United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION TO
O. RICE Chief United States District Judge.
THE COURT is Defendant BNSF Railway Company's Motion to
Dismiss (ECF No. 5). This matter was submitted for
consideration without oral argument. The Court has reviewed
the record and files herein, and is fully informed. For the
reasons discussed below, Defendant's Motion to Dismiss
(ECF No. 6) is DENIED.
instant action concerns a claim under the Federal
Employers' Liability Act (FELA), 45 U.S.C. § 51, by
Plaintiff Keith Abeyta against Defendant BNSF Railway
Company. ECF No. 1 at ¶ 3. According to the Complaint,
Abeyta worked for BNSF as a “roadmaster” in and
around the state of Washington and received injuries in March
2011, November 2011, and “over the course of his
employment.” ECF No. 1 at ¶¶ 37, 46, 67.
December 30, 2013, Abeyta filed suit for the alleged injuries
in the Montana Thirteenth Judicial District Court (the
“underlying action”). ECF No. 1 at ¶ 7. On
September 3, 2014, BNSF moved to dismiss the underlying
action for lack of personal jurisdiction because the alleged
injuries arose in Washington and BNSF was not at home in
Montana, relying on the Supreme Court case of Daimler AG
v. Bauman, 134 S.Ct. 746 (2014). ECF No. 1 at ¶ 10.
The district court denied BNSF's motion, reasoning the
rigid approach to general jurisdiction under Daimler
does not apply to FELA actions. ECF No. 1 at ¶ 11.
March 1, 2015, BNSF moved to stay the underlying action
pending the Montana Supreme Court's resolution of
Tyrrell v. BNSF Railway Co. and Nelson v. BNSF
Railway Co., which involved the same issue of general
jurisdiction under FELA (where BNSF was the defendant, also).
ECF No. 7 at ¶ 13. The court denied the request for a
stay. ECF No. 7 at ¶ 14. The parties proceeded with
preparing for trial. ECF No. 7 at ¶ 15.
31, 2016, the Montana Supreme Court decided the consolidated
cases of Tyrrell and Nelson (hereafter referred to
as “Tyrrell”), finding the courts in
Montana had personal jurisdiction over BNSF because BNSF was
“doing business” in Montana. ECF No. 7 at ¶
16. BNSF - in Tyrrell - filed a writ for certiorari
to the United States Supreme Court challenging the Montana
Supreme Court's decision; the United States Supreme Court
granted the writ. ECF No. 7 at ¶¶ 17-18. BNSF again
requested a stay in the underlying action while the Supreme
Court reviewed Tyrrell; the court granted the
requested stay. ECF No. 7 at ¶ 19.
Supreme Court ultimately reversed the Montana Supreme Court
in Tyrrell, finding the Montana courts did not have
general jurisdiction over BNSF- extending the approach in
Daimler to FELA actions. ECF No. 7 at ¶ 20;
BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549 (2017).
The district court in the underlying action subsequently
lifted the stay and granted BNSF's motion to dismiss for
lack of jurisdiction, dismissing the case without prejudice
on September 11, 2017. ECF No. 7 at ¶¶ 21-22.
Abeyta then filed the instant action on October 6, 2017.
has now filed a Motion to Dismiss under Rule 12(b)(6),
arguing that Abeyta's claim is time barred by the
applicable three-year statute of limitations and that
equitable tolling is not appropriate. ECF No. 5 at 2.
federal court may dismiss a complaint for failure to comply
with the statute of limitations where “the running of
the statute is apparent on the face of the complaint.”
Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997
(9th Cir. 2006) (citations omitted). “[A] complaint
cannot be dismissed unless it appears beyond doubt that the
plaintiff can prove no set of facts that would establish the
timeliness of the claim.” Supermail Cargo, Inc. v.
United States, 68 F.3d 1204, 1207 (9th Cir. 1995)
(citation omitted). When deciding, the Court may consider the
plaintiff's allegations and any “materials
incorporated into the complaint by reference.”
Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540
F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)). A plaintiff's “allegations of material
fact are taken as true and construed in the light most
favorable to the plaintiff[, ]” but “conclusory
allegations of law and unwarranted inferences are
insufficient to defeat a motion to dismiss . . . .”
In re Stac Elecs. Sec. Litig., 89 F.3d at 1403
(citation and brackets omitted).
motion to dismiss hinges on whether equitable tolling
applies, as the parties agree the instant action was filed
more than three years after the suit arose. Abeyta argues the
statute of limitations was tolled during the state court
proceeding, relying on the case of Burnett v. New York
R.R. Co., 380 U.S. 424 (1965). ECF Nos. 1 at ¶ 7; 7
at 2. BNSF argues equitable tolling is not appropriate under
Burnett because, contrary to the facts in
Burnett, “Plaintiff's claim was not
dismissed for improper venue and Plaintiff did not file his
claim in a competent jurisdiction.” ECF No. 5 at 2.
U.S.C. § 56, “No action [under FELA] shall be
maintained . . . unless commenced within three years from the
day the cause of action accrued.” Despite this, the
Supreme Court “has expressly held  the FELA
limitation period is not totally inflexible, but, under
appropriate circumstances,  may be extended beyond three
years” pursuant to the so-called doctrine of equitable
tolling. Burn ...