RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0002p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH BRENT MATTINGLY,

Plaintiff-Appellant,

v.

R.J. CORMAN RAILROAD GROUP, LLC; R.J. CORMAN 

RAILROAD SERVICES, LLC; R.J. CORMAN RAILROAD 

COMPANY/MEMPHIS LINE aka R.J. Corman Railroad 

Company/Memphis Line, Inc.,

Defendants-Appellees.

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No. 22-5794

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:19-cv-00170—Joseph M. Hood, District Judge.

Argued: July 27, 2023

Decided and Filed: January 3, 2024

_________________

COUNSEL

ARGUED: Joseph H. Mattingly III, JOSEPH H. MATTINGLY III, PLLC, Lebanon, Kentucky, 

for Appellant. James T. Blaine Lewis, MCBRAYER PLLC, Louisville, Kentucky, for Appellees. 

ON BRIEF: Joseph H. Mattingly III, JOSEPH H. MATTINGLY III, PLLC, Lebanon, Kentucky, 

William C. Robinson, Elizabeth Graves Coulter, MATTINGLY, SIMMS, ROBINSON & 

MCCAIN, PLLC, Springfield, Kentucky, for Appellant. James T. Blaine Lewis, Shane O’Bryan, 

MCBRAYER PLLC, Louisville, Kentucky, for Appellees.

_________________

OPINION

_________________

STEPHANIE D. DAVIS, Circuit Judge. While employed by R.J. Corman Railroad 

Services, LLC (“Corman Services”), Plaintiff-Appellant Joseph Brent Mattingly sustained injuries 

>
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 2

during the repair of a bridge owned and operated by a common carrier, Defendant-Appellee 

Memphis Line Railroad (“Memphis Line”). Mattingly filed suit to recover damages under the 

Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. The district court determined that 

Mattingly was not employed by a common carrier—a prerequisite to trigger FELA liability—and 

granted Defendants’ Motion for Summary Judgment. Mattingly challenges that ruling as well as 

the district court’s entry of summary judgment before ruling on an important discovery dispute. 

Specifically, Mattingly faults the district court for not allowing individualized discovery as to 

Memphis Line after its late addition as a party. Because we conclude that Mattingly was not 

employed by a common carrier and is thus not entitled to FELA coverage, we AFFIRM.

I.

A.

Defendants in this case are individual members of a corporate family. Defendant R.J. 

Corman Railroad Group, LLC (“Corman Group”) is the holding company for, and sole Member 

and Manager of, various subsidiary companies including Corman Services—a construction 

company that performs repair and construction work on railroad tracks and bridges throughout the 

country—and R.J. Corman Railroad Company, LLC (“Railroad Company”). Railroad Company, 

although not a party to this case, owns various short-line railroads, including Memphis Line.

In January 2017, Mattingly fell while performing bridge repair work on the Memphis Line 

and sustained several serious injuries, which ultimately led to the amputation of his left leg. At 

the time of the accident, Mattingly was nominally employed by Corman Services.

Memphis Line Project. Memphis Line retained Corman Services to repair the Red River 

Bridge and the Cumberland River Bridge (collectively, the “Memphis Line Project”) in 

Clarksville, Tennessee. Mattingly supervised his own bridge repair crew solely comprised of 

Corman Services employees on the Memphis Line Project. Mattingly assigned crew members to 

equipment, assured that they had all necessary tools, and picked the spot they would work on each 

day. He reported to the superintendent, Paul Childres, another Corman Services employee who 

also supervised a separate crew of Corman Services bridge workers. Mattingly and Childres both 

reported to a Corman Services operations manager. Initially, the entire Corman Services team 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 3

reported to the Cumberland River Bridge, but Memphis Line later determined it would be more 

efficient to divide the workflow between the two bridges. Mattingly and his crew therefore 

switched to the Red River Bridge, and Childres and his crew remained at the Cumberland River 

Bridge approximately two miles away. 

In addition to Corman Services employees, Railroad Company employees were involved 

in the Project. Jason Topolski, a Railroad Company bridge inspector who was on Memphis Line’s 

payroll, was present at the job site. As bridge inspector, Topolski was responsible for ensuring the 

safety of Railroad Company bridges, which included ensuring the satisfactory maintenance and 

repair of those bridges. Cain Jones, another Railroad Company worker, was also present on the 

job site and served as its joint “Employee in Charge” alongside Topolski. Federal regulations 

mandate the appointment of an Employee in Charge on railway projects. See 49 C.F.R. 

§§ 214.317; 214.319; 214.353. The role involves ensuring railroad workers’ safety on the tracks, 

including by communicating with dispatch to monitor train traffic passing through the job site and 

stopping work, if necessary, to allow the trains to pass. 

Either Topolski or Jones was physically present onsite throughout the Memphis Line 

Project. At the outset of the Project, Memphis Line provided Corman Services with a list of bridge 

posts in need of repair, and Mattingly marked these posts. Mattingly and his crew worked to 

replace posts, caps, and cross braces on the bridge. At times, Memphis Line would adjust the 

priority or timing of repairs based on anticipated train traffic. Mattingly testified that Topolski 

would show employees how to complete discrete tasks, such as how to drill a hole. That said, 

Topolski mostly instructed the railroad’s newer employees and generally stayed out of Mattingly’s 

way since Mattingly was more familiar with bridge work than others. 

Though Mattingly placed Topolski at the worksite “the whole time [Mattingly] was there,” 

(R. 62-4, PageID 963), Topolski estimated that he was present at the Memphis Line Project site 

two to three days a week and not for the entire day. He admitted that he sometimes advised Corman 

Services’ employees on certain matters and communicated with them about what the railroad 

needed done. Nevertheless, Topolski maintained that he did not supervise the Corman Services 

workers or otherwise tell the railroad crews what to do each day. He explained that if he did 

perform work on the Project, it would have been tasks outside of Corman Services’ scope of work. 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 4

One of Mattingly’s crew members, Dillon Neace, testified that Topolski may have been on 

the Cumberland River Bridge when the Memphis Line Project first started, but otherwise was not 

present at the job site. Neace apparently did not view Topolski’s directions as requirements to 

follow. Rather, he stated that he would “probably listen” to Topolski if he told him to do something 

on the project because of Topolski’s greater knowledge about bridge work and not due to his status. 

(R. 62-15, PageID 2048–49). Neace also explained that if Jones asked him to do something 

pertaining to the Memphis Lines Project, he would first check with Mattingly and Childres. 

Michael Wilson, another member of Mattingly’s crew at Red River, testified that he rarely saw 

Topolski or Jones. 

At the start of every day, two safety meetings would take place on the Memphis Line 

Project—one typically led by Memphis Line regarding track protection, and one led separately by 

and for Corman Services employees. As a supervisor, Mattingly was required to provide daily 

production reports to Memphis Line to apprise them of the project’s progress. This practice was 

common, regardless of whether Corman Services was working for a Corman Railroad Company 

railroad or for a non-Cormon-owned line. At the time of Mattingly’s accident, only Corman 

Services employees were present at the Red River Bridge; Jones was on the Cumberland River 

Bridge and Topolski was on a separate project out-of-state. Mattingly testified that he was his own 

supervisor at that point in time. 

Corporate Organization. Corman Group provides administrative services to its subsidiary 

companies, including payroll, accounting, legal, human resources, information technology, public 

affairs, private aircraft services, risk management, purchasing, and commercial development. It 

maintains several joint policies that apply to all its subsidiaries, including single workers’ 

compensation; general liability insurance; automobile liability and life insurance policies; along 

with joint health insurance benefits and a single retirement plan. It charges each individual 

company a monthly fee for its services. Leaders of Corman Group’s subsidiaries are considered 

senior staff and report directly to Corman Group’s President, Ed Quinn. Corman Group also 

created and memorialized Senior Staff Policies. However, Corman Group maintains that they 

were “legacy documents,” and that Quinn was unaware of their existence and did not adhere to the 

policies. (R. 79-2, PageID 3414, ¶¶ 15–16). Corman Group also has developed safety protocols 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 5

applicable to all its subsidiaries and conducts annual mandatory safety trainings for all subsidiary 

employees. Further, Quinn approves the annual budget of each subsidiary as well as purchases 

over a certain amount. 

Each of Corman Group’s subsidiaries, including Corman Services, employs a president, a 

vice president, managers, and supervisors separate from Corman Group. Corman Services makes 

its own hiring, firing, promotion, and disciplinary decisions. It also independently manages its 

employees’ schedules. Corman Services’ largest customers include Class I railroads, as well as 

short line and regional railroads unaffiliated with the Railroad Company railroads. Railroad 

Company routinely solicits bids from other repair and construction companies, but frequently 

chooses Corman Services for work when availability permits. When Corman Services works on 

one of Railroad Company’s railroads, including Memphis Line, it charges only the actual cost for 

labor and equipment, not the market rate. Undisputed testimony indicates that whether and for 

how long Corman Services remains on a Railroad Company job is directly related to whether 

Corman Services has any non-Corman work. The record also shows that Corman Services often

left Railroad Company jobs before completion. In Topolski’s experience, Corman Services 

prematurely pulled out of every Railroad Company job that had ever been assigned to it, without 

consequence. 

B.

Mattingly filed a complaint in the United States District Court for the Eastern District of 

Kentucky, initially naming Corman Group and Corman Services as defendants. Mattingly sought 

compensation under FELA for his injuries and losses. The district court ordered phased discovery, 

allowing first for discovery on the threshold issue of FELA applicability. Once discovery and 

dispositive motions regarding the Act’s applicability were complete, the court would set the second 

phase of discovery as needed. During phase I discovery, the magistrate judge denied Mattingly’s 

request to obtain a copy of Corman Group’s consolidated external audit report. Mattingly filed a 

motion for modification of the magistrate judge’s order, which the magistrate judge denied. 

Mattingly filed objections to the magistrate’s order that remained unresolved when summary 

judgment was issued. 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 6

As the case progressed, the court granted Mattingly’s motion for leave to file a second 

amended complaint in which he sought to add Memphis Line as a defendant over Defendants’ 

objections. Several months later, Memphis Line was added as a defendant in the Second Amended 

Complaint. 

Discovery closed on the FELA applicability issue. Mattingly moved for partial summary 

judgment as to that issue, and Corman Group and Corman Services moved for summary judgment 

as to Mattingly’s FELA claims. For his part, Mattingly asserted that under the “unitary theory,” 

Corman Group operated its subsidiaries as an organized, unitary railroad system, rendering 

Corman Group and all of its subsidiaries—including Corman Services—common carriers for the 

purposes of FELA. Alternatively, he argued that he should be considered the employee of a 

common carrier for purposes of FELA based on common-law principles, as a subservant of a 

company (Corman Services) that was in turn acting as a servant of a common carrier (Corman 

Group and Memphis Line). 

In August 2022, the district court determined that FELA does not apply to Mattingly’s 

claim and granted Defendants’ motion for summary judgment, including all claims against the 

later-added defendant, Memphis Line. It did so without ruling on Mattingly’s pending discovery 

objections, and without reopening discovery to allow for a targeted inquiry as to Memphis Line. 

In granting summary judgment, the court reasoned that Mattingly’s unitary theory for recovery 

was not supported by law, and that he had failed to present adequate evidence from which a rational 

jury could find that Memphis Line controlled, or had the right to control, Corman Services or 

Mattingly’s daily work at the time of his injury under common-law principles. This appeal 

followed.

II.

We review the district court’s grant of summary judgment de novo. See Kentucky v. Yellen, 

54 F.4th 325, 335 (6th Cir. 2022). In doing so, the court must view the facts in the light most 

favorable to Mattingly as the non-moving party and give him the benefit of all reasonable 

inferences arising from the record. See LaPlante v. City of Battle Creek, 30 F.4th 572, 578 (6th 

Cir. 2022). Summary judgment is appropriate where the movant shows that there exists no genuine 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 7

dispute of material fact, and the movant is entitled to judgment as a matter of law. See Fed. R. 

Civ. P. 56. We review the district court’s rulings regarding discovery under a highly deferential 

abuse-of-discretion standard. See Blount v. Stanley Eng’g Fastening, 55 F.4th 504, 515 (6th Cir. 

2022).

III.

A.

FELA Applicability. Mattingly maintains that the district court erred in concluding that 

Corman Services is not a common carrier, and as such, FELA coverage does not extend to 

Mattingly. FELA provides the exclusive remedy for employees of common carriers by railroad to 

recover damages for injuries sustained during the course of employment. The statute provides that 

a common carrier by railroad engaging in 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, 

or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, 

appliances, machinery . . . or other equipment. 

45 U.S.C. § 51. Relevant here, FELA applies only to (1) employees (2) of a common carrier by 

railroad. 

On appeal, Mattingly advances the same two theories for FELA coverage that he did in the 

district court: unitary theory and subservant liability. But neither theory supports Mattingly’s 

claim for recovery. We address each in turn. 

1. Unitary Theory

Mattingly first asserts that Corman Group’s ownership, management, and control over 

Corman Services and its common carrier subsidiaries makes Corman Services a member of a 

“unitary” railroad system and, consequently, a common carrier for purposes of FELA. This 

argument, however, essentially asks the court to disregard Defendants’ corporate structure to hold 

Corman Group and its non-common carrier subsidiaries (including Corman Services) liable under 

FELA. This we cannot do.
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 8

The Supreme Court has interpreted FELA’s use of “common carrier by railroad” to mean 

“one who operates a railroad as a means of carrying for the public—that is to say, a railroad 

company acting as a common carrier.” Wells Fargo & Co. v. Taylor, 254 U.S. 175, 187 (1920). 

More recently, we have elaborated that a “common carrier” under FELA is: 

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 serv[a]nt.

Kieronski v. Wyandotte Terminal R.R. Co., 806 F.2d. 107, 109 (6th Cir. 1986) (citation omitted). 

FELA also includes in its definition of a common carrier, “persons or corporations charged with 

the duty of the management and operation of the business of a common carrier.” 45 U.S.C. § 57. 

Mattingly’s unitary theory relies on two early-twentieth-century Supreme Court cases: 

Southern Pacific Terminal Co. v. Interstate Com. Comm’n, 219 U.S. 498 (1911) and United States 

v. Union Stockyards & Transit Co. of Chi., 226 U.S. 286 (1912). In both cases, the Court weighed 

whether entities held in common ownership alongside common carriers might be deemed common 

carriers for purposes of the Interstate Commerce Act of 1887, Pub. L. No. 49-104, 24 Stat. 379, 

and whether they were within the jurisdiction of the Interstate Commerce Commission (“ICC”). 

These cases carry some limitations in the context of Mattingly’s FELA claims, but they are useful 

in providing general principles for our analysis. See Kieronski, 806 F.2d at 109 (examining 

Southern Pac. Terminal Co. and Union Stockyards applicability to FELA claims).

Southern Pacific appears to provide the Court’s earliest guidance on the unitary theory. In 

that case, the Supreme Court found that Southern Pacific Terminal (“SP Terminal”)—a business 

entity owned by Southern Pacific Company, which in turn owned a group of individually 

incorporated railroads—was a common carrier. Id. at 517. SP Terminal was in the business of 

operating wharves and docks to accommodate the import and export of freight. Id. at 502. The 

wharves and docks themselves were connected to the railroad tracks of SP Terminal’s sister 

companies. Id. at 503. The Court concluded that SP Terminal was a common carrier, in part, 

because of its ownership and operation, along with its sister companies, by a single corporation. 

In that regard, the Court noted the fact that Southern Pacific Company “control[led] . . . the 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 9

properties . . . through stock ownership.” Id. at 521 (“There is a separation of the companies if we 

regard only their charters; there is a union of them if we regard their control and operation through 

the Southern Pacific Company.”). Equally important, SP Terminal “form[ed] a link in the chain 

of transportation” for the respective companies. Id. at 522. That is to say, SP Terminal’s wharves 

and docks were “necessary to complete the avenue through which move shipments over [the] lines 

owned by a single corporation,” making SP Terminal a common carrier for purposes of ICC 

jurisdiction. Id. (emphasis added). 

In Union Stockyards, the Court similarly found that the defendant, “Stock Yard Company,” 

was a common carrier subject to the Interstate Commerce Act. 226 U.S. at 303. The Stock Yard 

Company was held by a parent company, and that parent company also held Junction Company—

an owner and operator of railroads. Id. The Stock Yard Company operated facilities to load and 

care for livestock in their journey over Junction Company’s rail lines. It also received two-thirds 

of Junction Company’s profits. Id. at 300. Again, while the fact that Stock Yard Company and 

Junction Company shared a common owner was a relevant consideration in the Court’s holding, 

the salient consideration was that Stock Yard Company’s facilities and services provided a 

necessary physical link in the chain of interstate commerce. Id. at 304–05. Moreover, the character 

of the services rendered by Stock Yard Company were that of a common carrier because it 

“perform[ed] services as a railroad.” Id. (“Together, these companies, as to freight which is being 

carried in interstate commerce, engage in transportation within the meaning of the act, and perform 

services as a railroad when they take the freight delivered at the stock yards, load it upon cars, and 

transport it for a substantial distance upon its journey in interstate commerce . . . or receive it while 

it is still in progress in interstate commerce.”). 

Here, Corman Services’ bridge repair and construction services do not provide such an 

inextricable function for Memphis Line’s common carrier services like the entities in Southern 

Pacific Terminal and Union Stock Yard did. Granted, the maintenance and repair of railroad tracks 

and bridges is surely integral to the operation of railroads. But maintenance is not a rail service 

contracted for by the public when it engages Memphis Line as a common carrier. In the leading

cases, the plaintiffs functioned to actively keep things—freight and livestock respectively—

moving in interstate commerce. In this case, Corman Services maintained the physical structure 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 10

of the railroad, but it was not an active participant in the chain of commerce itself. See Union 

Stockyards, 226 U.S. at 304 (emphasizing that the primary consideration is whether the “service 

to be performed was a part of the carriage of freight by railroad in interstate commerce”) (citing 

Southern Pacific, 219 U.S. 498); see also Kieronski, 806 F.2d at 109 (understanding Southern Pac. 

Terminal and Union Stockyards to extend common carrier liability to “linking” entities that have 

“common ownership” with a railroad).

Edwards v. Pacific Fruit Express Company offers additional guidance. 390 U.S. 538 

(1968). In Edwards, the Supreme Court addressed Congress’s reluctance to expand the meaning 

of common carriers in its 1939 amendments to FELA. The Court observed that “[b]y refusing to 

broaden the meaning of railroads, Congress declined to extend the coverage of the Act to activities 

and facilities intimately associated with the business of common carrier by railroad.” Id. at 541. 

While the Edwards Court weighed whether renting refrigerator cars to railroads and providing 

protective services in the transport of perishable commodities constituted the business of a 

common carrier, the Court’s logic that, “while used in conjunction with railroads and closely 

related to railroading, are yet not railroading itself,” applies with equal heft to Corman Services’ 

construction and repair activities. Id. at 540.

Moreover, an age-old principle of corporate common-law “deeply ‘ingrained in our 

economic and legal systems’” is useful to our analysis as well: “a parent corporation . . . is not 

liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998) (quoting 

William O. Douglas & Carrol M. Shanks, Insulation from Liability Through Subsidiary 

Corporations, 39 Yale L.J. 193, 193 (1929)); see also Schultz v. Gen. Elec. Healthcare Fin. Servs., 

360 S.W.3d 171, 174 (Ky. 2012) (“General principles of corporate law, specifically with respect 

to piercing the corporate veil, have become axiomatic. For example, it is widely accepted that a 

corporation should be viewed as a separate legal entity.”). Mattingly does not present 

circumstances warranting the disregard of Defendants’ separate corporate structure. 

For instance, in Bestfoods, the Supreme Court considered whether a parent corporation 

could be charged with derivative liability for its subsidiary’s actions under the Comprehensive 

Environmental Response, Compensation and Liability Act (“CERCLA”). In answering in the 

negative, the Court looked to the statute itself. It emphasized that CERCLA was notably silent on 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 11

“the liability implications of corporate ownership.” Id. at 63. And the statute’s silence 

“demand[ed] application of the rule that, to abrogate a common-law principle, a statute must speak 

directly to the question addressed by the common law.” Id. (citing United States v. Texas, 507 

U.S. 529, 534 (1993)). The Court’s guidance in Bestfoods leads us down two paths—statutory and 

common law—both yielding the same result. 

First, unlike CERCLA, FELA arguably does contemplate a circumstance in which courts 

may disregard separate corporate entities. See 45 U.S.C § 55. Section 55 voids “[a]ny contract, 

rule, regulation, or device whatsoever,” with “the purpose or intent . . . to enable any common 

carrier to exempt itself from any liability created” by FELA. At least one of our sister circuits has 

interpreted the provisions of Section 55 to “encode[] the [corporate] ‘domination’ doctrine to the 

extent the FELA permits the use of this doctrine to pierce the corporate veil.” See Selser v. Pac. 

Motor Trucking Co., 770 F.2d 551, 554 (5th Cir. 1985). The Fifth Circuit in Selser addressed 

whether a common carrier parent company could be liable under FELA for its non-common carrier 

subsidiary. The court reasoned that “common law ‘domination’ is . . . relevant only to the extent 

to which it may evidence intent or purpose to exempt the parent [] from FELA liability.” Id.; see 

also Smith v. Rail Link, Inc., 697 F.3d 1304, 1309 (10th Cir. 2012) (noting in dicta that plaintiff 

“might succeed” in implicating the corporate parent of common carrier subsidiaries as a common 

carrier subsidiary itself “if she could show that this corporate structure was established as a means 

of evading FELA liability”). 

Citing Petersen v. Ogden Union Ry. & Depot Co., 175 P.2d 744, 746 (Utah 1946), 

Mattingly maintains that Corman Group’s organization has the practical effect of exempting some 

of its employees from FELA liability, providing sufficient grounds to fall within the ambit of § 55. 

But Petersen, a state court decision from Utah, appears to stand alone in its interpretation of the 

Act. We do not take such a liberal view of FELA’s statutory language. This court’s sister 

circuits—and the plain language of the statute—indicate that the purpose and intent, not the 

“practical effect,” of the device in question is relevant to the analysis. See Selser, 770 F.2d at 554 

(“By its terms, section 55 voids all devices, and only those devices, whose actual purpose or intent

is to enable a carrier to exempt itself from liability.”) (emphasis in original); Smith, 697 F.3d at 

1409 (“[Plaintiff] might succeed if she could show that this corporate structure was established as 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 12

a means of evading FELA liability.”). Mattingly points to no evidence that Corman Group 

designed its corporate structure with the purpose or intent to exempt itself from FELA liability. 

To the contrary, undisputed record testimony reflects numerous legitimate purposes for the 

corporate segregation of the companies, including their diverse functions, clientele, suppliers, and 

management requirements. 

Mattingly fares no better if we instead apply corporate common-law principles as in 

Bestfoods. 524 U.S. at 63; see also Willard v. Fairfield S. Co., 472 F.3d 817, 823 (11th Cir. 2006) 

(considering Alabama corporate law to determine whether a railroad “so control[led] the operation 

of [the plaintiff’s nominal employer] as to make it a mere adjunct, instrumentality, or alter ego of” 

the railroad for purposes of FELA); Greene v. Long Island R.R. Co., 280 F.3d 224, 235 (2d Cir. 

2002) (similar). State law dictates whether circumstances exist warranting piercing the corporate 

veil. See Longhi v. Animal & Plant Health Inspection Serv., 165 F.3d 1057, 1061 (6th Cir. 1999). 

“Under Kentucky law, separate corporate interests, including subsidiaries and affiliates . . . are 

separate legal entities and must be recognized and treated as such unless there is some reason to 

pierce the corporate veil.” Hazard Coal Corp. v. Ky. W. Va. Gas Co., 311 F.3d 733, 739 (6th Cir. 

2002). And such reasons are found “only in the rarest of circumstances.” Schultz, 360 S.W.3d at 

174. Specifically, two elements must be met: “(1) domination of the corporation resulting in a loss

of corporate separateness and (2) circumstances under which continued recognition of the 

corporation would sanction fraud or promote injustice.” Howell Contractors, Inc. v. Berling, 

383 S.W.3d 465, 469 (Ky. Ct. App. 2012) (emphasis in original) (quoting Inter-Tel Techs., Inc. v. 

Linn Station Props., LLC, 360 S.W.3d 152, 165 (Ky. 2012)). Considerations going to the first 

factor include “grossly inadequate capitalization, egregious failure to observe legal formalities and 

disregard of distinctions between parent and subsidiary, and a high degree of control by the parent 

over the subsidiary’s operations and decisions, particularly those of a day-to-day nature.” InterTel Techs., Inc., 360 S.W.3d at 164. While Mattingly cites evidence that Corman Group exercised 

some degree of control over its subsidiaries, the evidence advanced does not warrant the 

exceptional measure of disregarding corporate formalities among the entities. The subsidiary 

Defendants managed their own daily operations and maintained corporate officers and personnel 

distinct from Corman Group; Mattingly presents no evidence that the subsidiary Defendants were 

not financially independent of Corman Group; and Services maintained substantial business 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 13

relationships beyond the Corman Group subsidiary railroads. Thus, a common law approach is no 

more effective here than a statutory one. 

As such, Mattingly does not present a genuine dispute of material fact as to whether 

Corman Services may be considered a common carrier based on its relationship to Corman Group 

under FELA. 

2. Subservant Theory

Mattingly next asserts that even if Corman Services cannot be considered a common carrier 

by virtue of Corman Group’s operation, common-law employment principles still render him an 

employee of Memphis Line. 

Under FELA, the words “employee” and “employed” are intended in their natural sense, 

established by proof of a master-servant relationship under traditional principles of common law. 

Kelley v. S. Pac. Co., 419 U.S. 318, 323 (1974). A master-servant relationship under common law 

exists where “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.” Id. at 324 (quoting Restatement (Second) of Agency § 220(1) (1958)). 

The parties agree that the leading case on the matter is Kelley. There, the Supreme Court 

enumerated three approaches for a plaintiff seeking coverage under FELA to establish common 

law employment with a common carrier. Id. at 324. Mattingly chose to proceed under the 

“subservant” approach, which allows him to rely on evidence that he was acting as “a subservant 

of a company that was in turn a servant of the railroad.” Id. To prevail under this approach, 

Mattingly must show that (1) Corman Services was a servant of Memphis Line, and (2) he was 

subject to the control of both Memphis Line and Corman Services.1 Because we do not find that 

1

In his briefs before this court, Mattingly states that both Corman Group and Memphis Line were “masters” 

of Corman Services for purposes of the subservant theory. (Dkt. 22, Page 50). However, the substance of his argument 

focuses solely on Memphis Line’s control over Services (see id. at 52–53; Dkt. 33, Page 21). We therefore address 

only the master-servant relationship between Memphis Line and Corman Services. See Berkshire v. Dahl, 928 F.3d 

520, 530 (6th Cir. 2019) (“[A] defendant forfeits an argument by . . . identifying it without pressing it.”) (quoting 

United States v. White, 920 F.3d 1109, 1122–23 n.4 (6th Cir. 2019)). Although Mattingly’s arguments are forfeited, 

Defendants directly and adequately addressed the issue in their response brief. (Dkt. 27, Page 53–54). With no counter 

to the defendant’s well taken arguments, Mattingly cannot prevail on this issue.
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 14

Memphis Line controlled or had the right to control Corman Services’ daily operations such as to 

establish a master-servant relationship, Mattingly’s subservant theory of employment must fail.

The facts of Kelley—where the Supreme Court determined that the district court’s findings 

did not establish a master-servant relationship between the plaintiff’s nominal employer and a 

defendant railroad company—are helpful to our review. The plaintiff was employed by a trucking 

company (“PMT”) and sustained injuries while unloading vehicles from the defendant-railroad 

company’s railcar to PMT’s trailer. Id. at 321. PMT was a wholly owned subsidiary of the railroad 

company, and the plaintiff-employee claimed to be employed by the railroad company for 

purposes of FELA. Id. The district court found that the relationship between the plaintiffemployee and the railroad company established FELA liability. Id. The district court reasoned 

that because PMT was serving as an agent of the railroad, the railroad was ultimately “responsible” 

for the unloading operation; PMT employees were the railroad’s agents for purposes of the 

unloading operation; and the work performed by the plaintiff fulfilled a nondelegable duty of the 

railroad. Id. at 322.

The Court of Appeals for the Ninth Circuit reversed, finding the district court’s test for 

FELA liability too broad; the Supreme Court agreed. Id. The Court reasoned that FELA liability 

requires more than an agency relationship, but that of a “master-servant” where the railroad must 

have “controlled or had the right to control the physical conduct of PMT employees in the course 

of their unloading operations.” Id. at 325. It did not matter that railroad employees were 

responsible for checking safety conditions on the site—this only “reflect[ed] the fact that the 

activities of the two companies were closely related and necessarily had to be coordinated.” Id. at 

326–27. And despite railroad supervisory personnel being on site and occasionally advising or 

consulting with PMT employees and supervisors, the railroad did not play “a significant 

supervisory role in the unloading operations.” Id. at 327. Further, “[t]he two companies were 

sufficiently distinct in organization and responsibility that there was no apparent overlap in the 

supervisory ranks.” Id.

Under facts similar to Mattingly’s, we applied Kelley’s subservant theory to FELA claims 

in Campbell v. BNSF Railway Company, 600 F.3d 667 (6th Cir. 2010). We found no masterservant relationship between the plaintiff’s employer, Pacific Rail Services, LLC (“PRS”), and 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 15

BNSF Railway Company, with whom PRS contracted. Id. at 668. The plaintiff in Campbell was 

injured while driving a railroad transport vehicle at a railyard owned by BNSF. Id. BNSF 

employed one worker at the terminal: a hub manager who was charged with ensuring that PRS 

workers timely completed their assignments and followed BNSF’s safety protocols. Id. at 669. 

The hub manager also discussed with PRS employees which tracks needed to be cleared and 

spotted, but PRS managers and supervisors were otherwise responsible for directing the specifics 

of PRS employees’ activities, assigning containers to rail cars, and coordinating and tracking the 

work. Id. Further, BNSF had no authority to hire, train, evaluate, discipline, or terminate PRS 

employees. Id. at 673. PRS maintained substantial business relationships outside of its dealings 

with BNSF and had complete authority over its employees’ schedules; PRS could also assign any 

number of workers to the BNSF terminal. Id. Taken together, the court found that “PRS 

controlled, and had the exclusive right to control, its employees as BNSF’s independent 

contractor,” and as such, the subservant theory failed. Id. at 674.

Similarly, Mattingly does not establish that Corman Services was a conventional commonlaw servant of Memphis Line. Corman Services employed its own supervisory personnel who 

were present at the job site each day. See Kelley, 419 U.S. at 327. Corman Services paid its 

workers from its own bank account. See id. at 328 (considering that a nominal employer “fixed 

and paid [workers’] wages”). Corman Services determined which and how many of its workers 

would show up at each job, including the Memphis Line Project. See Campbell, 600 F.3d at 673. 

Memphis Line had no authority to hire, fire, discipline, train, or evaluate Corman Services 

employees. See id. at 669. For example, Childres conducted Mattingly’s employee evaluations, 

and Mattingly in turn conducted employee evaluations for his supervisees at Corman Services. 

Moreover, Corman Services had “substantial business relationships” outside of its dealings with 

Memphis Line. Id. at 673. In fact, these external business relationships apparently took 

precedence over its relationships with the Railroad Company railroads, as Corman Services often 

dropped Corman jobs if other work became available. Moreover, while the railroad defined the 

scope of the work on the Memphis Line Project—identifying which bridge posts required repair—

Corman Services controlled its own day-to-day schedule. See id. at 669.
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 16

The relative roles of the companies are also relevant here. See e.g., Kelley, 419 U.S. at 

326–27; Standard Oil Co. v Anderson, 212 U.S. 215, 226 (1909). Memphis Line retained 

responsibility for ensuring the safety of Corman Railroad bridges and the work site, while Corman 

Services was utilized to repair unsafe portions of the bridge. The Standard Oil Company decision 

is instructive here. In Standard Oil Company, the Court explained that a winchman obeying the 

signals of a gangman while timing the raising and lowering of cases of oil “showed co-operation 

rather than subordination” and “not the [taking] of orders, but of information.” 212 U.S. at 216. 

Mattingly’s version of the facts, viewed in the context of the functions of Memphis Line and 

Corman Services on the Memphis Line Project are also more indicative of cooperation than 

subordination, and “reflect the fact that the activities of the two companies were closely related 

and necessarily had to be coordinated.” Kelley, 419 U.S. at 327; see Standard Oil Co., 212 U.S. 

at 256 (“[W]hen one large general work is undertaken by different persons, doing distinct parts of 

the same undertaking, there must be co-operation and co-ordination, or there will be chaos.”). And 

similar to Kelley, due to the nature of the work performed, the companies “naturally had substantial 

contact with one another.” Kelley, 419 U.S. at 327. As such, the evidence demonstrates that 

Corman Services was not subjugated to the control or right to control of Memphis Line.

In resisting this result, Mattingly directs our attention to his testimony that Topolski was 

often present at the Project, and Topolski’s testimony that he might offer advice to Corman 

Services bridge crew members regarding some tasks. But even resolving the conflicting facts in 

Mattingly’s favor, Topolski’s unilateral actions on the Project fall short of establishing Memphis 

Line’s control over Corman Services. See Kelley, 419 U.S. at 330 (“The informal contacts between 

the two groups must assume a supervisory character before the [contractor’s] employees can be 

deemed pro hac vice employees of the railroad.”). Other testimony, including Mattingly’s own, 

showed that Topolski’s involvement on the Project did not take on a supervisory character. See 

id. at 327 (railroad personnel “advis[ing] or consult[ing] with [contractor] employees and 

supervisors” does not equate to a “significant supervisory role.”). For example, Mattingly 

explained that while Topolski might instruct newer employees as to certain tasks, he and Topolski 

stayed out of each other’s way because he was more familiar with bridge work. And one of 

Mattingly’s subordinates on the Project, Mr. Neace, explained that he would “probably listen” to 
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 17

Topolski due to his knowledge and experience, but not due to his status. (R. 62-15, PageID 2048–

49). 

To the extent that Mattingly claims that Topolski “dictated the times when Corman 

Services employees could work,” he also conceded that this was “in relation to when Corman 

trains needed to pass.” (Dkt. 22, Page 34). Such coordination not only indicates “necessary 

cooperation” as opposed to a master-servant relationship, but it is also consistent with a railroad’s 

federally mandated role in ensuring the safety of on-track workers under 49 C.F.R. §§ 214.317, 

214.319, 214.353. See, e.g., Campbell, 600 F.3d at 674 (explaining that a railroad’s obligation to 

adhere to safety requirements does not demonstrate employment relationship); Royal v. Mo. & N. 

Ark. R.R. Co., Inc., 857 F.3d 759, 763 (8th Cir. 2017) (same). Similar reasoning applies to the 

requirement that Corman Services supervisors, including Mattingly, circulate daily production 

reports by e-mail to Railroad Company supervisors. This practice permitted the railroad to keep 

track of the work being completed and comply with federal safety requirements. Both Mattingly 

and Childres testified that this was a standard practice that they would complete for any railroad 

with whom Corman Services contracted. 

Ultimately, Mattingly does not present a genuine dispute of material fact regarding whether 

Corman Services, as an entity, was merely a common-law servant to Memphis Line or whether 

Corman Group’s operations established a unitary organization for FELA applicability. 

Accordingly, we hold that the district court did not err in granting summary judgment to 

Defendants on Mattingly’s FELA claim because Mattingly was not employed by a common carrier 

under the Act.

B.

Discovery Issues. Lastly, Mattingly maintains that the district court failed to (1) order 

discovery as to Memphis Line once it was added as a party, and (2) resolve a pending discovery 

dispute. Generally, summary judgment is improper if the non-movant is not afforded a sufficient 

opportunity for discovery. See Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) 

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)).
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 18

Mattingly’s first claim lacks merit. In June 2021, the parties filed dispositive motions. 

Memphis Line subsequently entered its appearance in December 2021. In August 2022, the district 

court granted Defendants’ motion for summary judgment on the FELA claim and included 

Memphis Line in the order and corresponding judgment. There is no indication that Mattingly 

sought to initiate a discovery conference or sought additional discovery as to Memphis Line in the 

months following its addition as a party. See Fed. R. Civ. P. 26(f)(2) (“The attorneys of 

record . . . that have appeared in the case are jointly responsible for arranging the [discovery] 

conference.”). Having failed to preserve the Memphis Line discovery dispute below, Mattingly 

cannot challenge it here. See Stemler v. City of Florence, 126 F.3d 856, 866 n.9 (6th Cir. 1997). 

In any event, Mattingly cannot support his claim on appeal that he was not afforded a “sufficient 

opportunity” for discovery as to Memphis Line. See Vance, v. United States, 90 F.3d 1145, 1148 

(6th Cir. 1996.)

Mattingly’s remaining claim of error is similarly without merit. During discovery, the 

magistrate judge denied Mattingly’s request to obtain a copy of Corman Group’s consolidated 

external audit report, which he claims would reveal important aspects about the control that 

Corman Group exercised over its subsidiaries. Mattingly filed a motion to modify the decision 

and the magistrate judge denied that motion. Mattingly filed objections to the magistrate judge’s 

order, but the district court never ruled on the objections. The parties subsequently filed dispositive 

motions. 

In the context of a motion for summary judgment, “[t]he non-movant bears the obligation 

to inform the district court of his need for discovery” by complying with Federal Rule of Civil 

Procedure 56(d). Id. at 1148–49. An affidavit pursuant to Rule 56(d) “must ‘indicate to the district 

court [the non-movant’s] need for discovery, what material facts it hopes to uncover, and why it 

has not previously discovered the information.’” Doe v. City of Memphis, 928 F.3d 481, 490 (6th 

Cir. 2019) (quoting Ball, 385 F.3d at 720). If a non-movant fails to comply with Rule 56(d), the 

issue of whether summary judgment was prematurely entered because additional discovery was 

required is not preserved for appeal. See Vance, 90 F.3d at 1149; see also Plott v. Gen. Motors 

Corp., Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir. 1995).
No. 22-5794 Mattingly v. R.J. Corman R.R. Grp., LLC Page 19

Mattingly did not file a formal Rule 56(d) affidavit regarding the audit materials. Nor did 

he file any language with the district court setting forth “specified reasons, [that he could not] 

present facts essential to justify [his] opposition” pursuant to Rule 56(d). Thus, Mattingly did not 

preserve the issue of whether the district court abused its discretion in not ruling on his pending 

objections regarding discovery. See Plott, 71 F.3d at 1196–97 (holding that failing to provide a 

contemporary affidavit seeking additional discovery to oppose summary judgment precludes a 

finding of an abuse of discretion). 

IV.

For these reasons, we AFFIRM the judgment of the district court.