United States District Court, D. South Dakota, Southern Division
KELLI TYRRELL, AS SPECIAL ADMINISTRATOR FOR THE ESTATE OF BRENT T. TYRRELL, DECEASED, Plaintiff,
BNSF RAILWAY COMPANY, A DELAWARE CORPORATION, Defendant.
OPINION AND ORDER GRANTING MOTION FOR DISCOVERY AND
DENYING MOTION TO STRIKE, MOTION TO DISMISS FOR LACK OF
JURISDICTION, AND MOTION TO DISMISS FOR FAILURE TO STATE A
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Tyrrell (Brent), a South Dakota resident, died from kidney
cancer in September 2011. Doc. 1 at ¶¶ 1, 9.
Brent's wife Kelli Tyrrell (Kelli), as special
administrator for his estate, sued Brent's long-time
employer, BNSF Railway Company (BNSF), under the Federal
Employers' Liability Act (FELA), which makes railroads
liable to their employees for on-the-job injuries. Kelli
alleges that Brent developed kidney cancer from exposure to
carcinogenic chemicals while working for BNSF in South
Dakota. Doc. 1 at ¶¶ 5-9. BNSF moved to dismiss the
complaint, arguing that FELA's statute of limitations
bars Kelli's claims and that this Court lacks personal
jurisdiction over BNSF because any injury Brent may have
sustained from working for BNSF occurred in Minnesota. Docs.
13, 15. Because Kelli is entitled under the circumstances to
conduct discovery on the issues impacting personal
jurisdiction and because the statute Of limitations was
tolled while she had a case pending in Montana state court,
this Court denies BNSF's motions.
long procedural history of the claims in this case began on
September 8, 2011, when Brent sued BNSF under FELA in a
Minnesota federal court. Doc. 17-1. Brent alleged that he had
developed kidney cancer from his exposure to carcinogenic
chemicals while working for BNSF and that "[m]ost, if
not all, " of this exposure occurred in Minnesota. Doc.
17-1 at Â¶ 4. Brent died just three days later on September
11, 2011. Doc. 1 at ¶ 9. In February 2012, Brent's
attorney moved for and was granted a voluntary dismissal of
the Minnesota complaint. Doc. 17-2.
was appointed as the special administrator of Brent's
estate in December 2012. Doc. 22-12. She filed a state court
action against BNSF in Hill County, Montana that same month.
Doc. 22-13. On January 15, 2014, BNSF moved to dismiss the
Hill County complaint for improper venue. Doc. 22-15. BNSF
argued that Kelli should have brought her case in Yellowstone
County, Montana, but did not argue at that time that Montana
courts lacked personal jurisdiction over it. Doc.
22-15. The Hill County court dismissed
Kelli's case without prejudice in April 2014.
Doc.; 22-13. On May 16, 2014, Kelli filed another
FELA action against BNSF, this time suing in
Yellowstone County, Montana. Doc 22-16. As in this case,
Kelli's Yellowstone County complaint alleged that
Brent's exposure to carcinogenic chemicals while working
for BNSF caused him to develop fatal kidney cancer. Doc.
22-16. Although the complaint alleged that BNSF operated
railroad lines in Montana, it did not allege that Brent
worked in Montana or suffered any injury there. Doc. 22-16.
moved to dismiss the Yellowstone County complaint in early
July 2014, arguing that Montana courts lacked jurisdiction
over it under the Supreme Court's decision that year in
Daimler AG v. Bauman, 571 U.S. 117 (2014). Doc.
17-3. In Daimler, the Supreme Court rejected the
argument that a corporation is subject to general personal
jurisdiction in every state in which the corporation
"engages in a substantial, continuous, and systematic
course of business." 571 U.S. at 137-38 (citation
omitted). For general jurisdiction to exist, the Court
explained, the corporation's contacts with the forum
state must be "so continuous and systematic" that
the corporation Is "essentially at home" there.
Daimler, 571 U.S. at 138 (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)). The "paradig[m]" forums in which a
corporation will be "at home, " the Court wrote,
are the corporation's place of incorporation and its
principal place of business. Id. at 137 (alteration
in original) (citation omitted). However, the Court did not
"foreclose the possibility that in an exceptional case,
a corporation's operations in a forum other than its
formal place of incorporation or principal place of business
may be so substantial and of such a nature as to render the
corporation at home in that State." Id. at 139
n. 19 (internal citations omitted). Characterizing
Daimler as a "significant departure" from
the Supreme Court's prior cases on personal jurisdiction,
BNSF argued that Montana did not have personal jurisdiction
over it because there were no exceptional circumstances and
Montana was neither BNSF's principal place of business
nor its state of incorporation. Doc. 17-3.
early October 2014, the Yellowstone County judge issued a
short order denying BNSF's motion to dismiss for lack of
personal jurisdiction. Doc. 22-18. The order incorporated the
reasoning in Monroy v. BNSF, a Montana state court
case against BNSF that involved the same jurisdictional
issues. Doc. 22-18. The judge in Monroy concluded
that Montana courts had personal jurisdiction over BNSF under
§ 56 of FELA, which provides in relevant part:
Under this chapter an action may be brought in a district
court of the United States, in the district of the residence
of the defendant, or in which the cause of action arose, or
in which the defendant shall be doing business at the time of
commencing such action. The jurisdiction of the courts of the
United States under this chapter shall be concurrent with
that of the courts of the several States.,
45 U.S.C. § 56. Because of BNSF's extensive tracks
and employees in Montana, the judge in Monroy also
concluded that BNSF was "at home" in the state
under Daimler, Doc. 22-17. In rejecting BNSF's
argument that Daimler narrowed personal jurisdiction
in FELA cases, the judge reasoned:
A long line of Montana cases has consistently denied
efforts by BNSF to challenge jurisdiction or venue. But
BNSF also asks this Court to ignore or overrule or
distinguish over 100 years of state and federal FELA case
law and specifically 45 U.S.C. § 56. Goodyear
and Daimler ruled on general long-arm jurisdiction
law. To have those two United States Supreme Court cases,
that did not involve FELA, limit or control FELA
jurisdiction based on the facts of those cases involving
overseas foreign subsidiaries is a stretch that this Court
is unwilling to make.
Doc. 22-17 at.20.
Yellowstone County court entered final judgment on the issue
of personal jurisdiction and BNSF appealed to the Supreme
Court of Montana. Doc. 22-20. In late May 2016, the Supreme
Court of Montana held that Montana courts have general
personal jurisdiction over BNSF under FELA arid Montana law.
Tyrrell v. BNSF Ry. Co., 373 P.3d 1. 9 (Mont. 2016).
Starting with FELA, the court determined that 45 U.S.C.
§ 56 allowed Montana state courts to exercise general
personal jurisdiction over railroads "doing
business" in the State. Id. at 4, 7. As to
Montana law, the court explained that general personal
jurisdiction exists over "[a]ll persons found
within" the State. Id. at 8 (alteration in
original) (quoting Mont. R. Civ. P. 4(b)(1)). Given
BNSF's numerous employees and miles of track in Montana,
the court ruled that the railroad was both "doing
business" in Montana and "found within" the
State. Id. at 7-8. Although BNSF argued that Montana
courts lacked jurisdiction over it under Daimler,
the court distinguished Daimler on the ground that
it did not involve FELA of a railroad defendant.
Tyrrell, 737 P.3d at 6, 8-9.
Supreme Court of the United States reversed on May 30, 2017,
holding that § 56 did not address personal jurisdiction
and that Montana's exercise of personal jurisdiction over
BNSF under state law was unconstitutional. BNSF Ry. Co.
v. Tyrrell, 137 S.Ct. 1549.1555-59 (2017). Addressing
FELA first, the Supreme Court concluded that the
authorization in § 56 to hear cases in a district where
the defendant was doing business concerned venue; not
personal jurisdiction, and that FELA's concurrent
jurisdiction provision only addressed subject matter
jurisdiction. Id. at 1555-57. Disagreeing with the
Supreme Court of Montana, the Court determined that its
earlier FELA decisions did not address personal jurisdiction
under § 56. Id. at 1557-58. As to the state law
question, the Court ruled that Daimler applies to
FELA cases and that BNSF's activities in Montana were
insufficient to render it "at home" in the State
under Daimler and Goodyear,
Tyrrell, 137 S.Ct. at 1558-59. The Court remanded
the Tyrrell case to the Supreme Court of Montana for
"further proceedings" consistent with the
Court's decision. Id. at 1560.
then filed a motion with the Supreme Court of Montana seeking
discovery on whether BNSF had consented to personal
jurisdiction in Montana. Doc. 22-23. On August 8, 2017, the
Supreme Court of Montana denied Kelli's motion and
remanded her case to the trial court with instructions to
dismiss the case without prejudice. Doc. 22-23. Kelli filed
this case on August 30, 2017. Thereafter, a state court judge
dismissed Kelli's Montana case on September 28, 2017.
has filed a motion to dismiss under Rule 12(b)(2), arguing
that this Court lacks personal jurisdiction over BNSF because
any injury Brent sustained occurred in Minnesota. Doc. 13.
BNSF also moved to dismiss under Rule 12(b)(6), asserting
that the statute of limitations barred Kelli's claim.
Doc. 15. In contesting BNSF's motions, Kelli's
attorney filed an affidavit along with twenty-six exhibits.
Doc. 22. Although Kelli argued that her complaint and the
evidence submitted justifies denying BNSF's motions, she
moved in the alternative for leave to conduct discovery on
the issue of personal jurisdiction. Doc. 29. BNSF then moved
to strike the affidavit from Kelli's attorney and six of
the attached exhibits. Doc. 23. This Court addresses the motion
to strike before turning to BNSF's Rule 12(b) motions and
Kelli's motion for jurisdictional discovery.
Motion to Strike
moved to strike the affidavit from Kelli's attorney and
the following six exhibits: a transcript from an October 2010
interview Brent did with an investigator for his attorney in
the Minnesota case, Doc. 22-2; an August 2011 letter from a
BNSF claims representative to the Minnesota attorney stating
that BNSF was unaware of any injury claim from Brent, Doc.
22-3; a late August 2011 email from the Minnesota attorney
telling Brent to fill out an injury report and to take a
summary of his interview to his oncologist, Dr. Michael
Keppen, Doc. 22-4; medical records from a September 2011
appointment Brent had with Dr. Keppen, Doc. 22-5; a September
7, 2011 email the Minnesota attorney sent to a BNSF claims
office employee, Doc. 22-6; and emails from early 2012 in
which the Minnesota attorney and BNSF's attorney discuss
gathering Brent's medical records, Doc. 22-9. In the
October 2010 interview, Brent described being exposed to
certain chemicals while working for BNSF in South Dakota,
Minnesota, and Iowa. Doc. 22-2, at 3-10. After seeing Brent
in early September 2011, Dr. Keppen wrote in the medical
record that he "thought [Brent's] occupational
exposures on the railroad were significant contributing
factors to his renal cancer based on review of current
epidemiologic literature and his impressive exposures to
these carcinogens, specifically his risk for renal
cancer." Doc. 22-5 at 5. In the September 7, 2011 email
to a BNSF claims office employee, the Minnesota attorney
explained that Brent did not have much longer to live and
that the attorney "would like to get a statement done
quickly before [Brent] dies." Doc. 22-6 at 1. The
Minnesota attorney suggested that the parties cooperate to
get the statement from Brent or, alternatively, that the
attorney file suit and get an emergency order allowing
Brent's video deposition. Doc. 22-6 at 1.
argues that the six exhibits contain hearsay and have not
been properly authenticated. Doc. 23. Rather than arguing
that these exhibits are admissible evidence, Kelli explains
that she filed the exhibits "to provide the Court a
basis for entering a Scheduling Order and not prolonging this
case by entertaining additional defense motions pertaining to
jurisdictional issues." Doc. 28 at 1-2. In Kelli's
view!, this Court can deny BNSF's motions to dismiss
without considering the six exhibits. Doc. 28. Because this
Court chooses not to rely on the six exhibits or those
portions of the affidavit that were based on those exhibits,
BNSF's motion to strike is denied as moot. See
Stewart v. Prof'l Comput. Ctrs., Inc., 148 F.3d
937, 940 ri.3 (8th Cir. 1998) (dismissing motion to strike as
moot where challenged documents and sections of brief were
not relied on in considering merits of appeal).
Rule 12(b)(2) Motion to Dismiss for Lack of ...