(The following article by James Quirk Jr. was posted on the Burlington Hawkeye website on June 8.)
BURLINGTON, Iowa — The battle between BNSF Railway and the city of Burlington continues to heat up, as the railroad’s most recent court filing alludes to the possibility of filing a motion for sanctions against the city in the future.
BNSF filed its reply Friday with the U.S. District Court in Davenport to the city’s recent resistance to a counterclaim motion filed by the railroad on May 6.
The lawsuit filed by the city in March 2004 alleged BNSF breached an 1858 agreement that stipulated the railroad could use riverfront property for its operations as long as it maintains its principal shops in the city. The railroad, over the past several years, has transferred or eliminated about 400 locomotive shops positions from its city location.
Court filings between the two entities continue to mount, and when the city filed a motion to resist a counterclaim motion filed the railroad late last month, attorney for BNSF, Michael Thrall, Des Moines, said he’s “sure we’ll be filing a response or a reply to that resistance with the court.”
The city’s resistance stated the city had no objection to the pleadings being reopened to allow defendant, Burlington Northern & Santa Fe Corporation “to add BNSF Railway Company as a necessary party.”
The railroad changed its name to BNSF Railway earlier this year.
The railroad, in its reply to the city’s resistance, states, among other reasons, that “BNSF Railway has not been, nor is it yet a party to this action and nothing would preclude it from asserting its counterclaim when it is added to this case.”
In the counterclaim, the railroad alleges the city breached a 1985 agreement that states the railroad could use riverfront property indefinitely as long as its for railroad purposes, but nothing about having to maintain its principal shops in the city.
The city’s resistance states that, because BNSF already broached the 1985 agreement in its amended answers to the lawsuit, “the counterclaim is compulsory and cannot be raised at this time.”
The city also stated in the resistance that it received a letter from Thrall last November regarding the 1985 agreement that stated the city should “immediately dismiss its lawsuit or face a motion for sanctions … Counsel for plaintiff responded in writing and the motion was not filed.”
BNSF, in its reply to the resistance, argues the city’s “reliance on defendant’s failure to have yet filed its motion for sanctions is misplaced.”
The railroad includes a copy of the Nov. 18, 2004 letter it sent to Scott Power, the city’s attorney, where it threatens to file a motion for sanctions if the city doesn’t drop the lawsuit, as well as a copy of what the motion for sanctions will look like.
The letter cites quotes Mayor Mike Edwards made in March 2004 about the reason for the lawsuit, which he said then was to bring back jobs.
“There is no factual or legal basis for the city’s current suit … by your client’s own admission, the suit is being pursued to attempt to leverage the return of jobs to the city … and for other improper purposes such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” Thrall wrote in the Nov. 18 letter. “The railroad believes that the issues that you raise in this action are without merit and … were resolved many years ago. This will be extremely expensive litigation to defend given the nature and scope of the claims the city raised and the over 150–year period of time we must address.”
The trial is set to unfold in the U.S. District Court on April 10, 2006.
Power could not be reached for comment Tuesday. City Manager Bruce Slagle said Tuesday he was not yet briefed on the latest filing.