                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KOREY AARSTAD; et al.,                          No.    19-35305

                Plaintiffs-Appellees,           D.C. No.
                                                4:17-cv-00072-BMM-JTJ
 v.

BNSF RAILWAY COMPANY, a Delaware                MEMORANDUM *
corporation; JOHN SWING,

                Defendants-Appellants.

                   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.

      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


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                           Page 2 of 2

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.
