Seventh Circuit Sanctions an Appellant for Failing To Include the District Court’s Rulings with Its Opening Brief

Seventh Circuit Rule 30(a) requires an appellant to “append to [its] opening brief[] the judgment under review and its adjoining findings of fact and conclusions of law.” Rule 30(b) further requires an appellant to include any other opinions or orders that bear on the issues on appeal, and subparagraph (d) requires an appellant to certify that it has met the requirements of the rule.

Let Jaworski v. Master Hand Contractors, Inc., No. 16-3601 (7th Cir. Feb. 15, 2018), serve as a warning to any would-be scofflaws of Circuit Rule 30. The decision, written by Judge Diane Sykes, sanctioned the appellant, Master Hand Contractors, for failing “to submit critical district-court opinions with its opening brief.” Slip op. 2.  “The purpose of an appeal,” the court explained, “is to evaluate the reasoning and result reached by the district court.” Id. at 4. The court cannot “do this job,” however, “if the written orders and transcript pages containing the appealed decision are not before [it].” Id.

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Seventh Circuit Considers Diversity Jurisdiction in Trust Dispute

In Doermer v. Oxford Fin’l Group, Ltd., No. 17-1659 (7th Cir. Mar. 7, 2018), the Seventh Circuit had before it an example of what Chief Judge Diane Wood called a “depressingly common” type of litigation: “[f]amily disputes over who owns what.” In resolving the appeal, the court resolved a couple of interesting diversity jurisdictional issues that such disputes can present.

Brother Richard and sister Kathryn don’t get along. Richard previously sued Kathryn over control of a family foundation, but the case was dismissed because Richard lacked capacity under Indiana law to bring a derivative action; the Seventh Circuit affirmed in Doermer v. Callen, 847 F.3d 522 (7th Cir. 2017).

This time Richard sued Kathryn’s financial advisor for allegedly giving her negligent advice that caused her to mismanage a family trust, of which they are the two beneficiaries, as well as two of the three trustees. Richard, a citizen of Illinois, sued the advisor in state court in that state. The advisor, a citizen of Indiana, removed to federal court, invoking diversity jurisdiction. Richard objected to removal on two grounds—that he had named Kathryn (also a citizen of Indiana) as an “involuntary plaintiff,” so that there were Indiana citizens on both sides of the litigation; and that the “real party in interest” is the trust, which takes its citizenship from that of both trustees, so that (again, in his view) there were Indiana citizens on both sides of the litigation. The Seventh Circuit rejected both arguments.

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In the Age of Airbnb, the Seventh Circuit Explains the “Reasonable Diligence” Required for Personal Service in Wisconsin

Wis. Stat. § 801.11(1)(c) allows a plaintiff to resort to service by publication when, through efforts that amount to “reasonable diligence,” he has been unable to serve the defendant in person.

The Seventh Circuit’s recent decision in Cunningham v. Montes, No. 17-2516 (7th Cir. Feb. 21, 2018), written by Judge Frank Easterbrook, considered whether the plaintiff had exercised “reasonable diligence” in the context of a defendant who had two known homes, one in California and the other in Wisconsin, and had listed the California home for rent by the week on the Internet. Attempting personal service at only one of those homes, the court held, did not amount to “reasonable diligence.”

Cunningham’s process server had been unable to locate the defendant, Montes, at his home in Wisconsin, and Montes refused to provide his location when he answered the phone. Regardless, the Seventh Circuit held that Montes’s refusal to provide his whereabouts to a process server over the phone did not amount to evading service; and “Wisconsin,” the court explained, “requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address.” Slip op. 3.

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Seventh Circuit Explains When an Award of Attorney’s Fees Is Final for Purposes of an Appeal

The law clerks of the U.S. Court of Appeals for the Seventh Circuit might be excused for thinking of the court’s recent decision in Cooke v. Jackson National Life Insurance Co., No. 17-2080 (7th Cir. Feb. 9, 2018), as the one that got away. So pervasive and fundamental were the case’s jurisdictional issues on appeal that the court, in an opinion written by Judge Frank Easterbrook, toyed with “order[ing] both sides to pay a penalty,” with the “law clerks’ holiday-party fund” as the beneficiary. Unfortunately for the law clerks, the court concluded that there was “no such appellate power.”

The issue that drew the court’s ire began with the district court’s ill-considered attempt to enter a final judgment in an insurance dispute. The district court’s original order read as follows:

Enter Memorandum Opinion and Order. Plaintiff’s motion for summary judgment [47] is granted and Defendant’s motion for summary judgment [42] is denied. The Court awards attorney fees to Plaintiff for cost of preparing and responding to these motions. This case is hereby dismissed with prejudice.

The first problem, as the Seventh Circuit pointed out, is that order was “self-contradictory.” Cooke, the plaintiff, could not be entitled to summary judgment and attorney’s fees and have her case dismissed. Dismissals, insofar as most plaintiffs are concerned, are for the losers, not winners, like Cooke.

The second and more considerable problem with the district court’s order is that it ran afoul of the rule that “a judgment must provide relief to which the prevailing party is entitled.” Slip op. 2. It is insufficient, the court explained, for a judgment to state that “one motion has been granted, another denied, and an award made” but not to say “who is entitled to what.” Id.

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Supreme Court Decides Case That the 7th Circuit Could Not Review En Banc

Yesterday the Supreme Court issued its decision in Rubin v. Islamic Republic of Iran, No. 16-534 (Feb. 21, 2018), affirming the Seventh Circuit by holding that a provision of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1610(g), does not create a freestanding exception to the general prohibition on executing a judgment against a foreign state.

We wrote previously about Rubin (here and here) because it involved a unique situation in which the Seventh Circuit found itself unable to assemble a “majority” of the judges in regular active service who were eligible to vote whether to rehear the case en banc. The lower court’s opinion, written by Judge Diane Sykes, overruled a prior panel decision in the Seventh Circuit and created a split with a Ninth Circuit decision. The court was unable to rehear the case en banc, however, because five of the Seventh Circuit’s nine then-active judges had to recuse themselves. Judge David Hamilton filed a dissenting opinion from the denial of en banc review and suggested that, given this “rare situation,” the panel’s decision “should not be treated as settling the legal issue in this circuit.”

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