itself in one forum, where the United States can be named as a Defendant. Moreover, Midwest
raises the issue that rulings in this federal suit may have a negative impact on Midwest’s interest
in the state suits by application of the doctrines of res judicata and stare decisis. Midwest also
asserts that the United States will not adequately represent Midwest in this action particularly
because of its own related liability.

Rule 24(a)(2) states:

Upon timely application anyone shall be permitted to intervene in an action...

(2) when the applicant claims an interest relating to the property or the transaction

which is the subject of the action and the applicant so situated that the disposition

of the action may as a practical matter impair or impede the applicant’s ability to

protect that interest, unless the applicant’s interest is adequately represented by the

existing parties.”

“Therefore, four requirements must be met for intervention of right: (1) timeliness; (2) an interest
relating to the subject matter of the action; (3) at least potential impairment of that interest if the
action is resolved without the intervener; and (4) lack of adequate representation by existing
parties.” The party seeking to intervene of right has the burden to show that all four requirements
are met. Reid L. v. Illinois State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002).

“The existence of ‘impairment’ depends on whether the decision of a legal question
involved in the action would as a practical matter foreclose rights of the proposed intervenors in
a subsequent proceeding.” Am. Nat'l Bank & Trust Co. v. City of Chicago, 865 F.2d 144, 148
(7th Cir. 1989) (citation omitted). Whether rights are foreclosed is tested by stare decisis
standards.

Here, Midwest claims that findings in this matter may have negative res judicata and

stare decisis effects in other cases. However, any decisions in this matter would not have a res


The United States and the Estate Plaintiffs also contend that joinder would cause undue.
prejudice, delay, and expenses to the Ground plaintiffs. According to these parties, settlement
discussions and discovery have occurred. Litigating the matters in federal court would then delay
further settlement negotiations and create duplicative discovery. American Flyers, however,
represents in its motion that the written discovery is not complete in the Collins-State cases, and
that the completed discovery can be easily transferred to the Collins-Federal cases and controlled
to avoid duplication or undue hardship to the parties joined.

There is no showing why the parties cannot continue to discuss settlement while the
matter is pending in federal court. In addition, the services of this Court and a Magistrate Judge
would be available upon the parties’ request to participate in settlement discussions. American
Flyers’ motion to permissively join the Ground plaintiffs as parties is granted.

Join Claij

Joinder of the remaining state claims involving all parties is also appropriate. “A party
asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim,
may join, cither as independent or as alternate claims, as many claims, legal, equitable, or
maritime as the party has against an opposing party.” Fed. R. Civ. P. 18(a). Because the rule is
permissive, all claims involved may be asserted in this forum if jurisdiction is proper.

Supplemental Jurisdiction

Section 1367(a) of Title 28 of the United States Codes provides that “the district court
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,”

subject to a number of statutory exceptions. The state and federal claims must arise out of a


cause prejudice or delay; the claim against the United States must be tried to the Court, but the
claims against Midwest may be tried to a jury. However, careful planning, including
consideration of a combined bench and jury trial, will prevent any confusion and unnecessary
delay. Accordingly, Midwest's motion to intervene on the basis of permissive intervention is
granted.

American Fl lyers * Motions to Join Parties, Intervene, and to Join Claims

American Flyers argues that all of the causes of actions in the State Cases and the causes
of action asserted by the Federal Plaintiffs are based on negligence. In addition, all of the
allegations of duty and breach of duty lead to allegations that the negligence of each defendant, in
both the federal and state cases, was a proximate cause of the first occurrence at issue: the mid-
air collision and crash of the two airplanes.

American Flyers requests that: (1) Midwest be joined as a party needed for just
adjudication pursuant to Rule 19(a)(1); and (2) the Ground plaintiffs be joined as parties,
pursuant to Rule 19(a)(2)(ii), who have an interest relating to the subject matter of the Federal
Plaintiffs’ cases and are so situated that the disposition of the action in the Ground Plaintiffs’
absence may leave the persons and entities who are already parties subject to a substantial risk of
incurring multiple or otherwise inconsistent obligations by reason of a claimed interest. In the
alternative, American Flyers requests that Midwest and the Ground Plaintiffs be joined in the
action pursuant to Rule 20. Finally, American Flyers asks that, once joined as parties, the state
claims asserted by and against Midwest and the state claims asserted by the Ground plaintiffs be

joined with the claims asserted by the Federal Plaintiffs, pursuant to Rule. 18.


judicata effect against Midwest because Midwest is not a party in this case. See, e.g., 4901 Corp.
v. Town of Cicero, 220 F.3d 522, 529 (7th Cir. 2000) (addressing the Dlinois requirements for res
judicata). A judgment in this case will not have a res judicata effect in the State cases.

Likewise, there has been no showing that a disposition of the Federal-Plaintifis’ case
would have a stare decisis effect in the State cases, Plaintiffs here do not seek to have Midwest
found at fault for the accident in the federal action. Midwest still would be entitled to defend on
the grounds that the FAA was a proximate cause of the accident. Therefore, intervention of right
is not warranted.

Permissive Intervention

Midwest also requests to permissively intervene pursuant to Rule 24(b). According to
Midwest, the claims in the state proceedings both arise from the same occurrence, the airplane
crash; therefore, these claims contain the same allegations of negligence against both the United
States and Midwest.

Rule 24(b) states that “[u}pon timely application anyone may be permitted to intervene in
an action . . . (2) when an applicant's claim or defense and the main action bave a question of law
or fact in common. ... In exercising its discretion the court shall consider whether the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties,”

Here, all the claims involved in the lawsuit have a question of fact in common. All
claims arise out of an in-flight collision of two aircraft. While the parties may assert various
legal theories based on sometimes conflicting factual allegations, the basic facts which support
all claims by all parties involve the mid-air collision.

The existing litigants also object to permissive intervention on the grounds that it will


In this case, the Ground plaintiffs seek to recover damages from American Flyers in the
State cases, a lawsuit from the same tort. That liability, however, is “independent of any liability
determined in the present lawsuit.” Moreover, American Flyers does not offer any argument, in
cither its Motion or Reply, for why the Ground plaintiffs should be joined as plaintiffs, pursuant
fo Rule 19(a)(2)(ii), in this action. American Flyers’ Motion is denied on this basis.

Permissive Joinder

In the alternative, American Flyers requests that the Ground plaintiffs should be joined as
plaintiffs in this action pursuant to Rule 20(a). According to American Flyers, the claims of the
Ground plaintiffs in the State cases arise out of the same occurrence as the claims alleged by the
Federal Plaintiffs and that questions of law and fact common to all the parties will arise in both
actions. ,

Rule 20(a) states that “[aJlJ persons may join in one action as plaintiffs if they assert any
right to relief, jointly, severally, or... arising out of the same transaction or occurrence .. . and
if any questions of law or fact to all these persons will arise in the action.” Other relevant
factors, in addition to the Rule 20(a) standard, may be considered when determining if joinder is
proper. For example, joinder may be denied in cases where it would create “prejudice, delay, or
expense.” Chavez v. Iinois State Police, 251 F.3d 612, 632 (7th Cir. 2001).

As discussed above, the claims arise out of the same occurrence — the in-flight collision
of two aircraft. The United States and the Estate Plaintiffs both argue that the Ground plaintiffs
would be forced out of their chosen state court forum. However, this Court is the only forum
where all claims asserted by all parties can be joined so that complete relief to all can be

afforded.


‘Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Jud Sitting Judge if Oth
evar Magistrate Judge John W. Darrah than Assigned udge
CASE NUMBER 03 C 3162 DATE 1/27/2004
CASE Cancer Treatment Inc vs. USA
TITLE
[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) (1 _ Briefin support of motion due ;

eB) a Answer brief to motion due, . Reply to answer brief due.

4 a Ruling/Hearing on set for at

(5) Qa Status hearing[held/continued to] [set for/re-set for] on set for at

(6) a Pretrial conference[held/continued to) [set for/re-set for] on set for .

(7) im} Trial[set for/re-set for] on at

(8) a) [Bench/Jury trial] [Hearing] heid/continued to at

9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 CFRCP41(a\(1) OO FRCP4I1(a)(2).

(10) MH [Otherdocketentry] For the reasons stated in the attached memorandum opinion and order, motion
by Aviation Training, Amer Flyers Inc and Scott Chomicz to join claims and parties pursuant to 28
USS.C.A, Section 1367 and Rules 18, 19 and 20 of the Federal Rules of Civil Procedures [8-1] and motion
intervenor MW Air Traffigand Gregory Fowler to intervene as defendant(s) and motion in support of
American Flyers' motion to join claim and parties [10-1], [10-2] are granted. Enter Memorandum Opinion
and Order. Original opinion is filed under the lead case, 03 cv 2958, Collins v. USA.

(1) ff [For further detail see order attached to the original minute order.]

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

wo | Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
MF deputy’s
initials

No notices required, advised in open count

4unod

710

jolyisia's'f
yas

Ut

U Satetinte Fectived in
central Clerk's Office



The United States and the Federal Plaintiffs, except for American Flyers, next argue that
discretionary reasons exist to deny the exercise of supplemental jurisdiction.

The district courts may decline to exercise supplemental jurisdiction over a claim

under subsection (a) if. . . (2) the claim substantially predominates over the claim

or claims over which the district court has original jurisdiction, (3) the district

court has dismissed all claims over which it has original jurisdiction, or (4) in

exceptional circumstances there are other compelling reasons for declining

jurisdiction.

28 U.S.C. § 1367(c)(2)-(4).

The parties first object to the exercise of supplemental jurisdiction because the state law
claims predominate over the federal claim. However, as discussed above, the claims involving
Midwest and the Ground plaintiffs are interrelated to the claims against the United States.

CONCLUSI
For the foregoing reasons, American Flyers’ Motion to Join Claims and Parties Pursuant

to 28 U.S.C.A. § 1367 and Rules 18, 19, and 20 of the Federal Rules of Civil Procedure is

granted. Midwest’s Motion to Intervene as Defendants is granted.

putea: Yau 2] 2007

11


“common nucleus of operative fact” to exercise subject matter jurisdiction over the state claims.
_ Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995).

Here, the United States and the remaining Federal Plaintiffs (except for American Flyers)
contend that a common nucleus of operative fact does not exist between the existing claims
against the United States and the claims asserted against Midwest. According to these parties,
the‘alleged negligence of Midwest occurred solely on the day of the accident. In contrast, the
alleged negligence of the United States occurred prior to the crash, when the United States failed
to install a proper radar machine. The United States and the Federal Plaintiffs also argue that a
common nucleus of operative fact does not exist between the Ground plaintiffs’ claims and the
existing claims.

These arguments are not persuasive. These cases involve claims for wrongful death
damages arising from the mid-air collision to determine which parties are responsible. Midwest
is asserting as a defense the same basis of liability that the Federal plaintiffs are seeking: the
Government is responsible for the mid-air collision by not properly controlling the two aircraft.
The Ground plaintiffs’ recovery also is related to the issue of which party or parties may be liable
for the mid-air collision. Therefore, the existing claims and the claims presented by both

Midwest and the Ground plaintiffs arise from a common nucleus of operative fact.

10



compulsory Joinder of Midw

American Flyers contends that Midwest should be joined as a Defendant, pursuant to
Rule 19(a)(1). However, because Midwest was permitted to permissively intervene, the issue of
whether Midwest should be joined as a defendant is denied as moot.

American Flyers next argues that the Ground plaintiffs should be joined as plaintiffs
pursuant to Rule 19(a)(2)(ii). According to American Flyers, the allegations of negligence pled
by the Ground plaintiffs in the State cases include similar proximate cause allegations that are
claimed by the Federal Plaintiffs against the United States. Rule 19(a)(2)(ii) states that:

[a] person subject to service of process and whose joinder will not deprive the

court of jurisdiction over the subject matter of the action shall be joined as a party

in the action if. . . (2) the person claims an interest relating to the subject matter

of the action is so situated that the disposition of the action in the person’s

absence may . . . (ii) leave any of the persons already parties subject to a

substantial risk of incurring double, multiple, or otherwise inconsistent obligations

by reason of the claimed interest. ,

“[T]he fact that [a defendant] might be liable to [another party] in a future action does not
create the substantial risk of multiple or inconsistent obligations. . .. Any subsequent liability of
[the defendant] towards [another party] is independent of liability determined in the present
lawsuit.” Davis Cos. v. Emerald Casino, Inc., 268 F.3d 477, 484-85 (7th Cir. 2001) (emphasis in
original). The mere fact that an action may not be res judicata against a new plaintiff and a
defendant may have to defend a similar lawsuit for the same tort against a new plaintiff does not

make the new plaintiff a necessary party under Rule 19. Field v. Volkswagenwerk AG,

626 F.2d 293, 302 (3d Cir. 1980).



ANALYSIS

Two requirements must be met to grant the motions at issue. First, joinder and
intervention must be proper under the Federal Rules of Civil Procedure. Secondly, jurisdiction
must be proper in the federal courts.

Midwest's Motion to Intervene as Defendant

The Federal Plaintiffs allege that the United States, through the FAA, had an agreement
with Midwest whereby Midwest would provide air traffic control services at Waukegan Regional
Airport’s contro] tower under the supervision, guidance, rules, regulations, and authority of the
FAA. These Plaintiffs also allege that the United States had a duty to train, certify, and evaluate
the air traffic controller employed by Midwest at Waukegan Regional Airport. Therefore, the
United States was a proximate cause of the accident. In the Collins-State cases, the plaintiffs
allege that the negligence of Midwest was a proximate cause of the air crash.

Midwest moves to intervene in this lawsuit pursuant to Rule 24. First, Midwest contends
that it may intervene as of right, pursuant to Rule 24(a)(2), because it has an interest so relating to
the transaction which is the subject of the action and is so situated that the disposition of the
action may, as a practical manner, impair or impede the applicant's ability to protect that interest.
Secondly, Midwest seeks permissive intention, pursuant to Rule 24(b)(2), because a common
question of law or fact exists between Midwest and this matter.

Intervention of Right

Midwest seeks to intervene as of right pursuant to Rule 24(a)(2). According to Midwest,

the Federal Plaintiffs allege many of the identical allegations against the United States and

against Midwest in the State cases. Midwest, therefore, has a significant interest in defending


Flyers’ Motion to Join Claims and Parties Pursuant to 28 U.S.C.A. § 1367 and Rules 18, 19, and
_ 20 of the Federal Rules of Civil Procedure. For the following reasons, Midwest's and American
Flyers’ motions are granted.
BACKGROUND

The facts, for the purposes of this motion, are as follows. In February 2000, two aircraft
collided in mid-air near the Waukegan Regional Airport. The collision occurred when a plane -
piloted by either Collins or Luscher, both licensed pilots, flew into a plane operated by a student
pilot, Hock, causing both planes to crash, The plane occupied by Collins and Luscher crashed
into the roof of the Midwestern Regional Medical Center and caused property damage and

. injured five individuals in the building (“the Ground plaintiffs"). The plane operated by Hock
crashed onto a residential street.

The Federal Plaintiffs sued the United States in federal court, alleging the Federal
Aviation Administration (“FAA”) was negligent in operating, supervising, and controlling the air
traffic control tower at Waukegan Regional Airport. Pursuant to the Federal Tort Claims Act, the
United States could only be sued in federal court.

Multiple lawsuits were also filed in the state court of Illinois (the “State cases”). The
Estate of Collins sued American Flyers, Midwest, and the Estate of Hock. The Estate of Luscher
sued American Flyers, Midwest, the Estate of Collins, and the Estate of Hock. The Estate of
Hock sued American Flyers, Midwest, the Estate of Luscher, and the Estate of Collins. Cancer
Treatment Centers sued American Flyers, Midwest, the Estate of Hock, and the Estate of Collins.
The Ground plaintiffs sued American Flyers, Midwest, the Estate of Collins, the Estate of

Luscher, and the Estate of Hock.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHRISTINE B. COLLINS, Independent

)
Administrator of the Estate of ) No: 03 C 2958
ROBERT L. COLLINS, Deceased, et al., ) :
) Judge John W. Darrah
Plaintiffs, )
) consolidated with
v. )
) No. 03.C 2966
THE UNITED STATES OF AMERICA, ) 2998
) No. 03 C 3162
Defendant. ) No. 03 C 3166
qatneTe
' 00)
MEMORANDUM OPINION AND ORDER JAN ae

Ten different Plaintiffs (the “Federal Plaintiffs”) sued the Defendant, the United States of
America (“United States”), for negligence arising out of an air plane crash. The Plaintiffs
include; (1) Aviation Training Enterprises of Iinois, Inc., d/b/a American Flyers; (2) American
Flyers, Inc.; (3) Scott Chomicz; (4) Christine B. Collins, Independent Administrator of the Estate
of Robert L. Collins; (5) Rise’! Barkhoff, individually and as Special Administrator of the Estate
of Herman F. Lascher; (6) Edward J. Hock, Independent Administrator of the Estate of Sharon
Hock; (7) Cancer Treatment Centers of America, Inc.; (8) Midwestern Regional Medical Center,
Inc., (9) Patient First, S.C.; and (10) Employers Insurance of Wausau. The first three Plaintiffs
are collectively teferred to as “American Flyers,” Plaintiffs four through six are collectively
referred to as the “Estate Plaintiffs,” and the last four Plaintiffs are collectively referred to as _
“Cancer Treatment Centers.”

Presently before the Court are: (1) Midwest Air Traffic Control Services, Inc. and

Gregory Fowler’s (collectively “Midwest”) Motion to Intervene as Defendants; and (2) American

“