Hohn v. BNSF Railway Company

Filing 270

ORDER - Plaintiff's motion for new trial (Filing No. 244 ) is denied. Plaintiff's motion to set aside costs (Filing No. 266 ) is denied. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
FRANK HOHN,

)
)
Plaintiff,
)
)
v.
)
)
BNSF RAILWAY COMPANY,
)
)
Defendant.
)
______________________________)

8:05CV552

ORDER

This matter is before the Court upon plaintiff’s motion
for new trial (Filing No. 244) and motion to set-aside costs
taxed by the Clerk (Filing No. 266).

Upon reviewing the motions,

briefs, indexes of evidence, and relevant law, the Court will
deny both motions.
In his motion for new trial, plaintiff asserts the
Court erred by not admitting evidence with respect to plaintiff’s
safety hotline complaint and also that the great weight of the
evidence precludes any reasonable jury from finding for defendant
on Jury Instructions Nos. 12 and 13 relating to plaintiff’s ADA
claims of disparate treatment and failure to accommodate.
A motion for new trial serves the limited function of
allowing the Court to correct manifest errors of law or fact.
United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d
930, 934-35 (8th Cir. 2006).

The Court ruled before and during

the time of trial that evidence involving “plaintiff’s safety
hotline complaint” was not relevant to either of plaintiff’s
ADA’s claims.

This ruling of the Court shall stand.

Furthermore, the Court finds the jury’s verdict in
favor of defendant on the ADA claims of disparate treatment and
failure to accommodate are supported by the greater weight of the
evidence.

Based on the expert opinions of Drs. Dietrich, Clark,

and Slingsby and the observations of other BNSF employees, there
was more than sufficient evidence for the jury to find that (1)
plaintiff was not qualified to perform the essential functions of
the position of machinist with or without an accommodation and
(2) that defendant did not fail to provide plaintiff with a
reasonable accommodation.

Thus, plaintiff’s motion for new trial

will be denied.
The Clerk of this Court taxed costs against plaintiff
in the amount of $6,905.18 (See Filing No. 256).

Plaintiff, in

his untimely motion (See Fed. R. Civ. P. 54(d)(a)(1)) to setaside costs taxed by the Clerk, does not take issue with the
Clerk’s calculations, but claims he is unable to pay these costs
and asks to be released from the obligation to pay the amount to
defendant.

Plaintiff alternatively requests that he be given a

“very long” period in which to pay costs to defendant.

As

plaintiff is employed, had the ability to pay the filing fee for
this lawsuit, and has failed to explain the untimeliness of his
motion, the Court finds no reason to set aside the costs taxed
against plaintiff by the Clerk of this Court or to create an
extended due date for payment of such.
to set-aside costs will be denied.

-2-

Thus, plaintiff’s motion

Accordingly,

IT IS ORDERED:
1) Plaintiff’s motion for new trial (Filing No. 244) is
denied.
2) Plaintiff’s motion to set aside costs (Filing No.
266) is denied.
DATED this 5th day of December, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-3-