Summary
In Smalley v. R.R., supra, it was said that the evidence did not "warrant a finding that the public or the people of the neighborhood had generally or habitually traversed the yard, or that it was otherwise traversed or used by them under the circumstances which would justify a finding that defendant had invited or permitted or acquiesced in such use being made of its premises."
Summary of this case from Christiansen v. L.A. S.L.R. Co.Opinion
CIVIL ACTION NO. 6:18-CV-00180-JDK
12-20-2018
CYNTHIA SMALLEY; CLIFFORD R. MOORE, JR. AND CATHERINE M. MOORE, TRUSTEES ON BEHALF OF C.R. & C.M. MOORE LIVING TRUST; AND JERRY SELWYN, D/B/A SELWYN PROPERTIES, SP; Plaintiffs, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate Judge John D. Love pursuant to 28 U.S.C. § 636. On December 4, 2018, the Magistrate Judge issued his Report and Recommendation (Doc. No. 42), recommending that Defendant's Motion to Dismiss in Part the Second Amended Complaint (Doc. No. 30) be granted-in-part and denied-in-part and that Defendant's Motion to Dismiss in Part the First Amended Complaint (Doc. No. 13) be denied as moot. The Report further recommended an expedited schedule for filing summary judgment motions on preemption. No objections to the Report and Recommendation have been presented for consideration within the prescribed time period for such objections. Therefore, the Court adopts the Report and Recommendation of the United States Magistrate Judge (Doc. No. 42) as the findings of this Court.
Accordingly, it is hereby ORDERED that all objections are OVERRULED and Defendant's Motion to Dismiss in Part the Second Amended Complaint (Doc. No. 30) be GRANTED-IN-PART and DENIED-IN-PART. Specifically, the Court ORDERS that Defendant's Motion (Doc. No. 30) be GRANTED with respect to Plaintiffs' takings claims alleged in Counts III and IV and DENIED with respect to preemption of Counts I and II. The Court FURTHER ORDERS that Defendant's Motion to Dismiss in Part the First Amended Complaint (Doc. No. 13) be DENIED as MOOT.
The Court FURTHER ORDERS any summary judgment motion on the issue of preemption be filed no later than February 18, 2019.
So ORDERED and SIGNED this 20th day of December, 2018.
/s/_________
Jeremy D. Kernodle
United States District Judge