Straub v. BNSF Railway Company

Filing 44

MINUTE ORDER denying 36 Second Amended Motion for Leave to Supplement Plaintiff's Response to Defendant BNSF Railway Company's Rule 12(b)(6) Partial Motion to Dismiss, by Magistrate Judge Michael E. Hegarty on 1/27/2016.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01890-CMA-MEH
GEORGE W. STRAUB, IV,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.
______________________________________________________________________________
MINUTE ORDER
______________________________________________________________________________
Entered by Michael E. Hegarty, United States Magistrate Judge, on January 27, 2016.
Plaintiff’s Second Amended Motion for Leave to Supplement Plaintiff’s Response to
Defendant BNSF Railway Company’s Rule 12(b)(6) Partial Motion to Dismiss [filed December 11,
2015; docket #36] is denied. Plaintiff first suggests that the Court convert the Partial Motion to
Dismiss to a Motion for Summary Judgment. I do not believe conversion is necessary or appropriate
in this circumstance. Plaintiff next requests the Court consider additional information relating to
depictions of a railroad locomotive seat adjustment mechanism and to records relating to repairs of
said mechanism. This would be relevant if Defendant contended that the slide adjustment
mechanism on a locomotive seat was not “one piece, one unit” with the seat, or was not an “integral
part of the seat,” as alleged by Plaintiff. Second Amended Motion for Leave, at 4-5. Defendant does
not so contend, but rather argues that a seat as addressed in the law governing railroads is a seat, and
anything other than the seat itself, whether an adjustment mechanism, seat belt, arm rest, padding,
back rest, or ability to recline, is not an integral part of a locomotive. Finally, the Court does not
need the photographs of the seat to decide the issue raised in the Partial Motion to Dismiss, because
the parties agree that the slide adjustment mechanism was part of the seat as installed and was not
a later add-on, and further that it works just as a slide adjustment mechanism works in a car not
equipped with electronic seat adjustment. This is knowledge common to a person of normal
understanding and intelligence, and pictures are not necessary to know to what the parties are
referring.