Horiel et al v. Burlington Northern and Santa Fe Railway Company et al

Filing 63

FINDINGS AND RECOMMENDATIONS re 21 MOTION to Dismiss by BNSF filed by Burlington Northern and Santa Fe Railway Company, Burlington Northern Railroad Company, a Delaware Corporation. Objections to F&R due by 7/26/2012 Signed by Magistrate Carolyn S Ostby on 7/9/2012. (JDH, ) Modified on 7/9/2012 to change to written opinion. (NOB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
FRANCIS HORIEL and CROWN
CREATIONS CABINETMAKERS,
INC.,
Plaintiffs,
vs.
BURLINGTON NORTHERN
AND SANTA FE RAILWAY
COMPANY, a foreign corporation,
f/k/a BURLINGTON
NORTHERN, INC., and
BURLINGTON NORTHERN
RAILROAD COMPANY, a
Delaware Corporation,

CV-08-135-BLG-RFC-CSO

FINDINGS AND
RECOMMENDATION OF
UNITED STATES
MAGISTRATE JUDGE

Defendants.
At a scheduling hearing held on June 28, 2012, the Court and
counsel discussed, among other topics, Defendants’ pending motion to
dismiss. Defendants filed the motion more than two and a half years
ago – on November 13, 2009. DKT 21. The case had been stayed for a
significant portion of the time since the motion’s filing, and was only
recently referred to the undersigned for pretrial management. See
DKTs 45, 51, and 52.
At the scheduling hearing, the Court advised Defendants’

counsel that it was inclined to recommend that the motion to dismiss
be denied because of developments since it was filed and fully briefed,
including: (1) potentially relevant developments in data gathering and
expert analysis; (2) developments in other actions involving facts and
claims similar to those involved in this action; and (3) the Montana
Supreme Court’s answer to Chief Judge Cebull’s certified question in
cases CV 07-147-BLG-RFC, CV 07-148-BLG-RFC, and CV 08-30-BLGRFC.
The Court suggested to Defendants’ counsel that it might also be
appropriate for Defendants to withdraw the pending motion and refile
it before the motions deadline established at the scheduling hearing.
Defendants’ counsel indicated that the motion would be withdrawn.
To date, Defendants have not withdrawn the motion.
Accordingly, for the reasons stated herein and on the record of the
scheduling hearing held on June 28, 2012, IT IS RECOMMENDED
that Defendants’ motion to dismiss (DKT 21) be DENIED, without
prejudice to refiling before the deadline for filing motions.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
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pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation portion of this document must be filed with the Clerk
of Court and copies served on opposing counsel within fourteen (14)
days after service hereof, or objection is waived.
DATED this 9th day of July, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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