Swinomish Indian Tribal Community v BSNF Railway Company

Filing 123

ORDER granting Parties' 122 Stipulated Motion for Leave to File and Amended Complaint. Signed by Judge Robert S. Lasnik.(LH)

Case 2:15-cv-00543-RSL Document 123 Filed 08/14/20 Page 1 of 3

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The Honorable Robert S. Lasnik

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SWINOMISH INDIAN TRIBAL
COMMUNITY, a federally recognized Indian
Tribe,
Plaintiff,

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NO. 2:15-cv-00543-RSL
STIPULATED MOTION AND ORDER
TO FILE AMENDED COMPLAINT

v.
BNSF RAILWAY COMPANY, a Delaware
corporation,

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Defendant.

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Pursuant to Federal Rule of Civil Procedure 15(a)(2) and Local Civil Rule 15, the

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Parties file this Stipulated Motion and Order to permit Plaintiff Swinomish Indian Tribal

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Community leave to file a First Amended Complaint, and states as follows:

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1.

On April 7, 2015, Plaintiff filed its Complaint for Declaratory Judgment,

Injunctive Relief, Trespass and Breach of Contract. (Dkt. 1).
2.

At oral argument on Defendant’s Motion to Dismiss, “the parties agreed to

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bifurcate issues related to damages in favor of resolving the preemption and liability issues

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first.” (Dkt. 19).

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3.

Although the damages issues are bifurcated, Plaintiff desires to amend its

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complaint to clarify the nature of the damages it seeks and out of an abundance of caution,

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assert a standalone federal common law claim for restitution/unjust enrichment. Because the

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damages issues are bifurcated, the addition of this claim will have little to no impact on the

STIPULATED MOTION AND ORDER TO FILE AMENDED
COMPLAINT (2:15-cv-00543-RSL) - 1

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone] • FAX [phone]

Case 2:15-cv-00543-RSL Document 123 Filed 08/14/20 Page 2 of 3

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pending liability issues because it seeks disgorgement from BNSF, the amount and calculation

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of which will occur in the second phase of litigation. All facts relevant to this claim are

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encompassed within the Tribe’s trespass, breach of contract, and injunctive relief claims.

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4.

Defendant BNSF Railway Company stipulates to Plaintiff’s filing of its First

Amended Complaint, without waiving any rights.
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Accordingly, Plaintiff requests that the Court grant this stipulated motion and

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permit the Tribe leave to file its First Amended Complaint, which is attached as Exhibit A

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hereto. Additionally, per Local Civil Rule 15, attached as Exhibit B hereto is a markup of the

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proposed pleading showing how it differs from the prior pleading.

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DATED this 14th day of August, 2020.
TOUSLEY BRAIN STEPHENS PLLC

PACIFICA LAW GROUP LLP

By: /s/ Christopher I. Brain
Christopher I. Brain, WSBA #5054
By: /s/ Chase C. Alvord
Chase C. Alvord, WSBA #26080
By: /s/ Rebecca L. Solomon
Rebecca L. Solomon, WSBA #51520
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
Tel: [phone]/Fax: [phone]

By: s/ Paul J. Lawrence
Paul J. Lawrence, WSBA #13557
By: s/ Michelle Vaughan
Michelle Vaughan, WSB# 54571
By: s/ Gregory J. Wong
Gregory J. Wong, WSBA #39329
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
1191 Second Avenue, Suite 2000
Seattle, WA 98101
Tel: [phone]/Fax: [phone]
Attorneys for Defendant BNSF Railway
Company

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OFFICE OF THE TRIBAL ATTORNEY,
SWINOMISH INDIAN TRIBAL
COMMUNITY
By: /s/ Stephen T. LeCuyer
Stephen T. LeCuyer, WSBA #36408
By: /s/ Weston R. Lemay
Weston R. Lemay, WSBA #51916
Email: [e-mail]
11404 Moorage Way
LaConner, WA 98257
Tel: [phone]/Fax: [phone]
Attorneys for Plaintiff

STIPULATED MOTION AND ORDER TO FILE AMENDED
COMPLAINT (2:15-cv-00543-RSL) - 2

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone] • FAX [phone]

Case 2:15-cv-00543-RSL Document 123 Filed 08/14/20 Page 3 of 3

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated this 14th day of August, 2020.

A

Robert S. Lasnik
United States District Judge

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STIPULATED MOTION AND ORDER TO FILE AMENDED
COMPLAINT (2:15-cv-00543-RSL) - 3

TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, Washington 98101
TEL. [phone] • FAX [phone]