resulting in the untenable outcome of redundant and possibly

conflicting decisions. The motion for transfer is GRANTED.

ENTER OER ? Z

Elaine E. Bucklo
United States District Judge

Dated: May 26 , 2003


Pillsbury bases its argument for dismissal entirely on an
Illinois procedural statute, 735 ILCS 5/2-619(a) (3), which provides
for the dismissal of suits that duplicate already pending
litigation between the parties. As its lawyers must surely have
been taught in Civil Procedure, a federal court sitting in
diversity applies state substantive law, Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938), but federal procedural law. See
Feo. R. Civ. P. 1 (“These rules govern the procedure in the United
States district courts in all suits of a civil nature.”) There is
no such thing as a motion to dismiss under 735 ILCS 5/2-619 (a) (3)
in this court; there are only motions to dismiss under Federal Rule
12(b). As Pillsbury has failed to support its motion with any
argument that is cognizable in this court, the motion is DENIED.

Pillsbury does, however, make a proper motion to transfer
pursuant to 28 U.S.C. § 1404(a), which states that a case may be
transferred to another federal court in which it may have been
brought in order to better serve the convenience of parties and
witnesses and in the interest of justice. The question of
convenience is a close one in this case, but I need not analyze it,
as it cannot be in the interests of justice to allow two nearly-
identical lawsuits between the same parties to proceed in two
different courts at the same time. If I did reach the question of
convenience and concluded that Illinois is the proper forum for the

suit, my counterpart in Minnesota might make the opposite decision,



Minyte Order Form (06/97)

y p . United States District Court, Northern District of Minois
Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 9244 DATE 5/28/2003
CASE Zurich American Insurance Co. vs. The Pillsbury Co., et al.
TITLE

[in the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) 0 Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) a) Answer brief to motion due___. Reply to answer briefdue___.

(4) oO Ruling/Hearingon___—ssetfor_ at.

(5) Qa Status hearing{held/continued to} {set for/re-set forton set for sat

(6) o Pretrial conference{held/continued to] [set for/re-set for]on__—set for at_

(7) iva Trial{set for/re-set for] on__—_aat

(8) a [Bench/Jury trial] [Hearing] held/continuedto__at

(9) q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) O Local Rule 41.1 COFRCP41(a\(1) [ FRCP4(a)(2).

co) «=f [Other docket entry] | Enter Memorandum Opinion and Order granting defendants’ motion to

transfer and denying their motion to dismiss. Accordingly, this action is transferred to the United States
District Court for the District of Minnesota. Any pending motion in this case is terminated as moot.

(ii) of [For further detail see order attached to the original minute order.) NEE ATM

No notices required, advised in open court.

lo notices required. number of noriges

MAY 2 200

date docketed

Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.
| Mail AO 450 form.

Copy to judge/magistrate judge.

Shite
courtroom
MPs deputy’s

initials

Date/time received in ;
contral Clerk's Office. tnsling deputy intl



IN THE UNITED STATES DISTRICT COURT NAY Ze 2003
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ZURICH AMERICAN INSURANCE CO.,
Plaintiff,
v.

No. 02 C 9244
THE PILLSBURY CO., et al.

Defendants.

MEMORANDUM OPINION AND ORDER

The Pillsbury Company (“Pillsbury”), a Delaware corporation
with its principal place of business in Minnesota, was insured by
Zurich American Insurance Company (“Zurich”), a New York
corporation with its principal place of business in Illinois, under
a policy that provided coverage for physical loss or damage to
Pillsbury property. During the insured period, on March 27, 1999,
an explosion and fire occurred at an Iowa plant.that was producing
Haagen-Dasz ice cream for Pillsbury. Pillsbury alleges that it
incurred two types of losses following the fire. First, it claims
that it lost revenue during the time production was interrupted
(the “recovery period”). Second, it claims that the business
interruption resulted in a loss of market share, which necessitated
additional expenditures in order to return Haagen-Dasz to its
original place in the market in the twelve months following the

resumption of production (the “extended period”).

7 \



Pillsbury requested, and Zurich paid, approximately $19
million for losses incurred during the recovery period. However,
Zurich denied Pillsbury’s claim for approximately $21 million in
losses incurred during the extended period. The insurance contract
contained an appraisal clause holding that in the event that the
two parties could not agree on the amount of loss, either party
could demand an independent appraisal of the question. On April 21,
2001, Pillsbury made such a demand, but Zurich claims that it
failed to do so within the 60-day time frame mandated by the
appraisal clause.

On August 19, 2002, Zurich filed a complaint in the Circuit
Court of Cook County seeking a declaratory judgment’ that
Pillsbury’s extended period loss is not covered. However, Pillsbury
was not served with that suit until November 19, and on November 8,
prior to service, it filed its own suit against Zurich in the
United States District Court in Minnesota, seeking resolution of
the same issues. In December, Pillsbury removed the Illinois case
to this court. The Minnesota action was served on Zurich on January
24, 2003.

Pillsbury has now filed a motion to dismiss the case on the
grounds that it duplicates the issues at stake in the Minnesota
litigation, or in the alternative, for transfer to the District of
Minnesota for consolidation. I deny the motion to dismiss and grant

the motion to transfer.