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Barnack v. E-Triple J, Inc.

United States District Court, W.D. Wisconsin

January 23, 2017

JOSHUA O. BARNACK, Plaintiff,
v.
E-TRIPLE J, INC. d/b/aThe Neighborly Bar and WILSON MUTUAL INSURANCE CO., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Joshua Barnack is proceeding on a claim that defendant E-Triple J, Inc. was negligent in failing to protect him from the assault of another customer at “The Neighborly Bar, ” which defendant owns. Defendant Wilson Mutual Insurance Co. is E-Triple, Inc.'s insurer. On October 6, 2016, defendants filed a motion for summary judgment on the ground that E-Triple J was not negligent because it had no reason to believe that the other customer was going to attack plaintiff. Dkt. 22. Plaintiff's deadline for opposing the motion was November 3, 2016, but the court has not received any response from him.

         In an order dated January 10, 2016, I concluded that I could not decide the merits of defendants' motion for summary judgment because the parties had not shown a basis for the court to exercise jurisdiction over the case. Dkt. 34. Because Barnack is bringing a state law claim, subject matter jurisdiction arises under 28 U.S.C. § 1332, which requires an amount in controversy more than $75, 000 and complete diversity of citizenship between the plaintiff and defendants. Although it was reasonable to infer from the allegations in the complaint that the amount in controversy was satisfied, neither the parties' pleadings nor defendants' summary judgment submissions established the parties' citizenship. Accordingly, I gave the parties an opportunity to submit supplemental evidence regarding jurisdiction.

         In response to the order, defendants submitted supplemental evidence, Dkt. 35-37, and filed a motion for leave to amend their answer so that they could admit allegations that Barnack made about jurisdiction in his complaint, Dkt. 39. Barnack did not respond to the order.

         Neither defendants' supplemental filings nor the pleadings identify Wilson Mutual Insurance's citizenship, so defendants have not shown that complete diversity exists. However, because Wilson Mutual Insurance is a dispensable party, I will dismiss that defendant to preserve jurisdiction. As to the merits, the facts proposed by defendants show that it was not reasonably forseeable that the customer would attack Barnack, so I am granting the summary judgment motion as to defendant E-Triple J.

         UNDISPUTED FACTS

         Because Barnack did not respond to defendants' motion for summary judgment, I accept as true defendants' proposed findings of fact. Dkt. 13, Procedure to Be Followed on Motions for Summary Judgment, II.C. (“Unless the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed.”). See also Doe v. Cunningham, 30 F.3d 879, 882 (7th Cir. 1994) (upholding similar rule).

         On June 29, 2013, Barnack was patronizing The Neighborly Bar, a bar in Ashland, Wisconsin that is owned by defendant E-Triple J, Inc. While there, Barnack became intoxicated.

         Steve Blaine was also present at the bar. Neither the employees nor the owners of the bar were aware of Blaine acting in a dangerous or violent manner up until that time.

         Inside the bar, Barnack believed that he heard Blaine refer to Barnack's ex-wife using a “derogatory” word. Dkt. 26, ¶ 2. Outside the bar, Barnack “confronted” Blaine about the comment, but “there was no yelling or physical altercation.” Id. ¶ 3. Neither the employees nor the owners of the bar were aware of the confrontation at the time.

         Later, both Barnack and Blaine entered the men's restroom, where Barnack “confronted” Blaine again. Id. ¶ 6. “[A] physical assault suddenly occurred” while Barnack and Blaine were in the bathroom, causing injuries to Barnack's head and face. Neither the employees nor the owners of the bar were aware of the incident until Barnack was discovered on the bathroom floor. At that time, emergency services were called.

         ANALYSIS

         A. Jurisdiction

         In their supplemental evidence, defendants cite interrogatory answers from Barnack showing that he has lived and worked in Minnesota since 2014. Dkt. 37-1. In the absence of any contrary evidence, it is reasonable to infer that Barnack is a citizen of Minnesota. Myrick v. WellPoint, Inc., 764 F.3d 662, 664 (7th Cir. 2014) (“Citizenship means domicile (the person's long term plan for a state of habitation) rather than just current residence.”). As to E-Triple J, defendants cite records from Wisconsin's Department of Financial Institutions showing that Wisconsin is E-Triple, J's ...


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