Jones v. Hoosier Energy Rural Electric Cooperative, Inc., et al
Filing
29
OPINION: Defendant G.E. Betz, Inc.'s Motion to Dismiss (d/e 10 ) and Defendant Hoosier Energy Rural Electric Cooperative, Inc.'s Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction and Improper Venue (d/e 12 ) are GRANTED. Rather than dismiss Plaintiff's claims against Hoosier Energy, the Court TRANSFERS this case to the Southern District of Indiana, the alternative relief Hoosier Energy sought in its motion. Any claim for damages by Plaintiff against G.E. Betz is DISMISSED WITH PREJUDICE. Plaintiff's claim for a declaratory judgment regarding the applicability of G.E. Betz's lien to damages Plaintiff may recover under Count II is DISMISSED WITHOUT PREJUDICE. Because the Court is trans ferring this case pursuant to 28 U.S.C. § 1406(a) due to improper venue, Hoosier Energy's Motion to Transfer Under 28 U.S.C. § 1404(a) (d/e 16 ) is DENIED. G.E. Betz's Motion to Join and Adopt (d/e 24 ) is DENIED as MOOT. The Co urt renders no rulings on Hoosier Energy's Motion to Dismiss Plaintiff's Survival Claim (Count II) (d/e 14 ) or Plaintiff's Motion to Remand to State Court (d/e 20 ). The Clerk is DIRECTED to transfer this case to the Terre Haute Division of the Southern District of Indiana. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 9/27/2018. (GL, ilcd)
E-FILED
Friday, 28 September, 2018 10:36:21 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
OF THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CONNIE JONES, as Special,
Administrator of the Estate of
KENNETH EUGENE JONES,
Plaintiff,
v.
HOOSIER ENERGY RURAL
ELECTRIC COOPERATIVE, INC.,
and G.E. BETZ, INC.,
Defendants.
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Case No. 17-cv-03226
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is Defendant G.E. Betz, Inc.’s Motion to
Dismiss (d/e 10) and Defendant Hoosier Energy Rural Electric
Cooperative, Inc.’s Motion to Dismiss Plaintiff’s Complaint for Lack
of Personal Jurisdiction and Improper Venue (d/e 12). For the
reasons set forth below, Defendants’ motions are GRANTED. The
Clerk is DIRECTED to transfer this matter to the Terre Haute
Division of the Southern District of Indiana.
I. BACKGROUND
The following facts come from Plaintiff’s Complaint. The Court
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accepts these facts as true in ruling on the motions to dismiss. See
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
Kenneth Eugene Jones (Decedent) was, at the time of his
death, a resident of Shelby County, Illinois. Complaint, ¶ 2. Prior
to his death, Decedent was employed by Defendant G.E. Betz, Inc.
(G.E. Betz). Id. ¶¶ 3, 5. On or about September 12, 2016,
Decedent traveled to Sullivan County, Indiana, for a temporary
work assignment at a generating station of Defendant Hoosier
Energy Rural Electric Cooperative, Inc. (Hoosier Energy). Id. ¶ 6.
Decedent fell into a hot-water discharge canal and died after not
being able to remove himself from the hot water. Id. ¶¶ 8, 10.
Following Decedent’s death, G.E. Betz paid death benefits to
Decedent’s surviving spouse. Id. ¶ 7. G.E. Betz claims a lien based
on the payment of these death benefits. Id.
On September 15, 2017, Plaintiff filed a two-count Complaint
against Defendants in the Circuit Court of Shelby County, Illinois.
In Count I of the Complaint, Plaintiff seeks to recover for the
pecuniary loss, grief, sorrow, and mental suffering of Decedent’s
next of kin. Plaintiff prays for damages against Hoosier Energy in
an amount greater than $50,000 and requests that the Court
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adjudicate the lien held by G.E. Betz. In Count II of the Complaint,
Plaintiff seeks to recover for the pain, mental anguish, and
emotional distress suffered by Decedent prior to his death. Plaintiff
prays for damages against Defendants in an amount greater than
$50,000 and requests that the Court declare that the lien held by
G.E. Betz does not attach to any damages awarded under Count II.
On October 13, 2017, Hoosier Energy filed a Notice of
Removal, contending that the Court has original jurisdiction of this
matter pursuant to 28 U.S.C. § 1332(a). Notice (d/e 1), ¶ 6. In
support of this contention, Hoosier Energy alleges that it is a citizen
of Indiana, that Plaintiff is a citizen of Illinois, that G.E. Betz is a
citizen of Pennsylvania, and that the amount in controversy in this
matter exceeds $75,000 exclusive of interest and costs. Id. Hoosier
Energy also alleges that both Defendants were served with a copy of
Plaintiff’s Complaint on September 28, 2017. Id. ¶¶ 3-4. On
October 16, 2017, G.E. Betz filed its Notice of Removal, adopting,
joining in, and consenting to the Notice of Removal filed by Hoosier
Energy. Notice (d/e 4), ¶ 2.
On October 30, 2017, G.E. Betz filed its motion to dismiss,
arguing that Plaintiff’s claim for damages against G.E. Betz is
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barred under both Illinois and Indiana law. Motion to Dismiss (d/e
10), ¶ 1. G.E. Betz also argues that the Court does not have
subject-matter jurisdiction over Plaintiff’s premature request for a
declaratory judgment regarding the applicability of G.E. Betz’s lien.
Id. Responding to G.E. Betz’s motion, Plaintiff states that she is not
seeking damages from G.E. Betz and that G.E. Betz was named as a
party for the purpose of having the Court determine whether G.E.
Betz’s lien would attach to damages awarded under Count II of the
Complaint. Response (d/e 18), p. 2.
On the same date G.E. Betz filed its motion to dismiss, Hoosier
Energy filed its Motion to Dismiss Plaintiff’s Complaint for Lack of
Personal Jurisdiction and Improper Venue. Hoosier Energy argues
that because the accident that caused Decedent’s death occurred in
Indiana, the state in which Hoosier Energy is incorporated and has
its principal place of business, the Court may not exercise personal
jurisdiction over Hoosier Energy. Memorandum of Law (d/e 13), pp.
4-5, 7-9. Hoosier Energy also argues that this district is an
improper venue for this matter because the alleged actions forming
the basis of Plaintiff’s claims occurred in Indiana. Id. at 11. As an
alternative to the dismissal of Plaintiff’s Complaint for improper
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venue, Plaintiff requests that this matter be transferred to the
Southern District of Indiana. Motion to Dismiss (d/e 12), p. 1.
Responding to Hoosier Energy’s motion, Plaintiff consents to the
transfer of this matter to the Southern District of Indiana. Consent
to Transfer (d/e 23), ¶ 2.
II. JURISDICTION
District courts have original jurisdiction of all civil actions
between citizens of different states where the matter in controversy
exceeds $75,000. 28 U.S.C. § 1332(a)(1). Any civil action brought
in state court may be removed to federal court if the action is one
over which the district courts have original jurisdiction. 28 U.S.C. §
1441(a).
As Plaintiff is a citizen of Illinois, Hoosier Energy is a citizen of
Indiana, and G.E. Betz is a citizen of Pennsylvania, there is
complete diversity of citizenship as to the parties. Further, the
amount-in-controversy requirement is met. Plaintiff has alleged two
claims against Hoosier Energy, asking for damages in excess of
$50,000 on each count. See Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 585 (2005) (“[I]n determining whether the
amount-in-controversy requirement has been satisfied, a single
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plaintiff may aggregate two or more claims against a single
defendant, even if the claims are unrelated.”). Plaintiff’s Complaint
requests damages from G.E. Betz on only Count II, but given that
the claim asserted in that count seeks damages for Decedent’s pain,
mental anguish, and emotional distress prior to his death, the
Court finds that Plaintiff’s claim against G.E. Betz involves more
than $75,000. Accordingly, the Court has original jurisdiction of
this matter pursuant to 28 U.S.C. § 1332(a)(1).1
III. LEGAL STANDARD
G.E. Betz filed its motion to dismiss pursuant to Rule 12(b)(1),
claiming a lack of subject-matter jurisdiction as to Plaintiff’s
request for a declaratory judgment regarding the applicability of
G.E. Betz’s lien, and Rule 12(b)(6), asserting that Plaintiff has failed
to state a claim for damages upon which relief can be granted. See
Fed. R. Civ. P. 12(b).
“Under Article III of the Constitution, the judicial power of the
United States extends only to cases and controversies.” Home Care
1 Even if Plaintiff’s claim against G.E. Betz did not satisfy the amount-incontroversy requirement, the Court would have supplemental jurisdiction over
the claim, as it is so closely related to Plaintiff’s claims against Hoosier Energy
that all of Plaintiff’s claims form part of the same case or controversy. See 28
U.S.C. 1367(a).
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Providers, Inc. v. Hemmelgarn, 861 F.3d 615, 620 (7th Cir. 2017).
“This jurisdictional requirement ensures that the resources of the
federal judiciary are not expended on advisory opinions and
hypothetical disputes.” Id. Cases that do not involve actual,
ongoing controversies must be dismissed for lack of subject-matter
jurisdiction. Id.
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A district court exercising diversity
jurisdiction must dismiss a complaint for failure to state a claim
upon which relief may be granted “[i]f state substantive law has
denied a plaintiff a remedy for his cause of action.” Goetzke v.
Ferro Corp., 280 F.3d 766, 779 (7th Cir. 2002).
When faced with a Rule 12(b)(6) motion to dismiss, the Court
“accept[s] as true all of the well-pleaded facts in the complaint and
draw[s] all reasonable inferences in favor of the plaintiff.” Roberts
v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). However,
“legal conclusions and conclusory allegations merely reciting the
elements of the claim are not entitled to this presumption of truth.”
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McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
Hoosier Energy filed its motion to dismiss pursuant to Rule
12(b)(2), claiming a lack of personal jurisdiction, and Rule 12(b)(3),
asserting that the Central District of Illinois is an improper venue
for Plaintiff’s claims against Hoosier Energy. See Fed. R. Civ. P.
12(b).
“Once a defendant has moved for dismissal based on lack of
personal jurisdiction, the plaintiff bears the burden of
demonstrating the existence of jurisdiction.” Kipp v. Ski Enter.
Corp. of Wisconsin, 783 F.3d 695, 697 (7th Cir. 2015) (internal
quotation marks omitted). The plaintiff “need only make a prima
facie showing of jurisdictional facts,” and the Court accepts as true
any well-pleaded facts in a complaint. Felland v. Clifton, 682 F.3d
665, 672 (7th Cir. 2012). The Court also accepts as true “any facts
contained in the defendant’s affidavits that remain unrefuted by the
plaintiff.” GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d
1018, 1020 n.1 (7th Cir. 2009).
When facing a motion to dismiss for improper venue, “the
plaintiff bears the burden of establishing that the venue it has
chosen is proper.” Rotec Indus., Inc. v. Aecon Grp., Inc., 436 F.
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Supp. 2d 931, 933 (N.D. Ill. 2006). In addressing a motion to
dismiss for improper venue, the Court “may look beyond the mere
allegations of a complaint.” Deb v. SIRVA, Inc., 832 F.3d 800, 809
(7th Cir. 2016).
IV. ANALYSIS
A.
Plaintiff’s Complaint fails to state a claim for damages against
G.E. Betz upon which relief can be granted, and Plaintiff’s
request for declaratory judgment is premature.
G.E. Betz, in its motion to dismiss, requests that the Court
dismiss, with prejudice, Plaintiff’s claim for damages against G.E.
Betz. In responding to the motion to dismiss, Plaintiff states that
she is not seeking damages from G.E. Betz. However, language
utilized in Count II of Plaintiff’s Complaint makes it seem as though
Plaintiff is seeking damages from G.E. Betz under that count.
Compare Complaint, p. 4 (requesting damages and costs from
Hoosier Energy under Count I), with id. (requesting damages and
costs from “Defendants” under Count II). Given that Decedent was
an employee of G.E. Betz at the time of his death and died in the
course of his employment, any claim for damages by Plaintiff
against G.E. Betz is barred by both Illinois and Indiana law relating
to workers’ compensation. See 820 Ill. Comp. Stat. 305/5(a)
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(compensation provided for by workers’ compensation statutory
framework is exclusive remedy against employer for employee
injured while working or representative of employee’s estate); Ind.
Code § 22-3-2-6 (same).2 Any claim by Plaintiff for damages against
G.E. Betz arising out of the facts alleged in Plaintiff’s Complaint is
DISMISSED WITH PREJUDICE.
G.E. Betz also requests that the Court dismiss, without
prejudice, Plaintiff’s request for declaratory relief regarding the
applicability of G.E. Betz’s lien. The Declaratory Judgment Act (Act)
authorizes the Court, upon the filing of an appropriate pleading, to
“declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201. However, the Act applies only “[i]n a
case of actual controversy within [the Court’s] jurisdiction.” Id. The
Act does not dispense with the case-or-controversy requirement
imposed by Article III of the United States Constitution or supply
2 The Court need not determine whether Illinois or Indiana law applies to
Plaintiff’s claims, as any claim for damages by Plaintiff against G.E. Betz would
be barred regardless of the Court’s determination on the issue. See In re Air
Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 605 n.2
(7th Cir. 1981) (“All laws must be carefully examined to determine that a
conflict actually exists, under any choice-of-law theory, before application of
the theory.”).
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the Court with subject-matter jurisdiction. Nationwide Ins. v.
Zavalis, 52 F.3d 689, 692 (7th Cir. 1995).
Declaratory judgment requires a dispute lending itself to
“specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon
a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118, 127 (2007). Even when a declaratory judgment is
sought, federal courts are not empowered to issue advisory
opinions, which do not resolve an actual case or controversy.
People of State of Ill. ex rel. Barra v. Archer Daniels Midland Co.,
704 F.2d 935, 941 (7th Cir. 1983). The prohibition on advisory
opinions “conserve[s] judicial time and effort by avoiding
unnecessary adjudication.” Id. at 942.
Plaintiff asks the Court to declare that G.E. Betz’s lien does
not attach to damages Plaintiff obtains under Count II of the
Complaint. But even if the Court were to grant Plaintiff’s request,
the Court’s ruling would be of no consequence unless Plaintiff
recovers damages under Count II. Therefore, Plaintiff is asking the
Court for an advisory opinion on the applicability of G.E. Betz’s lien.
See Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 583
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(7th Cir. 2003) (“A declaration that A must indemnify B if X comes
to pass has an advisory quality.”). The Court does not have the
authority to issue such an opinion. See Barra, 704 F.2d at 941.
Plaintiff correctly notes that certain claims can be made
against an employer in a lawsuit filed by an employee. But none of
the cases cited by Plaintiff support Plaintiff’s contention that an
employee can sustain a declaratory judgment action regarding the
applicability of an employer’s lien to damages before damages are
first awarded. In Baltzell v. R & R Trucking Co., 554 F.3d 1124 (7th
Cir. 2009), and Sinovic v. Granite City Steel, 864 F. Supp. 87 (S.D.
Ill. 1994), defendants brought contribution claims against the
plaintiff’s employer under the Illinois Joint Tortfeasor Contribution
Act. Baltzell, 554 F.3d at 1127; Sinovic, 864 F. Supp. at 88. In
Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007), the plaintiff’s
employer, after obtaining summary judgment in its favor on the
defendants’ contribution claims, filed a motion to intervene so it
could assert its workers’ compensation lien. Id. at 47. However,
the employer filed the motion to intervene only after the plaintiff
settled his claims against the defendants. Id.
In the three aforementioned cases, the employer was a proper
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party because the employer was being accused of negligence by a
defendant or seeking to enforce its lien after the plaintiff-employee
had obtained money through settlement. Neither scenario is
present here. Instead, Plaintiff is attempting to have the Court
render an advisory opinion on whether G.E. Betz’s lien will apply to
hypothetical damages awarded under Count II. Article III of the
Constitution prevents the Court from rendering such an opinion
because no applicable case or controversy is present. Hemmelgarn,
861 F.3d at 620. Accordingly, Plaintiff’s claim for a declaratory
judgment regarding the applicability of G.E. Betz’s workers’
compensation lien is DISMISSED WITHOUT PREJUDICE for lack of
subject-matter jurisdiction.
B.
The Central District of Illinois is an improper venue for
Plaintiff’s claims against Hoosier Energy.
Hoosier Energy asks the Court to dismiss Plaintiff’s Complaint
for two reasons: (1) lack of personal jurisdiction and (2) improper
venue. The Court begins its analysis with the venue issue, a course
of action that requires the Court also to address Hoosier Energy’s
argument regarding personal jurisdiction.
The general venue statute, 28 U.S.C. § 1391, provides civil
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litigants with three options in choosing an appropriate venue for a
lawsuit. The Court will address all three options.
1.
28 U.S.C. § 1391(b)(1)
A party may bring a civil action in “a judicial district in which
any defendant resides, if all defendants are residents of the State in
which the district is located.” 28 U.S.C. § 1391(b)(1). For purposes
of venue, a defendant corporation is deemed to reside “in any
judicial district in which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action in question.”
28 U.S.C. § 1391(c)(2). Given this definition of residency, the Court
must determine whether Hoosier Energy is subject to the Court’s
personal jurisdiction.
The Court’s exercise of personal jurisdiction over a defendant
“must be authorized by the terms of the forum state’s personaljurisdiction statute and also must comport with the requirements of
the Fourteenth Amendment’s Due Process Clause.” Felland, 682
F.3d at 672. “The governing statute in Illinois permits its courts to
exercise personal jurisdiction up to the limits of the Due Process
Clause of the Fourteenth Amendment.” Kipp, 783 F.3d at 697; see
also 735 Ill. Comp. Stat. 5/2-209(c) (“A court may also exercise
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jurisdiction on any other basis now or hereafter permitted by the
Illinois Constitution and the Constitution of the United States.”).
There are two types of personal jurisdiction: general
jurisdiction and specific jurisdiction. General jurisdiction is a
court’s exercise of jurisdiction over a defendant whose contacts with
the forum are so “continuous and systematic” that the defendant “is
essentially at home” in the forum. Daimler AG v. Bauman, 571
U.S. 117, 127 (2014). In contrast, specific jurisdiction is a court’s
exercise of jurisdiction over a defendant where the suit relates to or
arises out of the defendant’s contacts with the forum state. Id.
The relevant facts are insufficient for the Court to assert
general jurisdiction over Hoosier Energy. The “paradigm” forums in
which the exercise of general jurisdiction over a corporate defendant
is proper “are the corporation’s place of incorporation and its
principal place of business. BNSF Ry. Co. v. Tyrrell, 137 S. Ct.
1549, 1558 (2017). Hoosier Energy is a non-profit corporation
incorporated under the laws of Indiana, and Hoosier Energy’s
principal place of business is in Indiana. Horton Affidavit (d/e 13-
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1), ¶¶ 3-4.3
General jurisdiction over a corporate defendant may be
appropriate in a forum other than the state of incorporation or the
state where the defendant’s principal place of business is located,
but only if the defendant has substantial operations in that other
forum. BNSF, 137 S. Ct. at 1558. The facts before the Court
regarding the extent of Hoosier Energy’s activities in Illinois are
insufficient to meet this standard. Of Hoosier Energy’s 18 member
cooperatives, 17 are located in Indiana, with the other member
cooperative located in Illinois. Horton Affidavit, ¶ 8. Hoosier
Energy’s one Illinois member cooperative accounts for
approximately four percent of Hoosier Energy’s total sales. Id. ¶ 9.
Hoosier Energy has no offices or bank accounts in Illinois. Id. ¶¶
12-13. Under these facts, the Court is not authorized to exercise
general jurisdiction over Hoosier Energy. See BNSF, 137 S. Ct. at
1559 (finding general jurisdiction inappropriate even though the
defendant had over 2,000 miles of railroad track and 2,000
3 The affidavit of John Robert Horton, Vice President of Power Production for
Hoosier Energy, was submitted in support of Hoosier Energy’s motion to
dismiss. Plaintiff has not disputed any of the assertions made by Horton in his
affidavit.
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employees in the forum state).
Similarly, the Court may not exercise specific jurisdiction over
Hoosier Energy in this case. The inquiry into whether the Court
can exercise specific jurisdiction focuses on “the relationship among
the defendant, the forum, and the litigation.” Walden v. Fiore, 571
U.S. 277, 284 (2014). “For a State to exercise [specific] jurisdiction
consistent with due process, the defendant’s suit-related conduct
must create a substantial connection with the forum State.” Id.
Although Decedent resided in Illinois, he traveled to a Hoosier
Energy facility in Indiana for work on the day of his death. The
accident in which Decedent was killed occurred in Indiana. Plaintiff
alleges that Hoosier Energy failed to take actions in Indiana to
prevent the accident. See Complaint, ¶ 9. These facts do not
establish a substantial relationship between Hoosier Energy and
Illinois related to this matter.
Because Hoosier Energy is not subject to the Court’s personal
jurisdiction in this case, Hoosier Energy does not reside in Illinois
for purposes of venue. Therefore, the Central District of Illinois is
an improper venue for this case under 28 U.S.C. § 1391(b)(1), as
that statutory provision applies in this case only if all defendants
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are residents of Illinois.
2.
28 U.S.C. § 1391(b)(2)
A party may bring a civil action in “a judicial district in which
a substantial part of the events or omissions giving rise to the claim
occurred.” 28 U.S.C. § 1391(b)(2). Venue is also not proper in this
district under this statutory provision. As the Court just noted, the
accident in which Decedent was killed occurred in Indiana and,
more specifically, in the Southern District of Indiana. In addition,
Hoosier Energy’s alleged omissions occurred in Indiana.
3.
28 U.S.C. § 1391(b)(3)
A party may bring a civil action in “any judicial district in
which any defendant is subject to the court’s personal jurisdiction
with respect to such action,” but only if “there is no district in
which an action may otherwise be brought.” 28 U.S.C. § 1391(b)(3).
Because the accident in which Decedent was killed occurred in the
Southern District of Indiana, venue is proper in that district. See
28 U.S.C. § 1391(b)(2). Accordingly, the Central District of Illinois
cannot be a proper venue in this case under 28 U.S.C. § 1391(b)(3).
The Central District of Illinois is not a proper venue for
Plaintiff’s claims against Hoosier Energy. Although the Court is
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authorized to dismiss Plaintiff’s claims against Hoosier Energy on
the basis of improper venue, the Court has determined that
transferring this matter to the Southern District of Indiana
pursuant to 28 U.S.C. § 1406(a) is the appropriate remedy and in
the interest of justice. Hoosier Energy suggested such a transfer as
an alternative remedy in its motion to dismiss, and Plaintiff
consents to the transfer. The fact that this Court does not have
personal jurisdiction over Hoosier Energy does not prohibit the
Court from transferring this case to another district pursuant to 28
U.S.C. § 1406(a). See Cote v. Wadel, 796 F.2d 981, 985 (7th Cir.
1986).
V. CONCLUSION
For the foregoing reasons, Defendant G.E. Betz, Inc.’s Motion
to Dismiss (d/e 10) and Defendant Hoosier Energy Rural Electric
Cooperative, Inc.’s Motion to Dismiss Plaintiff’s Complaint for Lack
of Personal Jurisdiction and Improper Venue (d/e 12) are
GRANTED. Rather than dismiss Plaintiff’s claims against Hoosier
Energy, the Court TRANSFERS this case to the Southern District of
Indiana, the alternative relief Hoosier Energy sought in its motion.
Any claim for damages by Plaintiff against G.E. Betz is DISMISSED
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WITH PREJUDICE. Plaintiff’s claim for a declaratory judgment
regarding the applicability of G.E. Betz’s lien to damages Plaintiff
may recover under Count II is DISMISSED WITHOUT PREJUDICE.
Because the Court is transferring this case pursuant to 28
U.S.C. § 1406(a) due to improper venue, Hoosier Energy’s Motion to
Transfer Under 28 U.S.C. § 1404(a) (d/e 16) is DENIED. G.E. Betz’s
Motion to Join and Adopt (d/e 24) is DENIED as MOOT. The Court
renders no rulings on Hoosier Energy’s Motion to Dismiss Plaintiff’s
Survival Claim (Count II) (d/e 14) or Plaintiff’s Motion to Remand to
State Court (d/e 20). The Clerk is DIRECTED to transfer this case
to the Terre Haute Division of the Southern District of Indiana.
ENTER: September 27, 2018
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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