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BNSF Railway Company v. Lafarge Southwest, Inc.

United States District Court, D. New Mexico
Feb 19, 2009
CIVIL NO. 06-1076 MCA/LFG (D.N.M. Feb. 19, 2009)

Opinion

CIVIL NO. 06-1076 MCA/LFG.

February 19, 2009


MEMORANDUM OPINION AND ORDER


THIS MATTER comes before the Court on the Valencia Claimants Motion to Alter or Amend Judgment Regarding BNSF's Failure to Comply with BNSF's Own Standards Pursuant to FRCP 59(e) [Doc. 537], and The Duran Parties' Motion for Clarification of Court's Memorandum and Order [Doc. 503] with Respect to a Discrete Topic or, in the Alternative, Motion to Alter or Amend Under Rule 59(E) a Portion of the Memorandum and Order [Doc. 503], [Doc. 538] (hereinafter, "motions for clarification"), filed November 13, 2008. Having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, the Court grants the Duran parties' motion and denies as moot the Valencia parties' motion.

I. BACKGROUND

II. ANALYSIS

Order See Memorandum Opinion and Order See Computerized Thermal Imaging, Inc. 312 F.3d 12921296Memorandum Order and Opinion See id. see also6

At a December 18, 2008 Pretrial Conference in the matter, counsel for the Duran parties and counsel for the Valencia parties, in response to a specific question by the Court, advised that their motions for clarification had become moot by operation of the Court's entry of another Memorandum Opinion and Order. [See Doc. 626 at 41]. Interestingly, in post-Pretrial Conference correspondence to the Court, counsel for the Duran parties and counsel for the Valencia parties reversed course and advised the Court that their motions for clarification were, in fact, not moot. The Court notes that the representations made at the Pretrial Conference were made on the record, whereas the representations made in the subsequent correspondence came by way of a letter faxed to the Court, albeit at the Court's instruction. Notwithstanding the initial representations, and for purposes of completeness of the record, the Court addresses the Duran and Valencia parties' motions for clarification. [See Docs. 537, 538].

A motion filed within ten days of the district court's entry of judgment is treated as a motion to alter or amend the judgment under Rule 59(e). Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir. 2002).

A motion filed more than ten days after entry of judgment is treated as a motion for relief from judgment under Rule 60(b).Computerized Thermal Imaging, Inc., 312 F.3d at 1296 n. 3.

"A motion for reconsideration is an extreme remedy to be granted in rare circumstances." Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 944 (10th Cir. 1995). The decision to grant reconsideration is committed to the sound discretion of the district court, which, in exercising that discretion, considers whether there has been (1) an intervening change in the law, (2) new evidence, or (3) the need to correct clear error or to prevent manifest injustice. Id. Thus, a motion for reconsideration may be appropriate where the district court has misapprehended the facts, a party's position, or the controlling law. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

In this case, the parties seek clarification to correct the clear error that they believe results from the Court's apparently conflicting rulings that, while the FRSA does not preempt claims that BNSF responded negligently to the specific, individualized hazard of Ms. Duran's truck on the tracks, the FRSA does preempt claims that BNSF acted in violation of the GCOR and its Air and Train Brake Handling Rules. According to the Duran parties, "BNSF did not seek a ruling that[,] to the extent the Duran Parties' negligence claim is based upon BNSF's alleged failure to comply with the GCOR and its Air Brake and Train Handling Rules, such claims are preempted by the FRSA." [Doc. 538 at 2].

In response to BNSF's Motion for. . . ., a response in which the Valencia parties joined, the Duran parties expressly argued that "BNSF has adopted the [GCOR] as the codification of the standard of conduct their employees are expected to meet[, and t]he new § 20106(b)(1)(B) allows common law claims based on the allegation that a railroad has failed to follow its own operating rules. . . ." [Doc. 413 at 19 (emphasis added)]. The Duran parties further "allege[d] that the BNSF crew violated the following BNSF Rules and Regulations: GCOR 1.1.1, GCOR 1.1.2, and BNSF's Train Handling Rule 103.8.2[, and that t]hese claims are not preempted. . . .". "[Id. at 20]. The repeated (and perhaps inartful) use of the word "claims" caused the Court to understood the Duran parties to be asserting discrete negligence causes of action based upon BNSF's alleged failure to comply with its internal operating rules, and the alleged failure of Marlin Ray and Brian Owens to comply with the applicable standard of conduct, claims this Court believes would be preempted. This apparently was a misconstruction of the Duran parties' position. Accordingly, to the extent that the Valencia parties merely seek to present evidence at trial that, in responding to the specific, individualized hazard of Ms. Duran's truck on the tracks BNSF acted in violation of the GCOR and its Air Brake and Train Handling Rules, nothing in the Court's Memorandum Opinion and Order of November 3, 2008 should be read to suggest the exclusion of such evidence (assuming no other limitations or restrictions, evidentiary or otherwise, are found to apply).

"New" § 20106 is a clarification amendment providing, in pertinent part, that

(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property alleging that a party —
(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by [the Secretary of Transportation. . . .
49 U.S.C. § 20106(b)(1)(B) (amended August 3, 2007).

Use of the word "claims" continues in their clarification motion, where the Duran parties, after contending that "departure from [the GCOR and Air Brake and Train Handling Rules] will amount to evidence of negligence[,]" then assert that "[s]uch claims of negligent operation of a train are not preempted by the FRSA." [Doc. 538 at 7 (emphasis added)].

Since filing their motion for reconsideration, the Duran parties have settled with BNSF.

The Court believes that this clarification accords with the rule of CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), in which the United States Supreme Court held that claims of excessive speed are preempted, but expressly declined to address the question of the FRSA's pre-emptive effect on related tort-law claims such as a failure "to slow or stop a train to avoid a specific, individual hazard." Easterwood, 507 U.S. at 675 n. 15.

III. CONCLUSION

For the reasons set forth above, this Court's prior Memorandum Opinion and Order of November 3, 2008 is hereby clarified as follows: assuming no other limitations or restrictions, evidentiary or otherwise, are found to apply, the Valencia parties are not precluded from introducing at trial evidence that BNSF violated the GCOR and its Air Brake and Train Handling Rules as some proof that BNSF acted negligently in responding to the specific, individualized hazard of Ms. Duran's truck on the railroad tracks.

IT IS, THEREFORE, ORDERED that The Duran Parties' Motion for Clarification of Court's Memorandum and Order [Doc. 503] with Respect to a Discrete Topic or, in the Alternative, Motion to Alter or Amend Under Rule 59(E) a Portion of the Memorandum and Order [Doc. 503], [Doc. 538] is GRANTED; IT IS FURTHER ORDERED that this Court's prior Memorandum Opinion and Order of November 3, 2008 is hereby clarified as follows:

assuming no other limitations or restrictions, evidentiary or otherwise, are found to apply, the Duran and Valencia parties are not precluded from introducing at trial evidence that BNSF violated the GCOR and its Air Brake and Train Handling Rules as some proof that BNSF acted negligently in responding to the specific, individualized hazard of Ms. Duran's truck on the railroad tracks;
IT IS FURTHER ORDERED that the Valencia Claimants Motion to Alter or Amend Judgment Regarding BNSF's Failure to Comply with BNSF's Own Standards Pursuant to FRCP 59(e) [Doc. 537] is DENIED as MOOT.

SO ORDERED


Summaries of

BNSF Railway Company v. Lafarge Southwest, Inc.

United States District Court, D. New Mexico
Feb 19, 2009
CIVIL NO. 06-1076 MCA/LFG (D.N.M. Feb. 19, 2009)
Case details for

BNSF Railway Company v. Lafarge Southwest, Inc.

Case Details

Full title:BNSF RAILWAY COMPANY, Plaintiff, v. LAFARGE SOUTHWEST, INC.; STELLA R…

Court:United States District Court, D. New Mexico

Date published: Feb 19, 2009

Citations

CIVIL NO. 06-1076 MCA/LFG (D.N.M. Feb. 19, 2009)