# BNSF Railway Company v. Magin

> District Court, E.D. Missouri · December 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10239590

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** December 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239590

## How later opinions describe it (automated extraction)

- 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
- stating that courts “may take judicial notice of judicial opinions and public records.”
- explaining that district court may take judicial notice of public state records

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239590. Public record. Not legal advice.