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Tyrrell v. BNSF Railway Co.

United States District Court, D. South Dakota, Southern Division

June 12, 2018




         Brent 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.

         I. Facts

         The 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 ¶ 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.

         Kelli 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.[1] 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[2] 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.

         BNSF 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.

         In 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.

         The 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.

         The 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.

         Kelli 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. Doc. 22-24.

         BNSF 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.[3] 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.

         II. Analysis

         A. Motion to Strike

         BNSF 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.

         BNSF 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).

         B. Rule 12(b)(2) Motion to Dismiss for Lack of ...

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