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Fix v. Pacific Railroad Co.

United States District Court, D. Arizona

August 6, 2013

Paul Fix, et al., Plaintiff(s),
v.
Union Pacific Railroad Company, Defendant

Decided August 5, 2013

Page 1053

For Paul Fix, doing business as, All Seasons Energy, doing business as, Geraldine Fix Trust, Geraldine Fix, doing business as, All Seasons Energy, doing business as, Geraldine Fix Trust, Plaintiffs: Lat J Celmins, Michael Leroy Kitchen, LEAD ATTORNEYS, Margrave Celmins PC, Scottsdale, AZ.

For Union Pacific Railroad Company, Defendant: Anthony J Hancock, Terrance L Sims, Warren Reed Campbell, LEAD ATTORNEYS, Beaugureau Hancock Stoll & Schwartz PC, Phoenix, AZ.

For Union Pacific Railroad Company, Counter Claimant: Anthony J Hancock, Terrance L Sims, Warren Reed Campbell, LEAD ATTORNEYS, Beaugureau Hancock Stoll & Schwartz PC, Phoenix, AZ.

For Geraldine Fix, Paul Fix, Counter Defendants: Lat J Celmins, Michael Leroy Kitchen, LEAD ATTORNEYS, Margrave Celmins PC, Scottsdale, AZ.

OPINION

Frederick J. Martone, Senior United States District Judge.

Page 1054

ORDER

The court has before it defendant's motion to dismiss Counts 1 and 3 of plaintiffs' amended complaint (doc. 20), plaintiffs' response (doc. 25), defendant's reply (doc. 28), plaintiffs' motion for leave to file a second amended complaint (doc. 24), defendant's response (doc. 30), plaintiffs' reply (doc. 31), defendant's motion for leave to file an additional response (doc. 32), the proposed additional response (doc. 33), and plaintiffs' response (doc. 34).

Plaintiffs filed this action on January 14, 2013, and amended their complaint on April 30, 2013 (doc. 6). The first amended complaint (" FAC" ) alleges that in late June, 2010, defendant notified plaintiffs that it was closing a railroad crossing that plaintiffs had been using for ingress and egress to their property (the " Crossing" ). The FAC consists of five counts: (1) prescriptive easement to use the Crossing for ingress and egress; (2) right-of-way easement; (3) private right of necessity under A.R.S. § § 12-1201 and 12-1202, et seq. ; (4) easement by common law necessity; and (5) injunctive relief. On June 3, 2013, plaintiffs filed a motion to amend their complaint a second time. Defendant seeks to dismiss Counts 1 and 3 of the FAC, and opposes plaintiffs' motion to amend.

As an initial matter, we grant defendant's motion for leave to file an additional response to plaintiffs' motion to amend (doc. 32). We construe plaintiffs' response to defendant's motion (doc. 34) as a reply to defendant's additional response.

I

Defendant moves to dismiss Counts 1 and 3 of the FAC pursuant to Rule 12(b)(6), Fed. R. Civ. P., on the grounds that plaintiffs ...


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