114 F.3d 122 (9th Cir. 1997), 96-35146, Polich v. Burlington Northern, Inc.

Docket Nº:96-35146.
Citation:114 F.3d 122
Party Name:Serv. 3620, 97 Daily Journal D.A.R. 6139 Victor J. POLICH, Paul Warfel, John D. Adams; Richard C. Adams; David B. Amsk, et al., [*] Plaintiffs-Appellants, v. BURLINGTON NORTHERN, INC., and Burlington Northern Railroad Company, Delaware Corporations, Defendants-Appellees.
Case Date:May 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 122

114 F.3d 122 (9th Cir. 1997)

Serv. 3620,

97 Daily Journal D.A.R. 6139

Victor J. POLICH, Paul Warfel, John D. Adams; Richard C.

Adams; David B. Amsk, et al., [*]

Plaintiffs-Appellants,

v.

BURLINGTON NORTHERN, INC., and Burlington Northern Railroad

Company, Delaware Corporations, Defendants-Appellees.

No. 96-35146.

United States Court of Appeals, Ninth Circuit.

May 14, 1997

Submitted Sept. 23, 1996.

Page 123

Alexander Blewett, III, Hoyt & Blewett, Great Falls, MT, for Plaintiffs-Appellants.

Randy J. Cox, Boone, Karlberg & Haddon, Missoula, MT, for Defendants-Appellees.

Appeal from the United States District Court for the District of Montana; Paul G. Hatfield, District Judge, Presiding, No. CV 86-00044-PGH.

Before: WRIGHT, GOODWIN, and NOONAN, Circuit Judges.

PER CURIAM.

This is the second appeal in this litigation which arose out of the closing of railroad facilities in Livingston, Montana, in 1986 and 1987. The district court granted summary judgment in favor of defendants holding that the Interstate Commerce Act preempted plaintiffs' state law statutory claim. We affirm the summary judgment entered following the remand which permitted the plaintiffs to file their third amended complaint.

Our prior opinion set forth most of the relevant facts with respect to mergers in 1970 and 1980 to which Burlington Northern, Inc. was a party, and Burlington Northern, Inc.'s subsequent reorganization as Burlington

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Northern Railroad Company in 1981. See Polich v. Burlington Northern, Inc., 942 F.2d 1467 (9th Cir.1991). In addition to the mergers and reorganization detailed in our first opinion, in 1987 the Burlington Northern sold its Montana southern line to an entity identified as Montana Rail Link. This sale was authorized by the Interstate Commerce Commission. This transaction was not addressed in our earlier opinion.

The only issue on this appeal is whether our prior opinion precluded the defendant railroad from raising the defense of Interstate Commerce Act ("ICA") preemption as against the state law claim made in the third amendment complaint, seeking a remedy under Mont.Code Ann. § 69-14-1002. We said in our prior opinion that the claims then before the district court, and before this court on appeal, were preempted by the terms of collective bargaining agreements pursuant to the Railway Labor...

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