Petition for Writ of Certiorari — Len Boogaard, et ux., as Personal Representatives of the Estate of Derek Boogaard, Deceased, Petitioners v. National Hockey League, et al.

Supreme Court briefSep 21, 2018

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No. __18 -_______________

_____________________________________________

IN THE SUPREME COURT OF THE UNITED

STATES

_____________________________________________

LEN BOOGAARD and JOANNE BOOGAARD,

Personal Representatives of the Estate of DEREK

BOOGAARD, deceased,

Petitioners,

NATIONAL HOCKEY LEAGUE, NATIONAL

HOCKEY LEAGUE BOARD OF GOVERNORS, and

GARY R. BETTMAN, Commissioner,

Respondents,

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Seventh

Circuit

PETITION FOR WRIT OF CERTIORARI

______________________________________________

William T. Gibbs

Counsel of Record

CORBOY & DEMETRIO, P.C.

Attorney for Plaintiffs

33 North Dearborn Street, Suite 2100

Chicago, Illinois 60602

(312) 346-3191

wtg@corboydemetrio.com

Counsel for Petitioners

QUESTION PRESENTED

Whether the federal courts abused their discretion in

usurping a states’ power to adjudicate common law

tort claims originally filed in state court, where the

district court denied remand and dismissed Plaintiffs’

state law claims based on interpretation of another

state’s pleading requirements and found forfeiture of

Plaintiffs’ claims even though the Court had

previously found them viable.

TABLE OF CONTENTS

QUESTION PRESENTED ...................................... ii

TABLE OF CONTENTS. ........................................iii

TABLE OF AUTHORITIES ................................. iiv

PETITION FOR WRIT OF CERTIORARI .......... 6

OPINION BELOW ................................................... 6

JURISDICTION ....................................................... 6

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ......................................... 7

STATEMENT OF THE CASE ................................ 9

REASONS FOR GRANTING THE PETITION . 14

Plaintiffs’ Claims Should Have Been

Remanded ................................................. 14

II.

Plaintiffs’ Right to Trial by Jury ......... 17

CONCLUSION ........................................................ 20

APPENDIX TO THE PETITION FOR WRIT OF

CERTIORARI ......................................................... A1

APPENDIX A....................................................... A2

APPENDIX B..................................................... A28

APPENDIX C..................................................... A39

APPENDIX D .................................................... A53

iii

TABLE OF AUTHORITIES

Cases

Boatmen's Nat'l Bank v. Direct Lines, 167 Ill. 2d 88,

102 (1995) ............................................................... 17

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,

640 (2009) ............................................................... 15

City of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156,

189 (1997) ............................................................... 16

Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622,

631 (7th Cir. 2016) ................................................. 15

Dent v. Nat'l Football League, No. 15-15143, 2018

WL 4224431 (9th Cir. Sept. 6, 2018) .................... 14

Foman v. Davis, 371 U.S. 178, 181-82 (1962) .......... 17

Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir.

1999) ....................................................................... 15

In Re Nat’l Hockey League Players’ Concussion

Injury Litig., 120 F. Supp. 3d 942 (D. Minn.

2015)…….……………………………………………. 10

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 73334 (1996) ................................................................. 16

R.R. Com. of Tex. v. Pullman Co., 312 U.S. 496, 50001 (1941). ................................................................ 14

United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966) ............................................................... 15

RWJ Mgmt. Co., Inc. v. BP Products N. Am., Inc.,

672, F.3d 476, 482 (7th Cir. 2012) ......................... 16

Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904,

907 (7th Cir. 2007) ................................................. 15

Statutes

28 U.S.C. § 1254(1) ...................................................... 6

28 U.S.C. § 1367 .................................................. 12, 15

28 U.S.C. § 185 .......................................................... 10

28 U.S.C. 1447(c) ................................................... 7, 10

Miscellaneous

R. Fallon, D. Meltzer, & D. Shapiro, Hart and

Wechsler's The Federal Courts and the Federal

System 1247 (4th ed. 1996) ................................... 17

Constitutional Provisions

7th Amendment to the Constitution of the United

States ........................................................................ 7

PETITION FOR WRIT OF CERTIORARI

Petitioners, LEN BOOGAARD and JOANNE

BOOGAARD, Personal Representatives of the Estate

of DEREK BOOGAARD, respectfully submit this

petition for a writ of certiorari to the United States

Court of Appeals for the Seventh Circuit which

affirmed Judgment of the United States District

Court for the Northern District of Illinois, Eastern

Division, filed on June 5, 2017.

OPINION BELOW

The Opinion of the United States District Court

for the Northern District of Illinois, Eastern Division

was issued on June 5, 2017 and is attached as

Appendix A. A previous Opinion of the United States

District Court for the Northern District of Illinois,

Eastern Division was issued on Sept. 29, 2016 and is

attached as Exhibit B. The Opinion of the United

States Court of Appeals for the Seventh Circuit was

issued on May 25, 2018 and is attached as Appendix

C. The Order of the United States Court of Appeals for

the Seventh Circuit denying Plaintiffs’ Petition for

Rehearing was issued on June 25, 2018 and is

attached as Appendix D.

JURISDICTION

This Court is vested with jurisdiction, pursuant

to 28 U.S.C. § 1254(1). The United States Court of

Appeals for the Seventh Circuit Order was issued on

May 25, 2018. On June 25, 2018, Plaintiffs’ Petition

for Rehearing was denied. This petition is filed within

ninety (90) days of the United States Court of Appeals

for the Seventh Circuit’s denial of rehearing, pursuant

to Rules 13.1 and 29.2 of this Court.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Amendment 7 provides,

in relevant part:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise

reexamined in any Court of the United States,

than according to the rules of the common law.

The statutory provisions that are relevant to this

petition, 28 U.S.C. 1447(c) and 28 U.S.C. 1367(c) are

reprinted in relevant part:

28 U.S.C.A. § 1447(c) Procedure After

Removal Generally

basis of any defect other than lack of

subject matter jurisdiction must be

made within 30 days after the filing of

the notice of removal under section

1446(a). If at any time before final

judgment it appears that the district

court lacks subject matter jurisdiction,

the case shall be remanded. An order

remanding the case may require

payment of just costs and any actual

expenses, including attorney fees,

incurred as a result of the removal. A

certified copy of the order of remand

shall be mailed by the clerk to the clerk

of the State court. The State court may

thereupon proceed with such case.

28 U.S.C.A. § 1367 Supplemental Jurisdiction

exercise supplemental jurisdiction over

a claim under subsection (a) if-(1) the claim raises a novel or

complex issue of State law,

(2) the claim substantially

predominates over the claim or

claims over which the district

court has original jurisdiction,

(3) the district court has

dismissed all claims over which it

has original jurisdiction, or

(4) in exceptional circumstances,

there are other compelling

reasons for declining jurisdiction.

STATEMENT OF THE CASE

Derek Boogaard, a professional hockey player,

died, tragically, at age twenty-eight due to an

accidental overdose of prescription pain pills. In

2013, a Complaint at Law was filed in the Circuit

Court of Cook County on behalf of the Estate of

Derek Boogaard against the National Hockey

League, National Hockey League Board of

Governors, and Commissioner Gary R. Bettman,

(Collectively “NHL”). The Original Complaint

alleged eight counts arising under Illinois law:

• The NHL was negligent in failing to

prevent over-prescription of addictive

medications to Derek and this

negligence caused pain and suffering,

loss of normal life, and wrongful death

(Counts I and II);

• The NHL, by and through its actual and

apparent agents, breached its assumed

duty to curb, cure and monitor Derek’s

drug addiction causing wrongful death,

pain and suffering and loss of normal life

(Counts III and IV);

• The NHL was negligent in monitoring

Derek for brain trauma during his NHL

playing career and this negligence

caused CTE and pain and suffering, loss

of a normal life, and wrongful death

(Counts V and VI); and

• The NHL was negligent in using Toradol

during Derek’s career and this

negligence caused CTE and pain and

suffering, loss of normal life and

wrongful death (Counts VII and VIII).

Soon after the complaint was filed, the NHL

removed the case to federal court, arguing that

Plaintiffs’ claims were preempted by federal law—

Section 301 of the Labor Management Relations Act

(“LMRA”), 28 U.S.C. § 185—because, according to

the NHL, the rights Plaintiffs seek to vindicate are

created by and based upon a provision of the

Collective Bargaining Agreement (“CBA”) between

the NHL and the National Hockey League Players’

Association (“Union”). Plaintiffs’ timely motion to

remand, pursuant to 28 U.S.C. 1447(c), was denied.

The NHL then moved for substantive

dismissal based upon perceived § 301 preemption.

The NHL was eventually granted summary

judgment on all eight counts contained in Plaintiffs’

complaint, premised upon the NHL’s preemption

defense.

While the substantive preemption dismissal

motion was pending, Plaintiffs moved for leave to file

a Second Amended Complaint, based upon

information that Plaintiffs’ Counsel was privy to due

to a role on the Plaintiff’s Executive Committee in an

MDL case against the NHL in Minnesota. In Re

Nat’l Hockey League Players’ Injury Litig., 120 F.

Supp. 3d 942 (D. Minn. 2015). The NHL argued

against permitting Plaintiffs leave to amend,

averring that such an amendment would be futile.

Plaintiffs’ Second Amended Complaint

contained allegations based upon (1) relevant

admissions regarding the NHL’s duties to keep

players safe and provide them with accurate

information regarding the risks they would be

exposed to by participating in the NHL, (2) the

NHL’s historical indifference towards the welfare of

players thrust into the barbaric role of Enforcer (i.e.,

Fighter), (3) the NHL’s marketing of violence in

order to increase profit while destroying the brains

and bodies of its players, and (4) the NHL’s

misleading and misguided pronouncements,

inferences and insinuation that permanent brain

damage does not stem from repetitive brain traumas

sustained in NHL hockey.

The district court granted Plaintiffs leave to

file the Second Amended Complaint, finding that

Plaintiffs “allege that the NHL took several active

and unreasonable steps that ultimately harmed

Boogaard . . . [and] cultivated a ‘culture of violence’

in the NHL, which caused Boogaard to get into

fights, which in turn caused him to develop CTE and

an addiction to opioids, which in turn caused his

death.” (See District Ct. Op., ECF 169 at p. 7; APP

B at p. A29). The district court ruled, “That theory of

tort - that the NHL unreasonably harmed Boogaard is viable under Illinois and Minnesota law and not

preempted by the LMRA.” (Id.) Further, the district

court held that Plaintiffs’ other claims “also contain

the seed of a viable, non-preempted claim: that the

NHL actively and unreasonably harmed Boogaard by

implicitly communicating that head trauma is not

dangerous.” (Id.)

The NHL moved to reconsider. In a hybrid

motion, the NHL also moved to dismiss on numerous

alternative grounds, including an argument that it

had previously advanced, but was never ruled

upon−that Minnesota procedural law applied to the

necessity of naming a Minnesota Trustee prior to

filing a case in Illinois. (See Defs.’ Mot. to Recons.,

ECF 177.) It argued that since a Trustee was not

named within three years of Plaintiffs’ Decedent’s

death, the case (that had been pending since 2013)

was a nullity. (Id. ¶5.) It also advanced Frist

Amendment arguments, workers compensation

exclusive remedy arguments and a failure to state a

claim argument. (Id.)

Understanding that the Defendants and the

district court were homing in on the Minnesota

Trustee issue, Plaintiffs focused their response brief

on that issue. But, Plaintiffs did not only respond to

that primary argument. In addition, Plaintiffs’

Response Brief responded to the NHL’s other,

alternative, bases for dismissal in their twenty-twopage response brief. (See Pl.’s Response to Defs.’ Mot.

to Recons., ECF 185.)

Even though the only remaining claims were

state law claims, the district court denied Plaintiffs’

motion to remand, pursuant to 28 U.S.C. § 1367(c)(l)

and (c)(3). (See District Ct. Op., ECF 209 at p. 19;

APP A at p. A21). In denying remand, the district

court admitted “True, all of Boogaard's federal claims

have been dismissed, and only state law claims

among non-diverse parties remain.” (See District Ct.

Op., ECF 209 at p. 17; APP A at p. A19).

The district court then dismissed the

remainder of Plaintiffs’ case, with prejudice, based

upon a finding that the Minnesota Trustee issue

barred the Boogaards claims and, “for good measure”

that the Boogaards had forfeited their claims. (Id. at

p. 18; APP A at p. A20-21).

Plaintiffs appealed.

The Seventh Circuit affirmed dismissal. (See

Seventh Circuit Op., ECF 242; APP C). The Seventh

Circuit held that the district court correctly exercised

jurisdiction over the claims asserting that the NHL

breached its obligations under the substance abuse

agreement and that, therefore, the district court

properly exercised supplemental jurisdiction over the

rest of Plaintiffs’ claims. (Id. at p. 10; APP C at p.

A39). Dismissal of “state law claims among nondiverse parties” was affirmed.

Plaintiffs’ Petition for Rehearing was denied.

REASONS FOR GRANTING THE PETITION

Plaintiffs’ state law claims should be decided

on the merits, in the state court where the case was

filed. This Honorable Court should grant certiorari

to reinforce its long-standing doctrine of abstention

and cure the lower courts’ abuse of discretion in

wrongly deciding issues of state law.

Plaintiffs’ Claims Should Have Been

Remanded

The Federal Courts had no jurisdiction to

dismiss Plaintiffs’ state tort causes of action.

Usurping the state’s right, the lower courts

inappropriately exerted jurisdiction over Plaintiffs’

claims and snuffed them out.

As Justice Frankfurter wrote many years ago,

“Few public interests have a higher claim upon the

discretion of a federal chancellor than the avoidance

of needless friction with state policies… These cases

reflect a doctrine of abstention appropriate to our

federal system whereby the federal courts,

"exercising a wise discretion," restrain their

authority because of "scrupulous regard for the

rightful independence of the state governments" and

for the smooth working of the federal judiciary. R.R.

Com. of Tex. v. Pullman Co., 312 U.S. 496, 500-01

(1941).

This case should not have been removed to

federal court. Dent v. Nat'l Football League, No. 1515143, 2018 WL 4224431 (9th Cir. Sept. 6, 2018).

But even if removal of the Complaint was initially

appropriate (which Plaintiffs consistently argued it

was not), the district court should have comported

with the doctrine of abstention and granted

Plaintiffs’ Motion to Remand pursuant to 28 U.S.C §

1367(c) once it had determined that only “state law

claims amongst non-diverse parties remained.”

28 U.S.C. § 1367 explicitly states that a

district court “may decline to exercise supplemental

jurisdiction over a claim…if…the district court has

dismissed all claims over which it has original

jurisdiction…” 28 U.S.C. § 1367(c)(3).

This Honorable Court has long recognized that

when a court has dismissed all federal claims before

trial, the court should relinquish jurisdiction over

any remaining state law claims and remand those

claims back to state court. See United Mine Workers

of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009).

Since the district court undisputedly found that the

remaining viable claims all arise under state law, it

should have relinquished jurisdiction at that point

rather than endeavor to interpret Minnesota and/or

Illinois procedural laws.

This case stands in opposition to prior Seventh

Circuit pronouncements that “when the federal

claims are dismissed before trial, there is a

presumption that the court will relinquish

jurisdiction over any remaining state law claims.”

Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622,

631 (7th Cir. 2016); see also Williams Elecs. Games,

Inc. v. Garrity, 479 F.3d 904, 907 (7th Cir. 2007)

(where “the federal claims drop out before trial, the

district court should relinquish jurisdiction over the

state-law claims.”); see also Groce v. Eli Lilly & Co.,

193 F.3d 496, 501 (7th Cir. 1999) (“[I]t is the wellestablished law of this circuit that the usual practice

is to dismiss without prejudice state supplemental

claims whenever all federal claims have been

dismissed prior to trial.”). This presumption “should

not be lightly abandoned, as it is based on a

legitimate and substantial concern with minimizing

federal intrusion into areas of purely state law.”

RWJ Mgmt. Co., Inc. v. BP Products N. Am., Inc.,

672, F.3d 476, 482 (7th Cir. 2012) (citation and

internal quotation marks omitted) (affirming district

court’s decision to remand state claims and finding

defendants did not overcome presumption of

relinquishing jurisdiction).

Yet, here, the lower courts did not “jealously

guard” their jurisdiction – they abandoned this

Court’s guidance and rebuffed prior Seventh Circuit

precedent by exercising jurisdiction of claims that

were not appropriate for adjudication in the federal

court system.

Justice Kennedy had it right:

Abstention doctrines are a significant

contribution to the theory of federalism and to

the preservation of the federal system in

practice. They allow federal courts to give

appropriate and necessary recognition to the

role and authority of the States. The duty to

take these considerations into account must

inform the exercise of federal jurisdiction.

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 73334 (1996).

Yet, clearly, Justice Ginsburg’s assessment

that “lower courts have found our abstention

pronouncements ‘less than pellucid’” is accurate. City

of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156, 189

(1997) (quoting R. Fallon, D. Meltzer, & D. Shapiro,

Hart and Wechsler's The Federal Courts and the

Federal System 1251 (4th ed. 1996). This Honorable

Court should grant certiorari in this case to provide

translucently clear guidance.

II.

Plaintiffs’ Right to Trial by Jury

Cases should be heard on the merits, not

dismissed on technicalities. Foman v. Davis, 371 U.S.

178, 181-82 (1962).

If Plaintiffs’ case had been remanded,

Plaintiffs’ case would have proceeded to trial on the

merits in Illinois. Even in the unlikely event that

the Defendants' Minnesota Trustee requirement

argument were accepted by an Illinois state court,

that court must permit amendment and relation

back to cure any defect. See Boatmen's Nat'l Bank v.

Direct Lines, 167 Ill. 2d 88, 102 (1995) ("The purpose

of the relation back provision has been construed as

the preservation of causes of action, including those

brought under the Act, against loss by reason of

technical rules of pleading.”) As such, Defendants'

nonsensical argument in support of dismissal based

upon Minnesota procedural law that the district

court relied upon in dismissing Plaintiffs’ case would

have ultimately failed in state court.

Further, the lower courts here compounded

their error by imposing a draconian sanction upon

Plaintiffs by finding that they forfeited their claims.

First, there was no forfeiture. Plaintiffs

diligently pursued their claims throughout the

nearly five (5) year litigation. While the Boogaards

reasonably believed that the NHL’s throw in

dismissal arguments “were impliedly foreclosed” by

the district court granting Plaintiffs’ leave to file

their Second Amended Complaint, the Boogaards did

“respond to these arguments anyway.” (See Pls.’ Br.

in Resp. to Defs.’ Mot. to Recons., ECF 185 at pp. 4,

21, 22) (“Counts I-IV are well-pled in accordance

with state tort laws”; “These counts do state facially

plausible claims”; “The actions of the NHL fostered a

culture of violence that caused Derek Boogaard

damage… This type of tort claim is viable under New

York’s tort laws.”; “Plaintiffs allege more than just

the absence of a warning – that the NHL

purposefully concealed the information from Derek

Boogaard… This is clearly actionable under all

applicable states’ tort laws.”) Indeed, Section II(C) of

the Boogaards brief is labeled “The Claims in Counts

I-IV are Well-Pled in Accordance with State Tort

Law and Not Barred by the First Amendment.” (See

Pls.’ Br. in Resp. to Defs.’ Mot. to Recons., ECF 185

at p. 20-23.)

While admittedly pithy, the Boogaards did not

“remain [] silent.” (See Seventh Circuit Op., ECF at

p. 13; APP C at p. A41-42). They did not “[take] the

risk that the district court would hold their claims

forfeited.” (Id.) The Boogaards responded (in an

over-sized brief) to the myriad arguments thrown

against them by the NHL. (See Pls.’ Br. in Resp. to

Defs.’ Mot. to Recons., ECF 185.) These submissions,

coupled with the detailed analyses that the Plaintiffs

had previously provided in advocating for the filing

of their Second Amended Complaint (and the district

court’s obvious reliance upon those arguments in

determining the viability of claims in the PSAC

under Minnesota and Illinois law), adequately

addressed the ill-conceived notion that Plaintiffs’

allegations failed to state a claim. (See Pls.’ Br. in

Resp. to Defs.’ Mot. to Recons., ECF 185; see District

Court Order, ECF 169; APP B; see Pls.’ Mot. for

Leave to File, ECF 143; see Pls.’ Mem. in Supp. of

Mot. for Leave to File, ECF 144; see Pls.’ Reply to

Defs.’ Resp. to Mot. for Leave to File, ECF 158.)

Second, it was the law of the case that the

Plaintiffs’ claims sufficiently stated causes of action

pursuant to Minnesota and Illinois law. Plaintiffs’

response brief also contained only argument and

citation to New York law on the viability of the

surviving counts:

The NHL's insistence on maintaining the most

violent professional hockey league on Earth

and its concomitant failure to act reasonably

with regard to informing players that

participating in such a league substantially

increased their risk of developing irreversible

neurodegenerative diseases, resulted in Derek

Boogaard’s exposure to repetitive head

trauma.... “under general tort rules, a person

may be negligent because he or she fails to

warn another of known dangers or, in some

cases, of those dangers [of] which he [or she]

had reason to know.” Chambers v. Evans, 104

A.D.3d 1301, 1301 (N.Y. App. Div. 2013).

Here, Plaintiffs allege more than just the

absence of a warning – that the NHL

purposefully concealed the information from

Derek Boogaard. This is clearly actionable

under all applicable states’ tort laws.

(See Pls.’ Resp. Br. to Defs.’ Mot. to Recons., ECF 185

at p. 18-21).

But, the Seventh Circuit affirmed dismissal,

eviscerating Plaintiffs’ Seventh Amendment rights to

trial by jury.

This Honorable Court should grant certiorari

so that Plaintiffs’ right to trial by jury is preserved.

CONCLUSION

The Petition for a writ of certiorari should be

granted.

Respectfully submitted,

William T. Gibbs

Counsel of Record

CORBOY & DEMETRIO, P.C.

Attorneys for Plaintiffs

33 North Dearborn Street, Suite 2100

Chicago, Illinois 60602

(312) 346-3191

wtg@corboydemetrio.com

Counsel for Petitioners

No. _18______________

_____________________________________________

IN THE SUPREME COURT OF THE UNITED

STATES

_____________________________________________

LEN BOOGAARD and JOANNE BOOGAARD,

Personal Representatives of the Estate of DEREK

BOOGAARD, deceased,

Petitioners,

NATIONAL HOCKEY LEAGUE, NATIONAL

HOCKEY LEAGUE BOARD OF GOVERNORS, and

GARY R. BETTMAN, Commissioner

Respondents,

APPENDIX TO THE PETITION FOR WRIT OF

CERTIORARI

William T. Gibbs

Counsel of Record

CORBOY & DEMETRIO, P.C.

Attorneys for Plaintiffs

33 North Dearborn Street, Suite 2100

Chicago, Illinois 60601

(312) 346-3191

wtg@corboydemetrio.com

Counsel for Petitioners

APPENDIX A

_________________________________________

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

_________________________________________

No. 13 CV 4846

LEN BOOGAARD and JOANNE BOOGAARD,

Personal Representatives of the Estate of DEREK

BOOGAARD, deceased,

Plaintiffs,

NATIONAL HOCKEY LEAGUE, NATIONAL

HOCKEY LEAGUE BOARD OF GOVERNORS, and

GARY R. BETTMAN, Commissioner,

Defendants.

_____________________________________________

MEMORANDUM OPINION AND ORDER

Len and Joanne Boogaard, the personal

representatives of the estate of Derek Boogaard,

bring this suit against the National Hockey League

and its Board of Governors and Commissioner

(collectively, ''NHL"), alleging tort claims connected

with Boogaard's death. Docs. 1-1, 62, 174. (For ease

of reference, and except where context requires

otherwise, the court will refer to Plaintiffs as

"Boogaard.") As matters now stand, Counts V-XII of

the second amended complaint have been dismissed,

and Counts I-IV remain in the case. Docs. 168-169,

174. The NHL has moved to dismiss the remaining

claims, Doc. 177, while Boogaard has moved to

remand the case to state court, Doc 182. The NHL's

motion is granted, and Boogaard's motion is denied.

BACKGROUND

The previous personal representative of

Boogaard' s estate, Robert Nelson, filed this suit in

the Circuit Court of Cook County, Illinois. Doc. 1-1.

The NHL removed the case to this court under 28

U.S.C. § 1441 on the ground that the original

complaint's claims, which purportedly rested on state

law, were completely preempted by § 301 of the

Labor Management Relations Act ("LMRA"), 29 U

.S.C. § 185, and thus in fact were federal claims. Doc.

1; see Caterpillar Inc. v. Williams, 482 U.S. 386,393

(1987). The court denied Boogaard's motion to

remand, holding that at least some of his claims

were completely preempted. Docs. 37-38 (reported at

20 F. Supp. 3d 650 (N.D. Ill. 2014)). Boogaard then

filed an amended complaint, which set forth eight

counts. Doc. 62. After discovery, the court granted

summary judgment to the NHL on all eight counts,

holding that they were completely preempted by §

301 of the LMRA and that the § 301 claims- which is

how the preempted claims had to be characterizedwere barred by the applicable statute of limitations.

Docs. 140-141 (reported at 126 F. Supp. 3d 1010

(N.D. Ill. 2015)).

Boogaard moved for leave to file a second

amended complaint, which set forth twelve counts.

Docs. 135, 143. The NHL opposed that motion on the

ground that the second amended complaint's claims,

like those of the first amended complaint, were

completely preempted by § 301 of the LMRA and, as

§ 301 claims, were time-barred. Docs. 151-152. The

court granted in part and denied in part the motion

for leave to amend. Docs. 168-169 (reported at 211 F.

Supp. 3d 1107 (N.D. Ill. 2016)). Specifically, the court

held that eight of the second amended complaint's

counts, Counts V-XII, were "essentially identical to

the first amended complaint's eight counts ... and are

therefore completely preempted and time-barred for

the reasons set forth in the court's earlier opinions."

211 F. Supp. 3d at 1111. But the court held that

portions of the other four counts, Counts I-IV, stated

non-preempted−and thus true state law−claims. Id.

Accordingly, the court dismissed with prejudice

Counts V -XII and the completely preempted

portions of Counts I-IV; ordered the NHL to answer

or otherwise plead to the surviving portions of the

complaint; and stated that if the NHL "move[s] to

dismiss any of the surviving claims, [it] should not do

so on preemption grounds." Doc. 168.

Now before the court are the NHL's motion to

dismiss the second amended complaint's surviving

claims, Doc. 1 77, and Boogaard's motion to remand

the case to state court, Doc. 182.

Discussion

The NHL's Motion to Dismiss

In moving to dismiss, the NHL contends that

the second amended complaint's state law

claims−the NHL actually continues to argue that

Counts I-IV include no true state law claims, Doc.

178 at 11-17, but proceeds to assume for the sake of

argument that they do−are governed and defeated by

Minnesota law. Id. at 18-27. The NHL argues in the

alternative that, regardless of which State's law

applies, Boogaard has no viable claim. Id. at 27-40.

In resolving the NHL's Rule 12(b)(6) motion,

the court assumes the truth of the operative

complaint's well-pleaded factual allegations, though

not its legal conclusions. See Zahn v. N. Am. Power &

Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The

court must also consider "documents attached to the

complaint, documents that are critical to the

complaint and referred to in it, and information that

is subject to proper judicial notice," along with

additional facts set forth in Boogaard's brief opposing

dismissal, so long as those additional facts "are

consistent with the pleadings." Phillips v. Prudential

Ins. Co. of Am., 714 F .3d 1017, 1019-20 (7th Cir.

2013). The facts are set forth as favorably to

Boogaard as those materials allow. See Pierce v.

Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In

setting forth those facts at the pleading stage, the

court does not vouch for their accuracy. See Jay E.

Hayden Found. v. First Neighbor Bank, N.A., 610

F.3d 382, 384 (7th Cir. 2010).

Boogaard played hockey for the NHL for six

years−five for the Minnesota Wild, and one for the

New York Rangers. Doc. 174 at 2, 11. As an

"Enforcer/Fighter," Boogaard's principal job during

games was to fight opposing players. Id. at 2-3. As a

result of the fights, he suffered brain injuries, which

eventually developed into chronic traumatic

encephalopathy, or "CTE," a brain disorder

characterized by deteriorating judgment, inhibition,

mood, reasoning, behavior, and impulse control. Id.

at 4-7. Boogaard routinely suffered other painful

injuries as well, and team doctors treated his

symptoms with opioids, a class of highly addictive

pain medications. Id. at 4, 119-122, 127-13 7.

Boogaard became addicted to opioids, went to rehab,

relapsed, and returned to rehab. Id. at 138, 140, 156160. In May 2011, while on weekend release in

Minnesota from his second stay in rehab, he

accidentally overdosed on Percocet and died. Id. at

164-165, 206. He was 28 years old. Id. at ¶ 1.

Counts I-II−a survival claim and wrongful

death claim, respectively−rest on the following

allegations. During Boogaard's career, the NHL

cultivated a "culture of gratuitous violence," which

caused him to get into fights, which in turn caused

him to develop CTE and become addicted to opioids,

which in turn caused his death. Id. at ¶¶ 44, 75, 78.

The NHL encouraged violence by,

among other things, promoting an HBO

documentary glorifying the "Broad Street Bullies," a

Philadelphia Flyers team known for fighting;

creating promotional films "that focus on the hardest

hits that take place on the ice"; displaying on its

website stories about enforcers and on-ice fights "on

a nightly basis"; producing on an affiliated television

network "a weekly program segment called 'Top 10

Hits of the Week"'; and sponsoring video games that

"include[ed] fighting and vicious body checking." Id.

at ¶ 57.

Counts III-IV−also a survival claim and

wrongful death claim, respectively−allege that the

NHL actively and unreasonably harmed Boogaard by

implicitly communicating that head trauma is not

dangerous. The NHL communicated this message by

suggesting that it was "study[ing] ... repetitive

concussive and/or sub- concussive brain traumas

amidst its player population," which caused NHL

players to "reasonably believe[] that the NHL's

findings would apprise them of any and all long-term

risks" of playing professional hockey. Id. at 81, 83. It

was not until after Boogaard's death that the NHL

reported its findings. Id. at 90. By publicizing the

fact that it was studying the effects of brain trauma,

the NHL's silence on the issue during Boogaard's

career implicitly conveyed that it had found that

those effects were minor. Id. at 89, 94. Boogaard

relied on that implied message when he continued

playing in a way that would give him concussions.

Id. at 108.

Minnesota Law Governs Boogaard's

Non-Preempted Claims

In pleading Counts I-IV, Boogaard expressly

invokes Illinois and Minnesota law. Id. at 77, 80,

115, 118. Counts I and III–the survival claims–are

brought "pursuant to Minn. Stat.§ 573.02 and 755

ILCS 5/27-6, commonly known as the Survival Acts

of the States of Minnesota and Illinois." Id. at 77,

115. Counts II and IV−the wrongful death

claims−are brought "pursuant to the Minnesota

Wrongful Death Statute, Minn. Stat.§ 573.02, and

the Illinois Wrongful Death Statute, 740 ILCS 180/1,

et seq.," Id. at 80, 118. Despite invoking Illinois and

Minnesota law in the operative complaint, and

despite having nearly three years to think about his

claims before moving for leave to file that complaint,

Boogaard asserts for the first time in his opposition

brief that New York law applies. Doc. 185 at 13-15,

20-21. In poker, that would be called a "tell"; as will

soon become clear, the NHL's motion to dismiss

advanced compelling arguments for dismissing

Boogaard's claims under Illinois law and particularly

Minnesota law, and Boogaard's extraordinarily

belated retreat to New York law is an obvious signal

that his lawyers no longer think much of his

prospects under Minnesota or Illinois law.

Because this case was filed in Illinois, Illinois

choice-of-law rules guide the inquiry into which state

law applies. See Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487,496 (1941) ("[T]he prohibition declared

in Erie Railroad v. Tompkins ... extends to the field

of conflict of laws."); McCoy v. Iberdrola Renewables,

Inc., 760 F.3d 674, 684 (7th Cir. 2014) ("Federal

courts hearing state law claims under diversity or

supplemental jurisdiction apply the forum state's

choice of law rules to select the applicable state

substantive law."). "Illinois has adopted the approach

found in the Second Restatement of Conflict of

Laws." Barbara's Sales, Inc. v. Intel Corp., 879

N.E.2d 910, 919 (Ill. 2007). Under the Second

Restatement, the law of the State that "has the most

significant relationship to the occurrence and the

parties" applies. Restatement (Second) of Conflict of

Laws§ 145(1) (1971); see also Kamelgard v. Macura,

585 F.3d 334, 341 (7th Cir. 2009) (observing that

"most states, including Illinois, nowadays apply the

law of the state that has the 'most significant

relationship' to the claim"). In tort cases, the "most

significant relationship" analysis turns on: "(a) the

place where the injury occurred, (b) the place where

the conduct causing the injury occurred, (c) the

domicil[sic], residence, nationality, place of

incorporation and place of business of the parties,

and (d) the place where the relationship, if any,

between the parties is centered." Restatement

(Second) of Conflict of Laws§ 145(2); see also

Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893,

901 (Ill. 2007) (same). "Under this test, the law of the

place of injury controls unless Illinois has a more

significant relationship with the occurrence and with

the parties." Tanner v. Jupiter Realty Corp., 433 F.3d

913, 916 (7th Cir. 2006). As the Seventh Circuit has

explained: "[I]n the absence of unusual

circumstances, the highest scorer on the 'most

significant relationship' test is−the place where the

tort occurred .... Victim location and injurer location

are valid considerations. But when they point to two

different jurisdictions they cancel out, leaving the

place where the injury (and hence the tort) occurred

as the presumptive source of the law governing the

accident." Abad v. Bayer Corp., 563 F.3d 663, 669-70

(7th Cir. 2009).

Minnesota has the most significant

relationship to the occurrence and the parties by a

wide margin. The first and most important

consideration, where the injury occurred, is

Minnesota, which is the place of Boogaard's death

and where he spent the bulk of his NHL career. Doc.

174 at 2, 11, 164-165. This makes Minnesota the

"presumptive source" of governing law. Abad, 563

F.3d at 670.

As to the second factor, Minnesota is the

primary location where the conduct causing

Boogaard's injury occurred. Minnesota is where

Boogaard spent the bulk of his career, Doc. 174 at 2,

11; where replays of his fights were routinely shown,

Id. at 65; where doctors prescribed and administered

pain medications, Id. at 127, 130-131, 242-244;

where he purchased drugs, Id. at 184; where he

transported drugs that he had purchased elsewhere,

Id. at 199; and where the drugs that ended his life

were ingested, Id. at 164-165. Boogaard occasionally

got into on-ice fights, was given pain medications,

and purchased drugs in other States, Id. at 143, 156,

199, 242-244, 246, but those isolated instances do not

outweigh the far more substantial Minnesota

contacts. The operative complaint's allegations do

not support Boogaard's argument in his opposition

brief that the conduct causing his injuries occurred

"most notably'' in the NHL's New York office. Doc.

185 at 13.

The third consideration, the location of the

parties, does not weigh strongly in any State's favor.

The NHL is based in New York but has member

teams in many States, including Minnesota and

Illinois. Doc. 174 at 11-12; Doc. 185 at 13. Boogaard

lived primarily in Minnesota and for a short time in

New York during his NHL career, and his domicile

when he died remains somewhat uncertain but

probably was Minnesota. Doc. 17 4 at 2, 11; Doc. 185

at 13 (admitting that, during the year he played for

the New York Rangers, Boogaard "maintained

property in Minnesota"); 20 F. Supp. 3d at 652 n. *

A10

("Boogaard likely was a Minnesota citizen when he

died."). Finally, the fourth factor, the place where the

parties' relationship was centered, favors Minnesota

because Boogaard spent the vast majority of his

career as a member of the NHL' s Minnesota team.

Doc. 17 4 at 2, 11.

Illinois law requires the court to consider

those contacts, which point very strongly toward

Minnesota, "in light of the general principles

embodied in § 6" of the Restatement. Townsend, 879

N .E.2d at 906. Those principles are:

(a) the needs of the interstate and

international systems,

(b) the relevant policies of the forum,

states and the relative interests of those states

in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular

field of law,

(f) certainty, predictability and uniformity of

result, and

(g) ease in the determination and application

of the law to be applied.

Restatement (Second) of Conflict of Laws § 6.

Those principles provide no basis to supplant

Minnesota law. The NHL contends, reasonably, that

the § 6 factors favor Minnesota law. Doc. 178 at 23;

Doc. 195 at 16-19. In his opposition brief, Boogaard

states that those factors favor Illinois or New York

law, Doc. 185 at 14-15, but he fails to make a legal

argument or cite any legal authority to support his

position, thus forfeiting the point. See G&S Holdings

LLCv. Cont'l Cas. Co., 697 F.3d 534,538 (7th Cir.

A11

2012) ("We have repeatedly held that a party waives

an argument by failing to make it before the district

court. That is true whether it is an affirmative

argument in support of a motion to dismiss or an

argument establishing that dismissal is

inappropriate.") (citations omitted).

For all of these reasons, Minnesota law

governs Boogaard's non-preempted claims.

Boogaard Fails to State a Claim

Under Minnesota Law

As the operative complaint acknowledges, Doc.

174 at 77, 80, 115, 118, the Minnesota statute that

governs Boogaard's survival and wrongful death

claims is Minn Stat.§ 573.02. That statute provides,

in relevant part:

Subd. 1. Death action. When death is caused

by the wrongful act or omission of any person

or corporation, the trustee appointed as

provided in

subdivision 3 may maintain an action therefor

if the decedent might have maintained an

action, had the decedent lived, for an injury

caused by the wrongful act or omission .... An

action to recover damages for a death caused

by an intentional act constituting murder may

be commenced at any time after the death of

the decedent. Any other action under this

section may be commenced within three years

after the date of death provided that the

action must be commenced within six years

after the act or omission ....

A12

Subd. 2. Injury action. When injury is caused

to a person by the wrongful act or omission of

any person or corporation and the person

thereafter dies from a cause unrelated to those

injuries, the trustee appointed in subdivision 3

may maintain an action for special damages

arising out of such injury if the decedent

might have maintained an action therefor had

the decedent lived.

Subd 3. Trustee for Action. Upon written

petition by the surviving spouse or one of the

next of kin, the court having jurisdiction of an

action falling within the provisions of

subdivisions 1 or 2, shall appoint a suitable

and competent person as trustee to commence

or continue such action and obtain recovery of

damages therein. The trustee, before

commencing duties shall file a consent and

oath. Before receiving any money, the trustee

shall file a bond as security therefor in such

form and with such sureties as the court may

require.

Minn. Stat. § 573.02 (emphases added). Section

573.02(1) is the wrongful death provision, § 573.02(2)

is the survival provision, and § 573.02(3) concerns

trustees. The NHL argues, correctly, that Boogaard's

claims founder on the trustee requirement.

The emphasized statutory text makes clear

that § 573.02 claims must be brought by a courtappointed trustee. Consistent with the text, the

Minnesota Supreme Court has held that "[a]

plaintiffs failure to commence a wrongful death

action as a court-appointed trustee ... precludes her

from maintaining the action." Ortiz v. Gavenda, 590

N.W.2d 119, 120 (Minn. 1999) (affirming the

A13

dismissal of a widow's § 573.02 claim on behalf of her

deceased husband because she had not been

appointed as a trustee); Sheeley v. City of Austin,

2015 WL 506293, at *3 (D. Minn. Feb. 6, 20 15)

("Maintaining an action under subdivision 1 or 2 of

Minn. Stat. § 573.02 requires a trustee be appointed

to sustain the decedent's action.").

The two plaintiffs here, Len and Joanne

Boogaard, are Boogaard's "personal representatives,"

not "trustees." Doc. 174 at 26 ("LEN BOOGAARD

and JOANNE

BOOGAARD were appointed ... as Successor

Personal Representatives of the Estate of DEREK

BOOGAARD .... "); Doc. 185 at 5, 18 (Boogaard

acknowledging that Len and Joanne Boogaard were

appointed "Personal Representatives" and not

trustees). (The same was true for the previous

plaintiff, Robert Nelson. Doc. 1-1 at 2.) Therefore,

Boogaard's claims, which arise under § 573.02, are

not viable under Minnesota law. See Ortiz, 590

N.W.2d at 123-24 ("The appointment of a trustee

under Minn. Stat.§ 573.02 is an exercise of the

fundamental legal principle that those entitled to

recovery as a result of the wrongful death shall be

represented by the trustee without compromise.");

Regie de l'assurance Auto. du Quebec v. Jensen, 399

N.W.2d 85, 92 (Minn. 1987) (holding that a § 573.02

suit without appointment of a trustee is a "legal

nullity"); Stein/age v. Mayo Clinic Rochester, 435

F.3d 913, 915 (8th Cir. 2006) ("[U]pon death, the

right to ... institute new actions based on personal

injury[] belong[s] to the wrongful death trustee.");

Sheeley, 2015 WL 506293, at *3 ("[E]state

representatives are not the equivalent to a wrongful

death trustee.").

A14

In Boogaard' s view, the question whether Len

and Joanne can bring this suit is governed by Rule

17(b ). Doc. 185 at 15-16. Rule 17(b) states, in

relevant part, that "[c]apacity to sue or be sued is

determined ... by the law of the state where the court

is located." Fed. R. Civ. P. 17(b ). This court is

located in Illinois, and from that premise, Boogaard

concludes that Illinois law governs whether Len and

Joanne Boogaard can bring this suit. That argument

misunderstands the scope of Rule 17(b).

The capacity to sue or be sued under Rule

17(b) is a question of a party's "legal

existence"−whether it may act as a party in any type

of litigation−and not whether it has a right of action

under a particular statute. DeGenova v.

SheriffofDuPage Cnty., 209 F.3d 973,976 n.2 (7th

Cir. 2000) (applying Rule 17(b) to determine whether

the defendant was "a suable entity"); see also

Teamsters Local Union No. 727 Health & Welfare

Fund v. L & R Grp. of Cos., 844 F.3d 649, 651 (7th

Cir. 2016) ("Rule 17(b) says that only persons or

entities with the capacity to sue or be sued may be

litigants."). Len and Joanne's status as personal

representatives does not deprive them of the

"capacity to sue" under Rule 17(b ). See Smith v.

United States, 702 F.2d 741, 742-43 (8th Cir. 1983)

(affirming the district court's judgment in a suit

brought by a personal representative seeking a

refund of tax penalties assessed against the

decedent's estate); Prof'l Fiduciary, Inc. v.

Silverman, 713 N.W.2d 67, 68 (Minn. App. 2006)

(holding that a "personal representative can assert a

malpractice claim against the decedent's former

attorney"). But notwithstanding their legal capacity

to sue or be sued, Len and Joanne quite clearly lack

A15

a viable claim under § 573.02. See Ortiz, 590 N.W.2d

at 123-24; Jensen, 399 N.W.2d at 92; Sheeley, 2015

WL 506293, at *3.

It is too late for Boogaard to cure this defect by

having Len and Joanne appointed as trustees. A

wrongful death action under § 573.02(1) "requires

the appointment of a trustee prior to the expiration

of the 3-year statute of limitations," which begins to

run on the date of the decedent's death. Ortiz, 590

N.W.2d at 123. "Unless a cause of action has been

legally asserted by a duly appointed trustee prior to

the expiration of the three year commencement of

suit limitation . . . , any subsequent attempted

amendment after the expiration of the limitation

period to cure the defect will not 'relate back' so as to

revive the action." Jensen, 399 N.W.2d at 86; see also

Ortiz, 590 N. W .2d at 123 (discussing Minnesota

courts' "consistent interpretation of Minn. Stat. §

573.02's time limit as a strict condition precedent to

maintaining a wrongful death action."); Bonhiver v.

Fugelso, Porter, Simich & Whiteman, Inc., 355

N.W.2d 138, 142 (Minn. 1984) ("Satisfaction of the

limitation period is an absolute prerequisite to

bringing suit."); Berghuis v. Korthius, 37 N.W.2d

809, 810 (Minn. 1949) {"This period fixing the time

within which the right of action for wrongful death

may be exercised is not an ordinary statute of

limitations. It is considered a condition precedent to

the right to maintaining the action, and the lapse of

such period is an absolute bar."); Ariola v. City of

Stillwater, 889 N.W.2d 340, 348 (Minn. App. 20 17)

(observing that the three-year limitations period "is

jurisdictional, requiring dismissal for failure to

comply and does not have flexible parameters

permitting it to be ignored if its application is too

A16

technical") (internal quotation marks and alterations

omitted). Boogaard died in May 20 11, Doc. 17 4 at

1f165, and no trustee was appointed in the three

years that followed. That necessarily means that

Boogaard's § 573.02(1) wrongful death claims can no

longer be pursued, even if Len and Joanne were to be

appointed as trustees in the future. See Miklas v.

Parrott, 684 N.W.2d 458,464 (Minn. 2004) ("Because

a trustee was not appointed within the 3-year time

limit of Minn. Stat. § 573.02, appellant cannot show

a viable underlying claim of wrongful death."); Ortiz,

590 N.W.2d 119, 120, 123 (holding that "an

amendment to the pleadings to bring the[§ 573.02(1)]

action as trustee after the statutory filing period had

expired could not relate back to the original filing,"

because "no matter how compelling the

circumstances for equitable intervention, equity

cannot breathe life into a claim that has never been

anything more than a 'nullity,); Sheeley, 2015 WL

506293, at *4 ("Minn. Stat. § 573.02 ... requires the

appointment of a trustee prior to the expiration of

the 3-year statute of limitations, not the mere filing

of a petition therefor within the statutory period.");

Block v. Toyota Motor Corp., 5 F. Supp. 3d 1047,

1056, 1059 (D. Minn. 2014) (noting that "courts must

strictly construe the wrongful death statute's

requirements," which "include[] the wrongful death

statute of limitations," and applying the three-year

statute of limitations set forth in § 573.02(1)).

Section 573.02(2) does not expressly impose a

three-year statute of limitations on survival actions.

That said, Len and Joanne's inexcusable and

inexplicable delay in seeking appointment as

trustees has forfeited their ability to do so for

purposes of saving Boogaard's survival claims in this

A17

suit. Len and Joanne substituted in as party

plaintiffs in May 2014, Doc. 62, and were alerted to

the trustee issue three years ago, in June 2014, when

the NHL first argued that Boogaard had no claim

because they had not been appointed as trustees,

Doc. 64 at 3-7. Boogaard's survival claims are

currently a "legal nullity" under Minnesota law,

Jensen, 399 N.W.2d at 92, and now, more than six

years after his death and three years after the NHL

raised the trustee problem, it is too late for Len and

Joanne to start afresh.

Even if Boogaard's survival claims were not

barred by Len and Joanne's failure to seek and

obtain appointment as trustees, they would be

defeated on a separate ground. Section § 573.02(2)

provides for a survival action based on injuries to the

decedent only where "the person thereafter dies from

a cause unrelated to those injuries." Minn. Stat.§

573.02(2) (emphasis added). The NHL contends that

Boogaard's survival claims cannot proceed because

the operative complaint alleges that the NHL's

wrongful acts affirmatively caused Boogaard's death,

which means that those acts are the antithesis of

acts that are ''unrelated" to his injuries. Doc. 178 at

27. The NHL is correct. See Kenna v. So-Fro Fabrics,

Inc., 18 F.3d 623, 630 (8th Cir. 1994) ("The district

court found, as a matter of law, that So-Fro's alleged

negligence was not causally connected to Ms.

Kenna's death. In light of this finding, the district

court should have allowed Mr. Kenna to proceed with

the survival action, because Minnesota allows a

personal injury action to survive an individual's

death if the person dies from a cause unrelated to

those injuries.") (internal quotation marks omitted);

Sheeley, 2015 WL 506293, at *3 ("[Section 573.02(2)]

A18

allows the appointed trustee to recover special

damages when an individual suffers injury by a

wrongful act or omission, but later dies from

unrelated causes."). In any event, Boogaard offers no

response to the NHL's argument, thereby forfeiting

the point and, along with it, the survival claims in

Counts I and III. See G&S Holdings, 691 F.3d at 538;

Alioto v. Town of Lisbon, 651 F.3d 715,721 (7th Cir.

2010) ("We apply [the forfeiture] rule where a party

fails to develop arguments related to a discrete issue,

and we also apply that rule where a litigant

effectively abandons the litigation by not responding

to alleged deficiencies in a motion to dismiss.").

Boogaard Fails to State a Claim

Under Any State Law

The court adds for good measure that

dismissal is warranted no matter which state law

applies. As noted, Counts I and II are based on the

NHL's alleged promotion of violence, while Counts

III and IV are based on the NHL's alleged negligent

misrepresentations regarding the risks of head

trauma. Doc. 174 at ¶¶ 33-118. According to the

NHL, Counts I and II sound in negligence, whose

elements are: "(1) the existence of a legal duty, (2) a

breach of that duty, (3) causation, and (4) injury."

Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860,

888 (Minn. 2010); see also Krywin v. Chi. Transit

Auth., 938 N.E.2d 440,446 (Ill. 2010) (same);

Pasternack v. Lab. Corp. of Am. Holdings, 59 N.E.3d

485,490 (N.Y. 2016) (same). Also according to the

NHL, Counts III and IV sound in negligent

misrepresentation, whose elements include: (1) a

duty owed to the plaintiff by the defendant; (2) the

A19

defendant's breach of that duty by communicating

false information; and (3) the plaintiffs reliance on

the incorrect information. See Williams v. Smith, 820

N.W.2d 807, 815 (Minn. 2012); Jane Doe-3 v. McLean

Cnty. Unit Dist. No. 5 Bd. of Dirs., 973 N .E.2d 880,

889 (Ill. 20 12); Mandarin Trading Ltd. v.

Wildenstein, 944 N.E.2d 1104, 1109 (N.Y. 2011).

"To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its

face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted). The NHL's

initial brief argued that Boogaard failed to allege

facts that satisfy the elements of negligence and

negligent misrepresentation. Doc. 178 at 27-40.

Specifically, the NHL contended that Boogaard's

promotion of violence claims in Counts 1-11 do not

plausibly allege (1) that the NHL had a legal duty

not to promote violence or (2) that the NHL's conduct

proximately caused Boogaard's injuries. Id. at 30-34.

The NHL further contended that Boogaard's

negligent representation claims in Counts III-IV do

not plausibly allege (1) that the NHL had a duty to

study or disclose the long-term effects of concussions,

(2) that the NHL breached that duty by

communicating false information, or (3) that

Boogaard relied on that information. Id. at 35-40.

Those arguments were eminently reasonable, yet

Boogaard utterly and inexplicably failed to address

them, thereby forfeiting both sets of claims. See G&S

Holdings, 691 F.3d at 538; Alioto, 651 F.3d at 721

("Our system of justice is adversarial, and our judges

are busy people. If they are given plausible reasons

for dismissing a complaint, they are not going to do

the plaintiff's research and try to discover whether

A20

there might be something to say against the

defendants' reasoning.") (internal quotation marks

omitted); Judge v. Quinn, 612 F.3d 537,557 (7th Cir.

2010) ("We have made clear in the past that it is not

the obligation of this court to research and construct

legal arguments open to parties, especially when

they are represented by counsel, and we have

warned that perfunctory and undeveloped

arguments, and arguments that are unsupported by

pertinent authority, are waived.") (internal quotation

marks and alterations omitted); Lekas v. Briley, 405

F.3d 602, 614-15 (7th Cir. 2005) ("While Lekas

alleged in his complaint that his segregation was in

retaliation for his filing of grievances, he did not

present legal arguments or cite relevant authority to

substantiate that claim in responding to defendants'

motion to dismiss," and "[a]ccordingly, [his]

retaliation claim has been waived.").

II.

Boogaard's Motion to Remand

Shortly after the NHL filed the present motion

to dismiss, Boogaard filed a motion to remand this

case to state court pursuant to 28 U.S.C. § 1367(c)(l)

and (c)(3). Docs. 182-183. Those provisions state:

"The district courts may decline to exercise

supplemental jurisdiction over a claim under

subsection (a) if ... (1) the claim raises a novel or

complex issue of State law, ... [or] (3) the district

court has dismissed all claims over which it has

original jurisdiction." 28 U.S.C. § 1367(c)(1), (3).

According to the Seventh Circuit:

A21

While a district court may relinquish its

supplemental jurisdiction if one of the

conditions of § 1367(c) is satisfied, it is not

required to do so. A district court deciding

whether to retain jurisdiction pursuant to the

factors set forth in § 1367(c) should consider

and weigh in each case, and at every state of

the litigation, the values of judicial economy,

convenience, fairness, and comity. That the

jurisdictional hook is eliminated before trial at

best only preliminarily informs the balance;

the nature of the state law claims at issue,

their ease of resolution, and the actual, and

avoidable, expenditure of judicial resources

can and should make the difference in a

particular case.

Hansen v. Bd. ofTrs. of Hamilton Se. Sch. Corp., 551

F.3d 599,608 (7th Cir. 2008) (internal quotation

marks and citations omitted).

Remand is not justified under subsection (c)(l)

because Boogaard's state law claims do not raise any

state law issue that is "novel or complex." Rather

than point to any particular state law issue,

Boogaard contends that "[t]he NHL's utilization of

twenty-five (25) pages in explaining its seemingly

complex arguments tellingly previews for this Court

the myriad 'complex issues' it intends to raise to

defend against Plaintiffs' state law claims." Doc. 183

at 3. Boogaard greatly overstates the novelty or

complexity of the state law principles that defeat his

claims. In fact, the court dismissed those claims, on

independent grounds, by applying settled law and

without confronting complicated state law questions.

See Ervin v. OS Rest. Servs., 632 F.3d 971, 980 (7th

A22

Cir. 2011) ("The plaintiffs' claims ... do not present

any complex state-law issues, and so subsection (c)(1)

should not be a problem."). And even if the state law

claims were complex, the claims arise under

Minnesota law, and for purposes of § 1367(c)(1),

Illinois state courts have no advantage over this

court in interpreting the law of a different State. See

David v. Signal Int'l, LLC, 37 F. Supp. 3d 822, 830

(E.D. La. 2014) (rejecting the applicability of §

1367(c)(l) where the "state law claims [were] pled

under Indian law, Texas law, and

Mississippi law"); Shovah v. Mercure, 879 F. Supp.

2d 416,422 & n.3 (D. Vt. 2012) (same, where the

court assumed that the claims were governed by

New York law).

Nor is remand justified under § 1367(c)(3).

True, all of Boogaard's federal claims have been

dismissed, and only state law claims among nondiverse parties remain. 20 F. Supp. 3d at 652 n. *

("With Minnesota citizens on both sides of the case,

there is no diversity jurisdiction.").

Under § 1367(c)(3), "[a]s a general matter, when all

federal claims have been dismissed prior to trial, the

federal court should relinquish jurisdiction over the

remaining pendent state claims." Williams v.

Rodriguez, 509 F.3d 392,404 (7th Cir. 2007); see also

Dietchweiler by Dietchweiler v. Lucas, 827 F.3d

622,631 (7th Cir. 2016) ("[W]hen the federal claims

are dismissed before trial, there is a presumption

that the court will relinquish jurisdiction over any

remaining state law claims."). The general rule has

three exceptions: ''when the refiling of the state

claims is barred by the statute of limitations; where

substantial judicial resources have already been

expended on the state claims; and when it is clearly

A23

apparent how the state claim is to be decided."

Williams, 509 F.3d at 404; see also RWJ Mgmt. Co. v.

BP Prods. N. Am., Inc., 672 F.3d 476, 480 (7th Cir.

2012); Williams Elecs. Games, Inc. v. Garrity, 479

F.3d 904, 907 (7th Cir. 2007).

The third exception applies here because the

resolution of Boogaard's state law claims is "clearly

apparent." Williams, 509 F.3d at 404. As noted, there

are independent grounds for dismissing those

claims−that Len and Joanne Boogaard have not been

named trustees, and that Boogaard has failed to

respond to the NHL's substantive challenges to his

claims. That neither ground requires the application

of Illinois law−the second ground implicated Illinois

law, but the court's rejection of Boogaard's Illinois

claims (assuming they were, in fact, Illinois claims)

turned on forfeiture, not a detailed analysis of

Illinois law−eliminates the "paramount concerns" of

"respect for the state's interest in applying its own

law, along with the state court's greater expertise in

applying state law." Huffman v. Hains, 865 F.2d 920,

923 (7th Cir. 1989). In the end, this is a case where

"the values of judicial economy, convenience,

fairness, and comity" are best served by retaining

supplemental jurisdiction, City of Chicago v. Int'l

Coli. of Surgeons, 522 U.S. 156, 173 (1997), which

the court has elected to do in its "broad discretion,"

Hansen, 551 F.3d at 608 (affirming the district

court's decision to retain jurisdiction where "the

correct disposition of the state claims against HSSC

is clear and does not entangle the federal courts in

difficult issues of state law"); see also Wright v.

Associated Ins. Cos., 29 F.3d 1244, 1252 (7th

Cir. 1994) ("[R]etention of a state-law claim is

appropriate when the correct disposition of the claim

A24

is so clear as a matter of state law that it can be

determined without further trial proceedings and

without entanglement with any difficult issues of

state law.") (internal quotation

marks omitted).

Conclusion

The NHL's motion to dismiss is granted, and

Boogaard's motion to remand is denied. The

dismissal of Boogaard's claims is with prejudice.

Boogaard has had three opportunities to plead his

claims, with one coming after the NHL was granted

summary judgment, and those three are enough. See

Agnew v. NCAA, 683 F.3d 328, 347-48 (7th Cir. 2012)

("By our count, plaintiffs had three opportunities to

identify a relevant market in which the NCAA

allegedly committed violations of the Sherman Act.

... We therefore cannot find that the district court

abused its discretion in dismissing plaintiffs' claims

with prejudice."); Stanard v. Nygren, 658 F.3d 792,

800 (7th Cir. 2011) ("The court's decision to dismiss

the case with prejudice was also eminently

reasonable. Again, this was Maksym's third attempt

to plead properly, and he was still far from doing

so."); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th

Cir. 2010) ("Generally, if a district court dismisses

for failure to state a claim, the court should give the

party one opportunity to try to cure the problem,

even if the court is skeptical about the prospects for

success.") (emphasis added). Moreover, by failing to

respond on the merits to the NHL's argument that

the second amended complaint did not plead viable

state law negligence and misrepresentation claims,

A25

Boogaard forfeited his claims, and a plaintiff who

forfeits his claims does not get a chance to replead.

See Baker v. Chisom, 501 F.3d 920, 926 (8th Cir.

2007) (affirming the dismissal with prejudice of a

claim where the plaintiff “failed to defend that claim

or to urge that it be dismissed without prejudice").

Finally, in his opposition brief, Boogaard did not

request a chance to replead in the event the court

dismissed his claims. See Johnson v. Wallich, 578 F.

App'x 601, 603 (7th Cir. 2014) ("Johnson also argues

that the district court should have allowed him to

amend his complaint to correct any deficiencies. But

Johnson did not request leave to amend his

complaint, and the district court cannot abuse its

discretion by denying leave to amend if Johnson

never sought it."); James Cape & Sons Co. v. PCC

Constr.

Co., 453 F.3d 396, 400-01 (7th Cir. 2006) (rejecting

the plaintiff's argument that the district court erred

in dismissing its complaint with prejudice, rather

than without prejudice and with leave to amend,

where the plaintiff did not properly request leave to

amend).

Judgment will be entered in favor of the NHL

and against Boogaard. Although judgment is entered

in the NHL's favor, this opinion should not be read to

commend how the NHL handled Boogaard's

particular circumstances-or the circumstances of

other NHL players who over the years have suffered

injuries from on-ice play. Cf In re NHL Players'

Concussion Injury Litig., MDL 2551 (D. Minn.)

(considering claims similar to Boogaard's claims in

this case).

A26

June 5, 2017

_____________________________

United States District Judge

A27

APPENDIX B

_________________________________________

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

_________________________________________

No. 13 CV 4846

Judge Gary Feinerman

LEN BOOGAARD and JOANNE BOOGAARD,

Personal Representatives of the Estate of DEREK

BOOGAARD, deceased,

Plaintiffs,

NATIONAL HOCKEY LEAGUE, NATIONAL

HOCKEY LEAGUE BOARD OF GOVERNORS, and

GARY R. BETTMAN, Commissioner,

Defendants.

_____________________________________________

MEMORANDUM OPINION AND ORDER

The personal representatives of Derek Boogaard's

estate (for ease of exposition, the court will treat

Boogaard himself as the plaintiff) brought this suit

against the National Hockey League and its Board of

Governors and Commissioner (collectively, "NHL"),

alleging tort claims connected with Boogaard's death.

Docs. 1-1, 62. Earlier in the case, the court denied

A28

Boogaard's motion to remand the suit to state court.

Docs. 37-38 (reported at 20 F. Supp. 3d 650 (N.D. Ill.

2014)). After discovery, the court granted summary

judgment against Boogaard on all claims set forth in

the first amended complaint. Docs. 140-41 (reported

at 126 F. Supp. 3d 1010

(N.D. Ill. 2015)). Now before the court is Boogaard's

motion for leave to file a second amended complaint.

Doc. 143. The motion is granted.

According to the proposed second amended

complaint, Boogaard played for two NHL teams as

an "Enforcer/Fighter," which means that his

principal job was to fight opposing players during

games. Doc. 145-1 at ¶¶ 2-3. During the fights he

suffered brain injuries, which eventually developed

into chronic traumatic encephalopathy, or "CTE," a

brain disorder characterized by deteriorating

judgment, inhibition, mood, reasoning, behavior, and

impulse control. Id. at ¶¶ 4-7. Boogaard routinely

suffered other painful injuries as well, and team

doctors treated his symptoms with opioids, a class of

highly addictive pain medications. Id. at ¶¶ 4, 119122, 127-137. Boogaard became addicted to opioids,

went to rehab, relapsed, and went to rehab again. Id.

at ¶¶ 138, 140, 156-160. When he was on weekend

release from his second stay in rehab, he took

Percocet, accidentally overdosed, and died. Id. at ¶¶

164-165, 206. He was 28 years old. Id. at ¶ 1.

The first amended complaint set forth eight

claims. Counts I and II alleged that the NHL

breached a duty to keep Boogaard safe when it

allowed team doctors to get him addicted to opioids.

Doc. 62 at ¶¶ 43-101. Counts III and IV alleged that

the NHL injured Boogaard by failing to manage his

addiction according to the terms of the NHL's

A29

collectively bargained Substance Abuse and

Behavioral Health Program. Id. at ¶¶ 102-200; see 20

F. Supp. 3d at 658 (holding that the Program was

part of a 2005 collective bargaining agreement).

Counts V and VI alleged that the NHL breached a

voluntarily assumed duty to protect Boogaard from

brain trauma. Doc. 62 at ¶¶ 201-226. And Counts VII

and VIII alleged that the NHL breached a

voluntarily assumed duty to keep Boogaard safe

when it allowed team doctors to inject him with

Toradol, an intramuscular analgesic that makes

concussions more likely and more dangerous. Id. at

¶¶ 227-267.

The NHL moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss the first amended

complaint on the ground that its claims were

completely preempted by § 301 of the Labor

Management Relations Act ("LMRA"), 29 U.S.C. §

185, in light of the fact that a collective bargaining

agreement ("CBA") governed the relationship

between Boogaard and the NHL at all relevant

times. Doc. 43. The court applied Rule 12(d) to

convert the NHL's Rule 12(b)(6) motion into a Rule

56 summary judgment motion. Doc. 58. Boogaard

moved for leave to file a second amended complaint

while the summary judgment motion remained

pending. Doc. 130. The court granted summary

judgment on the ground that the first amended

complaint's claims were completely preempted by§

301 of the LMRA and that Boogaard § 301

claims−which is how his claims, having been

completely preempted, had to be characterized−were

barred by the applicable statute of limitations. 126 F.

Supp. 3d at 1016-27. Boogaard then renewed his

A30

motion for leave to file a second amended complaint.

Doc. 143.

Under Rule 15(a)(2), leave to amend "shall be

freely given when justice so requires," but "leave is

inappropriate where there is undue delay, bad faith,

dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, or

futility of the amendment." Villa v. City of Chicago,

924 F.2d 629, 632 (7th Cir. 1991); see also Gen. Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d

1074, 1085 (7th Cir. 1997) ("Even though Rule 15(a)

provides that 'leave shall be freely given when justice

so requires,' a district court may deny leave to amend

for ... futility. The opportunity to amend a complaint

is futile if the complaint, as amended, would fail to

state a claim upon which relief could be granted.")

(citation and some internal quotation marks

omitted). The NHL argues that the proposed second

amended complaint would be futile because its

claims, like the first amended complaint's claims, are

all completely preempted by the LMRA and, as

LMRA claims, are barred on limitations grounds; the

NHL makes no other futility argument. Doc. 152.

Under the complete preemption doctrine, "the

pre-emptive force of [a federal] statute ... converts an

ordinary state common-law complaint into one

stating a federal claim." Caterpillar Inc. v. Williams,

482 U.S. 386, 393 (1987) (internal quotation marks

omitted). "Once an area of state law has been

completely pre-empted, any claim purportedly based

on that pre-empted state law is considered, from its

inception, a federal claim." Crosby v. Cooper B-Line,

Inc., 725 F.3d 795, 800 (7th Cir. 2013) (internal

A31

quotation marks omitted); see also Ne. Rural Elec.

Membership Corp. v. Wabash Valley Power Ass'n,

707 F.3d 883, 894 (7th Cir. 2013). Section 301 of the

LMRA completely preempts state law claims

"founded directly on rights created by collectivebargaining agreements, and also claims

substantially dependent on analysis of a collectivebargaining agreement." Caterpillar, 482 U.S. at 394

(internal quotation marks omitted); see also Nelson v.

Stewart, 422 F.3d 463, 467-69 (7th Cir. 2005); In re

Bentz Metal Prods. Co., 253 F.3d 283, 285-86 (7th

Cir. 2001) (en banc). Preemption under§ 301 "covers

not only obvious disputes over labor contracts, but

also any claim masquerading as a state-law claim

that nevertheless is deemed 'really' to be a claim

under a labor contract." Crosby, 725 F.3d at 797.

As the court explained in earlier opinions, 20

F. Supp. 3d at 653-58; 126 F. Supp. 3d at 1016-25,

the first amended complaint's claims were

completely preempted because resolving them would

have required the court to interpret the CBA. Counts

III through VIII alleged that the NHL voluntarily

assumed a duty to protect Boogaard and that it had

breached that duty. The scope of one person's

voluntarily assumed duty to protect another depends

on the totality of the circumstances, which in this

case would have included contested interpretations

of the CBA. See LM ex rei. KM v. United States, 344

F.3d 695, 700 (7th Cir. 2003) ("[W]hether a voluntary

undertaking has been assumed is necessarily a factspecific inquiry."); Bourgonje v. Machev, 841 N.E.2d

96, 114 (Ill. App. 2005) ("[T]he existence and extent

of voluntary undertakings are to be analyzed on a

case-by-case basis."). In particular, the scope of the

NHL's voluntarily assumed duty to Boogaard

A32

depends on reasonable disputes concerning whether

the CBA allowed the NHL to unilaterally prohibit

fighting, to prohibit team doctors from administering

Toradol, or to require team doctors to follow certain

procedures for diagnosing concussions-rendering

Counts III through VIII completely preempted. 20 F.

Supp. 3d at 653-58; 126 F. Supp. 3d at 1018-22.

Counts I and II, meanwhile, alleged that the NHL

had breached a freestanding duty to protect

Boogaard from addiction. Ordinarily, people are

under no obligation to protect others from harm

unless they have a "special relationship." Domagala

v. Rolland, 805 N.W.2d 14, 23 (Minn. 2011); accord

lseberg v. Gross, 879 N.E.2d 278, 284 (Ill. 2007). But

whether the NHL had a special relationship with

Boogaard depends on the extent to which the NHL

exercised control over Boogaard's behavior and

safety, which in tum depends on contested

interpretations of the CBA-rendering Counts I and II

completely preempted as well. 126 F. Supp. 3d at

1022-24.

The proposed second amended complaint has

twelve counts. Counts V through XII are essentially

identical to the first amended complaint's eight

counts, compare Doc. 145-1 at ¶¶ 119-256, with Doc.

62 at ¶¶ 43-267, and are therefore completely

preempted and time-barred for the reasons set forth

in the court's earlier opinions. But Counts I through

IV of the proposed second amended complaint are

new, and unlike the other eight counts, they allege

that the NHL actively harmed Boogaard. Doc. 145-1

at ¶¶ 33-118. Every person has a duty not to act

unreasonably in a way that injures others; the court

need not interpret the CBA to determine the

existence or scope of that duty, and so claims based

A33

on the breach of that duty are not preempted. 126 F.

Supp. 3d at 1024-25 (distinguishing three other

decisions that "involve[ d) the [uncontroversial] duty

not to unreasonably harm other people" and that

therefore did not find LMRA preemption); see

McPherson v. Tenn. Football Inc., 2007 U.S. Dist.

LEXIS 39595, at *22 (M.D. Tenn. May 31, 2007)

(holding that a claim against an NFL team for

injuries the plaintiff suffered when the team's

employee hit the plaintiff with a golf cart during a

halftime show was not completely preempted);

Stringer v. Nat'l Football League, 474 F. Supp. 2d

894, 912-13 (S.D. Ohio 2007) (holding that a claim

against the NFL for mandating the use of dangerous

equipment was not preempted); Brown v. Nat'l

Football League, 219 F. Supp. 2d 372, 390 (S.D.N.Y.

2002) (remanding a claim against the NFL for

injuries the plaintiff suffered when a referee, an NFL

employee, hit the plaintiff in the eye with a heavy

penalty flag).

The NHL does not attempt to explain how

claims alleging active misdeeds would require

interpretation of the CBA. Doc. 152 at 21-30.

Instead, it argues that Counts I through IV of the

proposed second amended complaint are merely

"repackaged" versions of the other, preempted

claims. Id. at 21, 25. But that is not so. Counts I and

II allege that the NHL both failed to eliminate

violence in professional hockey and actively

promoted violence. The NHL is correct that those

counts are preempted to the extent they are based on

allegations that the NHL failed to eliminate violence,

for the same reasons that Counts V through XII are

preempted. The court would need to interpret the

CBA to determine whether the NHL had a duty to

A34

eliminate violence; for instance, it would be unlikely

that the NHL had such a duty if the CBA prohibited

it from eliminating violence. 126 F. Supp. 3d at 102021. The NHL is also correct that Counts I and II

cannot proceed on a theory that, once the NHL had

put Boogaard at risk, it had a duty to protect him

from the risk. Doc. 152 at 24. Courts in both Illinois

and Minnesota have rejected the existence of such a

duty. See Domagala, 805 N.W.2d at 25-26 (noting

that the theory has "received heavy criticism from

multiple jurisdictions" and "declin[ing] at this time

to adopt" it "as a basis for imposing a duty of care in

a negligence claim"); Brewster v. RushPresbyterianSt. Luke's Med. Ctr., 836 N.E.2d 635,

639 (Ill. App. 2005) (rejecting the plaintiffs request to

apply Restatement (Second) of Torts§ 321, which

codifies the discussed theory, on the grounds that it

"has been criticized for its vagueness and seemingly

limitless scope" and that the Supreme Court of

Illinois "has not adopted section 321 as an exception

to the general rule that one will not be liable to a

third party absent a special relationship").

But Counts I and II also allege that the NHL

took several active and unreasonable steps that

ultimately harmed Boogaard. Specifically, they

allege that the NHL promoted on an affiliated

website an HBO documentary glorifying the "Broad

Street Bullies," a Philadelphia Flyers team known

for fighting; that it created promotional films "that

focus on the hardest hits that take place on the ice";

that it displayed stories about enforcers and on-ice

fights on its website "on a nightly basis"; that it

produced on an affiliated TV network "a weekly

program segment called 'Top 10 Hits of the Week"';

and that it sponsored video games that "includ[ed]

A35

fighting and vicious body checking." Doc. 145-1 at ¶

57. Those actions, Counts I and II allege, cultivated a

"culture of violence" in the NHL, which caused

Boogaard to get into fights, which in turn caused him

to develop CTE and an addiction to opioids, which in

turn caused his death. Id. at ¶¶ 35, 69, 78. That

theory of tort-that the NHL unreasonably harmed

Boogaard-is viable under Illinois and Minnesota law

and not preempted by the LMRA.

Counts III and IV are similar. True, those

counts include allegations that the NHL failed to

warn Boogaard of the risks of concussions, and they

would be preempted if they relied only on those

allegations. Id. at ¶¶ 89, 94, 97. But Counts III and

IV also contain the seed of a viable, non-preempted

claim: that the NHL actively and unreasonably

harmed Boogaard by implicitly communicating that

head trauma is not dangerous. In particular, Counts

III and IV allege that the NHL made a show of

"study[ing] ... repetitive concussive and/or subconcussive brain traumas amidst its player

population," which caused NHL players t

"reasonably believe[] that the NHL's findings would

apprise them of any and all long-term risks" of

playing professional hockey. Id. at ¶¶ 81, 83, 86. It

was not until after Boogaard's death that the NHL

reported its findings. Id. at ¶ 90. Because the NHL

had publicized that it was studying the effects of

brain trauma, Counts III and IV allege, its silence on

the issue implied that it had found that the effects

were minor. Id. at ¶ 89 ("By gratuitously conducting

scientific research and engaging in discussion of the

long-term effects of brain injuries sustained by NHL

players, and by publicly maintaining that its

Concussion Program was thoroughly analyzing

A36

concussion data, the NHL gave its players the false

impression that it was working on their behalf to

keep them informed and up-to-date on all medical

and scientific advancements related to repetitive

head trauma."). Players, including Boogaard,

allegedly relied on that implication when they

continued playing in a way that would give them

concussions. Id. at ¶ 95.

The proposed second amended complaint is

imperfect. Counts V through XII reiterate claims

that the court has already dismissed, and Counts I

through IV mix together different kinds of

allegations, some completely preempted by the

LMRA and some not. But federal courts use notice

pleading, not code pleading; the way a plaintiff

separates allegations into counts can be a useful

organizational tool, but in the end what matters is

whether the complaint includes allegations that,

taken together, entitle the plaintiff to relief. See

Maddox v. Love, 655 F.3d 709, 719 (7th Cir. 2011)

("The problem, as we see it, is trying to separate

Maddox's claim for religious fellowship (the subject

of his grievance) into separate counts (Counts 2, 3,

and 4). The better approach is to examine the facts in

the aggregate .... ").

So, while most of the claims in Boogaard's

proposed second amended complaint are preempted

by the LMRA and time-barred, a few are not, and the

amendment accordingly is not futile. Boogaard's

motion for leave to amend is granted. Counts V

through XII are dismissed as completely preempted

and barred on limitations grounds, as are the abovereferenced portions of Counts I through IV.

Defendants shall answer or otherwise plead to the

second amended complaint (other than the dismissed

A37

claims) by October 20, 2016. If Defendants move to

dismiss any of the surviving claims, they should not

do so on preemption grounds.

September 29, 2016

__________________________

United States District Judge

A38

Appendix C

Case:17-2355 Document:40 Filed:5/25/18 Pages:13

In The

United States Court of Appeals

For the Seventh Circuit

No. 17-2355

LEN BOOGAARD and JOANNE BOOGAARD,

Personal Representatives of the Estate of DEREK

BOOGAARD, Deceased

Plaintiffs-Appellants,

NATIONAL HOCKEY LEAGUE, et al.,

Defendants-Appellees.

__________________________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 1:13-cv-04846 – Gary Feinerman, Judge.

____________________________________

AGRUGED JANUARY 11, 2018 – DECIDED MAY

25, 2018

____________________________________

Before EASTERBROOK and BARRETT, Circuit

Judges, and STADTMUELLER, District Judge.*

A39

BARRETT, Circuit Judge. Len and Joanne

Boogaard appeal the dismissal of the wrongful-death

action they brought as the personal representatives

of the estate of their son, Derek Boogaard. They

devote their appeal almost entirely to arguments

that would spark excitement−or fear−in the heart of

a civil procedure student. There is a Hanna v.

Plumer problem−whether Federal Rule of Civil

Procedure 17(b)(3) controls the Boogaards' ability to

bring this suit. 380 U.S. 460 (1965). There is an Erie

Railroad Co. v. Tompkins question whether federal

or state law applies if Rule 17(b)(3) does not control.

304 U.S. 64 (1938). There is a choice-of-law

problem−whether Illinois, Minnesota, or New York

law applies if this is a matter of state law. And there

is even a relation back issue−whether, if Minnesota

law applies, Federal Rule of Civil Procedure

17(a)(3)'s relation-back provision can save the

Boogaards from an error that it is otherwise too late

to correct.

At the end of the day, however, it is an

argument to which the Boogaards give short shrift

that disposes of their case: forfeiture. For the reasons

that follow, we agree with the district court that by

failing to respond to the National Hockey League's

argument that their complaint fails to state a claim,

the Boogaards forfeited any argument that it does.

Their suit thus fails regardless of whether they can

run the procedural gantlet of showing that they are

the proper parties to bring it.

A40

Because we are reviewing a dismissal under

Rule 12(b)(6), we treat the allegations contained in

the Boogaards' complaint as true. That does not

mean, however, that we vouch for their accuracy. It

means only that at this stage of the case, the

Boogaards are entitled to have every factual

inference drawn in their favor. In what follows, then,

we recount the facts as the Boogaards tell them in

the complaint they filed against the National Hockey

League.

Derek Boogaard ("Derek") was a professional

hockey player with the National Hockey League

("NHL").1 He joined the NHL in 2005 as a member of

the Minnesota Wild, where he remained until the

summer of 2010. During his time with the Wild,

team doctors repeatedly prescribed Derek with pain

pills relating to various injuries and procedures. He

became addicted to those pills by 2009.

In September of that year, the NHL placed

Derek into its Substance Abuse and Behavioral

Health Program. The Program is the product of a

1996 agreement (which we'll call the "substance

abuse agreement") between the NHL and its players'

union to create a comprehensive system for

addressing substance abuse among NHL players.

When a player enters the Program, he is initially

permitted to receive his full NHL salary without

penalty so long as he complies with the Program. If

the player violates the Program's rules, however, he

receives penalties of increasing severity.

Pursuant to the Program, Derek was checked

into a California rehabilitation facility for in-patient

treatment of his opioid and sleeping-pill addictions.

Upon leaving that facility, he was subject to the

NHL's mandatory "Aftercare Program," which

A41

required him to refrain from using opioids and

Ambien and to submit to random drug testing. The

NHL told Derek that his failure to follow the

Aftercare Program conditions could result in his

permanent suspension.

Derek signed a contract with the New York

Rangers in the summer of 2010. Before long, he

began asking trainers for Ambien, leading an NHL

doctor to remind him that he could not use Ambien

or opioids. But Derek still relapsed. And over the

following months, NHL doctors made Derek's

situation worse by violating various conditions of the

Aftercare Program. They prescribed him Ambien and

pain medication. They failed to impose penalties

when Derek reported that he had purchased pain

medications off the street over Christmas break.

They again failed to impose penalties when Derek

failed urine tests in January and March. And when

Derek was admitted to a recovery center in

California to treat opioid dependence, they allowed

him to leave the facility without a chaperone. While

on one such trip, Derek purchased thousands of

dollars of opioids off the street; on another, he

overdosed on pills and died.

The NHL removed the case to federal court. It

argued that federal jurisdiction existed under the

doctrine of complete preemption, which applies when

the scope of a federal law is so broad that it

essentially replaces state-law claims. The district

court agreed and denied the estate's motion to

remand. It held that at least two of the claims were

founded directly on rights created under the parties'

collective bargaining agreement−the claims that the

NHL had breached its duties under the Program to

care for Derek and address his drug addiction−and

A42

were therefore preempted by the Labor Management

Relations Act. It had supplemental jurisdiction over

any remaining state claims.

The NHL then moved to dismiss the whole

complaint for preemption and failure to state a

claim. At that point, Len and Joanne Boogaard filed

a first amended complaint naming themselves as the

successor personal representatives of Derek's estate.

(Someone else had initially represented it.) The

amended complaint invoked Minnesota's wrongful

death and survival statute, although it also kept its

references to Illinois law, choosing to characterize

the claims as arising under both states' statutes.

The district court deemed the NHL's stillpending motion to dismiss to be directed at the

Boogaards' first amended complaint, and the court

ordered the NHL to file a supplemental

memorandum in support of the motion. The NHL

added a new argument for dismissal: Wrongful-death

and survival actions can only be brought by a courtappointed trustee under Minnesota law, and the

Boogaards were not court-appointed trustees.2 And

since the time during which a Minnesota court could

appoint a trustee for Derek's estate had run, this was

not a problem that the Boogaards could fix. In

response, the Boogaards argued that the law of

Illinois, not Minnesota, determined who is entitled to

bring this wrongful-death and survival action. The

district court did not reach this choice-of-law

problem. Instead, it granted summary judgment to

the NHL on the ground that all of the Boogaards'

claims were preempted.

After summary judgment, the Boogaards

moved to file a second amended complaint, which

added claims−still under Minnesota and Illinois

A43

wrongful-death and survival laws−that the

Boogaards said were not preempted. The NHL

disputed that contention, but the district court

concluded that two of the new counts put forward a

"theory of tort-that the NHL unreasonably harmed

Boogaard-[that] is viable . . . and not preempted by

the [Labor Management Relations Act]" and the

other two "contain the seed of a viable, nonpreempted claim ... that the NHL actively and

unreasonably harmed Boogaard by implicitly

communicating that head trauma is not dangerous."

It allowed the Boogaards to file the new complaint

and told the NHL that it could still move to dismiss

the complaint−so long as it did so on grounds other

than preemption.

The NHL took the district court's suggestion.

It renewed its argument, which the district court had

not yet addressed, that the Boogaards' claims could

only be brought by a trustee appointed pursuant to

Minnesota law. In the alternative, it argued that the

new complaint did not state a claim no matter which

state's law applied. The Boogaards focused on the

NHL's argument about the Minnesota trustee

requirement.3 In addition to the choice-of-law points

they had made before, they contended that Federal

Rule of Civil Procedure 17(b), which governs the

choice-of-law analysis in determining a party's

capacity to sue, required the court to apply Illinois

law regarding who can bring a wrongful-death or

survival action. The Boogaards said nothing in

response to the NHL's alternative argument that

their allegations, even if true, would not entitle them

to relief.

The district court granted the motion to

dismiss on both grounds pressed by the NHL. It held

A44

that Minnesota law applied to the action and thus

required a wrongful-death or survival action to be

brought by a court-appointed trustee. In the

alternative, it held that the Boogaards had forfeited

their claims by failing to respond to the NHL's

argument that the complaint failed to state a claim

under the law of any state. This appeal followed.

II.

Before we reach the merits, we have some

housekeeping to do. Every brief filed by an appellant

in our court must contain a "jurisdictional

statement" explaining why we have authority to

decide the appeal. The Boogaards hedge in theirs.

Their jurisdictional statement consists of the

observation that the NHL removed the case to

federal court on a theory of complete preemption. In

other words, rather than assuring us that

jurisdiction exists, the Boogaards essentially say "the

NHL says that jurisdiction exists." The statement

does not endorse (or indeed, even acknowledge) the

district court's jurisdictional ruling, presumably

because the Boogaards continue to disagree with it.

Despite the Boogaards' evident belief that

jurisdiction is lacking, their brief goes on to ask us to

review the merits of the district court's decision.

This is insufficient. If a party believes that we

lack jurisdiction, it has an obligation to say so. We

thus ordered the parties to file supplemental briefs

on the jurisdictional issue so that we could discharge

our obligation to determine whether we have the

authority to decide this appeal.

A45

The Boogaards come clean in their

supplemental brief. They argue that the Labor

Management Relations Act does not completely

preempt their state-law claims and that there is thus

no basis for federal jurisdiction.4 The NHL, on the

other hand, maintains that the district court got the

jurisdictional issue right.

The district court did get it right. The doctrine

of complete preemption "confers exclusive federal

jurisdiction in certain instances where Congress

intended the scope of a federal law to be so broad as

to entirely replace any state-law claim." Franciscan

Skemp Healthcare, Inc. v. Central States Joint Bd.

Health & Welfare Tr. Fund, 538 F.3d 594, 596 (7th

Cir. 2008). In this case, § 301(a) of the Labor

Management Relations Act "displace[ s] entirely any

state cause of action" for violation of a collective

bargaining agreement. Franchise Tax Bd. of Cal. v.

Constr. Laborers Vacation Tr., 463 U.S. 1, 23 (1983).

It does not matter that the lawsuit styles itself as

something other than a breach-of-contract action. If

the suit's claims are "founded directly on rights

created by collective-bargaining agreements" or are

"substantially dependent on analysis of a collectivebargaining agreement," then § 301 governs those

claims. Caterpillar Inc. v. Williams, 482 U.S. 386,

394 (1987) (citation omitted).

The Boogaards' complaint makes plain that at

least two of their initial claims were based on a duty

allegedly contained within the substance abuse

agreement. It alleges that by administering the

Program established by the substance abuse

agreement, the NHL assumed the duty to curb, cure,

and monitor Derek's drug addiction. And it contends

that the NHL breached that duty when it violated

A46

the procedures it had agreed to use in administering

the Program. For example, the Boogaards allege that

NHL doctors provided Derek with prescriptions for

pain medication even though the rules of the

Program forbade Derek to take any opioids and that

the NHL allegedly failed to penalize Derek in

accordance with the Program rules when urine tests

came back positive for prohibited drugs. The

complaint frequently couches its accusations of duty

and breach in terms of obligations and violations of

the Program, leading unavoidably to the conclusion

that the Boogaards' claims rely on applying and

interpreting the substance abuse agreement, which

dictated the Program's terms.

Now, this only matters for purposes of § 301 of

the Labor Management Relations Act if the

substance abuse agreement is part of the collective

bargaining agreement between the NHL and the

NHL Players' Association. The Boogaards say it's

not. But the collective bargaining agreement had an

integration clause stating that this agreement “and

any existing letter agreements between the parties

that are not inconsistent with this Agreement" were

the “entire understanding between the parties." The

substance abuse agreement was an existing letter

agreement between the parties, and the Boogaards

have pointed to no inconsistency between it and the

collective bargaining agreement. Moreover, the

collective bargaining agreement states that the

Program will still handle certain categories of

substance abuse. This reference would not make

sense if the parties intended the collective

bargaining agreement to supersede the substance

abuse agreement.

A47

In sum, the district court correctly concluded

that it had subject-matter jurisdiction over the

claims asserting that the NHL breached its

obligations under the substance abuse agreement.

And even if that created federal question jurisdiction

over only some of the claims in the complaint, the

district court had supplemental jurisdiction over the

rest. See 28 U.S.C. § 1367(a) (“[T]he district courts

shall have supplemental jurisdiction over all other

claims that are so related to claims in the action

within such original jurisdiction that they form part

of the same case or controversy under Article III ...

L."). The Boogaards' late-coming jurisdictional

challenge therefore fails.

III.

This appeal presents a curious situation. The

Boogaards devote almost their entire brief to

attacking the district court's ruling that the

Minnesota trustee requirement bars their suit. But

that was not the only ground on which the district

court dismissed the case−it held in the alternative

that the Boogaards had forfeited their claims by

failing to respond to the NHL's argument that they

failed to state a claim under the law of either

Minnesota or Illinois. Thus, even if the Boogaards

are right about the trustee requirement, they still

lose if the district court's alternative holding stands.

It is hard to fault the Boogaards for lodging a

weak challenge to the district court's forfeiture

holding, because there are no strong arguments

available against it. Their opener is hardly a

knockout: they assert that alternative holdings

A48

should be disregarded as "mere dictum." That

contention is meritless. As an initial matter, it is

well settled that we will affirm a district court's

judgment if any of several alternative holdings

supports it. See, e.g., Maher v. City of Chicago, 547

F.3d 817, 821 (7th Cir. 2008). More fundamentally,

the Boogaards are wrong to characterize alternative

holdings as "dictum." The rule is the exact opposite:

"It is blackletter law that 'where a decision rests on

two or more grounds, none can be relegated to the

category of obiter dictum."' BRYAN A. GARNER ET

AL., THE LAW OF JUDICIAL PRECEDENT 122

(2016) (citations omitted). If alternative holdings

have precedential force as a matter of stare decisis,

one can hardly argue that they are not

independently sufficient grounds on which to affirm

the judgment they support.

The Boogaards' second argument is not much

better. They do not−and cannotdeny that a district

court may hold a claim forfeited if a plaintiff fails to

respond to the substance of the defendant's motion to

dismiss. See, e.g., Kirksey v. R.]. Reynolds Tobacco

Co., 168 F.3d 1039, 1043 (7th Cir. 1999); Stransky v.

Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir.

1995). They argue, however, that the district court

was wrong to do so in this instance. According to the

Boogaards, the district court implicitly rejected a

Rule 12(b)(6) argument when it permitted them to

file an amended complaint adding the new claims.

They insist that they were thus justified in believing

that the NHL was simply regurgitating an argument

that it had already lost.

The record belies that contention. The district

court entered summary judgment on the Boogaards'

first amended complaint solely on preemption

A49

grounds. When the NHL opposed the Boogaards'

request to file a second amended complaint, it

insisted that amendment would be futile because the

proposed second amended complaint likewise

contained only preempted claims. That preemption

point was the NHL's only futility argument against

amendment; it did not argue that the new claims

also failed to state a claim under state law. The

district court held that § 301 did not preempt the

new claims in the proposed complaint and granted

the Boogaards' motion for leave to amend. It then

invited the NHL to either answer the complaint or

move to dismiss it, but the court cautioned that if the

defendants chose to move to dismiss any surviving

claims, "they should not do so on preemption

grounds."

The Boogaards place great emphasis on the

district court's use of the word "viable" to describe

the new counts No. 17-2355 13 in the second

amended complaint. But in context, it is plain that

the court was merely communicating its view that

these counts could survive the only challenge then

lodged against them: the NHL's argument that they

were preempted. The question whether the

Boogaards' allegations, if true, would entitle them to

relief under state law was not before the court. And

lest there be any doubt about the breadth of the

court's ruling, its express instruction that the NHL

could move to dismiss on non-preemption grounds

makes it even clearer that the court was not

purporting to anticipatorily resolve other grounds for

dismissal.

If the Boogaards misunderstood the district

court, the NHL's motion to dismiss under Rule

12(b)(6) should have been a wake-up call. When the

A50

NHL moved to dismiss on grounds the Boogaards

claim to believe were impliedly foreclosed, the

prudent course was to clarify matters with the

district court or respond to those arguments anyway.

By remaining silent, the Boogaards took the risk

that the district court would hold their claims

forfeited. The court acted well within its authority

when it did.

We will not entertain the Boogaards'

alternative request that we remand to allow them to

file an amended complaint. Their complaint was

dismissed in the alternative for forfeiture, and

amending the underlying complaint does not cure

their forfeiture. Furthermore, the Boogaards have

not explained in any detail what amendments they

would make, which is itself reason to deny the

request. Gonzalez-Koeneke v. West, 791 F.3d 801,

808-09 (7th Cir. 2015). The judgment of the district

court is AFFIRMED.

* Of the Eastern District of Wisconsin, sitting by

designation.

1 We call him “Derek” to distinguish him from his

parents, Len and Joanne Boogaard, who represent

Derek’s estate in this appeal.

2 Minnesota law has a special statutory regime for

appointing a trustee to prosecute wrongful-death and

survival actions on behalf of the decedent’s living

spouse and next of kin. Being appointed as such a

trustee is different from being appointed personal

representative of the decedent or estate. Steinlage ex

rel. Smith v. Mayo Clinic Rochester, 435 F.3d 913,

915-17 (8th Cir. 2006). Ortiz v. Gavenda, 590 N.W.2d

119, 124 (Minn. 1999) (stating that the appointment

A51

of a wrongful-death trustee is an exercise of the

principle that "those entitled to recovery as a result

of the wrongful death shall be represented by the

trustee without compromise11). The Boogaards were

appointed as the personal representatives of Derek's

estate, but they were never appointed as trustees for

wrongful-death and survival actions.

3 They also responded to the NHL’s contention that

the First Amendment protected it from the

Boogaard’s claim that the NHL promoted violence.

The parties’ arguments on that issue are not

relevant to this appeal.

4 Diversity jurisdiction does not exist, because the

parties cannot satisfy the complete diversity of

citizenship requirement.

A52

APPENDIX D

Case: 17-2355

Pages: 1

Document: 44

File: 06/25/2018

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

June 25, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

JOSEPH P. STADTMUELLER, District Judge

No. 17-2355

LEN BOOGAARD AND JOANNE

BOOGAARD, Personal Representatives

of the Estate of Derek Boogaard,

Deceased,

Plaintiffs/Appellants,

NATIONAL HOCKEY LEAGUE,

NATIONAL HOCKEY LEAGUE BOARD OF

GOVERNORS, AND GARY AND GARY

R. BETTMAN, Commissioner

Defendants/Appellees.

Appeal from the United States

A53

District Court for the Northern District

of Illinois, Eastern Division

No. 1:13-cv-04846

Gary Feinerman,

Judge.

A54

ORDER

Plaintiff-Appellant filed a petition for

rehearing on June 8, 2018. All members of the

original panel have voted to deny rehearing.

Accordingly, IT IS ORDERED that the

petition for rehearing is DENIED.

A55

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.