Nieman v. Grange Mutual Insurance Company et al

Filing 27

OPINION (See Written Opinion):the Plaintiffs Motion for the Entry of Judgment Under Rule 54(b) of the Federal Rules of Civil Procedure [d/e 19] is ALLOWED. Pursuant to the Opinion and Order entered on January 16, 2013 [d/e 16], and the Courts finding herein that there is no just reason for delay, the Clerk shall enter Judgment in favor of the Defendants as to the claims asserted by the Plaintiff in the Amended Complaint. The Defendants Motion to Voluntarily Dismiss their Counterclaims without Prejudice [d/e 25] is ALLOWED. Because there are no claims which remain pending, the Clerk is Directed to terminate this case. Entered by Judge Richard Mills on 2/20/2013. (VM, ilcd)

E-FILED

Wednesday, 20 February, 2013 02:51:18 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JASON LEE NIEMAN,
Plaintiff,
v.
GRANGE MUTUAL INSURANCE
COMPANY, INTEGRITY MUTUAL
INSURANCE COMPANY,
Defendants.

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NO. 12-3250

OPINION
RICHARD MILLS, U.S. District Judge:
Pending before the Court is the Plaintiff’s Motion for Judgment
Under Rule 54(b) of the Federal Rules of Civil Procedure. Pending also is
the Defendants’ Motion to Voluntarily Dismiss Their Counterclaims
without Prejudice.
I. Motion for Judgment
(A)
Plaintiff Jason Lee Nieman’s Amended Complaint included a number
of claims asserted against Defendants Grange Mutual Insurance Company

and Integrity Mutual Insurance Company.

In Count I, the Plaintiff

asserted retaliation claims under Title VII, the ADEA, and § 1981. In
Count II, the Plaintiff asserted retaliation claims pursuant to the Illinois
Human Rights Act, 775 ILCS 5/6-101 and the Ohio Civil Rights Act, O.R.C
4112.
In Count III, the Plaintiff asserted retaliation claims in violation of
the ADEA, Title VII and § 1981, which were premised on the Defendants’
Counterclaims filed in this case the previous day. Count IV included claims
pursuant to the Illinois Human Rights Act and Ohio Civil Rights Act, and
was also based on the Defendants’ Counterclaims.

The Defendants

asserted counterclaims for defamation and abuse of process.
In an Order entered on January 16, 2013, the Court allowed the
Defendants’ Motion to Dismiss the Plaintiff’s First Amended Complaint
and denied the Plaintiff’s Motion to Dismiss the Defendants’
Counterclaims.

The Plaintiff filed a Notice of Appeal and Docketing

Statement on the same day. On January 17, 2013, the Plaintiff filed this
Motion for Judgment under Rule 54(b), claiming that the case represents

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an exception and that immediate appeal is allowed even though the Court
retained jurisdiction of the Defendants’ counterclaims and did not issue a
final judgment. Alternatively, the Plaintiff claims that justice and judicial
efficiency would best be served by issuing a ruling under Rule 54(b) so that
there is no question as to appellate jurisdiction. Rule 54(b) provides:
When an action presents more than one claim for
relief–whether as a claim, counterclaim, crossclaim, or thirdparty claim–or when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise,
any order or other decision, however, designated, that
adjudicates fewer than all the claims or rights and liabilities of
fewer than all of the parties does not end the action as to any of
the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.
Fed. R. Civ. P. 54(b).
In support of the motion, the Plaintiff states that because the Court
did not grant him leave to amend and ruled that his allegations could never
support a retaliation action, he expected the Court to issue a final judgment
in favor of the Defendants on the operative complaint.
The Plaintiff further notes that the Court may issue a ruling finding
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that pursuant to Rule 54(b), there is no just or proper reason for delay.
This is due to the alleged distinction regarding the factual bases for the
Plaintiff’s claims and the Defendants’ counterclaims, especially given that
the counterclaims are based on state law. In determining whether a final
judgment should be entered because the claims are separate, the key inquiry
is the degree of factual overlap. See On Command Video Corp. v. Roti,

F.3d

, 2013 WL 141701 (7th Cir. Jan. 14, 2013).
Additionally, the Plaintiff takes issue with the Court’s ruling that
counterclaims in an employment action cannot support a retaliation claim.
The Plaintiff states that notwithstanding this Court’s ruling, there appears
to be a split of authority on the issue. Compare Rosania v. Taco Bell of
America, Inc., 303 F. Supp.2d 878, 883-84 (N.D. Ohio 2004) with Hernandez
v. Crawford Bldg. Material Co., 321 F.3d 528, 532-33 (5th Cir. 2003).
Finally, the Plaintiff contends that all of the issues present in this
action will need to be reviewed on appeal. He claims, therefore, that
judgment should be entered in the interest of judicial economy. The
Plaintiff maintains that discovery should be conducted now instead of upon

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remand. For these reasons, the Plaintiff asserts that the Court should enter
judgment and certify under Rule 54(b) that there is no just reason for
delay.
(B)
First, the Plaintiff’s discussion of the merits as to the dismissed claims
is not particularly relevant in determining whether the entry of a Rule 54(b)
judgment is appropriate. This Court has addressed the merits. The issue
is when the Court’s Order will be subject to review.
The United States Court of Appeals for the Seventh Circuit has
directed that Rule 54(b) be employed only when the subject claims do not
overlap with those remaining in the district court.

See Lottie v. West

American Ins. Co., 408 F.3d 935, 938-39 (7th Cir. 2005). The rule is not
meant to provide district courts with the option of certifying issues for
interlocutory review. See id. at 939. “Rather, Rule 54(b) allows appeal
without delay of claims that are truly separate and distinct from those that
remain pending in the district court, where separate means having minimal
factual overlap.” Id.

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The Plaintiff does not really argue that the claims do not overlap.
Except for noting that Defendants’ counterclaims are based on state law
and are “highly questionable,” the Plaintiff does not discuss the extent of
any overlap. However, the Court finds that although the Plaintiff’s claims
and Defendants’ counterclaims may not be identical, the counterclaims are
based on the Plaintiff’s alleged litigation conduct. Moreover, there is
significant factual overlap between all of the claims. Two of the counts
which were dismissed were based directly on the Defendants’ counterclaims.
Upon reviewing the record, the Court finds that Plaintiff failed to
provide any sound basis as to why judgment should be entered under Rule
54(b) following the dismissal of his amended complaint. However, since
the Plaintiff’s Motion to Enter Judgment was filed and fully briefed, the
Defendants have now moved to dismiss without prejudice their
counterclaims. Based on that filing, the Court hereby determines that there
is no reason to delay the entry of judgment in favor of the Defendants as
to the Plaintiff’s claims.
Although granting the relief requested by the Plaintiff, the Court

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expressly concludes that the Motion for Judgment under Rule 54(b) was in
bad faith at the time it was filed.
II. Motion to Voluntarily Dismiss
Defendants Grange Mutual Casualty Company and Integrity Mutual
Insurance Company have moved to voluntarily dismiss their counterclaims
without prejudice. The Plaintiff does not oppose the motion to dismiss,
though he alleges the dismissal should be with prejudice. The Plaintiff
contends that because the counterclaims have been baseless from the
outset, the Defendants should not be permitted to dismiss them and only
to be allowed to re-file at a later date.
In support of the Motion, the Defendants note that immediately after
the Court issued its Order on the Parties’ Cross-Motions to Dismiss, the
Plaintiff filed a Notice of Appeal and Jurisdictional Statement seeking
appellate review of the decision, even though no final order was entered.
The Seventh Circuit questioned whether appellate jurisdiction was
appropriate. See Seventh Circuit Order of Jan. 17, 2013, Case No. 131127, Doc. No. 2.

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There is a related case involving the same parties. See Case Number
3:11-CV-3404-RM-BGC.

In the related case, the Defendants filed a

motion for summary judgment as to all of the Plaintiff’s claims, and a
supplemental motion for sanctions based on what the Defendants allege is
the Plaintiff’s unreasonable, threatening, and harassing conduct since the
Court’s August 31, 2012 Order holding sanctions in abeyance.

Both

motions remain pending. The Plaintiff filed a Notice of Appeal in the
related case on February 6, 2013, seeking Seventh Circuit review of the
Court’s Order denying his motion for leave to file a lawsuit against thirdparty Jeff Gipson. The Defendants state that on February 7, 2013, the
Seventh Circuit issued an order inviting the Plaintiff to file a brief
addressing this Court’s Order as to Gipson.
The Defendants further allege that on February 6, 2013, they engaged
in a Rule 26(f) conference with the Plaintiff regarding the Counterclaims
at issue. According to the Defendants, the Plaintiff “steadfastly refused all
of Defendants’ requests to mitigate discovery costs or streamline discovery
as to Defendants’ Counterclaims, promising instead to file multiple motions

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to compel and to likely seek sanctions, just as he had done in the Related
Case.”
The Plaintiff states that he has worked diligently toward fulfilling his
discovery obligations.

At the Rule 26(f) teleconference, the Plaintiff

advised Counsel for the Defendants that he believed the Defendants’ law
firm has a conflict of interest because certain matters have been placed “at
issue” and subject to full discovery. The Plaintiff claims that Defendants
have never disputed these assertions. Moreover, the Plaintiff alleges that
he did not agree to a streamlined discovery schedule, based on what he
claims were problems which resulted in the related case as a result of a
similar schedule. Discovery has commenced as to the counterclaims.
The Defendants seek leave to voluntarily dismiss their Counterclaims,
without prejudice and with each party bearing its own costs, pursuant to
Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Defendants seek
this relief for the following reasons: (1) they claim that Plaintiff’s attempts
to appeal rulings, refusal to streamline or expedite discovery, and insistence
on burdensome requests exposes them to undue delay and costs in resolving

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their Counterclaims; (2) they allege the Plaintiff’s strategy is to attempt to
appeal every adverse decision as a means of harassment, while the
Defendants seek to avoid defending piecemeal appeals; (3) they claim to be
attempting to mitigate damages when possible, and thus believe it prudent
to dismiss their Counterclaims in order to decrease costs and attorney’s fees
because of the Plaintiff’s tactics; and (4) they can recover attorney’s fees
through their pending supplemental motion for sanctions and/or via a
request for prevailing party fees in the related case.
The Defendants further allege that dismissal of their Counterclaims
without prejudice is in the interest of judicial economy and would result in
no prejudice to any party.

Upon filing the motion, Counsel for the

Defendants sent the Plaintiff a letter wherein he discussed the Defendants’
reasons for moving to dismiss their counterclaims without prejudice.
Although the Plaintiff alleges that Counsel provided “a somewhat different
set of justifications” than are included in the Defendants’ motion, the
reasons provided in the letter appear to be entirely consistent with the
allegations contained in the motion.

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The Plaintiff further discusses the merits of the Defendants’
Counterclaims for defamation and abuse of process. In its previous Order,
however, the Court determined that Defendants had at this stage of the
litigation sufficiently alleged the elements of their counterclaims. See Doc.
No. 16. The Court declines to revisit that decision.
According to the Plaintiff, another reason that Defendants should be
precluded from dismissing these actions without prejudice is that they could
decide to re-file these actions in another jurisdiction on the basis that the
wrongful act occurred there. However, that seems highly speculative and
is inconsistent with the Defendants’ expressed desire to streamline this
litigation and mitigate costs.
The Plaintiff has made no secret of his strategy of appealing any
adverse decision. He so advised Counsel for the Defendants in letters dated
December 31, 2012, and January 27, 2013. See Case Number 11-3404,
Doc. No. 119, Ex. 8-9. In the December 31, 2012 letter, the Plaintiff noted
that “defense attorneys will continue to bill tremendous amounts.” Based
on the Plaintiff’s own words, the Court concludes that Defendants

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articulated reasons for seeking this relief are reasonable. Accordingly, the
Court will allow their motion to voluntarily dismiss their counterclaims
without prejudice.
Ergo, the Plaintiff’s Motion for the Entry of Judgment Under Rule
54(b) of the Federal Rules of Civil Procedure [d/e 19] is ALLOWED.
Pursuant to the Opinion and Order entered on January 16, 2013 [d/e
16], and the Court’s finding herein that there is no just reason for delay,
the Clerk shall enter Judgment in favor of the Defendants as to the claims
asserted by the Plaintiff in the Amended Complaint.
The Defendants’ Motion to Voluntarily Dismiss their Counterclaims
without Prejudice [d/e 25] is ALLOWED.
Because there are no claims which remain pending, the Clerk is
Directed to terminate this case.
ENTER: February 20, 2013
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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