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Bailey v. Worthington Cylinder Corp.

United States District Court, N.D. Illinois, Western Division

November 20, 2019

Kurtis M. Bailey, Plaintiff,
Worthington Cylinder Corporation, et al., Defendants.



         For the reasons stated below, plaintiff's motion [489] to retransfer this case is denied, defendants' motion [460] to bar is denied, plaintiff's motion [462] to clarify is denied, and defendants' motion [454] to strike is granted. A status hearing remains set before Magistrate Judge Jensen on November 25, 2019 at 9:00 AM. Whether plaintiff has retained or will be seeking to retain counsel can be discussed at that hearing.


         Before the court are four motions: (1) plaintiff's motion [489] to retransfer this case to the United States District Court for the Central District of California[1]; (2) defendants' motion [454] to strike portions of plaintiff's third amended complaint; (3) defendants' motion [460] to bar Attorney Andrew Shalaby from further appearing or participating as counsel for plaintiff; and (4) plaintiff's motion [462] to clarify or modify the court's order [402] revoking Attorney Shalaby's pro hac vice (“PHV”) admission in this case.

         Attorney David Chen entered his appearance as co-counsel for plaintiff on August 15, 2018 [372] [373]. At that time, Attorney Shalaby was plaintiff's lead counsel and Attorney John Nelson was serving as local counsel. After the revocation of Attorney Shalaby's pro hac vice admission, Attorney Chen remained as counsel of record for plaintiff until June 26, 2019 when Magistrate Judge Jensen entered an order [483] granting Attorney Chen's motion to withdraw. Prior to entry of the order granting Attorney Chen's motion to withdraw, Attorney Nelson, anticipating that the motion to withdraw would be granted, filed, on behalf of plaintiff, a motion [471] requesting a stay of proceedings until new lead counsel for plaintiff could be obtained. In that motion, Attorney Nelson advised he was not able to assume the role of lead counsel for plaintiff. Magistrate Judge Jensen granted [483] the motion to stay, in part, staying the case until September 4, 2019 and ordering plaintiff to appear telephonically at a September 4, 2019 status hearing “and report if he has retained counsel.” The motion [489] to retransfer the case was filed August 15, 2019. The scheduled September 4, 2019 status hearing was later reset to November 25, 2019.

         Of the motions currently before the court, all but the motion to retransfer were filed while Attorney Chen was counsel for plaintiff. The retransfer motion was filed by Attorney Nelson after Attorney Chen's withdrawal. No. new attorney has entered an appearance for plaintiff.

         Plaintiff seeks to retransfer this case to the Central District of California so Attorney Shalaby will be able to represent him in this action. Plaintiff asserts he has been unable to find new counsel since Attorney Chen's withdrawal. Having had his PHV admission revoked in this case and having been denied admission to the general bar of this court, Attorney Shalaby cannot represent plaintiff in this court.

         This court is “bound by law-of-the-case principles that apply to transfer decisions of another district court.” In re Mathias, 867 F.3d 727, 729-30 (7th Cir. 2017). “Although a court may revisit a prior decision of its own or a coordinate court, it ordinarily should not do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” Id., at 730 (quotation marks and citations omitted). The policies that support the law-of-the-case doctrine “apply with even greater force to transfer decisions than to decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation.” Id. (quotation marks and citations omitted).

         The post-transfer preclusion of Attorney Shalaby from representing plaintiff in this case and plaintiff's asserted inability to find new counsel have nothing at all to do with the decision made three years ago by Judge Kronstadt to transfer the case to Illinois. Plaintiff offers no basis for finding Judge Kronstadt's transfer decision was clearly erroneous and would work a manifest injustice. Id. Nothing in the record suggests any error by Judge Kronstadt at all.

         In addressing the motion, Judge Kronstadt stated:

“Plaintiff does not dispute that proceedings in either Illinois or Ohio would be more convenient for the parties than if proceedings were conducted in this District. However, Plaintiff argues that proceedings here would be significantly more convenient for Plaintiff's counsel, who practices in California and is ‘perhaps the one and only attorney in the country with sufficient knowledge and resources' to litigate this case. Dkt. 21 at 3. At the hearing, Plaintiff's counsel added that, because he is not admitted to practice in Illinois, he could not appear in a district court there. He conceded that he could be admitted pro hac vice in that district, but stated that he does not know any counsel there who could support his application for that status.”

         After reviewing the fact that plaintiff, everyone who provided him medical care after the incident, and the custodian of the records of plaintiff's employer all reside in the Northern District of Illinois, Judge Kronstadt wrote:

“The core of Plaintiff's position is that the expert witnesses he intends to call reside in California. Id. at 6-9. Plaintiff refers to three of them as ‘percipient' expert witnesses, apparently because each has served as an expert in prior similar cases. He also refers to three ‘injury victim' witnesses here whom he claims suffered injuries while using the product in California. Id. at 3. Neither of these positions carries weight. As noted, the location of expert witnesses carries little, if any weight in the analysis of convenience. Moreover, an expert testifies as to his or her opinions, not on disputed factual matters. No. explanation is offered as to the potential admissibility of others who were allegedly injured while using the product. In general, such testimony would be deemed irrelevant or precluded by Fed.R.Evid. 403.”

         The decision to transfer was not clearly erroneous nor did it work a manifest injustice. In accordance with the law-of-the-case principles enunciated by the Court of Appeals in In re Mathias, set out above, the motion to ...

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