United States Court of Appeals
For the Eighth Circuit
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No. 16-1993
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Cheri B. Dietrich
lllllllllllllllllllll Plaintiff - Appellant
v.
Soo Line Railroad Company, doing business as Canadian Pacific
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: December 7, 2016
Filed: December 12, 2016
[Unpublished]
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Before SMITH, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Cheri Dietrich appeals the district court’s1 order denying her motion for default
judgment and dismissing her action for failure to state a claim. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
After conducting careful review of the record, this court concludes that default
judgment was properly denied because Soo Line Railroad Company filed a timely
motion to dismiss or for summary judgment. See Adams v. American Family Mut.
Ins. Co., 813 F.3d 1151, 1154 (8th Cir. 2016) (de novo review of grant of motion to
dismiss); Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009-10 (8th Cir. 1993)
(abuse-of-discretion review of denial of motion for default judgment); Fed. R. Civ.
P. 55(a) (default judgment is warranted when the defendant “has failed to plead or
otherwise defend”); Comiskey, 989 F.2d at 1009-10 (default judgment is rare judicial
act). This court also concludes the action was properly dismissed because the
amended complaint was time-barred and did not relate back to the original complaint.
See 45 U.S.C. § 153 First (r) (2-year statute of limitations for those seeking judicial
review of NRAB award); Gatlin v. Missouri Pac. R. Co., 631 F.2d 551, 554 (8th Cir.
1980) (statute of limitations period accrues on date NRAB issues decision); Fed. R.
Civ. P. 15(c)(1)(C) (amendment of pleading that changes party against whom claim
is asserted relates back to original pleading if, as relevant, new party receives notice
or should have known of the action within the time period for service of complaint).
The judgment is affirmed. See 8th Cir. R. 47B.
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1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Becky R.
Thorson, United States Magistrate Judge for the District of Minnesota.
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