Abbott v. BNSF Railway Company, No. 3:2013cv00353 - Document 132 (S.D. Tex. 2016)
Court Description: OPINION AND ORDER granting 126 Opposed MOTION to Compel Plaintiff to Designate all Testimony and Exhibits from Trial by BNSF Railway Company.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)
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Abbott v. BNSF Railway Company Doc. 132 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT April 26, 2016 David J. Bradley, Clerk FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION KLAY ABBOTT V. BNSF RAILWAY COMPANY § § § § § CIVIL ACTION NO. G-13-353 OPINION AND ORDER Before the Court is “BNSF Railway Company’s Opposed Motion to Compel Plaintiff (Klay Abbott) to Designate all Testimony and Exhibits from Trial” as the transcript for his appeal. Abbott argues that the trial witnesses’ testimony and the exhibits are not necessary to address his claim that the Court failed to submit instructions and a verdict form for a claim of retaliation for following his doctor’s treatment plan for Abbott’s on the job injury. As the Court recalls, it refused such submissions, in part, because no such claim was pleaded in Abbott’s complaint which read, in pertinent part, “Defendant has violated the retaliatory provisions of 49 U.S.C. section 20109 by filing disciplinary charges then terminating Plaintiff in retaliation for reporting an on the job injury.” (emphasis added). Consequently, if Abbott intends to show or argue that the claim was tried by express or implied consent, pursuant to Rule 15(b)(2), the transcript of the trial testimony and the exhibits will be required to determine if sufficient evidence was presented to justify submission of the claim to the jury. See, Burull v. First National Bank of Minneapolis, Dockets.Justia.com 817 F.2d 56, 57-58 (8th Cir. 1987) (citing, McDonough Marine Service, Inc. v. M/V ROYAL STREET, 608 F.2d 203, 204 (5th Cir. 1979). The Court is aware of Abbott’s poor financial condition and the impediment this ruling creates to his appeal, but it is Abbott’s burden to provide an adequate transcript and financial hardship will not excuse him from doing so. Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990). This Court agrees with BNSF that the transcripts are necessary and it is, therefore, ORDERED that BNSF’s Motion to Compel (Instrument no. 126) is GRANTED. DONE at Galveston, Texas, this 26th 2 day of April, 2016.
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