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Jeremy Grove and Amanda Grove v. Manchester Tank Co.

April 19, 2011

JEREMY GROVE AND AMANDA GROVE, PLAINTIFFS
v.
MANCHESTER TANK CO., AND K. A. BERGQUIST, INC.,
DEFENDANTS
BRADLEY D. CLARK AND MICHELLE L. CLARK, PLAINTIFFS
v.
MANCHESTER TANK CO., AND K. A. BERGQUIST, INC.,
DEFENDANTS AND
LARRY K SMITH, JR. AND MELISSA SMITH, PLAINTIFFS
v.
MANCHESTER TANK CO., AND K. A. BERGQUIST, INC.,



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Tuesday, 19 April, 2011 11:03:47 AM

Clerk, U.S. District Court, ILCD

ORDER and OPINION

The parties have consented to have these three consolidated cases heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the cases to me. Now before the Court are: the motion for summary judgment and the motion to strike, filed by defendant K. A. Bergquist Inc. as to the Grove Plaintiffs' claim (#114 and #118); K.

A. Bergquist's motion for summary judgment as to the Clark Plaintiffs' claim (#119); and K. A. Bergquist's motion for summary judgment as to the Smith Plaintiffs' claim (#121)*fn1 . The motions are fully briefed, and I have carefully considered the arguments made and evidence submitted by the parties. The motions are granted.

JURISDICTION AND VENUE

The Plaintiffs are citizens of the State of Illinois. Defendant Manchester Tank & Equipment Company was incorporated in Delaware and has its principle place of business in Tennessee. Defendant K. A. Bergquist Inc. was incorporated in the State of Ohio and has its principle place of business in Toledo, Ohio.

Third Party Defendant Hicksgas-Pekin Inc. was incorporated in the State of Indiana and has its principle place of business in Illinois. The citizenship of a third party defendant, adverse solely to a third party plaintiff (i.e. not adverse to the original plaintiff), is irrelevant to the existence of diversity jurisdiction. Caterpillar Inc. v. Lewis, 519 U.S. 61, 66 n.1 (1996); Fidelity & Deposit Co. of Md. v. City of Sheboygan Falls, 713 F.2d 1261, 1266 (7th Cir. 1983); Sabo v. Dennis Technologies, LLC, - F. Supp. 2d -, Case No. 07-283-DRH, 2007 WL 1958591 at n.5 (S.D. Ill.2007). Here, the only dispute involving Hicksgas is with the other Defendants; both K. A. Bergquist and Manchester Tank have third party claims against Hicksgas, but the Plaintiffs have no claims against Hicksgas-Pekin Inc. See, Second Amended Complaints (Docs. #69, 70, 71). Hence the presence of Hicksgas-Pekin Inc. does not destroy diversity in this case.

The amount in controversy in each of these three consolidated cases exceeds the statutory minimum of $75,000.

Because the Plaintiffs and Defendants are diverse and the minimum amount in controversy has been met, this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C.1332.

SUMMARY JUDGMENT GENERALLY

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995). In ruling on a summary judgment motion, the court may not weigh the evidence or resolve

issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide, ...


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