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Liberty Mutual Insurance Co. v. Mitchell

United States District Court, C.D. Illinois, Peoria Division

January 27, 2015



JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Plaintiff Liberty Mutual Insurance Company's Emergency Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 4). Plaintiff filed its motion on January 25, 2015 and this Court held a hearing on it on January 26, 2015 at which all parties were present. For the reasons explained below, the Court sua sponte dismisses this matter.


On January 23, 2015, Plaintiff Liberty Mutual Insurance Company filed a Complaint for Declaratory Judgment and Other Relief against George Mitchell and BNSF Railway Company. Two days later, on January 25, 2015, Plaintiff filed the currently pending motion for an emergency temporary restraining order. In it, Plaintiff requests that the Court immediately issue a temporary restraining order and preliminary injunction to quash, vacate, or stay any proceedings initiated by Defendant George Mitchell to collect on an underlying judgment for tort damages.

This dispute stems from litigation brought by Defendant George Mitchell against Defendant BNSF Railway Company in the Circuit Court of Hancock County, Illinois pursuant to the Federal Employers' Liability Act ("FELA"). In the underlying litigation, Mitchell sued BNSF for injuries that he incurred while working as a trackman for BNSF over the course of fourteen years. After a trial, a jury awarded Mitchell nearly $1.8 million in damages for medical expenses, lost earnings, disability, pain and suffering, and emotional distress.

BNSF appealed the jury verdict and also filed a motion to stay enforcement and execution of the judgment during the course of the appeal. As part of its motion to stay, BNSF filed a bond issued by Plaintiff Liberty Mutual, as a surety, for 150% of the judgment amount. The Bond included language explaining that it was payable "for such portion of the judgment as is affirmed and not reversed following the exhaustion of all appellate remedies." (Doc. 5 at 5). The state circuit court entered the stay on August 20, 2012.

This dispute arises because a second appeal followed BNSF's first, direct appeal. While the direct appeal was pending before the Illinois appellate court, BNSF discovered evidence that suggests Mitchell is not as injured as the jury found that he was. Namely, an Illinois Sheriff, Scott Bentzinger, observed Mitchell stealing wire from power line structures. He attests that Mitchell both sat on top of the power line and cut the wire, and later bent over to pick up fallen wire off the ground. On February 11, 2014, BNSF filed a petition pursuant to 735 Ill. Comp. Stat. 5/2-1401 (the "Section 1401 Petition") in which it sought relief from the trial court's judgment based upon this information.

After filing its Section 1401 petition in the trial court, BNSF requested that the appellate court stay its decision on the pending direct appeal until the trial court resolved the Section 1401 petition. The appellate court denied the request. It affirmed the trial court's judgment on May 28, 2014. The Illinois Supreme Court denied BNSF's motion for leave to file an appeal on September 24, 2014.

The trial court denied BNSF's Section 1401 petition on June 11, 2014, and BNSF filed an appeal on July 9, 204. This appeal is currently pending.

The Illinois appellate court issued a notice of mandate in November 2014, even though the Section 1401 petition's appeal remains pending. After the mandate issued, Mitchell began attempting to collect on the underlying judgment.

Thus far, BNSF's attempts in state court to keep Mitchell from collecting until the resolution of the Section 1401 petition's appeal have been unsuccessful. BNSF filed a motion to recall the mandate and continue the stay, but it was denied. It then filed a motion in the trial court to continue or issue a new stay of enforcement of the judgment pending the Section 1401 appeal, which was denied on January 16, 2015. BNSF filed an interlocutory appeal of this decision with the appellate court, and also filed two motions with the appellate court: an emergency motion for a temporary stay of the judgment pending the Section 1401 appeal, and a motion to stay the enforcement of the judgment pending the section 1401 appeal. The appellate court denied BNSF's emergency motion, and is currently considering BNSF's interlocutory appeal and its separate motion for a stay.

As a surety on the Bond, Plaintiff Liberty Mutual Insurance Company is the secondary obligor to Mitchell, after BNSF. Although it has an interest in the trial court proceedings as a surety, it has not been a party to any of the litigation in state court. On January 21, 2015, however, Mitchell filed a state court citation proceeding against Plaintiff. Mitchell served Plaintiff with notice of the citation proceeding sometime later, which directs Plaintiff to appear in state court on February 4, 2015 and produce all documents related to the Bond at issue in this case.


The court will not consider the merits of Plaintiff's motion for a temporary restraining order, and will instead dismiss the Complaint. First, the Court questions whether it has subject matter jurisdiction over the Complaint or the ability to provide the relief that Plaintiff requests. Second, even if the Court does have subject matter jurisdiction, there are factors that call for the Court to exercise its prerogative to abstain from hearing this case. Although Plaintiff may not have been a party to any of the underlying litigation prior to the initiation of citation proceedings against it, its interests have been closely aligned with and ...

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