BNSF Railway Company v. Magin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

BNSF RAILWAY COMPANY, )

)

Plaintiff, )

)

v. ) No. 2:22-CV-68 RLW

)

PAULINE MAGIN, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff BNSF Railway Company’s requests to construe

all pending motions to dismiss as motions for summary judgment. (ECF Nos. 117, 128, 147, 148).1

Defendants oppose BNSF’s requests. (ECF Nos. 126, 127, 129, 133, 134, 152). For the reasons

below, the Court will not construe Defendants’ motions to dismiss as motions for summary

judgment.

1 BNSF appears to use the term “request” and “motion” interchangeably:

• ECF No. 117 – BNSF Railway Company’s Request that Defendants’ Motion to Dismiss

Second Amended Complaint be Treated as a Motion for Summary Judgment (addressing

the Motion to Dismiss by Defendants Pauline Magin, Angelika Salazar, and N.N., a minor

by and through his Next Friend, Angelika Salazar at ECF No. 109).

• ECF No. 128 – BNSF Railway Company’s Request that Defendants’ Motion to Dismiss

Second Amended Complaint be Treated as a Motion for Summary Judgment (addressing

the Motions to Dismiss by Defendants Estevan Carreon, Jane Carreon, Allen Gallaway,

Kimberly Howard, Tami Lakey, minor A.L., Noel Lucero, Sherri Schwanz and Shaun Phan,

Vui Nguyen, minor A.P., Ngoc Pham, Dung Pham, Ngoan Pham, Vy Pham, Thanh Le,

Thinh Mai, minors A.M. and A.M. at ECF Nos. 113 and 115).

• ECF No. 147 – BNSF Railway Company’s Motion to Treat Defendant Ruth Sanborn’s

Motion to Dismiss as a Summary Judgment Motion (addressing the Motion to Dismiss by

Ruth Sanborn at ECF No. 141).

• ECF No. 148 – BNSF Railway Company’s Motion to Treat Defendant Laura Rojas’s

Motion to Dismiss as a Summary Judgment Motion (addressing the Motion to Dismiss by

Laura Rojas at ECF No. 146).

Background

On June 27, 2022, Defendants Kim Holsapple, Angelika Salazar, N.N., Rachelle Cook,

Tiffany Powers, Pauline Magin, Binh Phan, Shaun Phan, A.P, Vui Nguyen, Ngoc Pham, Dung

Pham, Ngoan Pham, Vy Pham, Thanh Le, Thinh Mai, A.M., A.M., Estevan Carreon, Jane Carreon,

Tami Lakey, A.L, Allen Gallaway, Noel Lucero, Sherri Schwanz, Kimberly Howard, Ruth

Sanborn, Laura Rojas, and Deborah Wynne were traveling as passengers on National Railroad

Passenger Corporation (“Amtrak”) Train 4, commonly known as the Southwest Chief. (ECF No.

102 at ¶ 55). The train was traveling from Los Angeles to Chicago when it struck a dump truck at

U.S. Department of Transportation Crossing No. 005284Y near Mendon, Missouri. Id. at ¶ 56.

The collision caused the train to derail. Id. Thereafter, several impacted passengers filed state-

court actions alleging negligence and wrongful death against track owner BNSF Railway

Company. As relevant here, those actions include: 2

Case Number Plaintiffs Defendants Claims Against

BNSF

22CH-CC00021 Pauline Magin‡, Nick Cook*, Tiffany BNSF Railway Wrongful Death of

Powers‡, and Brandon Beggs*, as heirs of Company Decedent Rachelle

deceased Rachelle Cook*‡ Cook (by Pauline

MS Contracting, LLC Magin, Nick Cook,

Pauline Magin‡, William Magin†, Brent Tiffany Powers, and

Powers†, and Tiffany Powers‡, Mariano Rodriguez Brandon Beggs)

individually

Negligence (by

Tiffany Powers and

Pauline Magin)

Loss of Spousal

Consortium (by Brent

Powers and William

Magin)

2 All actions are currently pending in the Circuit Court of Chariton County, Missouri.

22CH-CC00022 Shaun Phan‡ and Vui Nguyen‡, BNSF Railway Wrongful Death of

individually and as Class I Beneficiaries Company Decedent Binh Phan

for Decedent Binh Phan*‡ (by Vui Nguyen,

MS Contracting, LLC Shaun Phan, Song

Ngoc Pham; Dung Pham‡; Ngoan Pham‡; Phan, Thi Phan, and

Vy Pham‡; Thinh Mai‡; Thanh Le‡; A.P. ‡, Tiffannie M. Kennedy, Bang Phan)

by and through Shaun Phan‡; A.M. ‡, by as Defendant Ad

and through Thinh Mai‡; and A.M. ‡, by Litem for Decedent Negligence (by Vui

and through Thinh Mai‡, individually Billy Dean Barton II Nguyen, Shaun Phan,

Ngoc Pham, Andrea

Song Phan*, Thi Phan*, and Bang Phan*, Phan, Dung Pham,

as Class I Beneficiaries of Decedent Binh Ngoan Pham, Thanh

Phan*‡ Le, Vy Pham, Thinh

Mai, A.M., and A.M.)

Shaun Phan‡, as Next Friend of A.P. ‡

Thinh Mai‡, as Next Friend of A.M. ‡ and

A.M. ‡

22CH-CC00024 Daniel Holsapple* and David Towers*, BNSF Railway Negligence

individually and on behalf of all wrongful Company

death beneficiaries of Kim Holsapple*,

deceased MS Contracting, LLC

Angelika Salazar, individually and as Billy Dean Barton II,

Next Friend of N.N. ‡ deceased, by

Defendant Ad Litem

N.N. ‡, by and through Angelika Salazar Wally Bley

22CH-CC00026 Allen Gallaway‡, Noel Lucero, Sherri BNSF Railway Negligence

Schwanz, and Kimberly Howard Company

MS Contracting, LLC

Michael Sattman

22CH-CC00029 Estevan Carreon, Jane Carreon‡, Tami BNSF Railway Negligence

Lakey, Matthew Campagna*, and A.L. ‡, Company

by and through Tami Lakey

MS Contracting, LLC

Michael Sattman

22CH-CC00038 Ruth Sanborn‡ BNSF Railway Negligence

Company

MS Contracting, LLC

Michael Sattman

23CH-CC00004 Laura Rojas‡ BNSF Railway Negligence

Company

MS Contracting, LLC

Billy Dean Barton II,

deceased, by

Defendant Ad Litem

Joseph Hoffman

23CH-CC00014 Deborah Wynne BNSF Railway Negligence

Company

MS Contracting, LLC

Michael Sattman

* Not a defendant in this action

† Not a passenger

‡ Ticket purchased by another

(ECF No. 102 at ¶¶ 55, 67-120).3

BNSF filed this federal action on September 20, 2022. (ECF No. 1). Six days later, the

Court entered an order directing BNSF to file an amended complaint alleging additional facts

relating to the citizenship of all parties. (ECF No. 8). BNSF filed its First Amended Complaint on

October 3, 2022. (ECF No. 9). After reviewing the parties’ briefings on several motions to dismiss,

the Court issued an Order Concerning Jurisdiction on July 17, 2023. (ECF No. 98). The Order

directed Plaintiff to file another amended complaint further clarifying the Court’s jurisdiction over

this matter. Id. BNSF filed its Second Amended Complaint on August 18, 2023. (ECF No. 102).

It its Second Amended Complaint, BNSF asserts that Defendants’ state-law claims are

subject to a valid and binding arbitration agreement. (ECF No. 102 at ¶ 1). BNSF seeks an order

3 In addition to relying upon BNSF’s Second Amended Complaint, the Court considered

information from Case.net, Missouri’s online case management system. The Court takes judicial

notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining that

district court may take judicial notice of public state records); Stutzka v. McCarville, 420 F.3d 757,

760 n.2 (8th Cir. 2005) (stating that courts “may take judicial notice of judicial opinions and public

records.”).

from this Court compelling arbitration of Defendants’ claims under the Federal Arbitration Act, 9

U.S.C. § 4. Id. BNSF also asks this Court to enjoin Defendants from pursuing their state-court

actions against BNSF pending arbitration. Id.

Defendants have filed six motions to dismiss:

Docket Defendant(s) Asserted Grounds for Attachments

No. Dismissal

109 Pauline Magin, Angelika - The arbitration agreement - Several declarations and

Salazar, and N.N., a Minor is unconstitutional affidavits regarding

by and through his Next - Even if valid, the passenger status and ticket

Friend, Angelika Salazar agreement does not apply purchase

to all defendants - Email from BNSF’s

- Even if valid, BNSF has counsel to Defendants’

waived arbitration counsel regarding

- Lack of subject-matter arbitration

jurisdiction

111 Tiffany Powers, Nick Cook, - The arbitration agreement - Several declarations and

Pauline Magin and Brandon is unconstitutional affidavits regarding

Beggs as wrongful death - Even if valid, the passenger status and ticket

heirs of Rachelle Cook; and agreement does not apply purchase

Tiffany Powers, Pauline to all defendants - Email from BNSF’s

Magin, William Magin, and - Even if valid, BNSF has counsel to Defendants’

Brent Powers individually waived arbitration counsel regarding

- Lack of subject-matter arbitration

jurisdiction - State-court order

appointing steering

committee

- State-court order denying

motion to stay

113 Defendants Estevan - The arbitration agreement None

Carreon, Jane Carreon, is unconstitutional

Allen Gallaway, Kimberly - Even if valid, the

Howard, Noel Lucero, agreement does not apply

Sherri Schwanz, Tami to all defendants

Lakey, A.L., a minor by and - Even if valid, BNSF has

through her Next Friend, waived arbitration

Tami Lakey - Lack of subject-matter

jurisdiction

115 Shaun Phan and Vui - The arbitration agreement - Email from BNSF’s

Nguyen, on behalf of is unconstitutional counsel to Defendants’

wrongful death - Even if valid, the counsel regarding

beneficiaries for the death agreement does not apply arbitration

of Binh Phan, deceased; to all defendants

Shaun Phan, individually - Even if valid, BNSF has

and as Next Friend of A.P., waived arbitration

a minor; A.P., a minor, by - Lack of subject-matter

and through her Next jurisdiction

Friend, Shaun Phan; Vui

Nguyen; Ngoc Pham; Dung

Pham; Ngoan Pham; Vy

Pham; Thanh Le; Thinh

Mai, individually and as

Next Friend of A.M. and

A.M., minors; A.M., a

minor, by and through her

Next Friend, Thinh Mai;

and A.M., a minor, by and

through her Next Friend,

Thinh Mai

141 Ruth Sanborn - The arbitration agreement None

is unconstitutional

- Even if valid, the

agreement does not apply

to all defendants

- Even if valid, BNSF has

waived arbitration

- Lack of subject-matter

jurisdiction

146 Laura Rojas - The arbitration agreement - Affidavit of Laura Rojas

is unconstitutional regarding ticket purchase

- Even if valid, the - A copy of BNSF’s First

agreement does not apply Interrogatories to Plaintiff

to all defendants Laura Rojas

- Even if valid, BNSF has

waived arbitration

- Lack of subject-matter

jurisdiction

BNSF argues that the Court must construe Defendants’ motions to dismiss as motions for summary

judgment. The Court has stayed BNSF’s obligation to respond to the motions to dismiss pending

the Court’s consideration of BNSF’s conversion requests. (ECF No. 120).

Legal Standard

Rule 12(d) of the Federal Rules of Civil Procedure states that if a motion under Rule

12(b)(6) or 12(c) presents matters outside the pleadings and the Court does not exclude those

matters, the Court must treat the motion as one for summary judgment. Fed. R. Civ. P. 12(d). With

some exceptions, the Eighth Circuit requires strict compliance with this rule. Brooks v. Midwest

Heart Grp., 655 F.3d 796, 800 (8th Cir. 2011) (citing Country Club Ests., L.L.C. v. Town of Loma

Linda, 213 F.3d 1001, 1005 (8th Cir. 2000)). If the movant and the Court rely on material outside

the pleadings, the opposing party must be given the opportunity to rebut what has become a motion

for summary judgment and all parties must be given notice of the conversion. Id. (cleaned up). The

rule does not, however, prohibit consideration of outside material in motions to dismiss under

12(b)(1) for lack of subject-matter jurisdiction. See Moss v. United States, 895 F.3d 1091, 1097

(8th Cir. 2018); see also Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).4

The Court should not automatically convert a motion under Rule 12(b)(6) into a motion for

summary judgment simply because a party submitted additional information in support of or

against the motion. Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (citing Casazza v.

Kiser, 313 F.3d 414, 417 (8th Cir.2002)). “Though matters outside the pleading may not be

considered in deciding a Rule 12[(b)(6)] motion to dismiss, documents necessarily embraced by

4 Defendants’ motions contain challenges to the Court’s subject-matter jurisdiction under Rule

12(b)(1). Rule 12(d) does not require the Court to convert those portions of Defendants’ motions

to dismiss into motions for summary judgment even if Defendants assert outside material and the

Court relies upon that material. Moss, 895 F.3d at 1097.

the complaint are not matters outside the pleading.” Ashanti v. City of Golden Valley, 666 F.3d

1148, 1151 (8th Cir. 2012) (citation omitted). Documents whose contents are alleged in the

complaint and whose authenticity is unquestioned are necessarily embraced by the pleadings. Id.

at 1151 (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir.2003)). These include

“matters incorporated by reference or integral to the claim, items subject to judicial notice, matters

of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint whose authenticity is unquestioned[.]” Zean v. Fairview Health Servs., 858 F.3d 520,

526 (8th Cir. 2017) (quoting Miller v. Redwood Toxicology Lab'y, Inc., 688 F.3d 928, 931 n.3 (8th

Cir. 2012)). “[T]he contracts upon which [a] claim rests . . . are evidently embraced by the

pleadings.” Gorog, 760 F.3d at 791 (citing Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th

Cir. 2003)) (modification original).

Discussion

It is unclear from BNSF’s “requests” what material it believes triggers Rule 12(d)’s

conversion requirement. In two of its four motions, BNSF simply refers to broad categories of

material—exhibits, memoranda in support, and the motions themselves—without specifying why

any specific document or piece of information constitutes “outside material.” This alone warrants

denial of those motions to convert. See Fed. R. Civ. P. 7 (A motion must “state with particularity

the grounds for seeking the order[.]”); see also E.D.Mo. L.R. 4.01(A) (“Unless otherwise directed

by the Court, the moving party must file with each motion a memorandum in support of the motion,

including any relevant argument and citations to any authorities on which the party relies.”).

The Court will nevertheless address the merits of BNSF’s requests. For this analysis, the

Court will consider Defendants’ motions to dismiss together as they are nearly identical and rely

upon the same supporting material. After careful review, the Court concludes that nearly all of the

material at issue is either embraced by the Second Amended Complaint, subject to judicial notice,

or ascertainable from the public record. To the extent Defendants rely upon any material that is

truly outside the pleadings, the Court will disregard that material in its consideration of the

dismissal motions.

The allegedly outside material at issue here can be split into two categories: (1) declarations

relating to Defendants’ passenger statuses and ticket purchases, and (2) information arising out of

the underlying state-court actions. The Court will address each category in turn.

The information in Defendants’ declarations is embraced by BNSF’s Second Amended

Complaint. (ECF No. 102). In Paragraph 62, BNSF quotes language from the Arbitration

Agreement that embraces customers who purchase their own tickets and customers who receive

tickets from others. Id. at ¶ 62. BNSF also details which defendants purchased their own tickets,

which defendants did not, and which defendants actually boarded the train. Id. at ¶¶ 65-120. The

declarations at issue merely reiterate that information, which is integral to BNSF’s claim and is

incorporated explicitly—or at the very least, by reference—in the Second Amended Complaint.

As for documents from the underlying state-court actions, those items are matters of public

record and are subject to judicial notice. See Levyl, 477 F.3d at 991; Stutzka, 420 F.3d at 760 n.2.

What is more, BNSF explicitly mentions the state-court actions by case number in its Second

Amended Complaint. (ECF No. 102 at ¶ 52). The Court finds, however, that the email from

BNSF’s counsel relating to BNSF’s willingness to forego arbitration under certain circumstances

is not a matter of public record and is not subject to judicial notice. The Court will not consider

that document in its analysis of Defendants’ motions to dismiss.

As evident from the language of Rule 12(d) itself, the Court must convert a motion to

dismiss under Rule 12(b)(6) into a motion for summary judgment only where the movant presents

matters outside the pleadings and the Court does not exclude those matters. Fed. R. Civ. P. 12(d).

If, in its consideration of Defendants’ motions to dismiss, the Court determines that the motions

rely upon matters outside of the pleadings, the Court will simply disregard those materials. See

Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (finding that the district court properly

treated the defendant’s motion as one for dismissal without converting it into a motion for

summary judgment where the district court did not rely upon the parties’ affidavits in dismissing

the plaintiff’s claims); see also Skyberg v. United Food & Com. Workers Int'l Union, AFL-CIO, 5

F.3d 297, 302 n.2 (8th Cir. 1993) (“Although matters outside the pleadings were presented to the

court, Morrell's motion to dismiss was not converted into a summary judgment motion . . . . A

court has wide discretion in electing to consider matters outside the pleadings. We conclude the

district court did not abuse its discretion in failing to do so here.”).

Conclusion

The Court will deny BNSF’s requests to convert Defendants’ motions to dismiss into

motions for summary judgment. (ECF Nos. 117, 128, 147, 148). Nearly all of material at issue is

either embraced by the Second Amended Complaint, subject to judicial notice, or ascertainable

from the public record. To the extent Defendants rely upon material that is truly outside the

pleadings in support their motions to dismiss, the Court will disregard those items.

Accordingly,

IT IS HEREBY ORDERED that BNSF Railway Company’s Request that Defendants’

Motion to Dismiss Second Amended Complaint be Treated as a Motion for Summary Judgment

(ECF No. 117), Request that Defendants’ Motion to Dismiss Second Amended Complaint be

Treated as a Motion for Summary Judgment (ECF No. 128), Motion to Treat Defendant Ruth

Sanborn’s Motion to Dismiss as a Summary Judgment Motion (ECF No. 147), and Motion to Treat

Defendant Laura Rojas’s Motion to Dismiss as a Summary Judgment Motion (ECF No. 148) are

DENIED.

IT IS FURTHER ORDERED that because Defendants’ motions to dismiss are largely

identical, BNSF shall respond to the motions with a single memorandum not exceeding 40 pages

no later than January 3, 2024.

IT IS FINALLY ORDERED that Defendants’ Motion for Judicial Notice is DENIED as

moot. (ECF No. 149).

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

Dated this 4th day of December, 2023.

11