United States District Court, N.D. Illinois, Eastern Division
MELANIE E. DAMIAN, as Special Monitor and Equity Receiver for the Estate of Hunter Wise Commodities, LLC, et al., Plaintiff,
TIMOTHY CAREY and WINSTON & STRAWN LLP, Defendants.
MEMORANDUM OPINION AND ORDER
L. ALONSO, UNITED STATES DISTRICT JUDGE
motion to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(1) is denied for the reasons explained
below. The Court determines, however, that it lacks
subject-matter jurisdiction, and transfers this action
forthwith to the United States District Court for the
Southern District of Florida.
an action brought by Melanie E. Damian, who was appointed
Special Monitor, Corporate Manager, and Equity Receiver for
Hunter Wise Commodities, LLC (“Hunter Wise”) by
Judge Donald M. Middlebrooks of the United States District
Court for the Southern District of Florida, who presided over
a fraud action brought by the Commodity Futures Trading
Commission against Hunter Wise and its principals. Damian
brings state-law claims in this case, alleging that Winston
& Strawn LLP (“Winston”) and a Winston
partner, Timothy Carey, committed legal malpractice in their
representation of Hunter Wise, and in the alternative that
Winston breached its Retainer Agreement with Hunter Wise. The
Court assumes the reader's familiarity with the
underlying facts, which are recited in its memorandum opinion
and order of March 4, 2016. (ECF No. 43.)
move to dismiss the complaint for lack of subject-matter
considering a Rule 12(b)(1) motion to dismiss for lack of
subject-matter jurisdiction, a district court accepts as true
all well-pleaded factual allegations and draws reasonable
inferences from the allegations in favor of the plaintiff.
Citadel Sec., LLC v. Chi. Bd. Options Exch., Inc.,
808 F.3d 694, 698 (7th Cir. 2015) (citing Capitol Leasing
Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)). The
court may also look beyond the allegations of the complaint
and consider affidavits and other documentary evidence to
determine whether subject-matter jurisdiction exists.
Capitol Leasing, 999 F.2d at 191.
asserts in the complaint that this court has subject-matter
jurisdiction under 28 U.S.C. § 754 “and the
principles of ancillary or supplemental jurisdiction”
set forth in 28 U.S.C. § 1367. (ECF No. 1, Compl. ¶
11.) Section 754 governs federal receiverships and provides
A receiver appointed in any civil action or proceeding
involving property, real, personal or mixed, situated in
different districts shall, upon giving bond as required by
the court, be vested with complete jurisdiction and control
of all such property with the right to take possession
He shall have capacity to sue in any district without
ancillary appointment, and may be sued with respect thereto
as provided in section 959 of this title.
Such receiver shall, within ten days after the entry of his
order of appointment, file copies of the complaint and such
order of appointment in the district court for each district
in which property is located. The failure to file such copies
in any district shall divest the receiver of jurisdiction and
control over all such property in that district.
28 U.S.C. § 754. Section 1367 provides that “in
any civil action of which the district courts have original
jurisdiction, the district courts 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 under ...