Schwarz et al v. Midwest Airlines Inc et al

Filing 18

ORDER signed by Judge J P Stadtmueller on 9/16/09 dismissing this action and all cross-claims and counterclaims, without prejudice or costs, for lack of subject matter jurisdiction. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ C Y N T H I A A. SCHW A R Z and HANK SCHW A R Z , P la in t iffs , H E A L T H CARE SERVICE CORPORATION IL L IN O IS STATE PAC, NFP In vo lu n ta ry Plaintiff, v. M ID W E S T AIRLINES, INC., IL L IN O IS NATIONAL INSURANCE COMPANY, U N K N O W N , sued as "ABC" a fictitious entity, and D E F INSURANCE COMPANY D e fe n d a n ts . ____________________________________________ Case No. 09-CV-668

ORDER
O n July 8, 2009, plaintiffs filed a Complaint alleging plaintiff Cynthia Schwarz s u ffe re d personal injury on a Midwest Airlines' flight during its landing in Milwaukee. H a n k Schwarz, her husband, alleged various damages stemming from his wife's in ju rie s . Plaintiffs brought suit against: 1) Midwest Airlines, Inc., the operator of the p la n e on which the injury occurred; 2) Illinois National Insurance Company, p re s u m a b ly the insurer for Midwest (though that is not stated in the pleadings); 3) A B C , a fictitious name for an unknown entity believed to be responsible for the m a i n te n a n c e of the plane on which the injury occurred; and 4) DEF Insurance C o m p a n y, a fictitious name for an unknown insurer for ABC.

P la in tiffs originally asserted that the court had jurisdiction pursuant to 28 U .S .C . § 1332, diversity jurisdiction. However, in an Order dated July 23, 2009, the c o u rt pointed out that complete diversity was lacking, and thus granted plaintiffs an o p p o rtu n ity to amend their complaint so as to properly allege jurisdiction. Instead o f dropping the non-diverse parties from the suit, plaintiff chose to allege federal q u e s tio n jurisdiction by asserting that the claims arose under the Federal Aviation A c t. In an Order dated August 26, 2009, the court pointed out that it was not aware o f any private right of action under the Federal Aviation Act, and thus ordered p la in tiffs to show cause as to why the action should not be dismissed for lack of s u b je c t matter jurisdiction. After entry of this order, defendant Midwest filed an A n s w e r to plaintiffs Amended Complaint. Thereafter, involuntary plaintiff Health C a re Service filed an Answer containing cross-claims against plaintiff Cynthia S c h w a r z , and counter-claims against defendants. No basis for federal jurisdiction w a s alleged for Health Care Service's claims. On September 4, 2009, plaintiffs filed a proposed order, seeking that this action, including all cross-claims and c o u n te r c la im s be dismissed without prejudice and without costs. U p o n consideration of plaintiffs' filing in response to the court's August 26, 2 0 0 9 Order, it is clear that dismissal is appropriate. A c c o r d in g ly ,

2

IT IS ORDERED that the above-entitled action, and all cross-claims and c o u n te rc la im s , be and the same hereby are DISMISSED, without prejudice or costs, fo r lack of subject matter jurisdiction. T h e clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 16th day of September, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

3