Smalley v. Union Pacific Railroad Company

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 42 Report and Recommendations of the United States Magistrate Judge. Any summary judgment motion on the issue of preemption be filed no later than February 18, 2019. Signed by District Judge Jeremy D. Kernodle on 12/20/2018. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CYNTHIA SMALLEY; CLIFFORD R.
MOORE, JR. AND CATHERINE M.
MOORE, TRUSTEES ON BEHALF OF
C.R. & C.M. MOORE LIVING TRUST;
AND JERRY SELWYN, D/B/A SELWYN
PROPERTIES, SP;
Plaintiffs,
v.
UNION
PACIFIC
COMPANY,

RAILROAD

Defendant.

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CIVIL ACTION NO. 6:18-CV-00180-JDK

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States
Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. On December 4, 2018, the
Magistrate Judge issued his Report and Recommendation (Doc. No. 42), recommending that
Defendant’s Motion to Dismiss in Part the Second Amended Complaint (Doc. No. 30) be
granted-in-part and denied-in-part and that Defendant’s Motion to Dismiss in Part the First
Amended Complaint (Doc. No. 13) be denied as moot. The Report further recommended an
expedited schedule for filing
objections

to

the

Report

summary

judgment

motions

on

preemption.

No

and Recommendation have been presented for consideration

within the prescribed time period for such objections.

Therefore, the Court adopts the

Report and Recommendation of the United States Magistrate Judge (Doc. No. 42) as the
findings of this Court.

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Accordingly, it is hereby ORDERED that all objections are OVERRULED and
Defendant’s Motion to Dismiss in Part the Second Amended Complaint (Doc. No. 30) be
GRANTED-IN-PART

and

DENIED-IN-PART.

Specifically,

the

Court

ORDERS

that Defendant’s Motion (Doc. No. 30) be GRANTED with respect to Plaintiffs’ takings
claims alleged in Counts III and IV and DENIED with respect to preemption of Counts I and II.
The Court FURTHER ORDERS that Defendant’s Motion to Dismiss in Part the First
Amended Complaint (Doc. No. 13) be DENIED as MOOT.
The Court FURTHER ORDERS any summary judgment motion on the issue of
preemption be filed no later than February 18, 2019.
So ORDERED and SIGNED this 20th day of December, 2018.
______________________________
Jeremy D. Kernodle
United States District Judge

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