McFarland v. BNSF Railway Company

Filing 126

ORDER Denying Defendant's Motions; denying 107 Motion to Enlarge Time; denying 108 Motion for Leave to Amend Answer; denying 109 Motion to Dismiss. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

BRENT McFARLAND,

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4:16-CV-05024-EFS

Plaintiff,
ORDER DENYING DEFENDANT’S MOTIONS

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v.
BNSF RAILWAY COMPANY,

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Defendant.

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Before the Court, without oral argument, are Defendant’s Fed. R.

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Civ. P. (6)(b)(1)(B) Motion to Enlarge Time to File Rule 12(c) Motion

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to Dismiss, ECF No. 107; Motion for Leave to Amend Answer to Plead FELA

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Preemption, ECF No. 108; and Rule 12(c) Motion to Dismiss Based on FELA

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Preemption, ECF No. 109.

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expedited schedule for consideration of these motions because it found

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the

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Liability

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dispositive of Plaintiff’s claim. See ECF No. 110.

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follow, the Court denies each of Defendant’s motions.

substantive

issue

of

preclusion

(FELA),

45

U.S.C.

I.

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Act

On March 21, 2017, the Court set forth an

§

under
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et

the

Federal

seq.,

was

Employers

potentially

For the reasons that

MOTION TO ENLARGE TIME (ECF NO. 107)

Per the Scheduling Order, all dispositive motions in this matter

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were due on or before December 2, 2016. ECF No. 19 at 4.

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it failed to bring such a motion earlier due to “excusable neglect,”

ORDER - 1

Arguing that

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Defendant asks the Court to extend the deadline to file a Rule 12(c)

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motion to dismiss based on FELA preemption. See ECF No. 107.

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Federal Rule of Civil Procedure 16 allows a district court to

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control case scheduling and management.

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will control unless modified for good cause. See Fed. R. Civ. P. 16(b);

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992).

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Likewise, if a party misses a deadline, under Rule 6(b), the Court “may,

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for good cause, extend the time . . . if the party failed to act because

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of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B) (emphasis added).

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When determining whether a party’s failure to meet a deadline amounts

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to “excusable neglect,” the Court is required to apply a flexible four-

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factor test, analyzing “(1) the danger of prejudice to the opposing

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party; (2) the length of the delay and its potential impact on the

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proceedings; (3) the reason for the delay; and (4) whether the movant

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acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,

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1261 (9th Cir. 2010) (citing Pioneer Inv. Servs. v. Brunswick Assocs.,

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507 U.S. 380, 395 (1993)).

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Here,

the

first

and

second

Generally, a scheduling order

factors

are

closely

connected.

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Plaintiff was forced to choose between two undesirable options; he could

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either face the prejudice of needing to respond to additional and

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unexpected filings during the peak period of trial preparation, or he

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could accept a continuance and delay trial.

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meaning he bore the extra burden of responding to Defendant’s late

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motions, but these motions will not cause delay.

Plaintiff chose the former,

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The third factor is the most important to the Court’s analysis.

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In essence, Defendant argues that it “overlooked” the FELA preemption

ORDER - 2

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defense.

See

ECF

No.

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unpersuasive

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preemption argument.

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neglect was excusable “is at bottom an equitable one, taking account of

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all relevant circumstances surrounding the party’s omission.” Pioneer

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Inv. Servs., 507 U.S. at 395.

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mistakes

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considerations, here, the record of this case — as well as defense

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counsel’s expertise in this particular practice area1 — show that if

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Defendant’s late filing was due to neglect, such neglect was not

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excusable.

reason

that

107

to

at

excuse

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The Court

Defendant’s

finds

delay

this

in

to

be an

bringing

its

After all, the determination of whether a party’s

might

And unlike the type of understandable

otherwise

be

excused

due

to

equitable

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Fourth, and finally, the Court finds that it is unclear whether

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Defendant acted in good faith by raising the dispositive issue of FELA

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preemption when Plaintiff’s counsel was preoccupied with the myriad

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tasks that must be completed in the last few weeks before trial.

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Defendant offered to continue trial, which would have partially relieved

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Plaintiff of the prejudice he now faces.

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undoubtedly gone to great efforts prepare for the current trial date,

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continuance at this late date would burden Plaintiff and his counsel

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with the additional expenditure of the time and expense required to re-

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prepare for trial at a later date.

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not provide for a finding that Defendant’s latest filings were intended

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to gain a strategic advantage by diverting Plaintiff’s attention away

However, as both parties have

The record before the Court does

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1The

Court notes that counsel of record for Defendant specialize in railroad
law, including FELA cases, and are members of the National Association of
Railroad
Trial
Counsel.
See
http://www.montgomeryscarp.com/scarp/;
http://www.montgomeryscarp.com/chait/.

ORDER - 3

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from trial preparation.

However, defense counsel’s asserted experience

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in railroad law, the prior filing of two similarly-dispositive motions

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within the time provided in the Scheduling Order,2 and then the filing

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of the current motions mere weeks before trial, require the Court to

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find that Defendant’s delay in filing was certainly not excusable

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neglect.
The Court therefore finds that Defendant has not shown that its

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delay

was

caused

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Defendant’s delay could somehow be based on excusable neglect, the Court

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finds Defendant has not demonstrated that good cause exists, which is

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required by Rule 6(b) and Rule 16(b) in order to allow modification of

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the deadline and relief from the Scheduling Order.

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discussed

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Defendant’s

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Enlarge Time, ECF No. 107, is DENIED.

below,

the

excusable

Court

substantive

II.

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by

neglect.

finds

motion.

that

Further,

it

Therefore,

would

even

assuming

And lastly, as
nonetheless

Defendant’s

deny

Motion

to

MOTION FOR LEAVE TO AMEND ANSWER (ECF NO. 108)

The Court ordered the parties to file all motions to amend the

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pleadings on or before June 2, 2016. ECF No. 19 at 2.

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request in the Motion to Enlarge, in the Motion for Leave to Amend

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Answer, Defendant asks the Court to allow amended pleadings well after

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the

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affirmative defense: FELA preemption. See ECF No. 108.

deadline

so

that

Defendant

may

assert

a

Similar to its

previously

unraised

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On March 22, 2016, Defendant filed a Motion to Dismiss Under Fed. R. Civ. P.
12(b)(1) and 12(b)(6), ECF No. 7, arguing that Plaintiff’s claim was preempted
by the Railway Labor Act, 45 U.S.C. § 151, et seq. Then, on December 2, 2016,
Defendant filed a Motion for Summary Judgment, ECF No. 40, arguing that the
Rule 16(f) is self-executing and, therefore, Plaintiff could not show
retaliatory motive.

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As relevant here, a party should be allowed to amend its pleadings

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“when justice so requires.” Fed. R. Civ. P. 15(a)(2).

According to the

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Supreme Court, this means that district courts should grant leave to

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amend pleadings unless it finds reasons that justify denying such a

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request, “such as undue delay, bad faith or dilatory motive on the part

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of the movant, repeated failure to cure deficiencies by amendments

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previously allowed, undue prejudice to the opposing party by virtue of

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allowance of the amendment, futility of amendment, etc.” Foman v. Davis,

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371 U.S. 178, 182 (1962).

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In this case, the Court finds that, because of the close proximity

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to trial, allowing the requested amendment would unduly prejudice

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Plaintiff.

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the requested amendment would likely be futile.

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reasons discussed above in denying ECF No. 107, the Court finds that

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the interests of justice weigh against allowing Defendant to modify its

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answer so late in the proceedings; ECF No. 108 is DENIED.

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The Court also finds — as discussed below — that allowing
As such, and for the

III. MOTION TO DISMISS BASED ON FELA PREEMPTION (ECF NO. 109)

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In its substantive motion, ECF No. 109, Defendant argues that FELA

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preempts Plaintiff’s state-law claim for wrongful termination, and asks

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that the Court dismiss Plaintiff’s complaint.

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because the Court denied Defendant’s requests to file this motion beyond

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the applicable deadline, ECF No. 109 is DENIED AS UNTIMELY.

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notes, however, that it would also deny Defendant’s FELA preemption

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motion on its merits.

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Federal

preemption

is

a

question

of

As a preliminary matter,

The Court

congressional

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516–17 (1992).

ORDER - 5

intent.
Courts

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look to the statute to determine whether it was the “clear and manifest

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purpose of Congress to preempt an area of state law.” CSX Transp. v.

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Easterwood, 507 U.S. 658, 662–64 (1993).

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Congress enacted FELA in 1906 to “provide a federal remedy for

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railroad workers who suffer personal injuries as a result of the

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negligence of their employer or their fellow employees.” Atchison,

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Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561 (1987).

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its primary purpose is to enable injured railroad workers to overcome

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many

of

the

traditional

tort

defenses

that

had

previously

Thus,

barred

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recovery, such as assumption of risk, contributory negligence, and

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contractual waiver of liability. Lewy v. S. Pac. Transp. Co., 799 F.2d

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1281, 1287 (9th Cir. 1986).

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§ 60,

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information that may give rise to a FELA action, “it does not encompass

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employees who are discharged or disciplined because they themselves

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initiate FELA actions.” Lewy, 799 F.2d at 1292–93.

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other FELA provision serves to allow a railroad employee to bring a

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wrongful discharge claim in court. See id. at 1293.

protects

railroad

And although FELA section 10, 45 U.S.C.

employees

from

retaliation

for

providing

Importantly, no

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In contrast, the purpose of Washington State’s tort of wrongful

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discharge “is to prevent employers from utilizing the employee at-will

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doctrine to subvert public policy.” Rose v. Anderson Hay & Grain Co.,

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358 P.3d 1139, 1141 (Wash. 2015).

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shielding themselves from liability that would otherwise frustrate a

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“clear manifestation of public policy,” and is intended to encourage

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both employers and employees to obey the law. Id.

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ORDER - 6

Its goal is to prevent employers from

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The Court finds that in enacting FELA, Congress did not manifest

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a clear intent to preempt state laws and thereby shield railroad

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employers from liability for wrongful-discharge actions.

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arising from a railroad-related injury, Plaintiff’s claim is based on

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Defendant’s decision to terminate him in violation of Washington State’s

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public policy.

Instead of

Therefore, FELA does not preempt Plaintiff’s claim.

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Accordingly, IT IS HEREBY ORDERED:

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1. Defendant’s Fed. R. Civ. P. (6)(b)(1)(B) Motion to Enlarge Time

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to File Rule 12(c) Motion to Dismiss, ECF No. 107, is DENIED.
2. Defendant’s Motion for Leave to Amend Answer to Plead FELA
Preemption, ECF No. 108, is DENIED.
3. Defendant’s

Rule

12(c)

Motion

to

Dismiss

on

FELA

Preemption, ECF No. 109, is DENIED.
IT IS FURTHER ORDERED that the Clerk’s Office is directed to enter
this Order and provide copies to all counsel.

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Based

DATED this

7th

day of April 2017.

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s/Edward F. Shea___
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2016\16-CV-5024;McFarland.Deny.Mt.Amend.v2.LC1.docx

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