Figueroa v. BNSF Railway Company

Filing 94

ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 48 is DENIED. Plaintiffs Cross-Motion for Summary Judgment on Defendants Defense of Statute of Limitations ECF No. 66 is GRANTED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

1
2
3
4
5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

6
7

LILLIAN FIGUEROA, an individual,
NO. 4:17-CV-5096-TOR
Plaintiff,

8
9
10

v.
BNSF RAILWAY COMPANY, a
foreign corporation,

ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT

11
12
13

Defendant.
BEFORE THE COURT are Defendant’s Motion for Summary Judgment

14

(ECF No. 48) and Plaintiff’s Cross-Motion for Summary Judgment on Defendant’s

15

Defense of Statute of Limitations (ECF No. 66). These matters were submitted for

16

consideration without oral argument. The Court has reviewed the record and files

17

herein, and is fully informed. For the reasons discussed below, Defendant’s

18

Motion for Summary Judgment (ECF No. 48) is DENIED and Plaintiff’s Cross-

19

Motion for Summary Judgment on Defendant’s Defense of Statute of Limitations

20

(ECF No. 66) is GRANTED.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 1

1

BACKGROUND

2

This case concerns a claim under the Federal Employers’ Liability Act

3

(FELA), 45 U.S.C. § 51, by Plaintiff Lillian Figueroa against Defendant BNSF

4

Railway Company, a foreign corporation incorporated in Delaware. ECF No. 44 at

5

¶¶ 1-2. In the instant motion, Defendant seeks summary judgment on Plaintiff’s

6

claim, arguing that Plaintiff commenced this action after the expiration of the

7

applicable statute of limitations. ECF No. 48 at 5. Plaintiff filed a Cross-Motion

8

for Summary Judgment, asserting that the circumstances of this case make

9

equitable tolling appropriate. ECF No. 66 at 26.

10
11

FACTS
On May 29, 2012, Plaintiff was injured while performing work at

12

Defendant’s Pasco Diesel Facility in Washington. ECF No. 44 at ¶ 3. On May 22,

13

2015, Plaintiff filed suit in the Circuit Court of the State of Oregon for Multnomah

14

County. ECF Nos. 44 at ¶ 9; 66 at 14; 86 at 8. Defendant filed a motion to dismiss

15

for lack of personal jurisdiction, which was denied. ECF Nos. 44 at ¶¶ 10, 14; 48

16

at 6-7; 66 at 14-15; 86 at 9. On February 26, 2016, Defendant filed a Writ of

17

Mandamus with the Oregon Supreme Court. ECF No. 44 at ¶ 16. The Oregon

18

Supreme Court allowed the petition and heard oral argument on November 10,

19

2016. Id. at ¶ 17. On March 23, 2017, the Oregon Supreme Court issued a

20

Peremptory Writ of Mandamus and Appellate Judgment, instructing the Circuit
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 2

1

Court judge to vacate his prior order denying the motion to dismiss and conduct

2

further proceedings consistent with the decision of the Oregon Supreme Court.

3

ECF Nos. 44 at ¶ 19; 48 at 8; 66 at 15; 86 at 9. On July 7, 2017, the Circuit Court

4

judge signed an Order and a Judgment involuntarily dismissing the matter for lack

5

of personal jurisdiction, which was entered on July 11, 2017. ECF No. 44 at ¶¶ 23-

6

24; 66 at 15; 86 at 9.

7

On July 12, 2017, Plaintiff filed a Complaint in this Court. ECF No. 1. On

8

August 7, 2017, Defendant filed a Motion to Dismiss, arguing that Plaintiff’s claim

9

was time barred by the applicable three-year statute of limitations (45 U.S.C. § 56)

10

and that equitable tolling was not appropriate due to Plaintiff’s alleged forum

11

shopping. ECF No. 6 at 1-2. The Court denied Defendant’s Motion, finding that

12

Plaintiff could prove a set of facts establishing that the action was timely. ECF No.

13

14 at 7.

14

On December 12, 2017, Defendant filed a Motion to Bifurcate the equitable

15

tolling issue for trial, which the Court granted. ECF Nos. 25, 34. On March 19,

16

2018, a status conference was held at the request of the parties. ECF No. 43. The

17

Court granted Plaintiff’s Motion to Amend the Complaint and ordered Defendant

18

to file the instant motion for summary judgment regarding the equitable tolling

19

issue. ECF No. 43. On March 20, 2018, Plaintiff filed an Amended Complaint.

20

ECF No. 44.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 3

1

DISCUSSION

2

A. Standard of Review

3

Summary judgment is appropriate when “there is no genuine dispute as to

4

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

5

R. Civ. P. 56(a). For purposes of summary judgment, a fact is “material” if it

6

might affect the outcome of the suit under the governing law. Anderson v. Liberty

7

Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is “genuine” where the

8

evidence is such that a reasonable jury could find in favor of the non-moving party.

9

Id. The moving party bears the initial burden of showing the absence of any

10

genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

11

(1986). The burden then shifts to the non-moving party to identify specific facts

12

showing there is a genuine issue of material fact. Anderson, 477 U.S. at 256.

13

In ruling on a motion for summary judgment, the court views the facts, as

14

well as all rational inferences therefrom, in the light most favorable to the non-

15

moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court must only

16

consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764

17

(9th Cir. 2002). There must be evidence on which a jury could reasonably find for

18

the plaintiff and a “mere existence of a scintilla of evidence in support of the

19

plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252.

20

//
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 4

1

B. Equitable Tolling of the Statute of Limitations

2

The equitable tolling doctrine “enables courts to meet new situations [that]

3

demand equitable intervention, and to accord all the relief necessary to correct …

4

particular injustices.” Holland v. Florida, 560 U.S. 631, 650 (2010) (internal

5

quotations marks and citation omitted). “Generally, a litigant seeking equitable

6

tolling bears the burden of establishing two elements: (1) that he has been

7

pursuing his rights diligently, and (2) that some extraordinary circumstances stood

8

in his way.” Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)

9

(internal quotation marks and citation omitted); see also Menominee Indian Tribe

10
11

of Wisconsin v. United States, 136 S.Ct. 750, 755 (2016).
The first element requires the litigant to show she undertook “the effort that

12

a reasonable person might be expected to deliver under his or her particular

13

circumstances.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). This

14

diligence does not require “an overzealous or extreme pursuit of any and every

15

avenue of relief.” Id. The second element requires the litigant to show that

16

“extraordinary circumstances were the cause of his untimeliness … and … ma[de]

17

it impossible to file [the document] on time.” Ramirez v. Yates, 571 F.3d 993, 997

18

(9th Cir. 2009) (internal quotations marks and citations omitted).

19
20

Equitable tolling is appropriate when a “plaintiff has not slept on his rights
but, rather, has been prevented from asserting them.” Burnett v. New York Cent. R.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 5

1

Co., 380 U.S. 424, 429 (1985). Courts have “recognized the unfairness of barring

2

a plaintiff’s action solely because a prior timely action is dismissed for improper

3

venue after the applicable statute of limitations has run.” Id. at 430. When a

4

plaintiff files a timely FELA action in state court, serves the defendant with

5

process, and the case is then dismissed for improper venue, “the FELA limitation is

6

tolled during the pendency of the state suit.” Id. at 434-35.

7

C. Relevant Case Law

8

The parties dispute whether the law was clear at the time Plaintiff filed suit

9
10

in state court in 2015. The Court thus considers the relevant case law in 2015.
In Daimler, Argentinian residents filed suit under the Alien Torts Statute

11

(ATS) in the Northern District of California against Daimler, a German public

12

stock company, for conduct allegedly committed by an Argentinian subsidiary of

13

Daimler in Argentina. Daimler AG v. Bauman, 571 U.S. 117, 120 (2014). The

14

Supreme Court noted that the question is whether the corporation’s “affiliations

15

with the State are so ‘continuous and systematic’ as to render [it] essentially at

16

home in the forum State.” Id. at 139 (quoting Goodyear Dunlop Tires Operations,

17

S.A. v. Brown, 564 U.S. 915, 919 (2011)). The Supreme Court held that there was

18

no general jurisdiction because Daimler was not “at home” in California, and could

19

not be sued for injuries plaintiffs attribute to the subsidiaries’ conduct in Argentina.

20

Id. at 136.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 6

1

In 2017, the Supreme Court specifically addressed the issue of general

2

jurisdiction in regards to a corporation under FELA. BNSF Ry. Co. v. Tyrrell, 137

3

S.Ct. 1549 (2017). A North Dakota resident and South Dakota resident brought a

4

FELA suit against BNSF in a Montana state court for injuries they sustained. Id. at

5

1554. Neither plaintiff was injured in Montana and BNSF was not incorporated

6

nor had its principal place of business in Montana. Id. at 1559. The Montana

7

Supreme Court held that it could exercise general jurisdiction over BNSF, finding

8

that Daimler did not control because it did not involve a FELA claim or a railroad

9

defendant. Id. at 1558. The Supreme Court reversed and, applying Daimler, found

10

that the business BNSF did in Montana was not sufficient “to render [it] essentially

11

at home” in Montana. Id. at 1559 (quoting Daimler, 571 U.S. at 136). The

12

Supreme Court held that “FELA does not authorize state courts to exercise

13

personal jurisdiction over a railroad solely on the ground that the railroad does

14

some business in their States.” Id. at 1558.

15

Here, this Court previously found in denying Defendant’s Motion to Dismiss

16

that it was not clear that Daimler concluded the issue of personal jurisdiction over

17

a foreign corporation. ECF No. 14 at 6-7. This Court determined that the Supreme

18

Court clarified the precise issue of personal jurisdiction by state courts under

19

FELA in Tyrrell, which occurred two years after the Plaintiff filed her case in state

20

court here. Id. at 7. The Court determined that Plaintiff may well be able to prove
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 7

1

that equitable tolling is appropriate given that the law may not have been clear

2

when she filed her case in 2015. Id. The Court considers below whether the law

3

was clear in 2015 so as to prevent equitable tolling.

4

D. Clarity of the Law in 2015

5

Defendant argues that Plaintiff cannot prove that equitable tolling is

6

appropriate because the law was clear when she filed her case in 2015. ECF Nos.

7

48 at 12; 86 at 14-16. Defendant insists that the Supreme Court’s decision in

8

Daimler clearly precluded the Oregon Court’s personal jurisdiction over BNSF for

9

a case arising out of incidents that occurred in Washington. ECF No. 48 at 13.

10

Defendant then asserts that Plaintiff chose to ignore Daimler’s clear rule and

11

pursue her claims in Oregon for a Washington-based incident, which was

12

unreasonable. Id. at 14-15. Defendant contends that Plaintiff chose the Oregon

13

Court intentionally to gain a strategic advantage, and this is not a basis to support

14

the application of equitable tolling. Id. at 16.

15

The Court disagrees and finds that the law was not clear when Plaintiff filed

16

her case in Oregon. Daimler did not establish “an easy to follow rule” when the

17

Supreme Court had to clarify general jurisdiction under FELA three years later.

18

See id. at 13. While Daimler established the rule ultimately applied by the

19

Supreme Court in Tyrrell, it did not conclude the issue of personal jurisdiction over

20

a foreign corporation. Daimler addressed jurisdiction under the ATS, not FELA.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 8

1

Though the Supreme Court ultimately found this distinction not persuasive, it was

2

still unclear in 2015 whether Daimler applied to FELA cases and railroad

3

defendants. See Tyrrell, 137 S.Ct. at 1558-59.

4

The Court finds that Plaintiff did not act unreasonably in filing suit in

5

Oregon when the law was unclear whether Daimler applied to her suit in 2015.

6

The Court is not persuaded by Defendant’s contention that Plaintiff represented “it

7

was appropriate to eschew Daimler and file in the wrong court for the purpose of

8

gaining a strategic, financial advantage.” ECF No. 48 at 15. At oral argument

9

regarding the Motion to Dismiss, Plaintiff’s counsel rebutted Defendant’s alleged

10

forum shopping label by explaining that it was cheaper to litigate in Oregon, which

11

is meant to protect his client and does not constitute forum shopping. See id. at 14-

12

15.1 Defendant alleges that lawyers have a strong incentive to file claims in

13
14

1

Defendant claims that Plaintiff was forum shopping, inferring a negative

15

connotation, by filing in Oregon. This is an inference the Court does not accept.

16

As to the term “forum shopping”, the Ninth Circuit observed, “[a] competent

17

attorney, as part of his ethical obligation to represent his client with reasonable

18

diligence, see Model Rule of Professional Conduct 1.3, is obligated to consider

19

various fora and to choose the best forum in which to file a client’s complaint.”

20

Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 695 n.10 (9th Cir. 2009).
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 9

1

Multnomah County as the potential outcomes may be superior for plaintiffs. Id.

2

Yet, these allegations, even if taken as true, do not mean that Plaintiff’s decision to

3

file her suit in Oregon when the law was unclear constitutes improper forum

4

shopping. A decision to litigate in a cheaper forum for one’s client is not

5

unreasonable nor does it show that Plaintiff was attempting to eschew Daimler or

6

purposefully file in the wrong court. Since the law was not clear at the time, it is

7

unreasonable to allege that Plaintiff purposefully filed in the wrong court.

8

E. Applicability of Equitable Tolling

9

The Court finds that there is no genuine question of material fact regarding

10

the appropriateness of equitable tolling. First, Plaintiff establishes that she was

11

pursuing her rights diligently. See Credit Suisse Sec., 556 U.S. at 227. Before the

12

three year statute of limitations, Plaintiff filed in state court and upon the dismissal

13

of the state court claim, she immediately filed in federal court the next day.

14

Second, her untimeliness in filing in this Court was due to the pending state court

15

proceeding, which Burnett recognizes as a tolled time period. See Burnett, 380

16

U.S. at 434-44. Plaintiff was then not sleeping on her rights, but actively pursuing

17

her claim in state court. The Ninth Circuit has determined that a FELA action is

18
19
20
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 10

1

tolled during the pendency of the state suit. 2 See id. The lack of clarity regarding

2

the applicability of Daimler for a FELA action in 2015 makes Plaintiff’s conduct

3

reasonable, as discussed above.

4

Under the second element of equitable tolling, Defendant emphasizes that

5

the Supreme Court has left open the question of whether a reasonable mistake of

6

law could be extraordinary. 3 ECF No. 86 at 11-12; Menominee Indian Tribe, 136

7

S.Ct. at 756 n.3. In Menominee, the Tribe mistakenly relied on a class action to

8

justify equitable tolling, but the Tribe failed to present its claims to Indian Health

9

Services which made it ineligible to participate in the class action. Id. at 755. The

10
2

This Court does not find Burnett distinguishable where it dismissed for

11
improper venue and the Oregon court here eventually dismissed for lack of
12
jurisdiction. Burnett, 380 U.S. at 434-35.
13
14

3

Defendant also asserts that Plaintiff does not discuss the element of

15

extraordinary circumstances in her brief, and thus she forfeits the issue. See ECF

16

No. 86 at 13 n.3. While the Court acknowledges that Plaintiff argues an outmoded

17

standard for equitable tolling, the Court declines to find that Plaintiff essentially

18

forfeits her equitable tolling claim as she extensively addresses reasonability in her

19

brief, which is a factor to consider in the second element of extraordinary

20

circumstance. See ECF No. 66 at 18-22, 26-30.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 11

1

Supreme Court found that this mistake was a “simple miscalculation” and a

2

“garden variety claim of excusable neglect.” Id. at 757 (citation omitted). The

3

Supreme Court also noted in dicta that this situation was “quite different from

4

relying on actually binding precedent that is subsequently reversed.” Id. (emphasis

5

in original).

6

Yet, this Court finds that the law was unclear at the time of the suit, not that

7

Plaintiff mistook the law. The Court here also need not decide whether a mistake

8

of law is an extraordinary circumstance, but merely determines that the lack of

9

clarity in the law creates an extraordinary circumstance. The situation here is then

10

unlike Menominee because the Plaintiff did not make a simple miscalculation and

11

misunderstand the law, but rather there was no clear law regarding jurisdiction for

12

a FELA action until the Supreme Court’s decision in Tyrrell. The Tribe in

13

Menominee did not suffer from lack of clarity in the law, but misunderstood the

14

requirement of presentment in a class action. The Tribe made a mistake of law, but

15

the Plaintiff here did not have a clear law on jurisdiction. While Plaintiff did end

16

up misfiling in the wrong jurisdiction, she could not have known this until the

17

Tyrrell decision. This Court is then not persuaded that lack of clarity in the law is

18
19
20
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 12

1

akin to a mistake of law to preclude equitable tolling. 4

2

Accordingly, the Court finds that Plaintiff establishes there is no genuine

3

issue of material fact regarding the applicability of the equitable tolling doctrine, as

4

Plaintiff diligently pursued her rights and the lack of clarity in the law in 2015 was

5

an extraordinary circumstance outside of her control. The Court then tolls

6

Plaintiff’s claim while it was pending in state court and finds that she timely filed

7

her suit here.

8

ACCORDINGLY, IT IS HEREBY ORDERED:

9

1. Defendant’s Motion for Summary Judgment (ECF No. 48) is DENIED.

10

2. Plaintiff’s Cross-Motion for Summary Judgment on Defendant’s Defense of

11

Statute of Limitations (ECF No. 66) is GRANTED.

12

The District Court Executive is directed to enter this Order and furnish

13

copies to counsel.

14

DATED June 5, 2018.

15
16

THOMAS O. RICE
Chief United States District Judge

17
18

4

As the Court finds that the facts of Menominee are not applicable to this

19

case, the Court does not consider Plaintiff’s argument regarding whether

20

Menominee displaced other tests for equitable tolling. See ECF No. 93.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY
JUDGMENT ~ 13