United Transportation Union et al v. BNSF Railway Company

Filing 93

ORDER denying 81 Plaintiff Kite's Motion for Summary Judgment; denying 89 Plaintiff Kite's Motion to Strike; signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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UNITED TRANSPORTATION UNION,
AND THOMAS KITE,

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Plaintiffs,
v.

CASE NO. C10-5808 RBL
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT
[Dkt. #s 81, 89, 91]

BNSF RAILWAY COMPANY,
Defendant.

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THIS MATTER is before the Court on Plaintiff Kite’s Motion for Summary Judgment
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[Dkt. #81] on two issues: vacation of Zimmerman’s 2009 Order of Dismissal without prejudice,
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and vacation of Peterson’s 2010 arbitration award. Kite claims that there are no material issues
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of fact and that he is entitled to judgment as a matter of law on each claim.
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BNSF argues that the Motion relies on arguments and legal theories that are a far cry
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from those made previously over the more than 5 year history of this case. Kite originally
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claimed that the arbitration result was the result of extortion, but that, in the absence of evidence
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supporting that claim they now seek summary judgment on four different theories: (1) Arbitrator
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Zimmerman should not have recused herself at all, but was bound to decide the case on the
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merits; (2) Boldra fraudulently managed to get the Kite case transferred to a different
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ORDER DENYING MOTION FOR SUMMARY
JUDGMENT - 1

1 (Peterson’s) Public Law Board; (3) Peterson relied on improper evidence; and (4) the arbitrators
2 failed to address procedural objections. It argues that none of these claims amount to the sort of
3 fraud required to overturn an arbitration decision under the RLA, and certainly not on Summary
4 Judgment.
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Kite also asks the Court to Strike [Dkt. #89] the Declaration of Roger Boldra as

6 inconsistent with his deposition and his emails in evidence, and BNSF asks [Dkt. #91] the Court
7 to strike what it claims is a new argument about the timeliness of the underlying arbitration
8 award, raised for the first time in Kite’s Reply Brief [Dkt. #87].
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The Motion for Summary Judgment depends on factual determinations that cannot be

10 made on summary judgment. It is DENIED. The Motion to Strike [Dkt. #89] is similarly
11 DENIED, as it is a factual dispute best resolved at trial, on cross examination. BNSF’s Motion
12 to Strike [Dkt. #91] is DENIED as moot.
13 IT IS SO ORDERED.
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Dated this 22nd day of July, 2015.

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A

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Ronald B. Leighton
United States District Judge

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[DKT. #S 81, 89, 91] - 2