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Xiong v. Ohio Security Insurance Co.

United States District Court, E.D. Wisconsin

October 30, 2019

YOUA J. XIONG, STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, MANAGED HEALTH SERVICES INS. CORP. and HOSPITAL REIMBURSEMENT SERVICES, INC., Plaintiffs,
v.
OHIO SECURITY INSURANCE COMPANY, GOUGH, INC., KYLE L. LEMONS and ARTISAN AND TRUCKERS CASUALTY COMPANY, Defendants.

          ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION TO DISMISS HOSPITAL REIMBURSMENT SERVICES, INC. (DKT. NO. 4); GRANTING STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES' UNOPPOSED MOTION TO DISMISS (DKT. NO. 16) AND GRANTING DEFENDANTS' MOTIONS TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF INDIANA (DKT. NO. 7).

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On May 20, 2019, the plaintiff filed a complaint alleging claims that arose from a car accident in La Porte County, Indiana. Dkt. No. 1. The plaintiff named the State of Wisconsin Department of Health Services, Managed Health Services Insurance Corp. and Hospital Reimbursement Services as plaintiffs with possible subrogated interests. Id. at 1. He named four defendants-Ohio Security Insurance Company; Gough, Inc.; Kyle Lemons; and Artisan and Truckers Casualty Company. Id. at 1-2.

         Ten days later, the plaintiff asked the court to dismiss Hospital Reimbursement Services, Inc. as a plaintiff. Dkt. No. 4.

         Less than a month after filing the complaint, three of the four defendants filed a motion for change of venue under 28 U.S.C. §1391 or, in the alternative, for dismissal due to lack of jurisdiction. Dkt. No. 7. On the same day that the defendants filed the motion, counsel for plaintiff Youa J. Xoing filed a letter agreeing to the change of venue. Dkt. No. 13. The fourth defendant, Artisan and Truckers Casualty Company, filed an answer, cross-claim and counterclaim two days later. Dkt. No. 14.

         Three days after defendant Artisan and Truckers filed its answer, the State of Wisconsin Department of Health Services filed a motion asking the court to dismiss it as a plaintiff. Dkt. No. 16.

         To date, Artisan and Truckers has stated no position on the motion to transfer venue.

         I. Plaintiff's Unopposed Motion to Dismiss Hospital Reimbursement Services, Inc. (Dkt. No. 4)

         The plaintiff indicates that Hospital Reimbursement Services, Inc. had a hospital lien for medical expenses incurred by the plaintiff, but that it has released and discharged the lien; therefore, the plaintiff asks the court to dismiss this plaintiff. Dkt. No. 4. No party has opposed the motion; the court will grant it and dismiss Hospital Reimbursement Services, Inc. as a plaintiff.

         II. Unopposed Motion to Dismiss State of Wisconsin Department of Health Services (Dkt. No. 16)

         The State of Wisconsin Department of Health Services identifies itself as an involuntary plaintiff and asserts that it was “incorrectly” named as a plaintiff because it had a subrogated interest for payment of the plaintiff's medical expenses. Dkt. No. 16. DHS has asked to be dismissed, indicating that it has determined that the medical expenses it paid are below the established threshold to pursue recovery. Id. It stated in its motion to dismiss that it released and discharged its subrogation lien. Id. at 1. No party has objected to the motion; the court will grant it and dismiss DHS as a plaintiff.

         III. Defendant's Motion to Transfer Venue (Dkt. No. 7)

         Three of the defendants-Ohio Security Insurance Company, Gough, Inc. and Kyle Lemons-have asked the court to transfer venue to the Northern District of Indiana. Dkt. No. 7. Along with the motion, counsel for the defendants filed a letter, indicating that his original plan had been to file a stipulation in which the defendants and the plaintiff agreed to the transfer of venue. Dkt. No. 6. The letter stated, however, that when counsel checked with the clerk of court, counsel was told “that a stipulation would not be accepted, ” and that he “was directed to file a motion.” Id. In his letter, defense counsel asked counsel for the plaintiff to state whether he opposed the motion. Id. The same day-June 18, 2019-counsel for the plaintiffs filed a letter indicating that he did not oppose the motion for transfer of venue. Dkt. No. 13.

         The court did not immediately act on this information-at the time, it was presiding over a two-week civil rights case. Six days later, DHS filed its motion to be dismissed as a plaintiff. Dkt. No. 16. When a couple of months passed without the court ruling on these various motions, counsel began writing letters asking when the court would rule. Dkt. Nos. 19 (from the plaintiffs' counsel); 20 (from defense counsel, providing a proposed order). Eventually, counsel for DHS filed a letter, reminding the court that it had asked to be dismissed and that the court hadn't ruled on that motion. Dkt. No. 22. Counsel asked that the court rule on the motion to dismiss before deciding the motion to transfer venue and, apparently out of concern that the court wouldn't grant that request, objected to the motion to transfer venue. He asked the court to rule “as soon as possible.” Id.

         The court regrets that it did not rule on the parties' motions as promptly as they would have liked. Given the shortage of district court judges that has existed since September 2016 (when Judge Randa passed away) and the increase in the court's case load, as well as a heavy trial schedule, the court has not ruled ...


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