Opinion
No. 19-35305
05-24-2019
KOREY AARSTAD; et al., Plaintiffs-Appellees, v. BNSF RAILWAY COMPANY, a Delaware corporation; JOHN SWING, Defendants-Appellants.
NOT FOR PUBLICATION
D.C. No. 4:17-cv-00072-BMM-JTJ MEMORANDUM Appeal from the United States District Court for the District of Montana
Brian M. Morris, District Judge, Presiding Argued and Submitted May 16, 2019 Portland, Oregon Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. --------
Neither the magistrate judge nor the district court has addressed whether the "principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred" in Montana. 28 U.S.C. § 1332(d)(4)(A)(i)(III). Because we do not typically make such determinations in the first instance, we vacate the district court's order remanding the case to Montana state court, and remand to the district court to consider this issue in the first instance. We express no opinion regarding the merits of any other issues raised by the parties on appeal before this court.
VACATED and REMANDED.
The Appellees' motion for judicial notice is DENIED. Each party shall bear their own costs.