Boyer v. BNSF Ry. Co.

The Seventh Circuit held, in Irish v. BNSF (2012), that the plaintiffs, injured by a 2007 flood in Bagley, Wisconsin, had forfeited an argument concerning the scope of Wis. Stat. 88.87. The statute concerns liability for negligent design and maintenance of a railroad grade that causes an obstruction to a waterway or drainage course. Plaintiffs’ counsel assembled a new group of plaintiffs and refiled the same litigation in Arkansas state court to pursue that argument. The new suit was removed and transferred to the Western District of Wisconsin, which dismissed it for failure to state a claim. The defendant asked the court to sanction plaintiffs’ counsel under FRCP 11 or 28 U.S.C. 1927 for pursuing frivolous claims and engaging in abusive litigation tactics. The court denied that request, reasoning that although the claims were all but foreclosed by the decision in Irish, they were not frivolous. The Seventh Circuit affirmed the dismissal of the complaint but reversed the denial of sanctions. The record indicated that counsel unreasonably and vexatiously multiplied the proceedings by filing suit in Arkansas, which had no connection to the case. Pursuant to section 1927, the defendant is entitled to its fees and costs for removing the case and successfully seeking its transfer. View "Boyer v. BNSF Ry. Co." on Justia Law