Wolfe v. BNSF Railway Company

Filing 150

OPINION AND ORDER, The Reinstatement Claim does not relate back to the Collision Claim. Trotchie's conduct is evidence of actual malice. BNSF's Motion for Summary Judgment 131 is therefore GRANTED IN PART and DENIED IN PART. Because the Court grants BNSF's Motion with respect to the Reinstatement claim, BNSF's Motion to Strike Plaintiffs Response 142 is DENIED as moot. Signed by Judge Susan P. Watters on 2/22/2017. (EMH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

FILED
FEB 2 2 2017
Clerk, y.s District Court
Drstrict Ot Montana
Billings

SCOTT R. WOLFE,
CV 09-166-BLG-SPW
Plaintiff,
OPINION AND ORDER

vs.
BNSF RAILWAY COMPANY, a
Delaware corporation
Defendant.

Before the Court is Defendant BNSF's Motion for Summary Judgment.
(Doc. 131). BNSF argues it is entitled to judgment as a matter of law on Plaintiff
Scott Wolfe's negligent mismanagement claim regarding the reinstatement process
and on Wolfe's punitive damages claim. For the foregoing reasons, the Court
GRANTS IN PART and DENIES IN PART the motion.
I.

Facts1
Wolfe is a longtime employee ofBNSF. In December 2008, Wolfe worked

in Shelby, Montana, as a track inspector for the first time. Before then, he worked
primarily as a foreman and a machine operator at BNSF. BNSF provided Wolfe
with a hi-rail truck, which can be driven along the rails, to inspect track.

1 The

majority of these facts are taken from the Ninth Circuit's opinion in Wolfe v. BNSF, 749
F.3d 859 (9th Cir. 2014).

1

On the morning of December 18, 2008, Wolfe requested track authority
from the dispatcher, James Trotchie, to go east on a particular stretch of track.
Trotchie did not hear whether Wolfe requested east or west. (Doc. 56-10 at 25).
Trotchie assumed Wolfe wanted to go west and granted Wolfe's request. (Doc.
56-10 at 25). Trotchie was aware there was a westbound train approaching from
the east. (Doc. 56-10 at 29). Wolfe, thinking he had been approved to go east,
headed east.
Wolfe encountered the westbound train head on. Wolfe jumped off the hirail truck before it was hit by the train. The truck was damaged, but Wolfe was not
physically injured.
BNSF conducted a formal investigation into the accident, determined Wolfe
was at fault, and terminated his employment. Wolfe challenged his termination
before the National Railroad Adjustment Board (NRAB). The NRAB reduced
Wolfe's termination to a long-term suspension and ordered him reinstated.
Wolfe filed a complaint in Montana state court under Mont. Code Ann.§ 392-703, which creates a cause of action against railways for negligent
mismanagement. Wolfe's amended complaint alleged BNSF's mismanagement
caused the collision which led to his dismissal ("Collision Claim") and that BNSF
mismanaged the subsequent investigation ("Investigation Claim"). (Doc. 69). The
amended complaint included a claim for punitive damages ("Punitives Claim").
2

BNSF removed the case to federal court and filed for summary judgment, arguing
Wolfe's claims were preempted by the Railway Labor Act. This Court granted
summary judgment to BNSF. Wolfe appealed to the Ninth Circuit. The Ninth
Circuit affirmed in part and reversed in part. The Ninth Circuit held the
Investigation Claim was preempted but the Collision Claim was not preempted.
While the case was on appeal, Wolfe underwent a medical exam as part of
the reinstatement process. (Doc. 133 at 3). BNSF concluded Wolfe failed the
medical exam and refused to reinstate Wolfe. (Doc. 133 at 3-4). On remand from
the Ninth Circuit, Wolfe moved to amend the complaint, which this Court granted.
(Doc. 101). Wolfe's second amended complaint alleges BSNF mismanaged
Wolfe's reinstatement process ("Reinstatement Claim"). (Doc. 102).

II.

Summary judgment standard
"The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment
always bears the initial responsibility of informing the court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).

3

Material facts are those which may affect the outcome of the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is
genuine ifthere is sufficient evidence for a reasonable fact-finder to return a
verdict for the nonmoving party. Anderson, 477 U.S. at 248. If the moving party
meets its initial responsibility, the burden then shifts to the opposing party to
establish that a genuine issue of fact exists. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).

III.

Discussion
BNSF argues summary judgment is appropriate on the Reinstatement Claim

because, among other reasons, the Reinstatement Claim is time-barred and does
not relate back to the original complaint. Wolfe agrees the claim is time-barred,
but argues the Reinstatement Claim does relate back. BNSF contends summary
judgment is appropriate on the Punitives Claim because there is no evidence of
actual malice. Wolfe responds Trotchie' s conduct is evidence of actual malice.

A.

The Reinstatement Claim does not relate back to the Collision
Claim because it relies on different facts than the Collision Claim

An otherwise time-barred claim in an amended pleading is deemed timely if
it relates back to the date of a timely original pleading. Under Rule 15( c)(1 )(B), an
amendment asserting a new claim relates back to the date of the original pleading
ifthe amendment "arose out of the conduct, transaction, or occurrence set out ...
in the original pleading." ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999,

4

I 004 (9th Cir. 2014). An amended claim arises out of the same conduct,
transaction, or occurrence if it "will likely be proved by the same kind of evidence
offered in support of the original pleading." ASARCO, 765 F.3d at 1004 (internal
quotation and citation omitted). To relate back, "the original and amended
pleadings must share a common core of operative facts so that the adverse party
has fair notice of the transaction, occurrence, or conduct called into question."

ASARCO, 765 F.3d at 1004. The relation back doctrine of Rule 15(c) is "liberally
applied." ASARCO, 765 F.3d at 1004.
Here, the Reinstatement Claim does not relate back to the Collision Claim
because the claims rest on entirely different facts. The Collision Claim alleges
BNSF mismanaged Wolfe when another employee caused the collision and Wolfe
was subsequently fired. (Doc. 69, iii! 25-27). The Reinstatement Claim alleges
BNSF mismanaged Wolfe when, more than three years after the collision, it did
not reinstate him. (Doc. 102, ifif 17-18). The claims involve separate occurrences
that contain no "common core of operative facts" because the claims rest on facts
that occurred more than three years apart. ASARCO, 765 F.3d at 1004. The "same
kind of evidence" does not prove both claims because whether BNSF's negligent
mismanagement caused the collision is irrelevant to whether BNSF's negligent
mismanagement caused Wolfe to not be reinstated. ASARCO, 765 F.3d at 1004.

5

The Reinstatement Claim does not relate back and BNSF is therefore entitled to
summary judgment as a matter of law.

B.

Trotchie's conduct is evidence of actual malice because he knew
there was a westbound train coming from the east, did not know
which way Wolfe requested to go, and assumed Wolfe wanted to
go west

Reasonable punitive damages may be awarded when the defendant has been
found guilty of actual fraud or actual malice. Mont. Code Ann.§ 27-1-221(1). A
defendant acted with "actual malice" ifthe defendant has knowledge of facts or
intentionally disregards facts that create a high probability of injury to the plaintiff
and (a) deliberately proceeds to act in conscious or intentional disregard of the high
probability of injury to the plaintiff or (b) deliberately proceeds to act with
indifference to the high probability of injury to the plaintiff. Mont. Code Ann.§
27-1-221(2). A plaintiff is not required to prove actual malice at the summary
judgment stage, but rather that a genuine dispute exists with regard to the
allegation. Hagen v. Dow Chemical Co., 863 P.2d 413, 420 (Mont. 1993).
However, a plaintiff must allege and show something more than mere negligence.
Barnes By and Through Barnes v. United Industry, Inc., 909 P.2d 700, 703-704
(Mont. 1996) (overruled on other grounds).
Here, Trotchie's conduct is evidence of actual malice. There are two facts
Trotchie knew that created a high probability of injury to Wolfe. First, Trotchie
knew there was a westbound train coming from the east. Second, Trotchie knew

6

he did not hear which way Wolfe requested to go. Trotchie did not mishear Wolfe
say west; Trotchie did not hear Wolfe say one way or the other. (Doc. 56-10 at
25). Trotchie arguably intentionally disregarded or acted with indifference to those
two facts when he assumed Wolfe wanted to go west and granted the request.
(Doc. 56-10 at 25). Trotchie's conduct is evidence of actual malice and BNSF is
therefore not entitled to summary judgment as a matter of law.
IV.

Conclusion

The Reinstatement Claim does not relate back to the Collision Claim.
Trotchie's conduct is evidence of actual malice. BNSF's Motion for Summary
Judgment (Doc. 131) is therefore GRANTED IN PART and DENIED IN PART.
Because the Court grants BNSF's Motion with respect to the Reinstatement claim,
BNSF's Motion to Strike Plaintiffs Response (Doc. 142) is DENIED as moot.
11

J_

DATED this of,,,? day of February, 2017.

SUSANP. WATTERS
United States District Judge

7