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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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 UNITED TRANSPORTATION UNION, AND THOMAS KITE, 10 11 12 13 Plaintiffs, v. CASE NO. C10-5808 RBL ORDER DENYING MOTION FOR SUMMARY JUDGMENT [Dkt. #s 81, 89, 91] BNSF RAILWAY COMPANY, Defendant. 14 THIS MATTER is before the Court on Plaintiff Kite’s Motion for Summary Judgment 15 [Dkt. #81] on two issues: vacation of Zimmerman’s 2009 Order of Dismissal without prejudice, 16 and vacation of Peterson’s 2010 arbitration award. Kite claims that there are no material issues 17 of fact and that he is entitled to judgment as a matter of law on each claim. 18 BNSF argues that the Motion relies on arguments and legal theories that are a far cry 19 from those made previously over the more than 5 year history of this case. Kite originally 20 claimed that the arbitration result was the result of extortion, but that, in the absence of evidence 21 supporting that claim they now seek summary judgment on four different theories: (1) Arbitrator 22 Zimmerman should not have recused herself at all, but was bound to decide the case on the 23 merits; (2) Boldra fraudulently managed to get the Kite case transferred to a different 24 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. 5 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]. 9 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. 14 Dated this 22nd day of July, 2015. 16 A 17 Ronald B. Leighton United States District Judge 15 18 19 20 21 22 23 24 [DKT. #S 81, 89, 91] - 2

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