United States District Court, W.D. Washington, Seattle
& Jungbauer Barristers, PLC Christopher W. Bowman William
G. Jungbauer, admitted Christopher W. Bowman, admitted and
Crosta Law Office By: Bradley K. Crosta Bradley K. Crosta,
WSBA #10571 Attorneys for Plaintiff Lindsay Dunn
MONTGOMERY SCARP, PLLC Kelsey Endres Kelsey Endres, WSBA
#39409 Tom Montgomery, WSBA #19998 1 Attorneys for Defendant
BNSF Railway Co.
STIPULATION FOR VOLUNTARY DISMISSAL PURSUANT TO FED.
R. CIV. P. 41
L. ROBART, UNITED STATES DISTRICT JUDGE
Plaintiff Lindsay Dunn filed a complaint with the Department
of Labor-Occupational Safety and Health Administration
("OSHA") on July 23, 2015, alleging that Defendant
BNSF Railway Company violated the whistleblower protections
of the Federal Rail Safety Act, codified at 49 U.S.C. §
completed its investigation into Dunn's complaint and
issued findings on September 19, 2016. In those findings,
OSHA conveyed its determination that "the burden of
establishing that [Dunn] was retaliated against in violation
of the FRSA cannot be sustained" and therefore found
that "there [was] no reasonable cause to believe that
[BNSF] violated the FRSA." 3. On October 12, 2016, Dunn
timely objected to OSHA's findings and requested a de
novo hearing with the Department of Labor's Office of
Administrative Law Judges, pursuant to29C.F.R. §
March 3, 2017, Dunn removed his claim to this Court by filing
a de novo action pursuant to 49 U.S.C. §
20109(d)(3). The complaint was timely served on BNSF on
June 13, 2017, BNSF filed a motion to dismiss Dunn's
complaint pursuant to Fed.R.Civ.P. 12(b)(6) and
12(b)(1). On August 25, 2017, this Court granted in
part and denied in part the motion to dismiss, directed Dunn
to show cause within seven days why the alternative-handling
portion of the complaint should not be dismissed, and granted
Dunn leave to file an amended complaint within fourteen
days. Dunn timely responded to the show-cause
order on August 31, 2017,  and timely filed an amended complaint
on September 8, 2017.
the interim, BNSF timely moved for reconsideration of a
portion of the Court's August 25 order. This Court denied
that motion on September 7, 2017.
September 22, 2017, BNSF moved to dismiss portions of
Dunn's amended complaint pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6). That motion is currently noted foi October
of the filing of this stipulation, BNSF has not filed an
Answer in this Federal Court action, nor a motion for summary
judgment pursuant to Fed.R.Civ.P. 56.
has determined not to pursue this litigation further and
elects to voluntarily dismiss this action pursuant to
Fed.R.Civ.P. 41(a). See Swedberg v. Marotzke, 339
F.3d 1139, 1146 (9th Cir. 2003) (stating that after a
defendant has filed a motion to dismiss pursuant to Rule
12(b)(6), "plaintiff is free to file a proper notice of
dismissal pursuant to Rule 41(a)(1)").
Given Dunn's voluntary dismissal, BNSF agrees that its
pending Motion to Dismiss is moot.
Each party agrees to be responsible for its own costs and