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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

BNSF RAILWAY COMPANY,

Plaintiff,

PAULINE MAGIN, et al.,

Defendants.
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No. 2:22-CV-68 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff BNSF Railway Company’s requests to construe
all pending motions to dismiss as motions for summary judgment. (ECF Nos. 117, 128, 147, 148).1
Defendants oppose BNSF’s requests. (ECF Nos. 126, 127, 129, 133, 134, 152). For the reasons
below, the Court will not construe Defendants’ motions to dismiss as motions for summary
judgment.

1 BNSF appears to use the term “request” and “motion” interchangeably:
• ECF No. 117 – BNSF Railway Company’s Request that Defendants’ Motion to Dismiss
Second Amended Complaint be Treated as a Motion for Summary Judgment (addressing
the Motion to Dismiss by Defendants Pauline Magin, Angelika Salazar, and N.N., a minor
by and through his Next Friend, Angelika Salazar at ECF No. 109).
• ECF No. 128 – BNSF Railway Company’s Request that Defendants’ Motion to Dismiss
Second Amended Complaint be Treated as a Motion for Summary Judgment (addressing
the Motions to Dismiss by Defendants Estevan Carreon, Jane Carreon, Allen Gallaway,
Kimberly Howard, Tami Lakey, minor A.L., Noel Lucero, Sherri Schwanz and Shaun Phan,
Vui Nguyen, minor A.P., Ngoc Pham, Dung Pham, Ngoan Ph am, Vy Pham, Thanh Le,
Thinh Mai, minors A.M. and A.M. at ECF Nos. 113 and 115).
• ECF No. 147 – BNSF Railway Company’s Motion to Treat Defendant Ruth Sanborn’s
Motion to Dismiss as a Summary Judgment Motion (addressing the Motion to Dismiss by
Ruth Sanborn at ECF No. 141).
• ECF No. 148 – BNSF Railway Company’s Motion to Treat Defendant Laura Rojas’s
Motion to Dismiss as a Summary Judgment Motion (addressing the Motion to Dismiss by
Laura Rojas at ECF No. 146).
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Background
On June 27, 2022, Defendants Kim Holsapple, Angelik a Salazar, N.N., Rachelle Cook,
Tiffany Powers, Pauline Magin, Binh Phan, Shaun Phan, A.P, Vui Nguyen, Ngoc Pham, Dung
Pham, Ngoan Pham, Vy Pham, Thanh Le, Thinh Mai, A.M., A.M., Estevan Carreon, Jane Carreon,
Tami Lakey, A.L, Allen Gallaway, Noel Lucero, Sherri Schwanz, Kimberly Howard, Ruth
Sanborn, Laura Rojas, and Deborah Wynne were traveling as passengers on National Railroad
Passenger Corporation (“Amtrak”) Train 4, commonly known as the Southwest Chief. (ECF No.
102 at ¶ 55). The train was traveling from Los Angeles to Chicago when it struck a dump truck at
U.S. Department o f Transportation Crossing No. 005284Y near Mendon, Missouri. Id. at ¶ 56.
The collision caused the train to derail. Id. Thereafter, several impacted passengers filed state -
court actions alleging negligence and wrongful death against track owner BNSF Railway
Company. As relevant here, those actions include: 2
Case Number

Plaintiffs Defendants Claims Against
BNSF
22CH-CC00021

Pauline Magin‡, Nick Cook*, Tiffany
Powers‡, and Brandon Beggs*, as heirs of
deceased Rachelle Cook*‡

Pauline Magin‡, William Magin†, Brent
Powers†, and Tiffany Powers‡,
individually

BNSF Railway
Company

MS Contracting, LLC

Mariano Rodriguez
Wrongful Death of
Decedent Rachelle
Cook (by Pauline
Magin, Nick Cook,
Tiffany Powers, and
Brandon Beggs)

Negligence (by
Tiffany Powers and
Pauline Magin)

Loss of Spousal
Consortium (by Brent
Powers and William
Magin)

2 All actions are currently pending in the Circuit Court of Chariton County, Missouri.
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22CH-CC00022 Shaun Phan‡ and Vui Nguyen‡,
individually and as Class I Beneficiaries
for Decedent Binh Phan*‡

Ngoc Pham; Dung Pham‡; Ngoan Pham‡;
Vy Pham‡; Thinh Mai‡; Thanh Le‡; A.P. ‡,
by and through Shaun Phan‡; A.M. ‡, by
and through Thinh Mai‡; and A.M. ‡, by
and through Thinh Mai‡, individually

Song Phan*, Thi Phan*, and Bang Phan*,
as Class I Beneficiaries of Decedent Binh
Phan*‡

Shaun Phan‡, as Next Friend of A.P. ‡

Thinh Mai‡, as Next Friend of A.M. ‡ and
A.M. ‡

BNSF Railway
Company

MS Contracting, LLC

Tiffannie M. Kennedy,
as Defendant Ad
Litem for Decedent
Billy Dean Barton II
Wrongful Death of
Decedent Binh Phan
(by Vui Nguyen,
Shaun Phan, Song
Phan, Thi Phan, and
Bang Phan)

Negligence (by Vui
Nguyen, Shaun Phan,
Ngoc Pham, Andrea
Phan, Dung Pham,
Ngoan Pham, Thanh
Le, Vy Pham, Thinh
Mai, A.M., and A.M.)
22CH-CC00024 Daniel Holsapple* and David Towers*,
individually and on behalf of all wrongful
death beneficiaries of Kim Holsapple*,
deceased

Angelika Salazar, individually and as
Next Friend of N.N. ‡

N.N. ‡, by and through Angelika Salazar

BNSF Railway
Company

MS Contracting, LLC

Billy Dean Barton II,
deceased, by
Defendant Ad Litem
Wally Bley

Negligence

22CH-CC00026 Allen Gallaway‡, Noel Lucero, Sherri
Schwanz, and Kimberly Howard

BNSF Railway
Company

MS Contracting, LLC

Michael Sattman

Negligence
22CH-CC00029 Estevan Carreon, Jane Carreon‡, Tami
Lakey, Matthew Campagna*, and A.L. ‡,
by and through Tami Lakey

BNSF Railway
Company

MS Contracting, LLC

Michael Sattman

Negligence
22CH-CC00038 Ruth Sanborn‡

BNSF Railway
Company

MS Contracting, LLC

Michael Sattman

Negligence
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23CH-CC00004 Laura Rojas‡

BNSF Railway
Company

MS Contracting, LLC

Billy Dean Barton II,
deceased, by
Defendant Ad Litem
Joseph Hoffman

Negligence
23CH-CC00014 Deborah Wynne

BNSF Railway
Company

MS Contracting, LLC

Michael Sattman

Negligence
* Not a defendant in this action
† Not a passenger
‡ Ticket purchased by another
(ECF No. 102 at ¶¶ 55, 67-120).3
BNSF filed this federal action on September 20, 2022 . (ECF No. 1). Six days later, the
Court entered an order directing BNSF to file an amended complaint alleging additional facts
relating to the citizenship of all parties. (ECF No. 8). BNSF filed its First Amended Complaint on
October 3, 2022. (ECF No. 9). After reviewing the parties’ briefings on several motions to dismiss,
the Court issued an Order Conce rning Jurisdiction on July 17, 2023. (ECF No. 98). The Order
directed Plaintiff to file another amended complaint further clarifying the Court’s jurisdiction over
this matter. Id. BNSF filed its Second Amended Complaint on August 18, 2023. (ECF No. 102).
It its Second Amended Complaint, BNSF asserts that Defendants’ state-law claims are
subject to a valid and binding arbitration agreement. (ECF No. 102 at ¶ 1). BNSF seeks an order

3 In addition to relying upon BNSF’s Second Amended Complaint, t he Court considered
information from Case.net, Missouri’s online case management system. The Court takes judicial
notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining that
district court may take judicial notice of public state records); Stutzka v. McCarville, 420 F.3d 757,
760 n.2 (8th Cir. 2005) (stating that courts “may take judicial notice of judicial opinions and public
records.”).
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from this Court compelling arbitration of Defendants’ claims under the Federal Arbitration Act, 9
U.S.C. § 4. Id. BNSF also asks this Court to enjoin Defendants from pursuing their state -court
actions against BNSF pending arbitration. Id.
Defendants have filed six motions to dismiss:
Docket
No.
Defendant(s) Asserted Grounds for
Dismissal
Attachments
109 Pauline Magin, Angelika
Salazar, and N.N., a Minor
by and through his Next
Friend, Angelika Salazar

- The arbitration agreement
is unconstitutional
- Even if valid, the
agreement does not apply
to all defendants
- Even if valid, BNSF has
waived arbitration
- Lack of subject-matter
jurisdiction

- Several declarations and
affidavits regarding
passenger status and ticket
purchase
- Email from BNSF’s
counsel to Defendants’
counsel regarding
arbitration
111 Tiffany Powers, Nick Cook,
Pauline Magin and Brandon
Beggs as wrongful death
heirs of Rachelle Cook; and
Tiffany Powers, Pauline
Magin, William Magin, and
Brent Powers individually

- The arbitration agreement
is unconstitutional
- Even if valid, the
agreement does not apply
to all defendants
- Even if valid, BNSF has
waived arbitration
- Lack of subject-matter
jurisdiction
- Several declarations and
affidavits regarding
passenger status and ticket
purchase
- Email from BNSF’s
counsel to Defendants’
counsel regarding
arbitration
- State-court order
appointing steering
committee
- State-court order denying
motion to stay

113 Defendants Estevan
Carreon, Jane Carreon,
Allen Gallaway, Kimberly
Howard, Noel Lucero,
Sherri Schwanz, Tami
Lakey, A.L., a minor by and
through her Next Friend,
Tami Lakey

- The arbitration agreement
is unconstitutional
- Even if valid, the
agreement does not apply
to all defendants
- Even if valid, BNSF has
waived arbitration
- Lack of subject-matter
jurisdiction

None
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115 Shaun Phan and Vui
Nguyen, on behalf of
wrongful death
beneficiaries for the death
of Binh Phan, deceased;
Shaun Phan, individually
and as Next Friend of A.P.,
a minor; A.P., a minor, by
and through her Next
Friend, Shaun Phan; Vui
Nguyen; Ngoc Pham; Dung
Pham; Ngoan Pham; Vy
Pham; Thanh Le; Thinh
Mai, individually and as
Next Friend of A.M. and
A.M., minors; A.M., a
minor, by and through her
Next Friend, Thinh Mai;
and A.M., a minor, by and
through her Next Friend,
Thinh Mai

141 Ruth Sanborn - The arbitration agreement
is unconstitutional
- Even if valid, the
agreement does not apply
to all defendants
- Even if valid, BNSF has
waived arbitration
- Lack of subject-matter
jurisdiction

None
146 Laura Rojas - The arbitration agreement
is unconstitutional
- Even if valid, the
agreement does not apply
to all defendants
- Even if valid, BNSF has
waived arbitration
- Lack of subject-matter
jurisdiction

- Affidavit of Laura Rojas
regarding ticket purchase
- A copy of BNSF’s First
Interrogatories to Plaintiff
Laura Rojas

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BNSF argues that the Court must construe Defendants’ motions to dismiss as motions for summary
judgment. The Court has stayed BNSF’s obligation to respond to the motions to dismiss pending
the Court’s consideration of BNSF’s conversion requests. (ECF No. 120).
Legal Standard
Rule 12(d) of the Federal Rules of Civil Procedure states that if a motion under Rule
12(b)(6) or 12(c) presents matters outside the pleadings and the Court does not exclude those
matters, the Court must treat the motion as one for summary judgment. Fed. R. Civ. P. 12(d). With
some exceptions, the Eighth Circuit requires strict compliance with this rule. Brooks v. Midwest
Heart Grp., 655 F.3d 796, 800 (8th Cir. 2011) (citing Country Club Ests., L.L.C. v. Town of Loma
Linda, 213 F.3d 1001, 1005 (8th Cir. 2000)). If the movant and the Court rely on material outside
the pleadings, the opposing party must be given the opportunity to rebut what has become a motion
for summary judgment and all parties must be given notice of the conversion. Id. (cleaned up). The
rule does not, however, prohibit consideration of outside material in motions to dismiss under
12(b)(1) for lack of subject-matter jurisdiction. See Moss v. United States , 895 F.3d 1091, 1097
(8th Cir. 2018); see also Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).4
The Court should not automatically convert a motion under Rule 12(b)(6) into a motion for
summary judgment simply because a party submitted additional information in support of or
against the motion. Gorog v. Best Buy Co. , 760 F.3d 787, 791 (8th Cir. 2014) (citing Casazza v.
Kiser, 313 F.3d 414, 417 (8th Cir.2002) ). “Though matters outside the pleading may not be
considered in deciding a Rule 12[(b)(6)] motion to dismiss, documents necessarily embraced by

4 Defendants’ motions contain challenges to the Court’s subject -matter jurisdiction under Rule
12(b)(1). Rule 12(d) does not require the Court to convert those portions of Defendants’ motions
to dismiss into motions for summary judgment even if Defendants assert outside material and the
Court relies upon that material. Moss, 895 F.3d at 1097.
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the complaint are not matters outside the pleading.” Ashanti v. City of Golden Valley , 666 F.3d
1148, 1151 (8th Cir. 2012) (citation omitted). Documents whose contents are alleged in the
complaint and whose authenticity is unquestioned are necessarily embraced by the plead ings. Id.
at 1151 (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir.2003)). These include
“matters incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned [.]” Zean v. Fairview Health Servs. , 858 F.3d 520,
526 (8th Cir. 2017) (quoting Miller v. Redwood Toxicology Lab'y, Inc., 688 F.3d 928, 931 n.3 (8th
Cir. 2012) ). “[T]he contracts upon which [a] claim rests . . . are evidently embraced by the
pleadings.” Gorog, 760 F.3d at 791 (citing Mattes v. ABC Plastics, Inc. , 323 F.3d 695, 698 (8th
Cir. 2003)) (modification original).
Discussion
It is unclear from BNSF’s “requests” what material it believes triggers Rule 12(d)’s
conversion requirement. In two of its four motions, BNSF simply refers to broad categories of
material—exhibits, memoranda in support, and the motions themselves—without specifying why
any specific document or piece of information constitutes “outside material.” This alone warrants
denial of those motions to convert. See Fed. R. Civ. P. 7 (A motion must “state with particularity
the grounds for seeking the order[.]”); see also E.D.Mo. L.R. 4.01(A) (“Unless otherwise directed
by the Court, the moving party must file with each motion a memorandum in support of the motion,
including any relevant argument and citations to any authorities on which the party relies.”).
The Court will nevertheless address the merits of BNSF’s requests. For this analysis, the
Court will consider Defendants’ motions to dismiss together as they are nearly identi cal and rely
upon the same supporting material. After careful review, the Court concludes that nearly all of the
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material at issue is either embraced by the Second Amended Complaint, subject to judicial notice,
or ascertainable from the public record. To the extent Defendants rely upon any material that is
truly outside the pleadings, the Court will disregard that material in its consideration of the
dismissal motions.
The allegedly outside material at issue here can be split into two categories: (1) declarations
relating to Defendants’ passenger statuses and ticket purchases, and (2) information arising out of
the underlying state-court actions. The Court will address each category in turn.
The information in Defendants’ declarations is embraced by BNSF’s Second Amended
Complaint. (ECF No. 102). In Paragraph 62, BNSF quotes language from the Arbitration
Agreement that embraces customers who purchase their own tickets and customers who receive
tickets from others. Id. at ¶ 62. BNSF also details which defendants purchased their own tickets ,
which defendants did not, and which defendants actually boarded the train. Id. at ¶¶ 65-120. The
declarations at issue merely reiterate that information, which is integral to BNSF’s claim and is
incorporated explicitly—or at the very least, by reference—in the Second Amended Complaint.
As for documents from the underlying state-court actions, those items are matters of public
record and are subject to judicial notice. See Levyl, 477 F.3d at 991; Stutzka, 420 F.3d at 760 n.2.
What is more, BNSF explicitly mentions the state-court actions by case number in its Second
Amended Complaint. (ECF No. 102 at ¶ 52). The Court finds, however, that t he email from
BNSF’s counsel relating to BNSF’s willingness to forego arbitration under certain circumstances
is not a matter of public record and is not subject to ju dicial notice. The Court will not consider
that document in its analysis of Defendants’ motions to dismiss.
As evident from the language of Rule 12(d) itself, the Court must convert a motion to
dismiss under Rule 12(b)(6) into a motion for summary judgment only where the movant presents
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matters outside the pleadings and the Court does not exclude those matters. Fed. R. Civ. P. 12(d).
If, in its consideration of Defendants’ motions to dismiss , the Court determines that the motions
rely upon matters outside of the pleadings, the Court will simply disregard those materials . See
Martin v. Sargent , 780 F.2d 1334, 1337 (8th Cir. 1985) (finding that the district court properly
treated the defendant’s motion as one for dismissal without co nverting it into a motion for
summary judgment where the district court did not rely upon the parties’ affidavits in dismissing
the plaintiff’s claims); see also Skyberg v. United Food & Com. Workers Int'l Union, AFL-CIO, 5
F.3d 297, 302 n.2 (8th Cir. 1993) (“Although matters outside the pleadings were presented to the
court, Morrell's motion to dismiss was not converted into a summary judgment motion . . . . A
court has wide discretion in electing to consider matters outside the pleadings. We conclude the
district court did not abuse its discretion in failing to do so here.”).
Conclusion
The Court will deny BNSF’s requests to convert Defendants’ motions to dismiss into
motions for summary judgment. (ECF Nos. 117, 128, 147, 148). Nearly all of material at issue is
either embraced by the Second Amended Complaint, subject to judicial notice, or ascertainable
from the public record. To the extent Defendants rely upon material that is truly outside the
pleadings in support their motions to dismiss, the Court will disregard those items.
Accordingly,
IT IS HEREBY ORDERED that BNSF Railway Company’s Request that Defendants’
Motion to Dismiss Second Amended Complaint be Treated as a Motion for Summary Judgment
(ECF No. 117), Request that Defendants’ Motion to Dismiss Second Amended Complaint be
Treated as a Motion for Summary Judgment (ECF No. 128), Motion to Treat Defendant Ruth
Sanborn’s Motion to Dismiss as a Summary Judgment Motion (ECF No. 147), and Motion to Treat
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Defendant Laura Rojas’s Motion to Dismiss as a Summary Judgment Motion (ECF No. 148) are
DENIED.
IT IS FURTHER ORDERED that because Defendants’ motions to dismiss are largely
identical, BNSF shall respond to the motions with a single memorandum not exceeding 40 pages
no later than January 3, 2024.
IT IS FINALLY ORDERED that Defendants’ Motion for Judicial Notice is DENIED as
moot. (ECF No. 149).

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

Dated this 4th day of December, 2023.

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