you have a February discovery cutoff that you 

 21 have informally agreed to kind of hold discovery in abeyance 

 22 until you hear something from Judge Coleman.

 23 MS. Weiss: Uh-huh.

 24 THE COURT: It may take you a while to hear from Judge 

 25 Coleman.

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 1 MR. WHITEHEAD: And it may well be at that point, 

 2 Judge, that we would agree jointly to request Judge Coleman to 

 3 extend the discovery deadline --

 4 THE COURT: Right.

 5 MR. WHITEHEAD: -- so as to not put us to the expense 

 6 of discovery.

 7 THE COURT: Right.

 8 MR. WHITEHEAD: We have no interest in running up 

 9 costs for either party --

 10 THE COURT: Yeah.

 11 MR. WHITEHEAD: -- here, but --

 12 THE COURT: I would think that would be prudent.

 13 MR. WHITEHEAD: Right.

 14 But your Honor has to understand, and I'm sure counsel 

 15 does, this election of remedies defense that is being teed up 

 16 as part of the motion for summary judgment here has nationwide, 

 17 industrywide significance for the entire railroad industry. 

 18 This is a big issue. There are literally hundreds of cases 

 19 that are affected by the outcome of this motion. Not directly 

 20 but in terms of the precedent. I can assure your Honor that if 

 21 the motion for summary judgment is denied, Norfolk Southern 

 22 would seriously consider a possible settlement with 

 23 Ms. Reed -- Mr. Reed. 

 24 But the railroad will not settle this case before we 

 25 get a ruling from Judge Coleman. It is just too important to 

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 1 the railroad to know as a matter of law whether our position on 

 2 this election of remedies defense is correct or not.

 3 MS. Weiss: Your Honor, if I may, what we --

 4 THE COURT: Real briefly because I think I understand 

 5 where we are.

 6 MS. Weiss: Yeah. I understand. But what we got here 

 7 is a situation where the Department of Labor has again and 

 8 again and again asserted this position. So what we got before 

 9 the Court isn't -- is a question of whether or not the court 

 10 system has to heed to the position of the Department of Labor 

 11 with respect to the arbitrator and with respect to how it has 

 12 interpreted its regulations. So the deference and the standard 

 13 of that deference, what level of deference needs to be given 

 14 here to the circuit courts given the decision that has been 

 15 made by the arbitrator in this matter is clear.

 16 So that's what has been brought up in this case. 

 17 However they are doing a situation where there is another case 

 18 that they are involved here where they are looking for a 

 19 decision to come in and come down in this case so that they can 

 20 of use that in another case that's -- that they are not 

 21 involved in.

 22 So to try to make some precedent and see which one 

 23 fits, they get a favorable decision in, first of all, so that 

 24 they then can use it in either one of their cases to move 

 25 forward is a bit of a problem. 

9

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 1 THE COURT: Well, wait.

 2 MS. Weiss: I mean --

 3 THE COURT: But see here, I'm going to have to cut you 

 4 short here. But right now I could see that being your 

 5 problem. 

 6 MS. Weiss: Uh-huh.

 7 THE COURT: It may be Judge Coleman's problem.

 8 MS. Weiss: Uh-huh.

 9 THE COURT: It may be the railroad's problem. I'm 

 10 sitting here on a referral for discovery and settlement. If 

 11 the parties don't want to go forward with discovery, I'm not 

 12 going to make them go forward with discovery while this motion 

 13 is pending.

 14 MS. Weiss: Uh-huh.

 15 THE COURT: If the defendant doesn't want to go 

 16 forward with a settlement conference unless and until it hears 

 17 from Judge Coleman one way or another, I'm not going to force 

 18 the railroad to come in for a settlement conference --

 19 MS. Weiss: Okay.

 20 THE COURT: -- even if you feel like its position is 

 21 unjustified and meritless. 

 22 So the two issues that are in front of me are 

 23 effectively not going anywhere until --

 24 MS. Weiss: At least February.

 25 THE COURT: Well, yeah. I mean, at least until the 

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 1 railroad serves some -- my guess is nobody is serving any 

 2 discovery before you ask Judge Coleman to extend a discovery 

 3 deadline.

 4 MS. Weiss: Yeah.

 5 THE COURT: So I -- my feeling is I would put this 

 6 down for a status at the -- at the end of January. And P.S., 

 7 I'm not sure -- I set the discovery dates here, and I guess I 

 8 would find out if Judge Coleman still hasn't ruled, it may be 

 9 up to me to extend your discovery dates --

 10 MS. Weiss: Correct.

 11 THE COURT: -- which probably would be fine with me 

 12 too --

 13 MS. Weiss: Okay.

 14 THE COURT: -- while you're wait willing. But I just 

 15 would like to get a date some time in January where I see where 

 16 things stand. I'll watch the docket.

 17 MS. Weiss: Okay.

 18 THE COURT: I'm going to put you down for January 24th 

 19 at 10:00 A.M.

 20 MR. WHITEHEAD: That's fine, Judge.

 21 THE COURT: And we'll see what happens.

 22 If, if -- and I'm not saying you have to wait for that 

 23 to either ask for more --

 24 MS. Weiss: I was just going to ask

 25 THE COURT: -- time or not. You'll see what's going 

11

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 1 on. If you still haven't heard anything, you know, right after 

 2 the first of the year, you -- prudence may dictate you file 

 3 something. And I think we looked at this last time, right? 

 4 And I thought discovery -- all discovery was in front of me, 

 5 including dates.

 6 MS. Weiss: In this case, your Honor? 

 7 THE COURT: Yeah, I'm not a hundred percent sure.

 8 MS. Weiss: Okay.

 9 THE COURT: You could look at the -- the referral is 

 10 on the docket.

 11 MS. Weiss: Yes.

 12 THE COURT: If there is any question about it, I 

 13 suppose I'd file it in front of Judge Coleman and she could 

 14 always kick it to me.

 15 MR. WHITEHEAD: Right.

 16 MS. Weiss: Okay.

 17 MR. WHITEHEAD: And, Judge, I assure counsel we will 

 18 serve discovery without talking to them first.

 19 THE COURT: That's great. And --

 20 MS. Weiss: That's common courtesy, yeah.

 21 THE COURT: Yeah.

 22 MS. Weiss: Same here.

 23 THE COURT: Discretion is the better part of valor 

 24 here I think. 

 25 MS. Weiss: Litigation is not (unintelligible.)

12

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 1 THE COURT: If somebody wants to -- you know, I'm more 

 2 than willing to have a settlement conference when I have both 

 3 parties willing to do it. By these dates are so precious in 

 4 terms of being able to reserve the time, and there is a waiting 

 5 list, so I don't usually force somebody into a settlement 

 6 conference unless both parties want to have the settlement 

 7 conference.

 8 MS. Weiss: Do you have an idea as to what your 

 9 waiting period is? 

 10 THE COURT: Yeah, I'm setting them in January now.

 11 MS. Weiss: Okay.

 12 MR. WHITEHEAD: Thank you, your Honor.

 13 MS. Weiss: Great, your Honor. Thank you so much.

 14 (Which concluded the proceedings.)

 15 CERTIFICATE

 16 I certify that the foregoing is a correct transcript 

 17 from the digital recording of proceedings in the above-entitled 

 18 matter to the best of my ability, given the limitation of using 

 19 a digital-recording system. 

 20

 21

 22 / s/ Pamel a S. War r en November 27, 2012

Official Court Reporter Date

 23 United States District Court

District Northern of Illinois

 24 Eastern Division

 25

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