Cooper, Kathi v. IBM Personal Pension , 240 F. App'x 133 ( 2007 )


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  •                           NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United
    To be citedStates       Court
    only in accordance      of R.Appeals
    with Fed.  App. P.
    32.1Not to be cited per Circuit Rule 53
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted June 4, 2007
    Decided June 25, 2007
    Before
    Hon. FRANK H. EASTERBROOK, Chief Judge
    Hon. WILLIAM J. BAUER, Circuit Judge
    Hon. DANIEL A. MANION, Circuit Judge
    No. 07-1767
    KATHI COOPER, BETH HARRINGTON and                          Appeal from the United
    MATTHEW HILLESHEIM, individually and on                    States District Court for the
    behalf of all those similarly situated,                    Southern District of Illinois.
    Plaintiffs-Appellees,
    No. 99 C 829
    v.                                            G. Patrick Murphy,
    Chief Judge.
    IBM PERSONAL PENSION PLAN and IBM
    CORPORATION,
    Defendants-Appellees..
    APPEAL OF: REX CARR
    Order
    Plaintiffs’ lead counsel when this ERISA litigation began was Carr Korein
    Tillery, LLC. Before the case ended, Rex Carr withdrew from the partnership,
    which was renamed Korein Tillery, LLC. Carr and his former partners do not agree
    on the allocation of fees that the firm has received or to which it is entitled.
    Litigation in state court apparently resolved the dispute--at least the state’s court of
    first instance thinks that everything has been settled--but Carr now spurns the
    settlement, refuses to accept adverse judicial decisions on the subject, and has
    initiated additional efforts to collect what he claims as his share.
    No. 07-1767                                                                Page 2
    One such effort has occurred in this litigation. Some issues in the suit were
    resolved by settlement, and the rest on an appeal last year. See Cooper v. IBM
    Personal Pension Plan, 
    457 F.3d 636
     (7th Cir. 2006). Carr attempted to enforce
    what he styled an attorney’s lien on the fees due to Korein Tillery as a result of the
    federal settlement. The district court concluded, however, that subject-matter
    jurisdiction is lacking and denied Carr’s motion. Carr has appealed.
    One problem with the appeal is that Carr is not a party to the case. He did
    not intervene. Nor was he a lawyer for any party or otherwise in the functional
    position of a party for purposes of decisions such as Devlin v. Scardelletti, 
    536 U.S. 1
    (2002). He is a stranger to this litigation: his dispute is with Korein Tillery, not with
    any of the litigants. Because Carr is not a party, his purported appeal must be
    dismissed. See Marino v. Ortiz, 
    484 U.S. 301
     (1988).
    There is a second jurisdictional problem. As the district court concluded,
    there is no subject-matter jurisdiction. The dispute between Carr and his ex-
    partners arises under a contract. It is unrelated to the dispute between Cooper and
    IBM, so it cannot be adjudicated under the supplemental jurisdiction. See 
    28 U.S.C. §1367
     (only claims that are part of a single case or controversy come within the
    supplemental jurisdiction). See also, e.g., Kokkonen v. Guardian Life Insurance Co.
    of America, 
    511 U.S. 375
     (1994) (disputes arising from separate contracts require an
    independent grant of jurisdiction). The exception for agreements incorporated into
    the judgment does not apply here. See Baer v. First Options of Chicago, Inc., 
    72 F.3d 1294
     (7th Cir. 1995), which holds that a controversy about the allocation of
    attorneys’ fees may be resolved in federal court only if the original judgment covers
    that subject. See also Bounougias v. Peters, 
    369 F.2d 247
     (7th Cir. 1966).
    Carr is a citizen of Illinois. So are Korein and Tillery. The requirements of
    the diversity jurisdiction therefore have not been satisfied, and the dispute must be
    resolved in state court. (In saying this, we reserve judgment on Carr’s separate
    attempt to bootstrap the dispute into federal court by filing an action under RICO.
    That controversy is still pending in the district court.)
    Plaintiffs, defendants, and their lawyers--jointly forced to serve as appellees
    here--moved to dismiss the appeal and sought sanctions under Fed. R. App. P. 38.
    The motion observes (citing Marino) that nonparties cannot appeal; it adds that
    diversity of citizenship is missing and that the requirements of the supplemental
    jurisdiction under §1367 have not been met. We invited Carr to respond. His
    response does not discuss either Marino or §1367 and therefore does not take even
    the first step toward establishing that the appeal is within our jurisdiction.
    The response cites only one legal authority--West v. Radio-Keith-Orpheum
    Corp., 
    70 F.2d 621
     (2d Cir. 1934)--which is hardly an adequate reply to a decision
    that the Supreme Court issued 54 years later. West holds that creditors in an
    insolvency proceeding need not intervene in order to appeal from an order that
    concludes their legal rights. That holding is of no use to Carr, none of whose rights
    has been concluded by an order dismissing for lack of subject-matter jurisdiction,
    and at all events has been superseded by Fed. R. App. P. 3(c) (adopted in 1968), the
    No. 07-1767                                                               Page 3
    Bankruptcy Code of 1978, and decisions such as Marino.
    Carr’s appeal is part of a fight unrelated to this litigation. There is no reason
    why Cooper and the other plaintiffs, or the IBM pension plan, or the law firms that
    have handled the ERISA litigation, should shoulder any of the cost of resolving this
    dispute between Carr and his ex-partners.
    The motion for sanctions under Rule 38 is granted, because the appeal is
    frivolous. (That makes it unnecessary to decide whether the appeal is also
    vexatious.) The appellees are entitled to reimbursement for the attorneys’ fees
    incurred in defending this appeal.
    The appeal is dismissed for want of jurisdiction. Appellees have 14 days to
    file a statement of their costs plus the attorneys’ fees reasonably incurred in
    handling Carr’s appeal. Carr will have 10 days to respond.
    

Document Info

Docket Number: 07-1767

Citation Numbers: 240 F. App'x 133

Judges: Per Curiam

Filed Date: 6/25/2007

Precedential Status: Non-Precedential

Modified Date: 1/12/2023