United States District Court, W.D. Wisconsin
JOSHUA O. BARNACK, Plaintiff,
E-TRIPLE J, INC. d/b/aThe Neighborly Bar and WILSON MUTUAL INSURANCE CO., Defendant.
OPINION & ORDER
D. PETERSON District Judge.
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
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
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.
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.
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).
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.
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.
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.
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.
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 ...