Abbott v. BNSF Railway Company

Filing 132

OPINION AND ORDER granting 126 Opposed MOTION to Compel Plaintiff to Designate all Testimony and Exhibits from Trial by BNSF Railway Company.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT

April 26, 2016
David J. Bradley, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
KLAY ABBOTT
V.
BNSF RAILWAY COMPANY

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CIVIL ACTION NO. G-13-353

OPINION AND ORDER
Before the Court is “BNSF Railway Company’s Opposed Motion to Compel
Plaintiff (Klay Abbott) to Designate all Testimony and Exhibits from Trial” as the
transcript for his appeal. Abbott argues that the trial witnesses’ testimony and the exhibits
are not necessary to address his claim that the Court failed to submit instructions and a
verdict form for a claim of retaliation for following his doctor’s treatment plan for
Abbott’s on the job injury.
As the Court recalls, it refused such submissions, in part, because no such claim
was pleaded in Abbott’s complaint which read, in pertinent part, “Defendant has violated
the retaliatory provisions of 49 U.S.C. section 20109 by filing disciplinary charges then
terminating Plaintiff in retaliation for reporting an on the job injury.” (emphasis added).
Consequently, if Abbott intends to show or argue that the claim was tried by express or
implied consent, pursuant to Rule 15(b)(2), the transcript of the trial testimony and the
exhibits will be required to determine if sufficient evidence was presented to justify
submission of the claim to the jury. See, Burull v. First National Bank of Minneapolis,

817 F.2d 56, 57-58 (8th Cir. 1987) (citing, McDonough Marine Service, Inc. v. M/V
ROYAL STREET, 608 F.2d 203, 204 (5th Cir. 1979).
The Court is aware of Abbott’s poor financial condition and the impediment this
ruling creates to his appeal, but it is Abbott’s burden to provide an adequate transcript and
financial hardship will not excuse him from doing so. Richardson v. Henry, 902 F.2d
414, 416 (5th Cir. 1990).
This Court agrees with BNSF that the transcripts are necessary and it is, therefore,
ORDERED that BNSF’s Motion to Compel (Instrument no. 126) is GRANTED.
DONE at Galveston, Texas, this

26th

2

day of April, 2016.