                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 18 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CENTRAL MONTANA RAIL, a Montana                  No. 10-35439
Corporation, individually, and as full
assignee of the State of Montana, of all         D.C. No. 4:05-cv-00116-RKS
jurisdictional and substantive legal rights
the State of Montana possesses against
BNSF Railway Company in this case,               MEMORANDUM *

              Plaintiff - Appellant,

  v.

BNSF RAILWAY COMPANY, BNSF
Railway Company formerly known as The
Burlington Northern and Santa Fe Railway
Company, a Delaware Corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                     Keith Strong, Magistrate Judge, Presiding

                       Argued and Submitted March 11, 2011
                               Seattle, Washington

Before: FISHER, GOULD, and TALLMAN, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Central Montana Rail, Inc. (“CMR”), individually and as former assignee of

the State of Montana, appeals the district court’s confirmation of an arbitration

award, denial of CMR’s motion to dismiss without prejudice, and award of

summary judgment in favor of BNSF Railway Company (“BNSF”). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.1

      1.     The Federal Arbitration Act (“FAA”) provides that “a court ‘must’

confirm an arbitration award ‘unless’ it is vacated, modified, or corrected ‘as

prescribed’” by the FAA. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,

582 (2008) (quoting 9 U.S.C. § 9). Vacatur is available “where the arbitrators

exceeded their powers, or so imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not made.” 9 U.S.C. §

10(a)(4). Here, the conditions for vacatur are not met, and the district court

properly confirmed the award. The arbitrators did not act outside of their scope of

authority, as the award was limited to answering the questions submitted for

arbitration. See Mich. Mut. Ins. Co. v. Unigard Sec. Ins. Co., 44 F.3d 826, 830 (9th

Cir. 1995) (stating that an award may be overturned “[w]hen arbitrators rule on a

matter not submitted to them”). CMR has not contested the propriety of having



      1
       Because the facts are known to the parties, we repeat them only as
necessary to explain our decision.

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those questions submitted before the arbitrators by appealing the district court’s

order compelling arbitration. Nor is it “clear from the record that the arbitrators

recognized the applicable law and then ignored it,” as is required to vacate an

award for manifest disregard of the law. Id. at 832. Given the “limited and highly

deferential” review of arbitration awards, PowerAgent Inc. v. Elec. Data Sys.

Corp., 358 F.3d 1187, 1193 (9th Cir. 2004) (internal quotation marks omitted),

CMR’s “mere allegations of error are insufficient” to merit vacating the award,

Collins v. D.R. Horton, Inc., 505 F.3d 874, 879 (9th Cir. 2007) (internal quotation

marks deleted).

      2.     When ruling on a motion to dismiss without prejudice brought

pursuant to Federal Rule of Civil Procedure 41(a)(2), “the district court must

determine whether the defendant will suffer some plain legal prejudice as a result

of the dismissal.” Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9th

Cir. 1996); see Fed. R. Civ. P. 41(a)(2). Here, the district court considered

permissible factors in assessing prejudice and denying CMR’s Rule 41(a)(2)

motion. The district court noted that, if it had dismissed the action without

prejudice, BNSF could face litigation in state court of a claim that had reached the

summary judgment stage in federal court, after almost four years of litigation.

CMR has given no explanation for why it delayed so long in requesting voluntary


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dismissal. Cf. Westlands Water Dist., 100 F.3d at 97 (finding lack of legal

prejudice where plaintiffs filed a motion for voluntary dismissal within a month of

failing to obtain a preliminary injunction and before defendants filed motions for

summary judgment). BNSF would also be denied a federal forum were the motion

granted. See id. (“[I]n determining what will amount to legal prejudice, courts

have examined whether a dismissal without prejudice would result in the loss of a

federal forum[.]”). The district court’s conclusion that the Rule 41(a)(2) motion

was motivated by forum shopping has support in the circumstances here. See Kern

Oil & Refining Co. v. Tenneco Oil Co., 792 F.2d 1380, 1389–90 (9th Cir. 1986)

(upholding a finding of forum shopping where plaintiff sought dismissal without

prejudice of a claim in order to have it heard before a different court). Because the

district court’s assessment of legal prejudice and its denial of CMR’s Rule 41(a)(2)

motion for voluntary dismissal were not based on an erroneous view of the law or a

clearly erroneous assessment of the facts, the court did not abuse its discretion. See

Westlands Water Dist., 100 F.3d at 96.

      3.     The district court properly granted summary judgment, which CMR

failed to oppose, after concluding that (1) CMR cannot recover damages under the

Settlement Agreement because that agreement’s express terms forbid third parties

from recovering and (2) the State’s alleged highway damages are not recoverable


                                          4
under Montana law governing contractual breach.       CMR does not challenge these

conclusions or the legal analysis supporting them. Instead, CMR points to a series

of purportedly incorrectly determined facts on which it claims the district court

based its decision. The district court’s award of summary judgment, however, did

not turn on any of the purported facts that CMR cites as disputed or erroneously

decided. CMR, acting on its own behalf and as assignee of the State of Montana

throughout the bulk of the litigation, has not appealed the district court’s order

compelling arbitration, and CMR does not articulate what other damages would be

available beyond those the district court held unavailable as a matter of law.

Because there are no genuine issues of material fact precluding judgment as a

matter of law, the district court’s grant of summary judgment was correct. See

Fed. R. Civ. P. 56(c).

      AFFIRMED.




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