-JCL Schmidt v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY et al, No. 9:2006cv00193 - Document 110 (D. Mont. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 97 Motion for Summary Judgment filed by BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, 108 Findings and Recommendations. IT IS FURTHER ORDERED that Defendants' Renewed Motion for Summary Judgment is DENIED. Signed by Judge Donald W. Molloy on 1/26/2011. (APP, )
Download PDF
-JCL Schmidt v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY et al Doc. 110 FILED JAN 26 2011 PATRICK E. DUFFY, CLERK By nioeSiipiirury;:V;::;;Clii;eruRK;­:,Mt:7.':S::­=S=OUl.A"""­"- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION JOHN SCHMIDT, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; WESTERN FRUIT EXPRESS, INC., Defendants. CV 06-193-M-DWM-JCL ORDER ---------------------------) Defendants filed a renewed motion for summary judgment in this FELA case after it was remanded by the Ninth Circuit. United States Magistrate Judge Jeremiah Lynch entered Findings and Recommendation (dkt #108) in this case on January 7, 2011. Judge Lynch recommended the motion be denied, after determining the elements ofjudicial estoppel are not satisfied, and there is a 1 Dockets.Justia.com genuine issue of material fact as to whether Burlington Northern was Plaintiff John Schmidt's employer. The parties did not timely object and so have waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). This Court reviews the Findings and Recommendation for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,1313 (9th Cir. 1981). Clear error exists if the Court is left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). I find no clear error with Judge Lynch's Findings and Recommendation. IT IS HEREBY ORDERED that the Findings and Recommendation (dkt #108) are adopted in full; IT IS FURTHER ORDERED that Defendants' Renewed Motion for Summary Judgment (dkt #97) is DENIED. Dated this v day of January, 2011. United States (, 2 loy, District Judge .strict Court