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Braaten v. BNSF Railway Co.

United States District Court, D. Montana, Great Falls Division

February 1, 2018

KENNETH BRAATEN, as Personal Representative for the Estate of RHONDA R, BRAATEN, deceased, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation; JOHN SWING; ROBINSON INSULATION COMPANY, a Montana Corporation for profit; and DOES A-Z, Defendants.



         Plaintiff Kenneth Braaten (Braaten) originally filed suit in the Montana Eighth Judicial District of Cascade County. (Doc. 3.) Defendant BNSF Railway Co. ("BNSF") removed the case to this Court on diversity of citizenship grounds. BNSF alleges that complete diversity exists as Braaten fraudulently joined John Swing as a defendant. Braaten filed a Motion to Remand. (Doc. 13.)

         United States Magistrate Judge John Johnston conducted a hearing in this matter on November 1, 2017. (Doc. 36.) Judge Johnston entered Findings and Recommendations on January 3, 2018. (Doc. 42.) The Court granted BNSF and Swing until January 24, 2018 to file any objections to Judge Johnston's Findings and Recommendations. (Doc. 44.) BNSF and Swing timely filed an objection on January 24, 2017.[1] (Doc. 45.) The Court reviews de novo Findings and Recommendations to which a party timely objects. 28 U.S.C. § 636(b)(1). The Court reviews for clear error those portions of Judge Johnston's Findings and Recommendations to which the parties did not specifically object. McDonnell Douglas Corp. v. Commodore Bus. Mack, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         This matter stems from Braaten's alleged exposure to asbestos in Libby, Montana. (Doc. 4 at 2.) The Court can exercise subject matter jurisdiction over a state law claim only when the amount-in-controversy exceeds $75, 000.00, and complete diversity exists between the parties. Complete diversity requires that no party be a citizen of the same state as another party. 28 U.S.C. §§ 1332(a), 1441(b). The action may not be removed if any properly joined and served defendant remains "a citizen of the State in which the action is brought" ("forum defendant rule"). 28 U.S.C. § 1441(b)(2).

         Judge Johnston determined that BNSF exists as a citizen of Delaware and Texas. (Doc. 42 at 3.) Braaten is a citizen of Montana. Id. at 4. Swing, the managing agent for BNSF, remains a citizen of Montana. Id. BNSF argues that Swing should not be considered a "viable defendant." (Doc. 1 at 2.) The presence of Swing and his corresponding Montana citizenship requires, however, remand to Montana state court pursuant to diversity jurisdiction and the forum defendant rule. (Doc. 42 at 7.)

         BNSF and Swing raise four objections to Judge Johnston's findings and recommendations. BNSF and Swing argue that Judge Johnston failed to analyze properly the following issues: 1) that Swing cannot be held personally liable in this case because Braaten did not allege any specific facts or claims against Swing in the Complaint; 2) that Swing's actions were not independently tortious in nature; 3) that even if the allegations in the Complaint were sufficient, piercing the pleadings reveals a lack of genuine dispute that Swing served merely as a manager of depot clerks and did not play a role in the alleged negligence; and 4) that Swing does not owe a legal duty to protect the public from the acts of others. (Doc. 45 at 3.)

         I. Allegations in Complaint

         BNSF and Swing argue that the only reference to Swing in the Complaint constitutes a two-sentence allegation regarding his role at BNSF. Id. at 6. BNSF and Swing argue this allegation does not constitute a sufficient pleading as Braaten has not shown that he possesses an entitlement to relief against Swing. The Court disagrees.

         Braaten's Complaint alleges all the same conduct against Swing as Braaten alleges against BNSF, by incorporation of reference. The Complaint alleges negligence by Swing personally for failing to inquire, study, and evaluate the dust hazard to human health. The Complaint alleges that Swing negligently failed to take measures to prevent toxic dust from collecting upon and escaping BNSF's property. Finally, the Complaint alleges that Swing negligently failed to warn Braaten of the true nature of the hazardous effects of the dust.

         II. Independently Tortious Conduct

         BNSF and Swing argue that Braaten fraudulently joined Swing. This fraudulent joinder, according to BNSF and Swing, requires this Court to ignore Swing's presence in the action under application of the forum defendant rule. A corporate agent under Montana law may be held personally liable if the agent can be deemed personally negligent, or if the agent's actions can be deemed tortious in nature. Crystal Springs Trout Co. v. First State Bank of Froid, 732 P.2d 819, 823 (Mont. 1987) (citations omitted). Judge Johnston determined that the Montana Supreme Court has allowed an employee to be named as a defendant when the allegations exist against the employee personally. (Doc. 42 at 5.)

         BNSF and Swing argue that any alleged negligence committed by Swing occurred within the course and the scope of his employment. Id. BNSF and Swing argue that Swing cannot be held personally liable for conduct occurring within the course and scope of his employment, (Doc. 45 at 5.) Judge Johnston determined that courts within this District have deemed it sufficient to hold the agent personally liable if the agent either ignored warnings, or participated in the principal's tortious conduct. See Castro v. ExxonMobil Oil Corp., 2012 WL 523635 at 3 (D. Mont. 2012); Staley v. BNSF Railway Co. & Lynn Ludwig, 2015 WL 860802 (D.Mont. 2015).

         BNSF and Swing attempt to distinguish Castro and Staley based on the defendant's knowledge in each case. This distinction proves unpersuasive. Braaten alleges in his Complaint that Swing acted as the managing agent for BNSF in Libby, Montana, and as "such is separately responsible for acts wrongful in this nature."

         III. ...

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