Central Montana Rail v. Bnsf Railway Company , 422 F. App'x 636 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CENTRAL MONTANA RAIL, a Montana No. 10-35439
Corporation, individually, and as full
assignee of the State of Montana, of all D.C. No. 4:05-cv-00116-RKS
jurisdictional and substantive legal rights
the State of Montana possesses against
BNSF Railway Company in this case, MEMORANDUM *
Plaintiff - Appellant,
v.
BNSF RAILWAY COMPANY, BNSF
Railway Company formerly known as The
Burlington Northern and Santa Fe Railway
Company, a Delaware Corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Keith Strong, Magistrate Judge, Presiding
Argued and Submitted March 11, 2011
Seattle, Washington
Before: FISHER, GOULD, and TALLMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Central Montana Rail, Inc. (“CMR”), individually and as former assignee of
the State of Montana, appeals the district court’s confirmation of an arbitration
award, denial of CMR’s motion to dismiss without prejudice, and award of
summary judgment in favor of BNSF Railway Company (“BNSF”). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.1
1. The Federal Arbitration Act (“FAA”) provides that “a court ‘must’
confirm an arbitration award ‘unless’ it is vacated, modified, or corrected ‘as
prescribed’” by the FAA. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,
582 (2008) (quoting 9 U.S.C. § 9). Vacatur is available “where the arbitrators
exceeded their powers, or so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not made.” 9 U.S.C. §
10(a)(4). Here, the conditions for vacatur are not met, and the district court
properly confirmed the award. The arbitrators did not act outside of their scope of
authority, as the award was limited to answering the questions submitted for
arbitration. See Mich. Mut. Ins. Co. v. Unigard Sec. Ins. Co., 44 F.3d 826, 830 (9th
Cir. 1995) (stating that an award may be overturned “[w]hen arbitrators rule on a
matter not submitted to them”). CMR has not contested the propriety of having
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Because the facts are known to the parties, we repeat them only as
necessary to explain our decision.
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those questions submitted before the arbitrators by appealing the district court’s
order compelling arbitration. Nor is it “clear from the record that the arbitrators
recognized the applicable law and then ignored it,” as is required to vacate an
award for manifest disregard of the law. Id. at 832. Given the “limited and highly
deferential” review of arbitration awards, PowerAgent Inc. v. Elec. Data Sys.
Corp., 358 F.3d 1187, 1193 (9th Cir. 2004) (internal quotation marks omitted),
CMR’s “mere allegations of error are insufficient” to merit vacating the award,
Collins v. D.R. Horton, Inc., 505 F.3d 874, 879 (9th Cir. 2007) (internal quotation
marks deleted).
2. When ruling on a motion to dismiss without prejudice brought
pursuant to Federal Rule of Civil Procedure 41(a)(2), “the district court must
determine whether the defendant will suffer some plain legal prejudice as a result
of the dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th
Cir. 1996); see Fed. R. Civ. P. 41(a)(2). Here, the district court considered
permissible factors in assessing prejudice and denying CMR’s Rule 41(a)(2)
motion. The district court noted that, if it had dismissed the action without
prejudice, BNSF could face litigation in state court of a claim that had reached the
summary judgment stage in federal court, after almost four years of litigation.
CMR has given no explanation for why it delayed so long in requesting voluntary
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dismissal. Cf. Westlands Water Dist., 100 F.3d at 97 (finding lack of legal
prejudice where plaintiffs filed a motion for voluntary dismissal within a month of
failing to obtain a preliminary injunction and before defendants filed motions for
summary judgment). BNSF would also be denied a federal forum were the motion
granted. See id. (“[I]n determining what will amount to legal prejudice, courts
have examined whether a dismissal without prejudice would result in the loss of a
federal forum[.]”). The district court’s conclusion that the Rule 41(a)(2) motion
was motivated by forum shopping has support in the circumstances here. See Kern
Oil & Refining Co. v. Tenneco Oil Co., 792 F.2d 1380, 1389–90 (9th Cir. 1986)
(upholding a finding of forum shopping where plaintiff sought dismissal without
prejudice of a claim in order to have it heard before a different court). Because the
district court’s assessment of legal prejudice and its denial of CMR’s Rule 41(a)(2)
motion for voluntary dismissal were not based on an erroneous view of the law or a
clearly erroneous assessment of the facts, the court did not abuse its discretion. See
Westlands Water Dist., 100 F.3d at 96.
3. The district court properly granted summary judgment, which CMR
failed to oppose, after concluding that (1) CMR cannot recover damages under the
Settlement Agreement because that agreement’s express terms forbid third parties
from recovering and (2) the State’s alleged highway damages are not recoverable
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under Montana law governing contractual breach. CMR does not challenge these
conclusions or the legal analysis supporting them. Instead, CMR points to a series
of purportedly incorrectly determined facts on which it claims the district court
based its decision. The district court’s award of summary judgment, however, did
not turn on any of the purported facts that CMR cites as disputed or erroneously
decided. CMR, acting on its own behalf and as assignee of the State of Montana
throughout the bulk of the litigation, has not appealed the district court’s order
compelling arbitration, and CMR does not articulate what other damages would be
available beyond those the district court held unavailable as a matter of law.
Because there are no genuine issues of material fact precluding judgment as a
matter of law, the district court’s grant of summary judgment was correct. See
Fed. R. Civ. P. 56(c).
AFFIRMED.
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