National Independent Truckers Insurance Company v. Gadway et al

Filing 102

MEMORANDUM AND ORDER - Kelly Gadway's counterclaim (filing 53 ) is dismissed without prejudice to reassertion of that claim in a state court of appropriate jurisdiction. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NATIONAL INDEPENDENT
TRUCKERS INS. CO.,
8:10-CV-253
Plaintiff,
vs.

MEMORANDUM AND ORDER

KELLY GADWAY and BRUCE
LARSON,
Defendants.
This matter is before the Court on the Court’s own Memorandum and
Order of March 12, 2012 (filing 99), and Memorandum and Order of April 23,
2012 (filing 101). In the March 12 memorandum and order, the Court
directed the plaintiff to show cause, by an appropriate brief in opposition,
why a partial summary judgment should not be entered against it. (Filing 99
at 13-14.) Neither party filed any response to the Court’s show cause order,
and in its April 23 memorandum and order, the Court entered summary
judgment against the plaintiff on the terms explained in its March 12 order.
The Court concluded that the plaintiff is not entitled to the relief sought in its
complaint, and dismissed its complaint with prejudice. See filing 101.
In its April 23, 2012, order (filing 101), the Court also ordered the
parties to show cause why the only pending claim, Kelly Gadway’s
counterclaim, should not be dismissed without prejudice. Again, neither party
has filed any response. And as explained in the April 23 order, in most cases,
when federal and state claims are joined and the federal claims are dismissed
on a motion for summary judgment, the pendant state claims are dismissed
without prejudice to avoid needless decisions of state law, as a matter of
comity and to promote justice between the parties. Birchem v. Knights of
Columbus, 116 F.3d 310 (8th Cir. 1997); Ivy v. Kimbrough, 115 F.3d 550 (8th
Cir. 1997); see also United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
Having dismissed all claims over which it has original jurisdiction, the
Court declines to exercise supplemental jurisdiction over Gadway’s remaining
state law claim. See 28 U.S.C. § 1367. The Court finds that Gadway’s claim
should be dismissed without prejudice to reassertion of that claim in a state
court of appropriate jurisdiction. Accordingly,

IT IS ORDERED:
1.

Kelly Gadway’s counterclaim (filing 53) is dismissed
without prejudice to reassertion of that claim in a state
court of appropriate jurisdiction.

2.

A separate judgment will be entered.

Dated this 17th day of May, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge

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