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McElmurry v. Ingebritson

United States District Court, E.D. Washington

March 6, 2018

EDWARD MC ELMURRY and EVA MC ELMURRY, INDIVIDUALLY and the marital community thereof, Plaintiffs,



         Before the Court is Defendants' Motion for Summary Judgment, ECF No. 57, and several motions related thereto. The motions were heard without oral argument.

         On November 30, 2017, Plaintiffs Edward and Eva McElmurry filed a Complaint for Legal Malpractice against Russell and Jane Doe Ingebritson and Agents/Owners of Ingebritson and Associates. ECF No. 1. Plaintiffs allege that Edward McElmurry (“Plaintiff”) was injured in a car accident on the job while an employee of BNSF Railroad. Plaintiff contends that Russell Ingebritson (“Defendant”) agreed to represent him on a contingent fee basis in a Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51, et seq., lawsuit against his employer. Plaintiff further alleges that Defendant failed to file a FELA action prior to the expiration of the statute of limitations. The Court denied Plaintiffs' motion for summary judgment, ECF No. 47, and declined to reconsider its decision, ECF No. 53. Defendants now move for summary judgment and seek to strike Plaintiffs' response as untimely or, alternatively, strike certain evidence as inadmissible. ECF No. 70. Plaintiffs filed a conditional motion to dismiss should the Court strike its pleadings. ECF No. 74.

         Defendants' Motion to Strike

         First, Defendants request that the Court strike Plaintiffs' response to its motion for summary judgment as untimely. The Court declines to strike Plaintiffs' response, filed six days after the deadline, in the interests of judicial economy.

         Alternatively, Defendants seek to strike portions of the declarations of Edward McElmurry and William Schroder, and evidence contained in a police report as hearsay. Hearsay is a statement that a party offers in evidence to prove the truth of the matter asserted in the statement and is not made by the declarant while testifying at a current trial or hearing. Fed.R.Evid. 801. Hearsay is inadmissible unless otherwise provided by statute, the Federal Rules of Evidence, or other rules prescribed by the United States Supreme Court. Fed.R.Evid. 802.

         With regard to Mr. McElmurry, Defendants move to strike the following as impermissible hearsay: “I heard him state to me and the State Patrol that he was distracted. He also told me he dropped his wedding ring and got a phone call before the accident, ” ECF No. 63 ¶ 3; and “He said he did not see me until immediately before impact, he said he did not see me until it was too late. He said he was going about 70-75 m.p.h. and he did not see me until it was too late.” ECF No. 63 ¶ 4. Both of these statements constitute impermissible hearsay. The Court will not consider these statements in ruling on Defendants' motion.

         Defendants also seek to strike portions of a police report wherein the reporting officer writes that Todd Johnson was “distracted by a ringing phone” when he struck Plaintiff's automobile. ECF No. 65. Hearsay contained in a police report is inadmissible. Colvin v. United States, 479 F.2d 998, 1003 (9th Cir. 1973). Entries in a police report based on an officer's observation and knowledge may be admitted, but statements attributed to other persons are clearly hearsay, and inadmissible unless an exception applies. Id. The Court strikes this portion of the police report as it is not based on the reporting officer's observations.

         Defendants further request that the Court strike the following portions of the Declaration of William Schroeder as not based on sufficient facts: “It is my opinion that BNSF's failure to provide luggage restraints created an unsafe place to work for Mr. McElmurry in violation of its duties under FELA, ” ECF No. 66 ¶ 4; and “Dr. Powers [sic] medical opinion adequately meets the FELA causation standard, ” ECF No. 66 ¶ 5. Contrary to Defendants' assertion, Dr. Schroeder's expert report identifies the facts on which he relies and sets forth his opinion. Accordingly, Defendants' motion is denied with regard to Dr. Schroeder's Declaration.

         Plaintiffs' Conditional Motion to Dismiss

         In the event that the Court was inclined to strike Plaintiffs' response as untimely, Plaintiffs moved for a conditional dismissal without prejudice under Fed.R.Civ.P. 41(a)(2). This motion is denied. Moreover, it would not be proper to allow Plaintiffs to dismiss this action voluntarily because of their untimely response after Defendants filed their motion for summary judgment.

         Disputed Facts

         The disputed facts are detailed in the Court's Order Denying Plaintiffs' Motion for Summary Judgment, ECF No. 47, and will not be comprehensively discussed here. However, since the Court's ruling, the parties have engaged in additional discovery relating to the accident in question.

         The collision at issue in this lawsuit occurred in the late afternoon on June 15, 2012 on Interstate-90 outside of Spokane, Washington. At the time of the collision, Todd Johnson was on his hands-free Bluetooth device when his telephone call cut out. The telephone rang again, he picked it up using his Bluetooth device, and a car driven by Plaintiff suddenly pulled out in front of him in the left-hand lane traveling approximately five miles per hour. Mr. Johnson testified that at the time he was driving approximately seventy miles per hour and had no time to stop ...

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