Free Appeal Document - District Court of Arizona - Arizona

A-11 (rev. 7/00)

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USCA DOCKET # (IF KNOWN)

UNITED STATES COURT OF APPEALS FO R TH E NINTH CIRCUIT CIVIL APPEALS DOCKETING STATEMENT
PLEASE ATTACH ADDITIONAL PAGES IF NECESSARY. TITLE IN FULL: DISTRICT:

Steven Schrum, v. The Burlington Northern Santa Fe Railway Company, v. Chemical Lime Company of Arizona, a corporation; ABC Corporations, I-IV fictitious corporations.

Arizona

JUDGE:

Robert C. Broomfield

DISTRICT COURT NUM BER: DATE N OTICE OF AP PEAL FILE D: 06/22/07

04 CV 619

No
IS THIS A CROSS-APPEAL?

9 YES

IF THIS MATTER HAS BEEN BEFORE THIS COURT PREVIOUSLY, PLEA SE PR OV IDE TH E D OC KE T N UM BE R AND CIT AT ION (IF ANY ):

06-16135(L), 06-16169

FELA claim under 45 U.S.C. §§ 51 et seq. filed by BNSF B RIE F D ES CR IP TIO N OF NA TU RE OF AC TIO N AN D R ES UL T B EL OW : employee Steve Schrum alleging asthma caused by exposure to lime/coal dust at Chemical Lime Company of Arizona. BNSF joined Chemical Lime, alleging right to indemnity and duty to defend. Trial Court granted summary judgment for BNSF and Chemical Lime against employee. Cross motions for summary judgment were denied as moot. Employee appealed and BNSF cross-appealed on indemnity issue. Thereafter, BNSF's pending Motion to Reconsider the Indemnity Issue was granted, the Court finding BNSF entitled to indemnity. Chemical Lime appeals order granting Motion for Reconsideration and Granting Summary Judgment for BNSF on issue of indemnity and duty to defend.

PRINCIPAL ISSUES PROPO SED TO BE RAISED ON A PPEAL: Appeal from US District Court dated 05/23/07 granting BNSF's Motion for Reconsideration, granting BNSF summary judgment on indemnity claim finding that Chemical Lime owed a duty to defend under a 1991 Contract for Industry Track Agreement. The issue is whether the rights under the 1991 Contract were properly assigned and consented to by the Atchison, Topeka Kansas Railroad to give BNSF rights under the contract, and if so, whether Chemical Lime owed BNSF a duty to defend under the 1991 Contract. PLEASE IDENTIFY ANY OTHER LEGAL PROCEEDING THAT MAY HAVE A BEARING ON THIS CASE (INCLUDE PEN DING DISTR ICT C OU RT P OST JUD GM ENT M OT ION S): Pending 9th Circuit Appeals - BNSF's Responsive Brief and Opening Brief on Cross-Appeal dated 01/11/07; Responsive Brief of Appellee Chemical Lime Company to BNSF's Opening Brief on Cross-Appeal and Joinder in BNSF's Responsive Brief.

DOES THIS APPEAL INVOLVE ANY OF THE FOLLOWING:

X 9 9 9

Possibility of settlement Likelihood that intervening precedent will control outcome of appeal Likelihood of a motion to expedite or to stay the appeal, or other procedural matters (Specify) Any other information relevant to the inclusion of this case in the Mediation Program

9

X 9
Possibility parties would stipulate to binding award by Appellate Commissioner in lieu of submission to judges LOWER COURT INFORMATION Case 2:04-cv-00619-RCB Document 136 Filed 06/22/2007 Page 1 of 2

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JURISDICTION FEDERAL APPELLATE DISTRICT COURT DISPOSITION TYPE OF JUDGMENT/ORDER APPEALED RELIEF

X 9

FEDERAL QUESTION

X 9

FINAL DECISION OF DISTRICT COURT

9 9

DIVERSITY

9 9

OTHER (SPECIFY):

INTERLOCUTORY DECISION APPEALABLE AS OF RIGHT

INTERLOCUTORY ORDER CERTIFIED BY DISTRICT JUDGE (SPECIFY):

9

OTHER (SPECIFY):

9 9 9 X 9 9 9 9 9 9

DEFAULT JUDGMENT DISMISSAL/JURISDICTION DISMISSAL/MERITS SUMMARY JUDGMENT JUDGMENT/COURT DECISION JUDGMENT/JURY VERDICT DECLARATORY JUDGMENT JUDGMENT AS A MATTER OF LAW OTHER (SPECIFY):

9 9 9 9 9 X 9 9 9 9

DAMAGES: SOUGHT $ AWARDED $ INJUNCTIONS: PRELIMINARY PERMANENT GRANTED DENIED

ATTORNEY FEES: SOUGHT $ AWARDED $ PENDING COSTS: $

CERTIFICATION OF COUNSEL
I CERTIFY THAT: 1. COPIES OF ORDER/JUDGMENT APPEALED FROM ARE ATTACHED. 2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS ATTACHED (SEE 9TH CIR. RULE 3-2). A COPY OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25. I UNDERSTAND THAT FAILURE TO COMPLY WITH THESE FILING REQUIREMENTS MAY RESULT IN SANCTIONS, INCLUDING DISMISSAL OF THIS APPEAL.

3. 4.

/s/ Charles D. Onofry
Signature

06/22/07
Date

COUNSEL WHO COMPLETED THIS FORM
NAME: FIRM:

Charles D. Onofry
Schneider & Onofry, P.C.
North Central Avenue, Suite 600, Phoenix, AZ 85012

ADDRESS: 3101 E-MAIL:

[email protected] (602) 200-1280 (602) 230-8985

TELEPHONE: FAX:

xTHIS DOCUMENT SHOULD BE FILED IN THE DISTRICT COURT WITH THE NOTICE OF APPEALx xIF FILED LATE, IT SHOULD BE FILED DIRECTLY WITH THE U.S. COURT OF APPEALSx

Case 2:04-cv-00619-RCB

Document 136

Filed 06/22/2007

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