Allianz Global Risks US Insurance Company et al v. Goshen Air Center Inc et al

Filing 46

OPINION AND ORDER: The Court will afford the parties one further opportunity to show that supplemental jurisdiction does in fact exist, with briefs in support due by October 11, 2011. Signed by Magistrate Judge Roger B Cosbey on 9/26/2011. (kjm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ALLIANZ GLOBAL RISKS US INSURANCE
)
COMPANY as Subrogee of TBT Aviation, LLC, )
And TBT Aviation, LLC,
)
)
Plaintiffs,
)
)
v.
)
Case No.: 1:11-CV-081
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GOSHEN AIR CENTER, INC., JUSTIN DALE, )
and RANDALL SHARKEY,
)
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Defendants.
)
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GOSHEN AIR CENTER, INC.,
)
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Third-Party Plaintiff,
)
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v.
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ESTLICK-GIRVIN & LEFEVER INSURANCE )
AGENCY d/b/a STAR INSURANCE,
)
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Third-Party Defendant.
)
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ESTLICK-GIRVIN & LEFEVER INSURANCE )
AGENCY d/b/a STAR INSURANCE AGENCY, )
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Fourth-Party Plaintiff,
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v.
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ARLINGTON/ROE & CO., INC.,
)
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Fourth-Party Defendant.
)
OPINION AND ORDER
I. INTRODUCTION
On March 4, 2011, Plaintiff Allianz Global Risks US Insurance Company, as subrogee of

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Plaintiff TBT Aviation LLC, filed its Complaint in this Court against Defendants Goshen Air
Center, Inc., Justin Dale, and Randall Sharkey (collectively, “Goshen Air Center”) based on
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).1 (Docket # 1.) Plaintiffs allege that
Defendants’ negligence during an annual inspection of TBT Aviation LLC’s helicopter resulted
in damage to the aircraft. (Compl. ¶¶ 8-9.)
On June 6, 2011, Defendants and now Third Party Plaintiffs, Goshen Air Center, filed a
Third Party Complaint against Estlick-Girvin & Lefever Insurance Agency (“Star Insurance”)
asserting that Star Insurance failed to procure appropriate insurance to meet Goshen Air Center’s
needs. (Docket # 20.)
On July 20, 2011, Star Insurance filed its Amended Fourth Party Complaint against
Arlington/Roe & Co., Inc. (“Arlington/Roe”), alleging that Arlington/Roe—Star Insurance’s
insurance broker—failed to advise and procure for Star Insurance the insurance coverage for the
type of loss described in the original complaint. (Docket # 31; Am. Fourth Party Compl. ¶ 12.)
The Amended Fourth Party Complaint was brought based on supplemental jurisdiction pursuant
to 28 U.S.C. § 1367(b) and is dependent on the Court exercising jurisdiction over the Third Party
Complaint. (Am. Fourth Party Compl. ¶ 3.)
II. JURISDICTION
At the telephonic status conference held on August 18, 2011, the Court questioned
whether it had jurisdiction over the Third Party and Fourth Party Complaints. (Docket # 41.)
Because there is neither diversity of citizenship between the parties in either complaint (see
Third Party Compl. ¶¶ 1-4; Am. Fourth Party Compl. ¶¶ 1-2) nor a federal question involved in
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Jurisdiction of the undersigned Magistrate Judge over the original complaint is based on 28 U.S.C. §
636(c), all original parties consenting. (Docket # 14.)

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either of these claims (see Third Party Compl. ¶¶ 18-21; Am. Fourth Party Compl. ¶ 19), the
only remaining basis of this Court’s jurisdiction, if any, is supplemental jurisdiction pursuant to
28 U.S.C. § 1367(b). As such, the Court asked counsel to submit briefs in support of the Court’s
subject matter jurisdiction under § 1367(b). (Docket # 41.) The parties filed the requested briefs
on September 12, 2011. (Docket # 42, 43.)
After reviewing the submitted briefs, the Court is not convinced that it has supplemental
jurisdiction over the Third Party and Fourth Party Complaints. Section 1367 confers
supplemental jurisdiction on district courts when the claims are so related to the action over
which the court has original jurisdiction that “they form part of the same case or controversy,”
28 U.S.C. § 1367(a), which requires that the claims “derive from a common nucleus of operative
facts,” Sanchez & Daniels v. Koresko, 503 F.3d 610, 614 (7th Cir. 2007). Here, however, the set
of facts surrounding Plaintiffs’ negligence claims against Goshen Air Center appear to be
significantly different from the facts central to Goshen Air Center’s claim against Star Insurance
for failure to procure insurance, which leads the Court to the conclusion that exercising
supplemental jurisdiction would be inappropriate. See Washington v. Parkview Hosp., No. 1:09CV-1-TS, 2009 WL 1605290, at *3 n.2 (N.D. Ind. June 4, 2009); Alfano v. City of Spring Valley,
No. 07-1297, 2008 WL 4491958, at *9-10 (C.D. Ill. Sept. 29, 2008); Tech Enter., Inc. v. Wiest,
428 F. Supp. 2d 896, 903 (W.D. Wis. 2006). Accordingly, Goshen Air Center’s third party
claim, as well as the dependent fourth party claim, seem too attenuated from Plaintiffs’
negligence claim to constitute the same case or controversy for supplemental jurisdiction
purposes. See Coll. Network v. Cincinnati Ins. Co., No. 1:10-CV-0370-JMS-DML, 2011 WL
767732, at *3 (S.D. Ind. Feb. 25, 2011).

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III. CONCLUSION
Because it appears that the Court does not have supplemental jurisdiction over Goshen
Air Center’s claim against Star Insurance and Star Insurance’s claim against Arlington/Roe, the
Court will consider dismissing the Third Party Complaint and the Fourth Party Complaint
without prejudice under Federal Rule of Civil Procedure 12(h)(3) and 28 U.S.C. § 1367. The
Court, however, will afford the parties one further opportunity to show that supplemental
jurisdiction does in fact exist, with briefs in support due by October 11, 2011.
SO ORDERED.
Entered this 26th day of September, 2011.
/s/ Roger B. Cosbey
Roger B. Cosbey
United States Magistrate Judge

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