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Dunn v. BNSF Railway Co.

United States District Court, W.D. Washington, Seattle

October 19, 2017

LINDSAY DUNN, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant

          Yaeger & 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

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. Stipulation

         1. 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. § 20109.

         2. OSHA 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. § 1982.106.

         4. On 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).[1] The complaint was timely served on BNSF on May23, 2017.[2]

         5. 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).[3] 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.[4] Dunn timely responded to the show-cause order on August 31, 2017, [5] and timely filed an amended complaint on September 8, 2017.[6]

         6. In the interim, BNSF timely moved for reconsideration of a portion of the Court's August 25 order.[7] This Court denied that motion on September 7, 2017.[8]

         7. On 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).[9] That motion is currently noted foi October 27, 2017.[10]

         8. As 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.

         9. Dunn 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)").

         10. Given Dunn's voluntary dismissal, BNSF agrees that its pending Motion to Dismiss is moot.

         11. Each party agrees to be responsible for its own costs and attorneys' ...


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