Deborah Amling, personally, and as Personal Representative for the Estate of Robert M. Amling, Plaintiffs-Appellants,
Harrow Industries LLC, et al., Defendants-Appellees.
September 23, 2019
from the United States District Court for the Central
District of Illinois. No. 3:18-cv-03108-SEM-TSH - Sue E.
Easterbrook, Hamilton, and St. Eve, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Amling and her husband Robert sued Harrow Industries and
other businesses in an Illinois state court for causing
Robert to develop mesothelioma by exposing him to asbestos.
Two years later, the Am-lings sued Harrow again, this time in
federal court, seeking a declaratory judgment on the meaning
of an asset-purchase agreement between Harrow and another
company, Nexus, also a defendant in the Amlings' state
suit. The district judge thought the declaratory judgment
action unripe and dismissed it. Even if it were ripe, the
judge ruled in the alternative, she would decline to exercise
jurisdiction over it. The Amlings appealed. Robert died while
this appeal has been pending; Deborah now prosecutes the
state and the federal lawsuits in her own right and as
representative of Robert's estate.
affirm. It is virtually certain that the Amlings' state
suit will answer the question presented by their federal
suit: whether under the terms of the asset-purchase agreement
Harrow or Nexus could be liable for their injuries. That fact
makes this a live controversy but simultaneously justifies
the district court's sound exercise of its discretion in
deciding not to issue a declaratory judgment.
Factual and Procedural Background
determine whether subject matter jurisdiction exists, a court
may look past the complaint to any pertinent evidence.
Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.
1999). The complaint's jurisdictional allegations are
taken as true, though, unless the defendant offers evidence
calling jurisdiction into question. Id. at 856. The
undisputed jurisdictional facts in this case are taken from
the Amlings' federal and state complaints, as well as
from the docket of a related federal case and certain public
documents, all properly subject to the district court's
Amling began working in the horticulture industry in 1965 and
continued in that career for the rest of his working life. At
one point, Robert worked for National Greenhouse Company,
whose products allegedly contained asbestos to which he was
exposed during his work.
between 1965 and 1990, National Greenhouse's assets and
liabilities were transferred to Harrow Products, a division
of Harrow Industries. In November 1990, Harrow Products
executed an asset-purchase agreement with Nexus, transferring
all of National Greenhouse's assets and, critically for
our purposes, some of its liabilities to Nexus, as
defined by the agreement.
Amling was diagnosed with mesothelioma in 2015. In 2016, the
Amlings sued Harrow, Nexus, and others in Illinois state
court, alleging the defendants caused Robert's
mesothelioma by tortiously exposing him to asbestos.
2017, Harrow filed a declaratory judgment action against
Nexus in the Central District of Illinois. Harrow sought a
declaration that any liability of National Greenhouse to the
Amlings had passed from Harrow to Nexus under the terms of
the 1990 asset-purchase agreement. Apprised of Harrow's
suit, the Amlings successfully sought a stay of their own
suit and unsuccessfully moved to intervene in Harrow's.
Harrow voluntarily dismissed its action in 2018 without a
decision on the merits.
Amlings then filed their own declaratory judgment action in
the same federal district court-the case before us now. The
district court had jurisdiction of the suit under 28 U.S.C.
§ 1332. The Amlings' suit is basically a mirror
image of Harrow's: it seeks a declaration that under the
terms of the 1990 agreement, Harrow, not Nexus or any other
entity, is liable for National Greenhouse's torts alleged
in the Amlings' state complaint. (Schlage Lock Company is
also named as a defendant here as Harrow's alter ego or
successor in interest; we need not discuss it further.) The
Amlings' state case is still stayed.
policing its own jurisdiction, the district court ordered the
parties to address whether the case was justiciable. After
briefing, the court concluded it was not because there not
yet a ripe controversy suitable for judicial action. In the
alternative, the court held it would decline to exercise
whatever jurisdiction it might have had. The court dismissed