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Burlington Northern & Santa Fe Railway Co. v. Hercules

July 23, 2010

BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, AS SUCCESSOR TO THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, ET AL., PLAINTIFFS,
v.
HERCULES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND IMPOSING TERMINATING SANCTIONS AGAINST THE BROWN & BRYANT PARTIES

The matter of the motions of the Burlington Northern & Santa Fe Railway Company, as successor to the Atchison Topeka & Santa Fe Railway Company ("BNSF") and the Dow Chemical Company ("Dow") for orders for terminating sanctions against Brown & Bryant, Inc., John H. Brown, an individual, and Ed A. Brown, an individual (collectively the "Brown & Bryant Parties") for said Defendants' repeated willful failure to provide discovery responses and repeated and intentional disregard of the Court's prior discovery orders, was submitted on Findings & Recommendations for adoption by the District Court on February 17, 1999.

All parties were advised of the requirement that any objections be filed within ten (10) court days. Any responses to said objections were to be served and filed within ten (10) court days thereafter. The parties were also advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.

No objections were filed.

A stay of all proceedings was lifted, only as to these motions, by separate Order of July 23, 2010.

The Court has fully considered the Magistrate Judge's Findings & Recommendations and finds them to be correct in all respects and that there is no substantial justification or other cause shown why terminating sanctions should not be issued against the Brown & Bryant parties. For the reasons set forth in the Findings & Recommendations,

IT IS ORDERED:

1. The Magistrate Judge's Findings & Recommendations filed February 17, 1999 ARE ADOPTED;

2. BNSF's Motion for Terminating Sanctions is GRANTED:

a. The Brown & Bryant Parties' counter-claim against BNSF (including any and all counter-claims of Brown & Bryant, Inc., John H. Brown, and Ed A. Brown against BNSF) are DISMISSED WITH PREJUDICE;

b. The Brown & Bryant Parties' answers to BNSF's complaint (including any and all answers of Brown & Bryant, Inc., John H. Brown and Ed A. Brown to BNSF's complaint) are STRICKEN; and

c. Default judgment is entered against the Brown & Bryant Parties (including Brown & Bryant, Inc., John H. Brown, and Ed A. Brown) in favor of BNSF as to the remaining claims of BNSF against them in this matter as follows:

I. Thirteenth Claim for Relief: Private Party Cost Recovery under CERCLA ยง 107; Complaint, ...


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