United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
O. RICE CHIEF UNITED STATES DISTRICT JUDGE
THE COURT is Defendant BNSF Railway Company's Motion for
Summary Judgment (ECF No. 16). The matter was submitted for
consideration with telephonic oral argument. The Court has
reviewed the record and files herein, and is fully informed.
As discussed below, the Court follows its previous decision
in Abeyta v. BNSF Ry. Co., No. 2:17-CV-0350-TOR,
2018 WL 327283 (E.D. Wash. Mar. 14, 2018) and
denies Defendant's Motion for Summary
Judgment (ECF No. 16).
movant is entitled to summary judgment if “there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
might affect the outcome of the suit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is “genuine” where the evidence
is such that a reasonable jury could find in favor of the
non-moving party. Id. The moving party bears the
“burden of establishing the nonexistence of a
‘genuine issue.'” Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). “This burden
has two distinct components: an initial burden of production,
which shifts to the nonmoving party if satisfied by the
moving party; and an ultimate burden of persuasion, which
always remains on the moving party.” Id.
admissible evidence may be considered. Orr v. Bank of
America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The
nonmoving party may not defeat a properly supported motion
with mere allegations or denials in the pleadings.
Liberty Lobby, 477 U.S. at 248. The
“evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [the
non-movant's] favor.” Id. at 255. However,
the “mere existence of a scintilla of evidence”
will to not defeat summary judgment. Id. at 252.
BNSF Railway Company moves the Court to enter summary
judgment in its favor based on a statute of limitations
defense. ECF No. 16. The issue here is materially identical
to two other cases recently addressed by this Court:
Abeyta v. BNSF Ry. Co., No. 2:17-CV-0350-TOR, 2018
WL 327283 (E.D. Wash. Mar. 14, 2018) and Figueroa v. BNSF
Ry. Co., 275 F.Supp.3d 1225 (E.D. Wash. 2017). In
Abeyta, as here, ECF No. 1 ¶ 6, the plaintiff
filed suit in Montana state court for complained of injuries,
see ECF No. 1-3, which, at the time of filing,
appeared to be a court having general jurisdiction over the
defendant. Abeyta, 2018 WL 327283, at *1. After
Daimler AG v. Bauman, 571 U.S. 117 (2014), was
decided, the defendant challenged personal jurisdiction based
on Daimler's at-home requirement for general
jurisdiction, but the court rebuffed the challenge after the
Montana Supreme Court decided the case of Tyrrell v. BNSF
Ry. Co., 373 P.3d 1, 8, cert. granted, 137
S.Ct. 810 (2017), and rev'd and remanded, 137
S.Ct. 1549 (2017), where Montana's highest court found
Daimler did not apply to Federal Employer Liability
Act (FELA) actions. Abeyta, 2018 WL 327283, at *1;
compare with ECF No. 1 at ¶¶ 7-11.
However, the United States Supreme Court reversed
Tyrell, finding Daimler's general
jurisdiction analysis applies to FELA actions. BNSF Ry.
Co. v. Tyrell, 137 S.Ct. 1549 (2017); compare
with ECF No. 1 at ¶¶ 14-16. Thereafter, the
state court dismissed the plaintiff's case without
prejudice for lack of personal jurisdiction and the plaintiff
soon after filed suit in Washington, where the underlying
events took place. Abeyta, at *1; compare
with ECF No. 1 at ¶ 16. As here, see ECF
No. 16, the defendant challenged the plaintiff's newly
filed suit in Washington based on the three year statute of
limitations, which - absent tolling - would have run before
the filing of the suit in Washington. Abeyta, at *2.
This Court applied equitable tolling and found the
plaintiff's suit was timely in light of the preceding
events. Id. at 3-4.
no material difference in the underlying facts, see
ECF No. 1 at ¶¶ 6-18, the Court finds equitable
tolling applies to Plaintiff's claim here for the reasons
discussed in Abeyta, 2018 WL 327283, as Plaintiff
has demonstrated both diligence in filing suit in a timely
manner, albeit in the wrong court, and Plaintiff only filed
suit in the wrong court as a result of the contemporary view
of the law on jurisdiction supported by longstanding
judicial precedent in Montana - i.e. the
external force - even though that judicial precedent was
ultimately reversed. As such, Plaintiffs claim is not barred by
the three-year FELA statute of limitations and
Defendant's Motion must be denied.
IT IS HEREBY ORDERED:
Motion for Summary Judgment (ECF No. 16) is
DENIED. The District Court Executive is
directed to enter this Order and furnish copies to counsel.
 Defendant argues that, even if
equitable tolling applies, the statute of limitations began
running on November 30, 2017, when notice of the order of
dismissal was served because this was the date the
“dismissal was fully finalized[, ]” so
Plaintiff's claim would still be tardy by four days. ECF
No. 16 at 20. However, the Court finds the statute of
limitations does not restart until the time for appeal runs
on the dismissal ...