AARSTAD v. BNSF RAILWAY COMPANY (2019)

United States Court of Appeals, Ninth Circuit.

Korey AARSTAD; et al., Plaintiffs-Appellees, v. BNSF RAILWAY COMPANY, a Delaware corporation; John Swing, Defendants-Appellants.

No. 19-35305

Decided: May 24, 2019

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

Allan M. McGarvey, Attorney, Roger Sullivan, McGarvey, Heberling, Sullivan & Lacey, P.C., Kalispell, MT, for Plaintiffs-Appellees Chad Knight, Nadia H. Patrick, Knight Nicastro, LLC, Boulder, CO, for Defendants-Appellants

MEMORANDUM *

Neither the magistrate judge nor the district court has addressed whether the “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred” in Montana. 28 U.S.C. § 1332(d)(4)(A)(i)(III). Because we do not typically make such determinations in the first instance, we vacate the district court's order remanding the case to Montana state court, and remand to the district court to consider this issue in the first instance. We express no opinion regarding the merits of any other issues raised by the parties on appeal before this court.

VACATED and REMANDED.

The Appellees’ motion for judicial notice is DENIED. Each party shall bear their own costs.

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