Lowder v. Slawson Exploration Company, Inc. et al

Filing 37

ORDER by Judge Daniel L. Hovland adopting 34 Report and Recommendations; granting in part and denying in part 15 Motion to Dismiss for Failure to State a Claim (MM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
DeAnna N. Lowder, Individually and as
Personal representative of the Estate of
Jeffery “Todd” Kinkaid Deceased,

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Plaintiff,
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ORDER ADOPTING REPORT
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AND RECOMMENDATION
vs.
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Case No. 4:14-cv-17
Slawson Exploration Company, Inc. a
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Kansas Corporation, Baker Hughes Oilfield )
Operations Inc., and John Does 1-4,
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Defendants.
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______________________________________________________________________________
The Plaintiff, DeAnna N. Lowder (“Lowder”), initiated this action for negligence and strict
liability in the death of her son against the Defendants on February 12, 2014. See Docket No. 1.
On March 26, 2014, Defendant Baker Hughes Oilfield Operations Inc. (“Baker Hughes”) filed a
motion to dismiss for failure to state a claim. See Docket No. 15. The motion was referred to
Magistrate Judge Karen K. Klein for a Report and Recommendation. See Docket No. 31. On July
31, 2014, Judge Klein issued her Report and Recommendation in which she recommended Baker
Hughes’s motion to dismiss the survival claim be deemed moot by virtue of the filing of a second
amended complaint, that Baker Hughes’s motion to dismiss the strict liability claim be granted and
Lowder’s request to certify question of law to the North Dakota Supreme Court be denied. See
Docket No. 34. The parties were given until August 18, 2014, to file any objections to the Report
and Recommendation. No objections were filed.
The Court has carefully reviewed the Report and Recommendation, relevant case law, and
the entire record, and finds the Report and Recommendation to be persuasive. North Dakota law
does not recognize a claim for strict liability for abnormally dangerous activities. See Mehl v.

Canadian Pac. Ry., Ltd., 417 F. Supp. 2d 1104, 1118 (D.N.D. 2006).
Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 34) in its
entirety. Baker Hughes’s motion to dismiss (Docket No. 15) is GRANTED as to count two and
DENIED as moot as to count one. Lowder’s request to certify a question of law to the North
Dakota Supreme Court (Docket No. 24) is DENIED.
IT IS SO ORDERED.
Dated this 2nd day of September, 2014.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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