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)

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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 Defendants’ counsel indicated that the motion would be withdrawn. To date, Defendants have not withdrawn the motion.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 -2- 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 -3-

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