1

STATE OF MINNESOTA

IN SUPREME COURT

A14-0277

Court of Appeals Wright, J.

Took no part, Hudson, J.

Terry Boyd,

Respondent,

vs. Filed: January 27, 2016

Office of Appellate Courts

BNSF Railway Company,

Appellant.

______________________

Christopher J. Moreland, Bremseth Law Firm, P.C., Minnetonka, Minnesota, for 

respondent.

Timothy R. Thornton, Jonathan P. Schmidt, Leah Ceee O. Boomsma, Briggs and

Morgan, P.A., Minneapolis, Minnesota; and

Timothy K. Masterson, R. John Wells, Sweeney & Masterson, P.A., Saint Paul, 

Minnesota, for appellant.

______________________

S Y L L A B U S

1. When determining whether the Federal Employers’ Liability Act (FELA), 

45 U.S.C. §§ 51-60 (2012), preempts a state law in a state court proceeding, a court must 

apply the substantive-procedural test of FELA precedent. 

2. Because the taxation of double costs pursuant to Minn. R. Civ. P.

68.03(b)(2) is substantive and not authorized by federal law, it is preempted by FELA. 
2

Accordingly, Minn. R. Civ. P. 68.03(b)(2) does not apply in state court FELA 

proceedings.

Reversed and remanded.

O P I N I O N

WRIGHT, Justice.

This appeal arises from Terry Boyd’s lawsuit against his former employer, BNSF 

Railway Company (BNSF), under the Federal Employers’ Liability Act (FELA), 

45 U.S.C. §§ 51-60 (2012), for injuries incurred on the job. Following a jury verdict and 

award against BNSF, the Hennepin County District Court ordered appellant BNSF to pay

“double costs” to respondent Terry Boyd pursuant to Minn. R. Civ. P. 68.03(b)(2). 

Rule 68.03(b)(2) permits a plaintiff to recover additional costs and disbursements

incurred after an offer is rejected by a defendant and the relief awarded is less favorable 

to the defendant than the rejected offer. BNSF appealed, and the court of appeals 

affirmed the double-costs award. We granted BNSF’s petition for review to consider 

whether FELA preempts the application of Rule 68.03(b)(2) in a state court FELA action. 

We conclude that because double costs are substantive, rather than procedural, and are 

not authorized by federal law, FELA preempts the application of Rule 68.03(b)(2) in this 

state court action. We, therefore, reverse the decision of the court of appeals and remand 

to the district court for entry of an amended judgment consistent with this opinion. 

I.

FELA was enacted in 1908 to create national uniformity in personal injury actions 

brought by railroad employees against their employers, Norfolk & W. Ry. v. Liepelt,
3

444 U.S. 490, 493 n.5 (1980) (citing H.R. Rep. No. 1386, 60th Cong., 1st Sess., at 3 

(1908)); N.Y. Cent. R.R. v. Winfield, 244 U.S. 147, 149-50 (1917), and to ensure that 

railroad workers can recover for their employers’ negligence, see Wilkerson v. McCarthy, 

336 U.S. 53, 68 & n.1 (1949) (Douglas, J., concurring) (citing H.R. Rep. No. 1386, at 2).

State and federal courts share concurrent jurisdiction over FELA actions. 45 U.S.C. § 56. 

After being injured in the course of his employment, Boyd filed a complaint 

against BSNF in Hennepin County District Court, alleging violations of FELA and other 

federal laws. Boyd later made a $275,000 settlement offer. BNSF rejected the offer, and 

the matter proceeded to trial. A jury awarded Boyd $610,954.61 in damages on his 

FELA claim, which the district court later reduced to $411,954.98. Boyd then sought 

costs and disbursements pursuant to Minn. R. Civ. P. 54.04(b) and requested “double 

costs” pursuant to Minn. R. Civ. P. 68.03(b)(2), which provides for an additional

payment equal to the costs and disbursements incurred after the date of a rejected

settlement offer. See Minn. R. Civ. P. 68.03(b)(2) (“[T]he defendant-offeree must pay, in 

addition to the costs and disbursements to which the plaintiff-offeror is entitled under 

Rule 54.04, an amount equal to the plaintiff-offeror’s costs and disbursements incurred 

after service of the offer.”). BNSF objected to the request for double costs under Rule 

68.03(b)(2), arguing that double costs are a form of damages preempted by FELA. 

Following a hearing, the district court administrator taxed BNSF $152,537.16 in costs 

and disbursements, including $62,584.48 in double costs. 

BNSF sought review by the district court, arguing that an award of double costs 

under Rule 68.03(b)(2) is preempted by FELA. See Minn. R. Civ. P. 54.04(e) (providing 
4

that a party may appeal to the district court an order awarding costs and disbursements).

The district court disagreed. Citing Monessen Southwestern Railway v. Morgan, 486 

U.S. 330 (1988), which holds that FELA preempts state substantive law—but not state 

procedural law—in a state court FELA action, the district court compared double costs to 

the state prejudgment interest rule at issue in Monessen. Unlike prejudgment interest, the 

district court concluded, Rule 68.03(b)(2) double costs are not a form of damages and,

therefore, the rule is procedural. 

A divided panel of the court of appeals affirmed the district court’s order taxing 

double costs. Boyd v. BNSF Ry., 858 N.W.2d 797 (Minn. App. 2014). Relying on a 

different analysis than the district court, the court of appeals majority expressly declined 

to apply the substantive-procedural test of FELA precedent. Id. at 803 (“[P]reemption 

does not hinge upon whether rule 68.03 is characterized as ‘substantive’ or 

‘procedural.’ ”). Rather, the court of appeals relied on a field preemption test derived 

from Felder v. Casey, 487 U.S. 131 (1988). Concluding that Rule 68.03(b)(2) “does not 

burden the federal right created by FELA, or affect the ‘ultimate disposition’ of FELA 

claims” under the test articulated in Felder, the court of appeals held that Rule 

68.03(b)(2) “can be applied to FELA claims adjudicated in state court.” 858 N.W.2d 

at 810.1 We granted BNSF’s petition for review.

 

1 The court of appeals dissent characterized cost doubling as a form of damages, 

which are substantive under Monessen and, therefore, preempted by FELA. Boyd, 858 

N.W.2d at 812-13 (Rodenberg, J., concurring in part and dissenting in part) (stating that 

an “award under rule 68.03(b)(2) bears no relationship whatever to the damages 

authorized by Congress to be recovered under FELA” and constitutes “ ‘too substantial a 

(Footnote continued on next page.)
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II.

Whether FELA preempts Minn. R. Civ. P. 68.03(b)(2) presents a question of law, 

which we review de novo. Kinworthy v. Soo Line R.R., 860 N.W.2d 355, 356 (Minn. 

2015) (citing Monessen, 486 U.S. at 335). 

As a threshold matter, we must decide whether the court of appeals employed the 

proper preemption test when determining that Rule 68.03(b)(2)’s double-costs provision 

applies to Boyd’s FELA claim. There are three ways that a federal statute can preempt 

state law—express preemption, conflict preemption, or implied field preemption. 

Arizona v. United States, __ U.S. __, 132 S. Ct. 2492, 2500-01 (2012); Martin ex rel. 

Hoff v. City of Rochester, 642 N.W.2d 1, 10-11 (Minn. 2002). Field preemption is 

implied when congressional legislation has so fully occupied the field of an area of law 

that there is no room for state regulation. Arizona, __ U.S. at __, 132 S. Ct. at 2501; 

Martin, 642 N.W.2d at 11. More than 100 years ago, the United States Supreme Court 

held that FELA occupies the field of railroad employees’ personal injury claims against 

their employers in interstate commerce. See Mich. Cent. R.R. v. Vreeland, 227 U.S. 59, 

66 (1913) (“By this act Congress has undertaken to cover the subject of the liability of 

railroad companies to their employees injured while engaged in interstate commerce. 

This exertion of [the commerce] power which is granted in express terms must supersede 

all legislation over the same subject by the states.”); see also Winfield, 244 U.S. at 151

 

(Footnote continued from previous page.)

part of [the] defendant’s potential liability under the FELA’ to be properly characterized 

as procedural” (alteration in original) (quoting Monessen, 486 U.S. at 336)).
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(“That [FELA] is comprehensive and also exclusive is distinctly recognized in repeated 

decisions of this court.”). However, because state courts have concurrent jurisdiction 

over FELA claims, FELA preempts state substantive law—but not state procedural

law—in state court FELA actions. See Mondou v. N.Y., New Haven & Hartford R.R., 

223 U.S. 1, 56-57 (1912) (holding that litigants may enforce FELA in state courts as a 

matter of right but also observing that state courts are free to apply their own “modes of 

procedure” to FELA cases); see also Brown v. W. Ry. of Ala., 338 U.S. 294, 296 (1949)

(“[W]hile state courts are without power to detract from ‘substantive rights’ granted by 

Congress in FELA cases, they are free to follow their own rules of ‘practice’ and 

‘procedure.’ ”); Cent. Vt. Ry. v. White, 238 U.S. 507, 511-12 (1915) (“As long as the 

question involves a mere matter of procedure . . . the state court can . . . follow [its] own 

practice . . . .”); Kinworthy, 860 N.W.2d at 357 (“When a plaintiff chooses to bring a 

FELA claim in state court . . . federal law governs all substantive matters, but procedural 

matters are subject to state procedural rules.”).

The United States Supreme Court refined the substantive-procedural test into a 

two-step analysis in Monessen.

2

 The first step in the Monessen analysis is to determine 

whether the state law is substantive or procedural. See 486 U.S. at 335. If the state law is 

substantive, the second step of the Monessen analysis is to determine whether federal law 

authorizes application of the state law in a FELA case. See id. at 336-39. 

 

2 We recently relied on Monessen to determine that FELA preempts Minnesota’s 

post-verdict, prejudgment interest statute, which we determined was substantive. 

Kinworthy, 860 N.W.2d at 360. However, Kinworthy was released after the court of 

appeals’ decision in this case.
7

When presented with BNSF’s preemption arguments, the court of appeals 

expressly declined to rely on the substantive-procedural test of FELA precedent. Boyd, 

858 N.W.2d at 803 (“Contrary to the arguments of the parties, preemption does not hinge 

upon whether rule 68.03 is characterized as ‘substantive’ or ‘procedural.’ Simply looking 

at rule 68.03 in a vacuum and choosing whether its operation looks more like ‘substance’

or ‘procedure’ would do nothing to aid our preemption analysis.”). Rather, the court of 

appeals commenced its preemption analysis by considering each federal preemption 

doctrine in turn. Id. at 802-03. After finding no express or implied preemption, the court 

of appeals turned to a field preemption analysis, relying on Felder v. Casey, 487 U.S. 131 

(1988), a case decided under 42 U.S.C. § 1983 (2012). Boyd, 858 N.W.2d at 804.3

The court of appeals erred by applying the Felder preemption analysis. Because 

the United States Supreme Court has consistently held that FELA preempts state 

substantive law, but not state procedural law, the Felder preemption analysis does not 

apply. See, e.g., Brown, 338 U.S. at 296; New Orleans & Ne. R.R. v. Harris, 

247 U.S. 367, 372 (1918) (stating that in a FELA case, “the question of burden of proof is 

 

3

In Felder, the United States Supreme Court held that a state notice statute was 

preempted by section 1983 when (1) the statute burdened a federal right created by 

section 1983 and (2) enforcement of the statute would “frequently and predictably 

produce different outcomes in federal civil rights litigation based solely on whether that 

litigation takes place in state or federal court.” 487 U.S. at 141. Applying the Felder 

test, the court of appeals held that FELA does not preempt Rule 68.03(b)(2), because 

Rule 68.03(b)(2) neither burdens a federal right nor determines the outcome of litigation. 

Boyd, 858 N.W.2d at 808.
8

a matter of substance and not subject to control by laws of the several states”).4 The

Monessen substantive-procedural analysis, not the Felder preemption analysis, is the 

correct framework to employ when analyzing whether a state law can be applied in a 

state court FELA action. 

III.

Having concluded that the Monessen two-part test is the correct preemption 

analysis to employ, we next determine whether FELA preempts Minn. R. Civ. P. 

68.03(b)(2). Applying Monessen, we first assess whether Rule 68.03(b)(2) is substantive 

or procedural. 486 U.S. at 335; see also Kinworthy, 860 N.W.2d at 358 (discussing 

Monessen). If Rule 68.03(b)(2) is substantive, then we must determine whether federal 

law authorizes its application in a FELA action. Monessen, 486 U.S. at 336-39; see also 

Kinworthy, 860 N.W.2d at 358 (discussing Monessen). 

A.

Rule 68.03(b)(2) imposes additional costs on a defendant who refuses a plaintiff’s 

settlement offer if “the relief awarded [to the plaintiff] is less favorable to the defendant”

than the plaintiff’s offer. Minn. R. Civ. P. 68.03 (b)(2). If the defendant rejected such an 

offer, then the defendant “must pay, in addition to the costs and disbursements to which 

 

4 Boyd cites, and the court of appeals relied on, Pikop v. Burlington Northern 

Railroad, 390 N.W.2d 743 (Minn. 1986), to support the use of the Felder preemption 

analysis in a FELA case. See Boyd, 858 N.W.2d at 802-03. But the issue in Pikop was 

whether a separate cause of action—intentional infliction of emotional distress from a 

continued pattern of harassment in the workplace—was subsumed by FELA. 

390 N.W.2d at 744-45. Because FELA was enacted to address physical injury, we held 

that emotional-distress claims were outside the scope of FELA. Id. at 755. Here, we 

address a Minnesota rule applied to a FELA cause of action, so Pikop is inapposite.
9

the plaintiff-offeror is entitled under Rule 54.04, an amount equal” to the costs and 

disbursements incurred after service of the plaintiff’s offer. Id. Rule 68.03(b)(2) costs 

are “double” because the defendant is required to pay the plaintiff’s costs and 

disbursements taxed pursuant to Rule 54.04 and a portion of those same costs again

under Rule 68.03(b)(2). See Minn. R. Civ. P. 68.03(b)(2). The result here is that BNSF 

twice paid the costs Boyd incurred from the date of the settlement offer. There is no 

federal equivalent to Minnesota Rule 68.03(b)(2).5 

With this framework in mind, we consider whether Rule 68.03(b)(2) is substantive 

or procedural. The United States Supreme Court has acknowledged that there is no 

“precise rule” to distinguish between a substantive law and a procedural law in the FELA 

context. St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985). But it is apparent 

that the definition of “substantive” in FELA cases is expansive, encompassing state laws

that by ordinary nomenclature would be regarded as “procedural.” See, e.g., Brown, 338 

U.S. at 296 (holding that pleading rules are substantive); see also 20 Charles Alan Wright 

& Mary Kay Kane, Federal Practice and Procedure § 47 (2d ed. 2011) (“[T]his area of 

procedure has become so shrunken as to fall within the maxim de minimis.”). Further, a 

state’s designation of a rule as one of “procedure” is not dispositive of the substantive-

 

5 Both Fed. R. Civ. P. 68 and Minn. R. Civ. P. 68.03(b)(1) impose post-offer costs 

on a plaintiff who refuses a defendant’s settlement offer if the relief awarded is less 

favorable to the plaintiff than the defendant’s offer. But—unlike the Minnesota rule—the 

Federal Rules of Civil Procedure do not impose double costs on a defendant. Compare 

Fed. R. Civ. P. 68(a) (“[A] party defending against a claim may serve on an opposing 

party an offer.”), with Fed. R. Civ. P. 68(d) (“If the judgment that the offeree finally 

obtains is not more favorable than the unaccepted offer, the offeree must pay the costs 

incurred after the offer was made.”).
10

procedural distinction under FELA. See Monessen, 486 U.S. at 336 (deciding that a

Pennsylvania Rule of Civil Procedure is substantive). Nor is it dispositive that Rule 

68.03(b)(2) is designed to foster settlement. See id. (“The Pennsylvania courts cannot 

avoid the application of federal law . . . by characterizing Rule 238 as nothing more than 

a procedural device to relieve court congestion.”).

No federal court has addressed whether FELA preempts a state cost-doubling 

rule.6 However, we conclude that the result of applying Rule 68.03(b)(2) in this FELA 

case—increasing BNSF’s liability beyond Boyd’s actual costs—will create a disparity in 

FELA cases based solely on whether the plaintiff’s claim is brought in federal or state 

court. Here, the difference between bringing this FELA claim in state court compared to 

bringing the same claim in federal court was over $60,000 in double costs.7 Our 

 

6

It is noteworthy, however, that one federal court has decided that state costdoubling laws are substantive in the Erie context. S.A. Healy Co. v. Milwaukee Metro. 

Sewerage Dist., 60 F.3d 305, 312 (7th Cir. 1995). The Erie doctrine requires a federal 

court to apply state substantive law, but federal procedural law, in a diversity case. 

Hanna v. Plumer, 380 U.S. 460, 465 (1965). Applying the Erie doctrine, the Seventh 

Circuit concluded that the State of Wisconsin’s cost-doubling rule is substantive. S.A. 

Healy Co., 60 F.3d at 312. Federal courts, however, have not used the Erie analytical 

framework in state court FELA cases. We too decline to import the Erie substantiveprocedural test here. We simply observe that, because cost-doubling laws are substantive 

in the Erie context, federal courts are likely to conclude that cost-doubling laws are 

substantive in FELA cases.

7 The parties have attempted to resolve the substantive-procedural issue by 

analyzing the relationship between double costs and damages, because the Monessen 

Court held that prejudgment interest is a form of “actual damages” and, therefore, 

substantive. 486 U.S. at 335. But the Monessen Court did not conclude that only rules of 

damages are substantive. Prior to Monessen, the United States Supreme Court had 

already decided that prejudgment interest is a form of “actual damages” and that damages 

(Footnote continued on next page.)
11

conclusion that the remedy provided by Rule 68.03(b)(2) is substantive is consistent with 

the congressional intent of encouraging uniformity between federal and state court FELA 

cases. Liepelt, 444 U.S. at 493 n.5; see also Dice v. Akron, Canton & Youngstown R.R., 

342 U.S. 359, 361 (1952) (“[O]nly if federal law controls can [FELA] be given that 

uniform application throughout the country essential to effectuate its purposes.”); 

Kinworthy, 860 N.W.2d at 357 (relying on principles of uniformity and the supremacy of 

federal law).

B.

Having concluded that cost doubling under Rule 68.03(b)(2) is substantive, we 

next address the second step of the Monessen analysis, which is to determine whether 

federal law allows double costs in FELA actions. To resolve this issue, Monessen directs 

us to look to the text of FELA first. 486 U.S. at 336. If FELA’s text is silent, we 

consider the common law when FELA was enacted. Id. at 337; see also Consol. Rail 

 

(Footnote continued from previous page.)

are substantive. See id. Thus, no further analysis was needed to determine that 

prejudgment interest was substantive. 

Moreover, the United States Supreme Court has found other state laws that have 

no relationship to damages to be substantive in FELA cases. See, e.g., Dice v. Akron, 

Canton & Youngstown R.R., 342 U.S. 359, 363 (1952) (concluding that the right to have 

a jury decide factual issues of fraud is “too substantial a part of the rights accorded by 

[FELA] to permit it to be classified as a mere ‘local rule of procedure’ ”); Brown, 

338 U.S. at 299 (holding that state courts must apply the federal pleading standard in 

FELA cases); White, 238 U.S. at 511-12 (holding that the burden of proof is substantive

in a FELA case). Therefore, the substantive-procedural determination cannot turn solely

on whether cost doubling is a form of damages. Rather, we consider the larger context of 

federal precedent—particularly FELA precedent, when available—focusing on principles 

of uniformity between state and federal courts. See Kinworthy, 860 N.W.2d at 357.
12

Corp. v. Gottshall, 512 U.S. 532, 544 (1994) (“Because FELA is silent on the issue of 

negligent infliction of emotional distress, common-law principles must play a significant 

role in our decision.”).

For example, in Monessen the issue was whether FELA preempted a state 

prejudgment interest rule. 486 U.S. at 334. The Monessen Court first examined the text 

of FELA and the federal interest statute, but both were silent as to prejudgment interest. 

Id. at 336. Because congressional silence alone was insufficient to manifest “an 

unequivocal congressional purpose” to make prejudgment interest unavailable, the 

Monessen Court considered the common law in 1908, when FELA was enacted. Id. at 

337-38. In 1908, the common law did not allow prejudgment interest in actions for 

personal injury or wrongful death. Id. at 338. After FELA was enacted, federal courts 

uniformly prohibited prejudgment interest in FELA actions, and Congress never amended 

FELA to allow prejudgment interest. Id. at 338-39. Based on the historical common law, 

the United States Supreme Court held that prejudgment interest is not available in a 

FELA action. Id.

Similarly, FELA is silent regarding double-costs recovery. See 45 U.S.C. §§ 51-

60. But the state of the common law when FELA was enacted indicates that Congress 

did not intend for plaintiffs to recover double costs. Moreover, as described below, 

Congress has rejected efforts to create a plaintiff’s right to double costs under federal 

law. 

Double-costs rules originated in the “offer to confess judgment” doctrine of 

nineteenth-century common law. Robert G. Bone, “To Encourage Settlement”: Rule 68, 
13

Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. 

L. Rev. 1561, 1583-84, 1584 n.92 (2008). The doctrine’s purpose was to protect 

defendants from overzealous plaintiffs. See id. at 1593-94. In 1908, only plaintiffs, not 

defendants, were taxed additional costs as a consequence for rejecting an offer to confess 

judgment. See id. at 1588-89. 

It was not until the 1980s—70 years after FELA was enacted—that federal and 

state commentators discussed making double costs available to plaintiffs who make

offers of judgment. Id. at 1608.

8

 In 1995, the United States House of Representatives 

passed a bill that would have created a plaintiff’s right to double-costs recovery in 

diversity jurisdiction cases, but the United States Senate did not act on the bill. Attorney 

Accountability Act of 1995, H.R. 988, 104th Cong. § 2. Thus, although Congress could 

have created a plaintiff’s right to double-costs recovery, it did not do so. Cf. Monessen, 

486 U.S. at 338-39 (“Congress has amended the FELA on several occasions since 1908. 

Yet, Congress has never attempted to amend the FELA to provide for prejudgment 

interest.”). 

When FELA was enacted, no right to double-costs recovery existed for plaintiffs. 

The actions of Congress since FELA’s enactment buttress the conclusion that Congress 

 

8 We amended Minn. R. Civ. P. 68 in 1985 to permit plaintiffs to recover double 

costs. See Minnesota Supreme Court Advisory Committee on Civil Procedure, Report to 

Minnesota Supreme Court 47 (Sept. 14, 1984) (stating that the amendment would “make 

the offer of judgment procedure available to both plaintiffs and defendants in order to 

encourage settlement by all parties”); see also Minn. R. Civ. P. 68 (1986). During the 

same time period, a proposal to amend Federal Rule of Civil Procedure 68 to allow 

plaintiffs to recover double costs was advanced. But the proposed amendment to the 

Federal Rules was tabled in 1986. Bone, supra, at 1610.
14

did not intend to make double costs available to plaintiffs. We, therefore, conclude that 

federal law does not authorize the application of Rule 68.03(b)(2)’s double-costsrecovery provision in a FELA action. 

IV.

Because a plaintiff’s right to double-costs recovery under Minn. R. Civ. P. 

68.03(b)(2) is substantive and not authorized by federal law, FELA preempts Rule 

68.03(b)(2). Accordingly, BNSF may not be taxed double costs as a consequence of

rejecting Boyd’s settlement offer. 

Reversed and remanded.

HUDSON, J., not having been a member of this court at the time of submission, 

took no part in the consideration or decision of this case.