United States District Court, N.D. Illinois
January 27, 2004.
CHRISTINE S. COLLINS, Independent Administrator of the Estate of ROBERT L. COLLINS, Deceased, et al., Plaintiffs
THE UNITED STATES OF AMERICA, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Ten different Plaintiffs (the "Federal Plaintiffs") sued the
Defendant, the United States of America ("United States"), for negligence
arising out of an air plane crash. The Plaintiffs include: (1) Aviation
Training Enterprises of Illinois, Inc., d/b/a American Flyers; (2)
American Flyers, Inc.; (3) Scott Chomicz; (4) Christine B. Collins,
Independent Administrator of the Estate of Robert L. Collins; (5) Rise'l
Barkhoff, individually and as Special Administrator of the Estate of
Herman F. Luscher; (6) Edward J. Hock, Independent Administrator of the
Estate of Sharon Hock; (7) Cancer Treatment Centers of America, Inc.; (8)
Midwestern Regional Medical Center, Inc., (9) Patient First, S.C.; and
(10) Employers Insurance of Wausau. The first three Plaintiffs are
collectively referred to as "American Flyers," Plaintiffs four through
six are collectively referred to as the "Estate Plaintiffs," arid the
last four Plaintiffs are collectively referred to as "Cancer Treatment
Presently before the Court are: (1) Midwest Air Traffic Control
Services, Inc. and Gregory Fowler's (collectively "Midwest") Motion to
Intervene as Defendants; and (2) American Flyers' Motion to Join Claims and Parties Pursuant to 28 U.S.C.A.
§ 1367 and Rules 18, 19, and 20 of the Federal Rules of Civil
Procedure. For the following reasons, Midwest's and American Flyers'
motions are granted.
The facts, for the purposes of this motion, are as follows. In February
2000, two aircraft collided in mid-air near the Waukegan Regional
Airport. The collision occurred when a plane piloted by either Collins
or Luscher both licensed pilots, flew into a plane operated by a student
pilot, Hock, causing both planes to crash. The plane occupied by Collins
and Luscher crashed into the roof of the Midwestern Regional Medical
Center and caused property damage and injured five individuals in the
building ("the Ground plaintiffs"). The plane operated by Hock crashed
onto a residential street.
The Federal Plaintiffs sued the United States in federal court,
alleging the Federal Aviation Administration ('TAA'O was negligent in
operating, supervising, and controlling the air traffic control tower at
Waukegan Regional Airport. Pursuant to the Federal Tort Claims Act, the
United States could only be sued in federal court.
Multiple lawsuits were also filed in the state court of Illinois (the
"State cases"). The Estate of Collins sued American Flyers, Midwest, and
the Estate of Hock. The Estate of Luscher sued American Flyers, Midwest,
the Estate of Collins, and the Estate of Hock. The Estate of Hock sued
American Flyers, Midwest, the Estate of Luscher, and the Estate of
Collins. Cancer Treatment Centers sued American Flyers, Midwest, the
Estate of Hock, and the Estate of Collins. The Ground plaintiffs sued
American Flyers, Midwest, the Estate of Collins, the Estate of Luscher,
and the Estate of Hock. ANALYSIS
Two requirements must be met to grant the motions at issue. First
joinder and intervention must be proper under the Federal Rules of Civil
Procedure. Secondly, jurisdiction must be proper in the federal courts.
Midwest's Motion to Intervene as Defendant
The Federal Plaintiffs allege that the United States, through the FAA,
had an agreement with Midwest whereby Midwest would provide air traffic
control services at Waukegan Regional Airport's control tower under the
supervision, guidance, rules, regulations, and authority of the FAA.
These Plaintiffs also allege that the United States had a duty to train,
certify, and evaluate the air traffic controller employed by Midwest at
Waukegan Regional Airport, Therefore, the United States was a proximate
cause of the accident. In the Collins-State cases, the
plaintiffs allege that the negligence of Midwest was a proximate cause of
the air crash.
Midwest moves to intervene in this lawsuit pursuant to Rule 24. First,
Midwest contends that it may intervene as of right, pursuant to
Rule 24(a)(2), because it has an interest so relating to the transaction which
is the subject of the action and is so situated that the disposition of
the action may, as a practical manner, impair or impede the applicant's
ability to protect that interest. Secondly, Midwest seeks permissive
intention, pursuant to Rule 24(b)(2), because a common question of law or
fact exists between Midwest and this matter.
Intervention of Right
Midwest seeks to intervene as of right pursuant to Rule 24(a)(2).
According to Midwest, the Federal Plaintiffs allege many of the identical
allegations against the United States and against Midwest in the State
cases. Midwest, therefore, has a significant interest hi defending itself in one forum, where the United States can be named as a
Defendant. Moreover, Midwest raises the issue that rulings in this
federal suit may have a negative impact on Midwest's interest in the
state suits by application of the doctrines of res judicata and
stare decisis. Midwest also asserts that the United States will
not adequately represent Midwest in this action particularly because of
its own related liability. Rule 24(a)(2) states:
Upon timely application anyone shall be permitted
to intervene in an action . . . (2) when the
applicant claims an interest relating to the
property or the transaction which is the subject
of the action and the applicant so situated that
the disposition of the action may as a practical
matter impair or impede the applicant's ability to
protect that interest, unless the applicant's
interest is adequately represented by the existing
"Therefore, four requirements must be met for intervention of
right: (1) timeliness; (2) an interest relating to the subject matter of
the action; (3) at least potential impairment of that interest if the
action is resolved without the intervener; and (4) lack of adequate
representation by existing parties." The party seeking to intervene of
right has the burden to show that all four requirements are met. Reid
L. v. Illinois State Bd. of Educ., 289 F.3d 1009
, 1017 (7th Cir.
"The existence of `impairment' depends on whether the decision of a
legal question involved in the action would as a practical matter
foreclose rights of the proposed intervenors in a subsequent proceeding."
Am. Nat'l Bank & Trust Co. v. City of Chicago,
865 F.2d 144, 148 (7th Cir. 1989) (citation omitted). Whether rights are
foreclosed is tested by stare decisis standards.
Here, Midwest claims that findings in this matter may have negative
res judicata and stare decisis effects in other cases.
However, any decisions in this matter would not have a res judicata effect against Midwest because Midwest is not a
party in this case. See, e.g., 4901 Corp. v. Town of Cicero,
220 F.3d 522, 529 (7th Cir. 2000) (addressing the Illinois requirements for
res judicata). A judgment in this case will not have a res
judicata effect in the State cases.
Likewise, there has been no showing that a disposition of the Federal
Plaintiffs' case would have a stare decisis effect in the State
cases. Plaintiffs here do not seek to have Midwest found at fault for the
accident in the federal action. Midwest still would be entitled to defend
on the grounds that the FAA was a proximate cause of the accident.
Therefore, intervention of right is not warranted.
Midwest also requests to permissively intervene pursuant to Rule 24(b).
According to Midwest, the claims in the state proceedings both arise from
the same occurrence, the airplane crash; therefore, these claims contain
the same allegations of negligence against both the United States and
Rule 24(b) states that "[u]pon timely application anyone may be
permitted to intervene in an action . . . (2) when an applicant's claim
or defense and the main action have a question of law or fact in common
In exercising its discretion the court shall consider whether the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties."
Here, all the claims involved in the lawsuit have a question of fact in
common. All claims arise out of an in-flight collision of two aircraft.
While the parties may assert various legal theories based on sometimes
conflicting factual allegations, the basic facts which support all claims
by all parties involve the mid-air collision.
The existing litigants also object to permissive intervention on the
grounds that it will cause prejudice or delay; the claim against the United States must
be tried to the Court, but the claims against Midwest may be tried to a
jury. However, careful planning, including consideration of a combined
bench and jury trial, will prevent any confusion and unnecessary delay.
Accordingly, Midwest's motion to intervene on the basis of permissive
intervention is granted.
American Flyers' Motions to Join Parties, Intervene,
and to Join Claims
American Flyers argues that all of the causes of actions in the State
Cases and the causes of action asserted by the Federal Plaintiffs are
based on negligence. In addition, all of the allegations of duty and
breach of duty lead to allegations that the negligence of each defendant,
in both the federal and state cases, was a proximate cause of the first
occurrence at issue: the midair collision and crash of the two airplanes.
American Flyers requests that: (1) Midwest be joined as a party needed
for just adjudication pursuant to Rule 19(a)(1); and (2) the Ground
plaintiffs be joined as parties, pursuant to Rule 19(a)(2)(ii), who have
an interest relating to the subject matter of the Federal Plaintiffs'
cases and are so situated that the disposition of the action in the
Ground Plaintiffs' absence may leave the persons and entities who are
already parties subject to a substantial risk of incurring multiple or
otherwise inconsistent obligations by reason of a claimed interest. In
the alternative, American Flyers requests that Midwest and the Ground
Plaintiffs be joined in the action pursuant to Rule 20. Finally, American
Flyers asks that, once joined as parties, the state claims asserted by
and against Midwest and the state claims asserted by the Ground
plaintiffs be joined with the claims asserted by the Federal Plaintiffs,
pursuant to Rule 18. Compulsory Joinder of Midwest
American Flyers contends that Midwest should be joined as a Defendant,
pursuant to Rule 19(a)(1). However, because Midwest was permitted to
permissively intervene, the issue of whether Midwest should be joined as
a defendant is denied as moot.
Compulsory Joinder of The Ground Plaintiffs
American Flyers next argues that the Ground plaintiffs should be joined
as plaintiffs pursuant to Rule 19(a)(2)(ii). According to American
Flyers, the allegations of negligence pled by the Ground plaintiffs in
the State cases include similar proximate cause allegations that are
claimed by the Federal Plaintiffs against the United States.
Rule 19(a)(2)(ii) states that:
[a] person subject to service of process and whose
joinder will not deprive the court of jurisdiction
over the subject matter of the action shall be
joined as a party in the action if . . . (2) the
person claims an interest relating to the subject
matter of the action is so situated that the
disposition of the action in the person's absence
may . . . (ii) leave any of the persons already
parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest.
"[T]he fact that [a defendant] might be liable to [another party] in a
future action does not create the substantial risk of multiple
or inconsistent obligations. . . . Any subsequent liability of [the
defendant] towards [another party] is independent of liability determined
in the present lawsuit." Davis Cos. v. Emerald Casino, Inc.,
268 F.3d 477
, 484-85 (7th Cir. 2001) (emphasis in original). The mere fact
that an action may not be res judicata against a new plaintiff
arid a defendant may have to defend a similar lawsuit for the same tort
against a new plaintiff does not make the new plaintiff a necessary party
under Rule 19. Field v. Volkswagenwerk AG, 626 F.2d 293
, 302 (3d
Cir. 1980). In this case, the Ground plaintiffs seek to recover damages from
American Flyers in the State cases, a lawsuit from the same tort. That
liability, however, is "independent of any liability determined in the
present lawsuit." Moreover, American Flyers does not offer any argument,
in either its Motion or Reply, for why the Ground plaintiffs should be
joined as plaintiffs, pursuant to Rule 19(a)(2)(ii), in this action.
American Flyers' Motion is denied on this basis,
In the alternative, American Flyers requests that the Ground plaintiffs
should be joined as plaintiffs in this action pursuant to Rule 20(a).
According to American Flyers, the claims of the Ground plaintiffs in the
State cases arise out of the same occurrence as the claims alleged by the
Federal Plaintiffs and that questions of law and fact common to all the
parties will arise in both actions.
Rule 20(a) states that "[a]ll persons may join in one action as
plaintiffs if they assert any right to relief, jointly, severally, or
. . . arising out of the same transaction or occurrence . . . and if any
questions of law or fact to all these persons will arise in the action."
Other relevant factors, in addition to the Rule 20(a) standard, may be
considered when determining if joinder is proper. For example, joinder
may be denied in cases where it would create "prejudice, delay, or
expense." Chavez v. Illinois State Police, 251 F.3d 612, 632
(7th Cir. 2001).
As discussed above, the claims arise out of the same occurrence
the in-flight collision of two aircraft. The United States and the Estate
Plaintiffs both argue that the Ground plaintiffs would be forced out of
their chosen state court forum. However, this Court is the only forum
where all claims asserted by all parties can be joined so that complete
relief to all can be afforded, The United States and the Estate Plaintiffs also contend that joinder
would cause undue prejudice, delay, and expenses to the Ground
plaintiffs. According to these parties, settlement discussions and
discovery have occurred. Litigating the matters in federal court would
then delay further settlement negotiations and create duplicative
discovery. American Flyers, however, represents in its motion that the
written discovery is not complete in the Collins-State cases,
and that the completed discovery can be easily transferred to the
Collins-Federal cases and controlled to avoid duplication or undue
hardship to the parties joined.
There is no showing why the parties cannot continue to discuss
settlement while the matter is pending in federal court. In addition, the
services of this Court and a Magistrate Judge would be available upon the
parties' request to participate in settlement discussions. American
Flyers' motion to permissively join the Ground plaintiffs as parties is
Joinder of Claims
Joinder of the remaining state claims involving all parties is also
appropriate. "A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims, legal, equitable, or
maritime as the party has against an opposing party." Fed.R.Civ.P.
18(a). Because the rule is permissive, all claims involved may be
asserted in this forum if jurisdiction is proper.
Section 1367(a) of Title 28 of the United States Codes provides that
"the district court shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy,"
subject to a number of statutory exceptions. The state and federal claims
must arise out of a "common nucleus of operative fact" to exercise subject matter
jurisdiction over the state claims. Ammerman v. Sween,
54 F.3d 423, 424 (7th Cir. 1995).
Here, the United States and the remaining Federal Plaintiffs (except
for American Flyers) contend that a common nucleus of operative fact does
not exist between the existing claims against the United States and the
claims asserted against Midwest. According to these parties, the alleged
negligence of Midwest occurred solely on the day of the accident. In
contrast, the alleged negligence of the United States occurred prior to
the crash, when the United States failed to install a proper radar
machine. The United States and the Federal Plaintiffs also argue that a
common nucleus of operative fact does not exist between the Ground
plaintiffs' claims and the existing claims.
These arguments are not persuasive. These cases involve claims for
wrongful death damages arising from the mid-air collision to determine
which parties are responsible. Midwest is asserting as a defense the same
basis of liability that the Federal plaintiffs are seeking: the
Government is responsible for the mid-air collision by not properly
controlling the two aircraft. The Ground plaintiffs' recovery also is
related to the issue of which party or parties may be liable for the
mid-air collision. Therefore, the existing claims and the claims
presented by both Midwest and the Ground plaintiffs arise from a common
nucleus of operative fact. The United States and the Federal Plaintiffs, except for American
Flyers, next argue that discretionary reasons exist to deny the exercise
of supplemental jurisdiction.
The district courts may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) if . . . (2) the claim
substantially predominates over the claim or
claims over which the district court has original
jurisdiction, (3) the district court has dismissed
all claims over which it has original
jurisdiction, or (4) in exceptional circumstances
there are other compelling reasons for declining
28 U.S.C. § 1367(c)(2)-(4).
The parties first object to the exercise of supplemental jurisdiction
because the state law claims predominate over the federal claim. However,
as discussed above, the claims involving Midwest and the Ground
plaintiffs are interrelated to the claims against the United States.
For the foregoing reasons, American Flyers' Motion to Join Claims and
Parties Pursuant to 28 U.S.C.A. § 1367 and Rules 18, 19, and 20 of
the Federal Rules of Civil Procedure is granted. Midwest's Motion to
Intervene as Defendants is granted.
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