Seventh Circuit Returns to Full Strength

As Wisconsin lawyers well know, the U.S. Court of Appeals for the Seventh Circuit has been working with less than its fully authorized complement of eleven active circuit judges since Judge Terence Evans took senior status in January 2010.  The court continued with 10 active members until February 2015, when Judge John Tinder of Indiana retired. Then, in rapid succession last year, Judge Ann Claire Williams took senior status in June, and Judge Richard Posner retired in September, leaving two Illinois vacancies on the court and reducing the number of active judges to seven.
 
The work of the court continued, of course, with Senior Judges William Bauer, Kenneth Ripple, and Daniel Manion sitting regularly and the court calling on many district judges from the three states to sit with the court from time to time.  But the personality and character of a federal court of appeals inevitably derive over time from its active judges, who sit together year after year in randomly selected panels of three and who, sitting together en banc, are the only organ of the court authorized to overrule published panel decisions.
 
Given the long unfilled vacancies in Wisconsin and Indiana, the speed with which the court has been returned to its full strength of eleven judges seems astounding.
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Citing Failure to Request Leave to Amend, Seventh Circuit Affirms Dismissal with Prejudice Under Rule 12(b)(6)

Federal district courts are supposed to grant leave to amend a complaint “freely … when justice so requires.”  Fed. R. Civ. P. 15(a)(2).  The Seventh Circuit has construed this directive to require, in most cases, that a plaintiff whose complaint has been dismissed under Fed. R. Civ. P. 12(b)(6) be given at least one opportunity to amend the complaint.  See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 519 (7th Cir. 2015).  Dismissal with prejudice may be appropriate when it is clear from the face of the complaint that amendment would be futile, but the Seventh Circuit has emphasized that “[s]uch cases of clear futility at the outset of the case are rare” and denial of leave to amend at least once “will be reviewed rigorously on appeal.” Id. at 520.

The court’s recent decision in Haywood v. Massage Envy Franchising, LLC, No. 17-2402 (7th Cir. Apr. 10, 2018), is noteworthy for its seeming less-than-rigorous review of the dismissal with prejudice of a complaint alleging violations of Illinois and Missouri consumer fraud statutes. The plaintiffs in Haywood claimed that the defendant had violated both acts by advertising and selling one-hour massages that in fact lasted only 50 minutes.  The defendant moved to dismiss the complaint for failure to state a claim, and the district court granted the motion with prejudice.

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Seventh Circuit Explains the Standard for Certification of a Question of State Law

Seventh Circuit Rule 52 allows the U.S. Court of Appeals for the Seventh Circuit, when faced with “questions arising under the laws of [a] state which will control the outcome of a case pending in the federal court” to “certify such a question to the state court in accordance with the rules of that court” and to “stay the case . . . to await the state court’s decision.” 

The Seventh Circuit has explained in Cleary v. Philip Morris Inc. that certification of a question of state law is appropriate only if the court is “genuinely uncertain about a question of state law that is vital to a correct disposition of the case.” 656 F.3d 511, 520 (7th Cir. 2011).

Don’t confuse “novel” or “unresolved” with “genuinely uncertain,” however. Federal courts frequently answer questions of state law in the absence of controlling authority—making what is sometimes referred to as an “Erie guess.” (Erie Railroad Co. v. Tompkins is the landmark decision issued by the Supreme Court in which it required federal courts to apply the law of the state’s highest court when hearing state-law claims under their diversity jurisdiction. 304 U.S. 64 (1938).) 

The Seventh Circuit’s recent decision in In re: Zimmer NexGen Knee Implant Products Liability Litigation, No. 16-3957 (7th Cir. 2018), written by Judge Diane Sykes, is illustrative of the standard and the high bar for certification. 

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Seventh Circuit Disqualifies Conflicted Counsel

It’s not often that a court disqualifies one of the lawyers who appears before it. That’s what makes the Seventh Circuit’s recent decision in Doe v. Nielsen, No. 17-2040 (7th Cir. Feb. 26, 2018), one for the history books. The decision, written by Judge Diane Sykes, took the “drastic measure” of disqualifying counsel who appeared for a plaintiff seeking lawful-permanent residence under the EB-5 program—a visa program that allows immigrant investors to apply for a green card if they can prove that they have invested a minimum amount in a “new commercial enterprise.”

The court’s power to disqualify a lawyer of a client’s choosing, the Seventh Circuit explained, stems from its duty to “maintain public confidence in the legal profession and assist[] in protecting the integrity of the judicial proceeding.”  Slip op. 3. The facts of this case, as the court put it, “force[d its] hand.” Id.

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SCOTUS Raises an Interesting Question for Appeals in Consolidated Cases in Wisconsin

The U.S. Supreme Court today decided unanimously that, when cases are consolidated under Fed. R. Civ. P. 42(a), they nevertheless remain separate cases. In Hall v. Hall, No. 16-1150, two separate cases had been consolidated and were tried together to a jury, but the district court granted a new trial in one of the cases and entered a final judgment in the other. After the losing party in the decided case took an appeal, the Court of Appeals for the Third Circuit held that, because of the consolidation, the judgment appealed from was not a “final decision” under 28 U.S.C. § 1291. It dismissed the appeal for lack of jurisdiction.

In an opinion by Chief Justice Roberts, the Supreme Court reviewed the history of consolidation in federal practice, beginning with a statute enacted in 1813, which remained in effect in some form until replaced by Rule 42(a) in 1937. It concluded from the cases interpreting the statute that consolidation was not intended to effect a merger of the consolidated cases. Relying largely on that history to determine the meaning of the undefined word “consolidate” in the rule (“the court may . . . consolidate the actions”), the Court decided that consolidated cases are not merged into a single action and that a party aggrieved by the judgment entered in one of the cases may appeal, although there will be further proceedings in the other case. And, indeed, though the issue did not arise in Hall, failure to take a timely appeal from the judgment would preclude taking an appeal from that judgment later, when the “rest of the case” comes to an end.
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