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
Certify (ECF No. 18). This matter was submitted for
consideration without oral argument. The Court has reviewed
the record and files herein, the completed briefing and is
fully informed. For the reasons discussed below,
Defendant's Motion to Certify (ECF No. 18) is
moves the Court to Certify the Court's Order Denying
Defendant's Motion to Dismiss (ECF No. 12) for appeal
pursuant to 28 U.S.C. § 1292(b). An Order is appropriate
for interlocutory appeal under 28 U.S.C. § 1292(b) if
the Order "involves a controlling question of law";
there is "substantial ground for difference of
opinion" as to that question; and "an immediate
appeal from the order may materially advance the ultimate
termination of the litigation[.]" See 28 U.S.C.
§ 1292(b). The Court finds Defendant has failed to
demonstrate that there is "substantial ground for
difference of opinion" and thus denies Defendant's
maintains that Burnett v. New York Cent. R. Co., 380
U.S. 424 (1965), "indicates that having personal
jurisdiction over a Defendant in the first instance
is a condition precedent to the application
of equitable tolling in a subsequently filed action."
ECF No. 18 at 4 (emphasis in original). This is not correct.
That statement is patently overbroad as to the law of
equitable tolling because equitable tolling is a
"flexible" tool based on equitable considerations
that can meet varying, new situations. See Holland v.
Florida, 560 U.S. 631, 650 (2010). Indeed, in justifying
its application of the doctrine in Burnett, the
Supreme Court cites cases involving markedly different facts
than Burnett. 380 U.S. at 428-29 (reviewing the
application of equitable tolling (1) in the context of war
and (2) where the Plaintiff was deceived as to the statute of
Supreme Court intended to install rigid,
"inflexible" requirements for the application of
equitable tolling in FELA cases as Defendant argues, it could
have added clear language to that point. It did not.
Burnett, 380 U.S. at 427 ("[T]he FELA
limitation period is not totally inflexible, but, under
appropriate circumstances, it may be extended beyond three
also argues equitable tolling is not proper where the
Plaintiff forum shopped. ECF No. 18 at 9. Defendant argues
that failing to file in a court where jurisdiction is
guaranteed is forum shopping, inferring a negative
connotation. This is a presumption the Court does not accept.
As to the term "forum shopping", the Ninth Circuit
observed, "[a] competent attorney, as part of his
ethical obligation to represent his client with reasonable
diligence, see Model Rule of Professional Conduct
1.3, is obligated to consider various fora and to choose the
best forum in which to file a client's complaint.
Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 695
n.10 (9th Cir. 2009).
the Court were to accept Defendant's reasoning, Plaintiff
brought suit in Montana when the then-existing law dictated
Montana had general jurisdiction over Defendant. ECF No. 1
at¶7. After Daimler was decided in 2014,
Defendant challenged jurisdiction, but the Montana courts
held Daimler did not apply to FELA actions. ECF No.
1 at ¶¶ 10-19. Once the Supreme Court ruled
otherwise, Plaintiff filed suit in the proper forum. ECF No.
1 at ¶¶ 20-22. These facts do not establish that
Plaintiff improperly forum shopped.
also challenges the Court's conclusion - that applying
equitable tolling when Plaintiff files in the wrong court by
mistake - serves national uniformity in FELA actions. ECF No.
18 at 9-11. Defendant argues that a transfer to another court
is not always granted where equitable considerations counsel
against such. However, because the equitable considerations
for a transfer would often greatly overlap with the equitable
considerations for equitable tolling, uniformity will still
be maintained since, in both cases, equitable considerations
will ultimately determine whether the case survives the
Defendant's arguments are untenable or unpersuasive, and
thus the Court finds Defendant has failed to demonstrate
there is a substantial ground for difference of opinion.
Moreover, an immediate appeal will not materially advance the
ultimate resolution of the litigation given that trial is
just 7 months away and an interlocutory appeal could take
substantially more time than that.
IT IS HEREBY ORDERED:
Motion to Certify (ECF No. 18) is DENIED.
District Court Executive is directed to enter this Order and