Orlando Brown v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-2020

ORLANDO BROWN,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 2921 — Sharon Johnson Coleman, Judge.

____________________

ARGUED OCTOBER 8, 2014 — DECIDED NOVEMBER 13, 2014

____________________

Before POSNER, FLAUM, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The plaintiff, a former Chicago po-

lice officer, is black; claiming to have been discriminated

against by his white supervisor, he filed suit against the City

of Chicago in state court, charging racially motivated har-

assment, and retaliation for complaining about the harass-

ment, all in violation of the Illinois Human Rights Act. While

that suit was pending, the Chicago Police Board fired him—

in retaliation, he alleges, for the internal complaints about

2 No. 13-2020

harassment that he had made before he filed suit. Rather

than amend his state court complaint to add a charge that

his firing had constituted harassment and retaliation, he

filed the present suit in federal district court, alleging that

the City and the Police Board (and members of the Board,

whom we can ignore) had fired him on racial grounds

(Count I) and also in retaliation for his earlier complaining

about discrimination (Count II), all in violation of 42 U.S.C.

§ 1981. The complaint also contains (in Count III) a state-law

claim against the Police Board under the Illinois Code of

Civil Procedure, Administrative Review, 735 ILCS 5/3-101 et

seq., challenging the Board’s decision to fire him, and a fed-

eral due process claim.

The district judge stayed the federal suit while the state

court suit was pending. That court had already dismissed

Brown’s claim of harassment, leaving the claim of retaliation

pending. Brown moved the state court to dismiss that claim

as well, thus terminating his state court suit, but asked that

the dismissal be without prejudice. The court obliged. The

docket sheet terms the dismissal a “Voluntary Dismissal

W[ith] Leave to Refile-Allowed.”

With the state court suit dismissed, the district judge lift-

ed the stay of Brown’s federal suit. The judge then dismissed

Count III on the ground that there was no federal subject-

matter jurisdiction because it was purely a state-law claim

(she seems to have overlooked the federal due process claim

that was also alleged in the count). The dismissal was with

prejudice. It should not have been. The judge was not decid-

ing the merits of the claim or finding that it had been filed in

bad faith and therefore that Brown should be forbidden to

refile it in any court.

No. 13-2020 3

Later the judge dismissed Brown’s other two claims—

retaliation and racial discrimination (the latter claim Brown

had called harassment in his state court suit, but the factual

allegations were the same)—on the merits, as barred by res

judicata. But in the same order she amended her earlier or-

der dismissing the state-law Administrative Review claim to

say that if perchance she had supplemental jurisdiction over

that claim (rather than lacking subject-matter jurisdiction, as

she had ruled), she was relinquishing jurisdiction to the state

courts pursuant to 28 U.S.C. § 1367(c)(3), which would be a

dismissal without prejudice.

Whether the dismissal of the retaliation and discrimina-

tion claims by the state court is res judicata in Brown’s fed-

eral suit is an issue of Illinois state law. 28 U.S.C. § 1738. He

argues that under that law a voluntary dismissal is not res

judicata because it is not a judgment on the merits and only

judgments on the merits are res judicata. That is indeed the

general rule, in Illinois as elsewhere. Rein v. David A. Noyes &

Co., 665 N.E.2d 1199, 1204 (Ill. 1996). But there is an excep-

tion for cases in which the dismissal follows the rejection of

all or some of the plaintiff’s claims on the merits, as hap-

pened in this case (recall that Brown’s state-law harassment

claim had been dismissed by the state court with prejudice).

The basis of the exception is that “plaintiffs generally are

not permitted to split their causes of action. The rule against

claim-splitting, which is an aspect of the law of preclusion,

prohibits a plaintiff from suing for part of a claim in one ac-

tion and then suing for the remainder in another action.” Id.

at 1206; see also Hudson v. City of Chicago, 889 N.E.2d 210, 216

(Ill. 2008). Brown’s harassment and retaliation claims were

not identical, but arising as they did from the alleged racially

4 No. 13-2020

motivated discrimination against him by his white supervi-

sor, they were similar enough to constitute a single claim for

purposes of res judicata. See, e.g., River Park, Inc. v. City of

Highland Park, 703 N.E.2d 883, 893 (Ill. 1998) (“separate

claims will be considered the same cause of action for pur-

poses of res judicata if they arise from a single group of op-

erative facts, regardless of whether they assert different the-

ories of relief.”).

But there are exceptions to the exception, one being if

“the court in the first action expressly reserved the plaintiff's

right to maintain the second action.” Rein v. David A. Noyes

& Co., supra, 665 N.E.2d at 1207. Brown argues that the nota-

tion on the docket sheet “Voluntary Dismissal W[ith] Leave

to Refile-Allowed” was such an express reservation. The Su-

preme Court of Illinois has held, however, that to be deemed

“express” the reservation must identify what exactly is being

reserved. In Robinson v. Toyota Motor Credit Corp., 775 N.E.2d

951, 958 (Ill. 2002), the court first noted our ruling in D & K

Properties Crystal Lake v. Mutual Life Ins. Co. of New York, 112

F.3d 257, 261 (7th Cir. 1997), that the reservation must be

“both express, as in writing, and express, as in specifically

identified,” and then said that “in general, we [that is, the

Supreme Court of Illinois] agree that to avoid the preclusive

effect of res judicata any reservation of a cause of action

must be expressly reserved by the parties.” The court did not

explain what qualifications it was thinking of when it said

“in general,” but we don’t see any reason to recognize an ex-

ception to the exception to the exception in this case. The

docket notation did not specify what claims were being re-

served: whether it was just the retaliation claim, or that plus

other claims that Brown might want to present in a refiled

suit.

No. 13-2020 5

It’s not even clear that the docket notation should be con-

sidered an authentic reservation of anything. It’s not clear

whether the judge was the author of the notation, or instead

a court clerk was, who noticing that the dismissal was with-

out prejudice erroneously thought that this meant the suit

could be refiled, and noted his erroneous belief on the dock-

et. He may have been unaware of the first exception (a vol-

untary dismissal is res judicata if other claims in the dis-

missed suit had been dismissed on the merits). So, for that

matter, may have been the judge.

A number of decisions by Illinois’s intermediate appel-

late court hold that the language (or a near variant of it) of

the reservation in this case is insufficient to comply with the

“express reservation” exception. See, e.g., Matejczyk v. City of

Chicago, 922 N.E.2d 24 (Ill. App. 2009). Brown cites other Illi-

nois’s intermediate appellate court cases, however, that he

claims go the other way. In Severino v. Freedom Woods, Inc.,

941 N.E.2d 180 (Ill. App. 2010), for example, the docket entry

was similar or identical to the one in this case and in cases

like Matejczyk, but there was other evidence of the judge’s

intentions in dismissing the case—namely the judge’s

handwritten statement on the order of dismissal that costs

were to be paid “upon the refiling of the complaint by the

plaintiff.” Id. at 183. In this case there is a similar indication

that the judge intended that the case could be refiled, besides

the docket notation (why Brown places such emphasis on

the docket notation puzzles us): the order of dismissal,

signed by the judge, states that it’s without prejudice and

that the City of Chicago is “reserv[ing] the right to refile its

Combined Motion to Reconsider and To Dismiss Plaintiff’s

Lawsuit if Plaintiff refiles this case” (emphasis added)—

implying that Brown is permitted to refile it.

6 No. 13-2020

But Severino and like cases are in tension with the state

supreme court’s insistence on strict compliance with the re-

quirement not only of an intended but also of a “specifically

identified” reservation of the right to refile a voluntarily

dismissed claim if another claim has been dismissed with

prejudice. That insistence is necessary to prevent, or at least

to minimize the likelihood of, judge shopping and forum

shopping. If, as may have happened in this case, the dis-

missal of one claim (the state court’s dismissal of the har-

assment claim) signals that the judge, or perhaps the court

system (in this case, the Illinois court system), does not look

with favor on the plaintiff’s case, the plaintiff may decide to

dismiss his suit voluntarily and refile it before a different

judge, maybe in a different court system (in this case, the

federal court system), and press the claims that the first

judge, or the first court system, has not yet dismissed. A vol-

untary dismissal of those claims and a refiling of them else-

where is a gimmick that the doctrine of res judicata, as inter-

preted by the Supreme Court of Illinois in cases in which

voluntary dismissal follows the dismissal of another claim

with prejudice, aims to prevent.

So the retaliation and discrimination claims in Brown’s

federal suit are barred. As for Count III, which the district

court dismissed both as beyond its subject-matter jurisdic-

tion and (if within it) as being a claim of supplemental juris-

diction that a district judge can, and this district judge want-

ed to, dismiss without prejudice, we agree with Brown that

the judge had subject-matter jurisdiction. Here are the key

allegations of Count III: “The Police Board’s guilty findings

and discharge were erroneous … . The proceedings before

the Police Board were fundamentally unfair and violated

Plaintiff’s due process rights because of [Brown’s supervi-

No. 13-2020 7

sor’s] illegitimate and retaliatory motive in bringing charges

… against Plaintiff.” There thus are two claims. The first sen-

tence claims just errors in the Police Board’s administrative

proceeding. The second advances a federal claim. The first

claim is within the district court’s supplemental jurisdiction,

because it is a claim that is so closely related to claims that

are within original federal jurisdiction that it “form[s] part of

the same case or controversy under Article III.” 28 U.S.C.

§ 1367(a). The second claim, however, is a garden-variety

federal-law claim, and it is therefore within the original ju-

risdiction of the district court under 28 U.S.C. § 1331. The

judge was free to relinquish jurisdiction over the supplemen-

tal claim, the challenge to the Police Board’s findings, but

not over the original-jurisdiction claim, based on the due

process clause of the Fourteenth Amendment. For elabora-

tion of the distinction, see City of Chicago v. International Col-

lege of Surgeons, 522 U.S. 156, 164 (1997).

We acknowledge the possibility that the due process

claim, which alleges that the white supervisor’s motives

were “illegitimate” and “retaliatory” is so similar to the

state-law claims of harassment and retaliation as to be

barred by res judicata. But that is an issue best left for the

district court to decide in the first instance.

The judgment of the district court is therefore modified

to place dismissal of the first claim in Count III on the dis-

trict court’s supplemental state-law jurisdiction, but reversed

with respect to the dismissal of the due process claim in that

count. In all other respects the judgment is affirmed.