National Fire and Marine Insurance Company v. Lindemann et al

Filing 102

ORDER granting 86 Motion to Dismiss Certain Defendants Voluntarily. Plaintiffs claims against defendants Midwest Emergency Department Services, Inc., Charles DuMontier, M.D., Radiology Consultants of Mid-America, P.C., Erick Falconer, M.D., West ern Healthcare, LLC, and Lincoln Surgical Associates, Ltd are DISMISSED. Plaintiffs claims against Lee Lindemann, as Special Administrator of the Estate of Sue Ann Lindemann, and St. Elizabeth's Hospital remain. Signed by Judge David R. Herndon on 1/11/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATIONAL FIRE AND MARINE
INSURANCE COMPANY,
Plaintiff,
v.
LEE LINDEMANN, Special Administrator
of the Estate of SUE ANN LINDEMANN, et al.,
Defendants.

No. 3:15-cv-910-DRH-DGW
ORDER

Pending before the Court is plaintiff’s motion to voluntarily dismiss its
amended complaint for declaratory judgment against certain defendants pursuant
to FEDERAL RULE

OF

CIVIL PROCEDURE 41(a)(2) (Doc. 86). Defendants filed no

objection. 1 “The determination of whether to grant a motion for voluntary
dismissal rests within the sound discretion of the district court.” Tyco Labs., Inc.

v. Koppers Co., Inc., 627 F.2d 54, 56 (7th Cir. 1980).

This is a declaratory

judgment action. At the time National Fire brought this action, the state
court

medical malpractice case was still pending. Now, plaintiff states that a

settlement as to the related medical malpractice lawsuit was recently reached
between the parties of that suit, and a release was executed in favor of Midwest
Emergency Department Services, Inc., Charles DuMontier,

M.D., Radiology

Defendant Midwest Emergency Department Services, Inc., who is referenced in the pending
motion, filed an objection (Doc. 97) to the separately filed motion to dismiss its crossclaim
pursuant to 12(b)(1) (Doc. 87). That motion shall be addressed by separate order.
1

Page 1 of 2

Consultants of Mid-America, P.C., Erick Falconer, M.D., Western

Healthcare,

LLC, and Lincoln Surgical Associates, Ltd.
Based upon the state court settlement, there is no longer an actual
controversy as to plaintiff’s claims against some defendants in this case. Thus,
dismissal of plaintiff’s claims against defendants Charles DuMontier, M.D.,
Radiology Consultants of Mid-America, P.C., Erick Falconer, M.D., Western
Healthcare, LLC, Lincoln Surgical Associates, Ltd, and Midwest Emergency
Department Services, Inc. will not prejudice this case.

Accordingly, the Court

GRANTS the motion and DISMISSES without prejudice plaintiff’s claims
against defendants Midwest Emergency Department Services, Inc., Charles
DuMontier, M.D., Radiology Consultants of Mid-America, P.C., Erick Falconer,
M.D., Western Healthcare, LLC, and Lincoln Surgical Associates, Ltd. Plaintiff’s
claims against Lee Lindemann, Special Administrator of the Estate of Sue Ann
Lindemann, and St. Elizabeth's Hospital of the Sisters of the Third Order of St.
Francis and defendants’ crossclaims remain.
IT IS SO ORDERED.
Signed this 11th day of January, 2016.

Digitally signed
by Judge David
R. Herndon
Date: 2016.01.11
11:20:30 -06'00'
United States District Judge

Page 2 of 2