The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2219
MARQUISE WRIGHT,
Plaintiff‐Appellant,
v.
CALUMET CITY, ILLINOIS,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14‐cv‐10351 — Jorge L. Alonso, Judge.
____________________
ARGUED JANUARY 6, 2017 — DECIDED FEBRUARY 17, 2017
____________________
Before WOOD, Chief Judge, and BAUER, and ROVNER, Cir‐
cuit Judges.
ROVNER, Circuit Judge. On or around December 22, 2014,
Marquise Wright was arrested by police officers employed
by Calumet City, Illinois (the “City”). The officers did not
have an arrest warrant for Wright at the time of the arrest.
As characterized by the officers, the incident underlying the
arrest involved a murder of one individual and the shooting
of multiple other people, and Wright admitted to having a
2 No. 16‐2219
gun at the scene. At a minimum, he was to be charged with
unlawful use of a weapon by a felon, a felony offense, but
the assistant state’s attorney instructed the City’s officers to
wait to criminally charge Wright until lab results came back
establishing whether the gun carried by Wright matched the
casings and bullets recovered from the scene.
On December 24, 2014, while still in custody on that ar‐
rest, Wright filed an action under 42 U.S.C. § 1983 against
the City alleging that it violated his Fourth and Fourteenth
Amendment rights by failing to provide him with a judicial
determination of probable cause within 48 hours of his ar‐
rest. At that time, Wright had been in custody for nearly 55
hours. On December 25, 2014, Wright was presented for a
bond hearing and a judge made a finding of probable cause
to detain Wright. In the § 1983 action, Wright asserted that
the City had a policy or practice authorizing its officers to
detain persons arrested without a warrant for up to 72 hours
before permitting the arrestee to appear before a judge, and
sought to pursue both an individual claim and class claims.
Wright sought certification of two classes in the district
court under Federal Rules of Civil Procedure 23(b)(2) and
23(b)(3): one, involving “[a]ll persons who will in the future
be detained by Calumet City police officers so that they do
not receive a judicial determination of probable cause within
48 hours of arrest;” and one consisting of “[a]ll persons who,
following an arrest without a warrant on and after Decem‐
ber 24, 2012 until the date notice is disseminated, were de‐
tained by Calumet City police officers so that they did not
receive a judicial determination of probable cause within 48
hours of arrest.” With respect to the latter class, the district
court determined that the class consisted of, at most, 31 in‐
No. 16‐2219 3
dividuals, that the members were unlikely to be geograph‐
ically dispersed given the nature of the allegations, and that
joinder was not impracticable. The court denied certification
because Wright failed to demonstrate that the classes were
sufficiently numerous to satisfy Federal Rule of Civil Proce‐
dure 23(a)(1), which requires that a putative class plaintiff
establish that: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims of the putative class
representative are typical of the claims or defenses of the
class; and (4) the putative class representative will fairly and
adequately protect the interests of the class.
After Wright’s petition for permission to appeal the certi‐
fication issue immediately was denied, the City made an of‐
fer of judgment pursuant to Rule 68 of the Federal Rules of
Civil Procedure. Wright accepted that offer without qualifi‐
cation, which provided that:
the Defendant Calumet City, Illinois, agrees to
allow Plaintiff Marquise Wright to take a
judgment against it, comprised of $5,000.00 to
Plaintiff for all claims brought under this law‐
suit, inclusive of his attorneys’ fees and costs to
date accrued in pursuing this action on Plain‐
tiff’s behalf, but excluding all attorneys’ fees
and costs accrued in pursuing this lawsuit as a
class action.
Despite accepting the Rule 68 offer that granted him relief as
to “all claims brought under this lawsuit,” Wright now ap‐
peals to this court the district court’s denial of the class certi‐
fication. Because he is not an aggrieved person with a per‐
sonal stake in the case or controversy as is required under
4 No. 16‐2219
Article III of the Constitution, we dismiss this appeal for lack
of jurisdiction.
On appeal, the only claim asserted by Wright is that the
district court erred in denying certification of the class con‐
sisting of himself and “[a]ll persons who will in the future be
detained by Calumet City police officers so that they do not
receive a judicial determination of probable cause within 48
hours of arrest.” He does not appeal the denial of certifica‐
tion of the other class, involving the approximately 31 per‐
sons who had been detained.
Under Article III of the Constitution, federal court juris‐
diction is limited to “cases” or “controversies,” and therefore
federal courts are restricted to resolving only “’the legal
rights of litigants in actual controversies.’” Genesis Healthcare
Corp. v. Symczyk, ___ U.S. ___, 133 S. Ct. 1523, 1528 (2013),
quoting Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 471 (1982).
Accordingly, a plaintiff seeking to invoke federal‐court ju‐
risdiction “must demonstrate that he possesses a legally
cognizable interest, or ‘personal stake,’ in the outcome of the
action.” Genesis Healthcare, 133 S. Ct. at 1528. Moreover, that
personal stake evincing an actual controversy must be pre‐
sent at all stages of review, not merely at the inception of the
lawsuit. Id. “’If an intervening circumstance deprives the
plaintiff of a “personal stake in the outcome of the lawsuit,”
at any point during the litigation, the action can no longer
proceed and must be dismissed as moot.’” Campbell‐Ewald
Co. v. Gomez, ___ U.S. ___, 136 S. Ct. 663, 669 (2016), quoting
Genesis Healthcare, 133 S. Ct. at 1528. A case becomes moot
“’only when it is impossible for a court to grant any effectual
No. 16‐2219 5
relief whatever to the prevailing party.’” Id., quoting Knox v.
Service Employees, 132 S. Ct. 2277, 2287 (2012).
We turn, then, to the initial issue in this case, which is
whether Wright’s acceptance of the offer of judgment elimi‐
nated any personal stake in the claim such that this appeal
lacks the case or controversy required by Article III. The Su‐
preme Court as well as appellate courts have applied the Ar‐
ticle III case or controversy analysis to widely varying factu‐
al scenarios resolving individual and class claims, including
but not limited to: voluntary settlement of claims; involun‐
tary judgments in the plaintiff’s favor; voluntary settlement
of individual claims with the reservation of the class certifi‐
cation issue; and settlement of claims but with the retention
of various interests that could be impacted by the class certi‐
fication issue. As the Supreme Court recently held, an unac‐
cepted settlement offer—even if it offers all relief sought in
the case—does not render a case moot when the party seeks
relief on behalf of himself and a class of persons, at least
where the settlement amount is not deposited with the court.
Campbell‐Ewald Co., 136 S. Ct. at 672. Where the Rule 68 offer
is accepted but by its terms exempts the class certification
issue, courts are divided as to whether the plaintiff retains a
concrete interest sufficient to meet the case or controversy
requirement of Article III. See, e.g. United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 404 n.10 (1980)(reserving
the issue “as to whether a named plaintiff who settles the
individual claim after denial of class certification may, con‐
sistent with Article III, appeal from the adverse ruling on
class certification”); Rhodes v. E.I. DuPont De Nemours & Co.,
636 F.3d 88, 100 (4th Cir. 2011)(“when a putative class plain‐
tiff voluntarily dismisses the individual claims underlying a
request for class certification, … there is no longer a ‘self‐
6 No. 16‐2219
interested party advocating’ for class treatment in the man‐
ner necessary to satisfy Article III standing requirements.”);
Muro v. Target Corp., 580 F.3d 485, 491 (7th Cir. 2009) (the
reservation in the settlement of the right to appeal the certifi‐
cation issue is insufficient to establish the concrete interest
necessary under Article III); Richards v. Delta Air Lines, Inc.,
453 F.3d 525, 529 (D.C. Cir. 2006) ) (plaintiff who settled in‐
dividual claims but reserved the right to appeal the class
claims retained a personal stake in the class claim, including
in shifting attorneys’ fees and other litigation costs).
The case before us presents a different situation in that
Wright accepted a settlement offer without reservation and
did not exempt the class certification issue, but our decision
in Muro is nevertheless instructive. Muro brought an action
under the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et
seq., alleging both an individual and class‐based claim. After
class certification was denied, Muro settled her individual
claim, but reserved the right in that settlement to appeal the
denial of class certification. Muro, 580 F.3d at 491–92. We
considered whether, having accepted an offer of judgment
and therefore lacking any cognizable interest in our evalua‐
tion of the district court’s decision on that issue, Muro could
nevertheless appeal the court’s decision denying certification
of the class. We noted in Muro that “[m]ost of the circuits
that have considered the issue have held that ‘a named
plaintiff’s unqualified release of claims relinquishes not only
his interest in his individual claims but also his interest in
class certification.’” Id. at 490, quoting Toms v. Allied Bond
Collection Agency, Inc., 179 F.3d 103, 105 (4th Cir. 1999).
Where an express reservation of the right to appeal the class
certification was part of that settlement, those courts differed
as to whether that alone was sufficient to permit a prospec‐
No. 16‐2219 7
tive class representative who settled his individual claims to
appeal the denial of class certification. Muro, 580 F.3d at 490.
We agreed with the circuits that held that the mere reserva‐
tion of the right to appeal was insufficient alone to satisfy
the case or controversy requirement; plaintiffs must demon‐
strate a personal stake to demonstrate the concrete personal
interest in the appeal. Id. at 491. We reasoned that the case or
controversy requirement extends to all stages of the litiga‐
tion, and must be demonstrated on appeal. Id. The mere ex‐
pression of a desire to appeal, or a reservation of that option
in a settlement, does not in itself establish that concrete in‐
terest. We set forth the appropriate analysis as follows:
A voluntary settlement by the prospective class
representative often means that, as a practical
matter, the settling individual has elected to
divorce himself from the litigation and no
longer retains a community of interests with
the prospective class. Only if issues personal to
the prospective class representative remain
alive in the litigation can a court be assured
that there remains sufficient concrete adverse‐
ness to ensure that the class certification issue
is presented in a truly adversarial manner and,
consequently, will be litigated comprehensive‐
ly and clearly. An abstract interest in a matter
never has been considered a sufficient basis for
the maintenance of—or the continuation of—
litigation in the federal courts.
Id.; see also Premium Plus Partners v. Goldman, Sachs & Co.,
648 F.3d 533, 538 (7th Cir. 2011) (where a litigator has litigat‐
ed and won, that acceptance of the Rule 68 offer extinguishes
8 No. 16‐2219
any live claim similar to the one held by the remaining
members of the class).
Thus, a mere desire to appeal the denial of certification is
insufficient. A “personal stake” is required to assure that the
case is in a form capable of judicial resolution – that is, in‐
volving “sharply presented issues in a concrete factual set‐
ting and self‐interested parties vigorously advocating oppos‐
ing positions,” the resolution of which have direct conse‐
quences on the parties involved. Geraghty, 445 U.S. at 403;
Genesis Healthcare, 133 S. Ct. at 1528. Accordingly, plaintiffs
who seek to appeal despite a settlement of their individual
issues must demonstrate that they retain a concrete interest
in the issue.
As we noted in Muro, the Supreme Court in Deposit Guar‐
anty National Bank v. Roper, 445 U.S. 326 (1980), provided an
example of the type of personal interest that could persist on
appeal despite a settlement of the individual claims. In Rop‐
er, the plaintiffs filed a suit alleging that the defendant vio‐
lated the National Bank Act, 12 U.S.C. §§ 85 & 86, by charg‐
ing the plaintiffs and the class they sought to represent usu‐
rious finance charges. Id. at 328. After the district court de‐
nied class certification, the bank offered to each plaintiff the
maximum amount they could recover on their individual
claims, but they refused that offer. Id. at 329. The plaintiffs
extended a counter‐offer which would reserve the right to
appeal the adverse class certification ruling, but that coun‐
ter‐offer was declined by the bank. Id. The district court nev‐
ertheless entered judgment for the tendered amount, which
was deposited in the court’s registry, and dismissed the case.
Id. at 330. Although their individual claims had thereby been
satisfied, the plaintiffs sought to appeal the denial of class
No. 16‐2219 9
certification. Id. The Court held that the plaintiffs retained a
sufficient personal interest in the case and could appeal the
denial, because throughout the litigation the plaintiffs had
asserted a continuing individual interest in shifting part of
the cost of litigation including attorneys’ fees to the class
members. Id. at 336.
Applying that rationale in Muro, we noted that Muro had
received in the settlement compensation for both her costs of
the action and her reasonable attorneys’ fees. Therefore, be‐
cause Muro had not retained an interest in that or any other
remaining benefit, even though she had reserved in the set‐
tlement the right to appeal the denial of class certification,
she lacked the type of live, concrete controversy that would
allow her to appeal.
We discussed another type of ongoing interest in Espen‐
scheid v. Directsat USA, LLC, 688 F.3d 872 (7th Cir. 2012). In
Espenscheid, the plaintiffs accepted a settlement of their
claims but in that settlement they reserved the right to ap‐
peal the district court’s decision decertifying the class. We
recognized that where plaintiffs settle a case, the only possi‐
ble injury from denial of certification is to the members of
the proposed classes, and if the plaintiffs have no stake in
the continuation of the suit they lack standing to appeal
from the denial of certification. Id. at 874. The plaintiffs in
Espencheid, however, avoided that fate because a provision of
the settlement agreement stated that they were seeking an
incentive reward for their services as the class representa‐
tives. Id. That incentive reward was contingent on the certifi‐
cation of the class, and therefore the prospect of that award
gave the plaintiffs a tangible financial stake in getting the
10 No. 16‐2219
denial of class certification revoked. Id. at 875; McMahon v.
LVNV Funding, LLC, 744 F.3d 1010, 1018 (7th Cir. 2014).
Similar to the plaintiffs in Muro and Espencheid, Wright
accepted a settlement offer as to his claims. Wright has an
even weaker argument than that presented in Muro, howev‐
er, because Wright accepted a Rule 68 offer of judgment that
did not purport to preserve his right to appeal the denial of
class certification. To the contrary, the settlement in Wright
by its terms resolved all of his claims, retaining neither an
interest in his individual claim nor an interest in pursuing a
claim as a representative of a putative class. Wright does not
argue that he sought or preserved any interest in an incen‐
tive reward, and he has failed to demonstrate that he re‐
tained an interest in attorneys’ fees or that such an interest
alone would be sufficient to confer standing.
The language of the Rule 68 offer accepted by Wright in
this case was clear. It provided $5,000 to Wright to resolve
“all claims brought under this lawsuit.” A plain reading of
that language instructs that the settlement involves the indi‐
vidual claim as well as the class claim. Wright did not bring
multiple individual claims against the City in this case; he
included in the complaint only the individual claim that the
City violated his Fourth and Fourteenth Amendment rights
by failing to provide him with a judicial determination of
probable cause within 48 hours of his arrest. The only re‐
maining claims in the complaint were the class‐based chal‐
lenges based on the two purported classes of persons. Ac‐
cordingly, the language of the Rule 68 offer declaring that it
included “all claims brought under this lawsuit” necessarily
referred to his claim seeking to represent a class as well as to
the individual claim, both by the common meaning of the
No. 16‐2219 11
phrase and because in this case the plural reference to “all
claims” would be a misnomer if applying only to the singu‐
lar individual claim in the case. Moreover, the Rule 68 offer
distinguished between the individual and class claims in the
ensuing sentence, determining that attorney ‘s fees would be
included only for the individual claim and not for the class
claim upon which Wright had received no measure of suc‐
cess. The distinction for purposes of ascertaining attorneys’
fees, but not for identifying the claims that are included in
the judgment, further affirms that the offer of judgment re‐
solved both the individual and the class claims.
Wright has accepted the offer as full redress for all of his
claims, and therefore cannot demonstrate any ongoing per‐
sonal stake in the matter. See Campbell‐Ewald, 136 S. Ct. at
671 n.5 (recognizing that where a plaintiff has received full
redress for the injuries asserted in his complaint, no case or
controversy remains); Rhodes, 636 F.3d at 99 (recognizing
that where parties settle their claims entirely in the district
court, the plaintiff lacks the personal standing required un‐
der Article III on appeal).
Wright argues that he has an ongoing interest similar to
that in Roper because he did not obtain attorneys’ fees for the
class claim, but that reliance on Roper is misplaced.1 First, the
1 Wright also relies on Pastor v. State Farm Mut. Auto Ins. Co., 487 F.3d
1042 (7th Cir. 2007), but that case is unhelpful for the same reason Roper
is unavailing. Citing Roper, in Pastor we held without discussion that a
plaintiff who accepted a modest offer of judgment terminating the case
could appeal the denial of class certification because the “offer did not
resolve the dispute between the unnamed class members and the de‐
fendant and so did not render the case moot.” Id. at 1043–44. Although
Pastor did not otherwise explain its holding, the City included the offer
of judgment from Pastor in its briefing to this court; as the Roper cite im‐
12 No. 16‐2219
Supreme Court in Lewis v. Continental Bank Corp., 494 U.S.
472, 480 (1990), held that an “interest in attorneys’ fees is, of
course, insufficient to create an Article III case or controver‐
sy where none exists on the merits of the underlying claim.”
The Supreme Court in Genesis Healthcare, 133 S. Ct. at 1532
n.5 (2013), recognized the tension between Lewis and Roper,
but determined that “[b]ecause Roper is distinguishable on
the facts, we need not consider its continuing validity in
light of our subsequent decision in Lewis … .” In Premium
Plus, we recognized that the position that a person whose
claim is moot can still file a suit seeking attorneys’ fees “was
advanced, and flopped, in Diamond v. Charles, 476 U.S. 54,
70–71 (1986) and again in Lewis v. Continental Bank Corp., 494
U.S. 472, 480 (1990).” Premium Plus, 648 F.3d at 538. We not‐
ed that Lewis flatly held that an interest in attorney’s fees,
costs or expenses is insufficient to create an Article III case or
controversy where none otherwise exists on the merits of the
underlying claim. Id. Those cases caution that Wright cannot
rely on the mere possibility of attorneys’ fees as his basis to
meet the case or controversy requirement.
But like the Supreme Court in Genesis Healthcare, we need
not determine whether the rationale of Roper is impacted by
Lewis, because even under the reasoning of Roper, Wright’s
argument would be insufficient. In contrast to the plaintiffs
in Roper, Wright has failed to assert that it identified in the
district court any continuing individual interest in shifting
costs of the litigation to class members. More fundamentally,
in Roper, the plaintiffs did not agree to the termination of the
plies, the offer in Pastor explicitly resolved the damages and fees for the
individual claim only, and in both the offer and the acceptance the ability
to pursue such relief in appealing the class claim was reserved.
No. 16‐2219 13
suit; the district court entered the judgment based on the de‐
fendant’s tender even though the plaintiffs rejected the offer,
and the judgment offered them less than the full relief
sought. Specifically, the plaintiffs had asserted a continuing
individual interest in shifting part of the cost of litigation to
the class members, and the involuntary termination of its
case in the district court did not provide them with that re‐
lief. Roper, 445 U.S. at 336. In contrast, Wright voluntarily
agreed to accept a judgment which terminated all of his
claims, and agreed to the calculation of attorneys’ fees set
forth in that judgment. The voluntariness of the settlement is
not a dispositive factor in determining the standing issue.
See Wrightsell v. Cook County, Ill., 599 F.3d 781, 783 (7th Cir.
2010). But it is relevant in considering whether the district
court judgment granted the plaintiffs all of the relief sought
or the plaintiffs retained a concrete interest in the case unsat‐
isfied by that judgment. Where the plaintiffs voluntarily
agree to a settlement, that acquiescence can manifest their
agreement that the judgment provides all of the relief the
plaintiffs seek. In accepting without qualification the Rule 68
offer, Wright accepted the offer as satisfaction of all of the
relief that he sought in the district court. Although the allo‐
cation of attorneys’ fees accepted by Wright in the settlement
provided for fees and costs for the individual claim and not
for the class claim, a plaintiff may agree in a settlement to
forego fees for claims upon which he obtained no success,
just as a court may determine that fees will be awarded only
for claims upon which the plaintiff obtained some degree of
success. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983);
M.B. ex rel. Berns v. Hamilton Southeastern Sch., 668 F.3d 851,
864 (7th Cir. 2011). Nothing in the settlement preserves the
right to seek fees as to the certification issue at a later time,
14 No. 16‐2219
and Wright can point to nothing in the district court that in‐
dicates that he retained a concrete interest in fees. He there‐
fore lacks a personal stake in the claim as is required under
Article III. See Rhodes, 636 F.3d at 100 (“a putative class
member who voluntarily settles his case and releases all his
individual claims, under language providing for the release
of ‘any and all’ monetary claims … may not thereafter ap‐
peal from an adverse class certification ruling”); Richards,
453 F.3d at 529 (“a plaintiff who, in the settlement agree‐
ment, relinquishes ‘any and all’ of his claims, including class
claims, or agrees to dismiss the entire ‘action,’ has ceded any
interest he once had and can no longer appeal a denial of
class certification”). There is no other named plaintiff in this
proposed class action, nor even the possibility of one given
the class that he sought to certify. See Premium Plus, 648 F.3d
at 538 (discussing whether a plaintiff could “keep the case
warm so that someone with a live claim could intervene.”)
Wright abandoned his claim of a class consisting of those
persons who were detained for more than 48 hours between
December 24, 2012, and the date the notice was disseminat‐
ed, and he appeals only as to the class consisting of himself
and persons who will in the future be detained and held for
more than 48 hours. With the settlement of Wright’s claim,
only future detainees remain in the proposed class and there
is no one with a live interest to intervene.
Wright’s arguments are therefore without merit, and he
asserts no other arguments for standing to this court. Wright
has failed to identify any concrete personal interest in the
case that remains in this appeal and thus lacks the “personal
stake” required under Article III. Accordingly, we dismiss
this appeal for lack of jurisdiction.