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Eric Joelner, Fish, Inc., D/B/A/ Xxxtreme Entertainment, Free v. Village of Washington Park

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 14, 2011

ERIC JOELNER, FISH, INC., D/B/A/ XXXTREME ENTERTAINMENT, FREE SPEECH, INC., AND FIRST AMENDMENT, INC., PLAINTIFFS,
v.
VILLAGE OF WASHINGTON PARK, ILLINOIS, DEFENDANT.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

On June 3, 2011, the Court ordered Plaintiff to Show Cause why this case should not be dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of federal subject matter jurisdiction (Doc. 5). Plaintiff has responded (Doc. 6) that section 9-104 of Illinois's Local Governmental and Governmental Tort Immunities Act supports the Court's jurisdiction here because that section of the Illinois law provides that "[t]he court which enters judgment shall order that the governing body pay the judgment." 745 ILCS 10/9-104.

Federal subject matter jurisdiction does not arise under Illinois state law. Nor does the Court's prior Judgment in Joelner v. Village of Washington Park, Illinois, vest the Court with jurisdiction over this state law claim. Joelner, Civil No. 03-325-GPM (S.D. Ill. dismissed June 8, 2006) ("Joelner I"); Covington v. Mitsubishi Motor Mfg. of America, Inc, 51 Fed. Appx. 992, 994 (7th Cir. 2002), citing Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 370-71 (2002). The parties are admittedly not diverse (Doc. 6). The Court's Show Cause Order fleshed out the need for some proper source of federal subject matter jurisdiction and the Court's concern that no federal subject matter jurisdiction exists here. Plaintiff's response to the Show Cause Order has not allayed those concerns. Plaintiff does not appeal to any federal case, statute, or rule. The Illinois state law cited by Plaintiff provides no basis for federal subject matter jurisdiction. As such, the Court must DISMISS this action without prejudice pursuant to Federal Rule of Civil Procedure 12(h)(3).

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20110714

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