KOREY AARSTAD V. BNSF RAILWAY COMPANY, No. 19-35305 (9th Cir. 2019)

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FILED NOT FOR PUBLICATION MAY 24 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT KOREY AARSTAD; et al., Plaintiffs-Appellees, No. U.S. COURT OF APPEALS 19-35305 D.C. No. 4:17-cv-00072-BMM-JTJ v. BNSF RAILWAY COMPANY, a Delaware corporation; JOHN SWING, MEMORANDUM * Defendants-Appellants. Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Argued and Submitted May 16, 2019 Portland, Oregon Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges. Neither the magistrate judge nor the district court has addressed whether the “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred” in Montana. 28 U.S.C. § 1332(d)(4)(A)(i)(III). Because we do not typically make such determinations in the first instance, we vacate the district court’s order remanding the case to Montana state court, and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 2 remand to the district court to consider this issue in the first instance. We express no opinion regarding the merits of any other issues raised by the parties on appeal before this court. VACATED and REMANDED. The Appellees’ motion for judicial notice is DENIED. Each party shall bear their own costs.

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