United States District Court, E.D. Washington
EDWARD MC ELMURRY and EVA MC ELMURRY, INDIVIDUALLY and the marital community thereof, Plaintiffs,
RUSSELL INGEBRITSON and JANE DOE INGEBRITSON INDIVIDUALLY, and the marital community thereof and AGENTS/ OWNERS OF INGEBRITSON and ASSOCIATES, A MINNESOTA ENITY, Defendant.
ORDER RE: DEFENDANTS' MOTION FOR SUMMARY
STANLEY A. BASTIAN, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion for Summary Judgment, ECF
No. 57, and several motions related thereto. The motions were
heard without oral argument.
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.
Motion to Strike
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
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.
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
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.
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.
Conditional Motion to Dismiss
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 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.
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