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ROBINSON v. TOWN OF MADISON

November 8, 1990

CHERYL ROBINSON, Plaintiff,
v.
TOWN OF MADISON, TOWN OF MADISON POLICE DEPARTMENT, WAYNE ROMEIS, as Chief of Police, and ONE OR MORE JOHN DOES, Defendants


Suzanne B. Conlon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE

 In this one-count diversity action, plaintiff Cheryl Robinson sues the Town of Madison, Wisconsin ("Madison"), the Madison police department, Wayne Romeis, and unnamed Madison police officers (collectively "defendants") for defamation. The defendants move to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b) (2).

 BACKGROUND

 In deciding a motion to dismiss for lack of personal jurisdiction, the court accepts all undenied factual allegations and will resolve all factual disputes in favor of the party seeking to establish jurisdiction. Saylor v. Dyniewski, 836 F.2d 341, 343 (7th Cir. 1988).

 This dispute stems from a tragic house fire that killed Robinson's five young children. The fire occurred in Sommerset Circle, a low-income housing project in Madison, in the early morning hours of March 13, 1990. Complaint paras. 9, 11. At the time, Robinson was living with her five children in a three-floor Sommerset town house. Id. at P 5. All five children were sleeping in the upstairs bedrooms. Id. at P 11. Robinson contends that she fell asleep in the living room and awoke to find the kitchen on fire. Id. She ran from the town house and called on neighbors to help rescue the children. Id. One neighbor called 911 and others notified the Madison fire and police departments. Id. at P 12.

 Several neighbors told police on the scene that they saw and heard at least one of the children yelling from a third-floor window. Id. at 13. These neighbors attempted to get into the house to rescue the children. Id. Police officers prevented any private citizens from entering the burning house. Id. All five deceased children were eventually removed from the town house. Id. at P 14.

 After fire officials arrived, but before the children were removed from the town house, Robinson went to her mother's town house in nearby Sommerset Circle. Id. at P 15. Madison police officers located Robinson and questioned her about the fire and about her whereabouts when the fire broke out. Id. Robinson explained that she was at home sleeping in the living room and that when she awoke she saw the flames and ran for help. Id. Later the same day, Robinson traveled to Chicago. Id. at P 16. Her children were buried in Chicago. Robinson has lived in Chicago since the fire. Id.

 Following the fire, Romeis, chief of the Madison police department, and other local officials told the media that Robinson was not home when the fire began. Id. at P 17. Madison police officials also stated that they believed Robinson was at a local tavern when the fire broke out and that they planned to arrest her. Id. An inquest was held to determine what occurred on the night of the fire and to advise the local district attorney whether Robinson or any police or firefighters should be charged with a crime. Id. at P 19. The inquest jury concluded that criminal charges should not be filed against Robinson or Madison police and fire officials. Id. For four months following the inquest, Madison police officials continued to state that Robinson was not home when the fire began. Id.

 Robinson alleges that Madison police officials, including Romeis, defamed her by stating that she was not at home when the fire began and that they planned to arrest her. Id. at PP 20-23. Defendants move to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12 (b) (2). Defendants also move for imposition of Rule 11 sanctions. The court requested the parties to address whether this case should be transferred to the United States District Court for the Western District of Wisconsin.

 DISCUSSION

 In this action, subject matter jurisdiction is based on diversity. A federal court sitting in Illinois has personal jurisdiction over a nonresident party only if an Illinois state court would have jurisdiction. Fed.R.Civ.P. 4(e); Young v. Colgate-Palmolive Co., 790 F.2d 567, 569 (7th Cir. 1986). Accordingly, Illinois law governs the determination whether this court has personal jurisdiction over the defendants. Robinson bears the burden on this issue. Kutner v. DeMassa, 96 Ill. App. 3d 243, 421 N.E.2d 231, 51 Ill. Dec. 723 (1981).

 Robinson first asserts that defendants have waived their jurisdictional argument by failing to file a special or limited appearance to contest the court's jurisdiction. This assertion is without merit. The Illinois cases cited by Robinson relate to Illinois procedural rules that are inapplicable to federal court proceedings. Under Fed.R.Civ.P. 12 (h) (1),

 
A defense of lack of jurisdiction over the person . . . is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading permitted or ordered under Rule 7(a), or ...

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