Duff v. Deroo
| Kevin B. Duff, Receiver for the Estate of Equitybuild Inc., et al. and Kevin B. Duff |
| Tyler W. Deroo |
| 1:2024cv01402 |
| February 20, 2024 |
| US District Court for the Northern District of Illinois |
| Joan B Gottschall |
| Manish S Shah |
| Contract: Other |
| 28 U.S.C. § 1330 Breach of Contract |
| None |
Docket Report
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| Filing 14 MINUTE entry before the Honorable Manish S. Shah: The motion to vacate #12 is granted and no appearance is necessary. Although this case is docketed as a separate case with a standalone complaint, the action to enforce the settlement is supplemental or ancillary to federal jurisdiction of the receivership. That is not to suggest that every lawsuit by the receiver is amenable to federal jurisdiction and relatedness reassignment, but here, the settlement amounts to an asset of the receivership and collection of that asset falls within the scope of the receiver's activities in 18-cv-5587. The amended complaint #7 is the operative complaint in this case and defendant shall answer the amended complaint by 4/30/24. The parties shall file a joint initial status report by 5/3/24. The clerk shall reopen the case. Notices mailed. (psm, ) |
| Filing 13 NOTICE of Motion by Michael Rachlis for presentment of motion to vacate #12 before Honorable Manish S. Shah on 3/28/2024 at 09:45 AM. (Rachlis, Michael) |
| Filing 12 MOTION by Plaintiff Kevin B. Duff to vacate Plaintiff's Motion To Vacate, Alter Or Amend The Court's March 4, 2024 Order Or In The Alternative For Leave To File Second Amended Complaint (Rachlis, Michael) |
| Filing 11 WAIVER OF SERVICE returned executed by Kevin B. Duff. Tyler W. Deroo waiver sent on 3/1/2024, answer due 4/30/2024. (Murena, Kenneth) |
| Filing 10 FINDING OF RELATEDNESS PURSUANT TO LOCAL RULE 40.4: In accordance with the provisions of Local Rule 40.4 of this Court, I find the above captioned case, presently pending on the calendar of Judge Joan B. Gottschall to be related to 18 CV 5587 which is pending on my calendar. Accordingly, I request that the Executive Committee order said case to be reassigned to my calendar as a related case. Case reassigned to the Honorable Manish S. Shah and Magistrate Judge Young B. Kim for all further proceedings. Honorable Joan B. Gottschall and Magistrate Judge Heather K. McShain no longer assigned to the case. Signed by Executive Committee on 03/13/2024. (daj, ) |
| Filing 9 MINUTE entry before the Honorable Joan B. Gottschall: Without first seeking leave of court, plaintiff filed an amended complaint #7 asserting a theory that this court possesses ancillary (now supplemental) jurisdiction over this suit for breach of a settlement agreement because plaintiff is acting in his capacity as a federally appointed receiver, and this suit will further the purposes of Judge Shah's appointment order in Case No. 18-cv-5587. See Am. Compl. 8-10 & n.1. Plaintiff cites a case in which the court exercised ancillary jurisdiction over a settlement-related suit brought by a federally appointed receiver, but the language in the cited case concerning ancillary jurisdiction appears to be dicta because the parties were of diverse citizenship. See Cagan v. Tyson, No. 92 C 1868, 1993 WL 39713 (N.D. Ill. Feb. 12, 1993). Plaintiff cites no authority contradicting the principle on which the 2/26/2024 dismissal order #6 was based, namely that supplemental jurisdiction "is properly invoked only where the claims allegedly subject to supplemental jurisdiction are brought in the same case as a claim subject to original jurisdiction." (quoting Rainey v. Bd. of Educ. of Rich Twp. High Sch. Dist. 227, 2011 WL 741039, at *1 (N.D. Ill. Feb. 24, 2011)). Accordingly, the amended complaint #7 is dismissed without prejudice for want of an adequate showing of subject matter jurisdiction. This court implies no view on whether Judge Shah would have subject matter jurisdiction in No. 18-cv-5587 if this case is reassigned as related. Civil case terminated.Mailed notice (mjc, ) |
| Filing 8 NOTICE by Kevin B. Duff of Filing Receiver's Local Rule 40.4 Motion to Reassign Case as Related and Notice of Motion (Attachments: #1 Receiver's Local Rule 40.4 Motion to Reassign Case as Related [ECF No. 1612], #2 Notice of Motion [ECF No. 1613])(Murena, Kenneth) |
| Filing 7 AMENDED complaint by Kevin B. Duff against Tyler W. Deroo (Attachments: #1 Exhibit A- Settlement Agreement)(Murena, Kenneth) |
| Filing 6 MINUTE entry before the Honorable Joan B. Gottschall: At the bottom of the civil cover sheet and on p. 1 of the complaint, plaintiff represents that this case is related to Case No. 18-cv-5587, which is pending before Judge Shah. Judge Shah appointed plaintiff Kevin B. Duff in. 18-cv-5587 as receiver for the estate of EquityBuild, Inc. Duff brings Case No. 24-cv-1402 in his capacity as receiver to enforce a settlement agreement reached under judicial supervision in No. 18-cv-5587. Local Rule 40.4(b) provides that a finding of relatedness must be made by the judge presiding over the lowest-numbered case, meaning Judge Shah. Accordingly, this court makes no finding as to whether this case is related to No. 18-cv-5587. Plaintiff bases subject matter jurisdiction exclusively on the supplemental jurisdiction statute, 28 U.S.C. 1367(a). Compl. 8. Plaintiff asserts that because the court has federal question jurisdiction in No. 18-cv-5587, the court can exercise supplemental jurisdiction over the claims in No. 24-cv-1402, because the two cases form part of the same case or controversy. Id. Plaintiff pleads no other basis for this court's subject matter jurisdiction. Contrary to plaintiff's jurisdictional theory, judicial "decisions... appear unanimously to reject the premise, holding that 1367 is properly invoked only where the claims allegedly subject to supplemental jurisdiction are brought in the same case as a claim subject to original jurisdiction." Rainey v. Bd. of Educ. of Rich Twp. High Sch. Dist. 227, 2011 WL 741039, at *1 (N.D. Ill. Feb. 24, 2011) (citing Ortolf v. Silver Bar Mines, Inc., 111 F.3d 85, 86 (9th Cir.1997) and collecting additional cases). Accordingly, this case is dismissed without prejudice for want of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94102 (1998). This dismissal does not preclude plaintiff from refiling this action and asserting a proper basis for exercising subject matter jurisdiction or from bringing this matter before Judge Shaw whether by making a motion to enforce the alleged settlement or pursuing any other available remedies in No. 18-cv-5587. Civil case terminated. Plaintiff's motion #2 for service by special order of court is denied as moot.Mailed notice (mjc, ) |
| Filing 5 CERTIFICATE of Service by Plaintiff Kevin B. Duff regarding MOTION by Plaintiff Kevin B. Duff Motion for Service by Special Order of Court #2 Amended Certificate of Service of Motion for Service by Special Order of Court (Murena, Kenneth) |
| Filing 4 ATTORNEY Appearance for Plaintiff Kevin B. Duff by Andrew Eliot Porter (Porter, Andrew) |
| Filing 3 ATTORNEY Appearance for Plaintiff Kevin B. Duff by Michael Rachlis (Rachlis, Michael) |
| Filing 2 MOTION by Plaintiff Kevin B. Duff Motion for Service by Special Order of Court (Attachments: #1 Exhibit A- T, #2 Exhibit U)(Murena, Kenneth) |
| Filing 1 COMPLAINT filed by Kevin B. Duff, Receiver for the Estate of Equitybuild Inc., et al.; Filing fee $ 405, receipt number AILNDC-21653191. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A- Settlement and Release Agreement, #3 Proposed Summons- Tyler DeRoo)(Murena, Kenneth) |
| CASE ASSIGNED to the Honorable Joan B. Gottschall. Designated as Magistrate Judge the Honorable Heather K. McShain. Case assignment: Random assignment. (Civil Category 2). (evw, ) |
| CLERK'S NOTICE: Pursuant to Local Rule 73.1(b), a United States Magistrate Judge of this court is available to conduct all proceedings in this civil action. If all parties consent to have the currently assigned United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, all parties must sign their names on the attached #Consent To# form. This consent form is eligible for filing only if executed by all parties. The parties can also express their consent to jurisdiction by a magistrate judge in any joint filing, including the Joint Initial Status Report or proposed Case Management Order. (evw, ) |
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