Dupuy, Belinda v. McEwen, Erwin ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-1655
BELINDA DUPUY, et al.,
Plaintiffs-Appellants,
v.
ERWIN MCEWEN, Acting Director,
Illinois Department of Children
and Family Services,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4199—Rebecca R. Pallmeyer, Judge.
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SUBMITTED APRIL 25, 2007—DECIDED JULY 31, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and EVANS,
Circuit Judges.
POSNER, Circuit Judge. This class action suit by parents,
now in its eleventh year, challenges a range of practices by
the child-welfare agency of the State of Illinois that are
claimed to infringe parental rights protected by the due
process clause of the Fourteenth Amendment. The case
has twice been before us. Dupuy v. Samuels, 397 F.3d 493(7th Cir. 2005), 465 F.3d 757 (7th Cir. 2006). In the second
case, while affirming a preliminary injunction because the
2 No. 07-1655
defendant had not appealed from its entry (instead the
plaintiffs had appealed, contending the injunction didn’t
go far enough—we rejected the contention), we expressed,
by way of guidance for the trial on the merits (only a
preliminary injunction had been granted), our doubt about
its soundness. The preliminary injunction required ad-
ministrative review before the child-welfare agency could
offer parents a “safety plan” in lieu of removing a child
that it suspected of being neglected or abused from its
parent’s custody. (The safety plan might, for example,
require that one of the parents move out of the home
until the question of abuse or neglect was resolved.)
We pointed out that as long as the parents weren’t coerced
to accept a safety plan by being given false information
about the consequences of refusing, there was no reason to
require administrative or judicial review of the offer—it
was just an offer, which the parents would not accept
unless they thought it would make them better off to do so.
When the case resumed in the district court, the agency
moved for summary judgment on the ground that there
was no evidence of misrepresentation. The plaintiffs
agreed, so the district judge entered summary judgment,
but they appealed anyway and now oppose the defen-
dant’s motion for summary affirmance on the ground
that the motion is not within any of the categories that
United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006),
deems appropriate for summary affirmance. They misread
Fortner. The concern in that case was with an appellee’s
filing a motion for summary affirmance at the last minute,
that is, right before the briefs on the merits were due to be
filed. That made needless additional work for the appellant
and for the court. There are situations (Fortner gives
three examples) in which the last-minute filing is
No. 07-1655 3
proper—suppose a case had just been decided by the
Supreme Court that made affirmance a slam dunk. There
would be no purpose in requiring full briefing.
The motion in this case was filed well before the appel-
lant’s brief was due, and the plaintiffs have had and taken
an opportunity to respond. Remember that they con-
ceded in the district court that they had no evidence that
would satisfy the standard we set forth in our previous
opinion. They do not retract that concession in their
opposition to the motion but (besides expressing disagree-
ment with our opinion without presenting any new
argument) contend merely that some of the class members
“lack education” or have “low intelligence.” The class,
however, is not limited to the uneducated or the unintelli-
gent, and a plaintiff obviously cannot obtain class-wide
relief for harms suffered by only some of its members.
General Telephone Co. v. Falcon, 457 U.S. 147 (1982); Oshana
v. Coca-Cola Co., 472 F.3d 506, 513-14 (7th Cir. 2006).
The district judge’s order that this appeal unavailingly
challenges was one of several orders that she issued in an
attempt to resolve three separate sets of claims pressed in
this litigation; and it may provide helpful guidance to the
district court to note our concern with the third order,
which purports to retain jurisdiction of a terminated case.
The three sets of claims are as follows: “Dupuy I” as we’ll
call it sought special procedures for child-care workers
accused of abuse or neglect. Dupuy II complained that the
safety plans had been coerced, and it is that set of claims
that was before us in the prior appeal and is before us
in this appeal. Dupuy III sought additional procedures
for accused child-care workers.
The district judge first entered an order which stated
that the Dupuy I and III claims were dismissed without
4 No. 07-1655
prejudice, but in the next paragraph she stated that they
“shall be dismissed with prejudice in accordance with the
terms of the stipulation,” that is, a settlement of those
claims. It is apparent that she intended to dismiss with
prejudice only the claims of the named plaintiffs, because
they were the only parties to the settlement. Three days
later, however, having meanwhile granted summary
judgment on the Dupuy II claims, she entered a “termina-
tion order” stating that the entire case was “dismissed with
prejudice.” That order wiped out the claims of the un-
named class members, apparently inadvertently, since
they had not been parties to the settlement. The plaintiffs
moved the judge to vacate the order, and she did, thus
restoring the order that had dismissed the unnamed class
members’ Dupuy I and III claims without prejudice. She
added that with respect to the named class members’
Dupuy I and III claims she was “retain[ing] jurisdiction as
provided in the Parties’ stipulation.” In the stipulation, the
plaintiffs had expressly released the defendant from all
claims “which arose or could have been raised” in the suit;
that was a general release. Fair v. International Flavors &
Fragrances, Inc., 905 F.2d 1114, 1116 (7th Cir. 1990).
The district judge’s attempted retention of jurisdiction
to enforce the stipulation is the troublesome part of the last
order. In Lynch v. Samatamason, Inc., 279 F.3d 487, 489-90
(7th Cir. 2002), and Shapo v. Engle, 463 F.3d 641, 643 (7th
Cir. 2006), we ruled, in reliance on Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375 (1994), that when a suit is dismissed
with prejudice, it is gone, and the district court cannot
adjudicate disputes arising out of the settlement that led
to the dismissal merely by stating that it is retaining
jurisdiction. See also Blue Cross & Blue Shield Ass’n v.
American Express Co., 467 F.3d 634, 636 (7th Cir. 2006).
No. 07-1655 5
Other cases, discussed in Morton Denlow, “Federal
Jurisdiction in the Enforcement of Settlement Agreements:
Kokkonen Revisited,” 2003 Fed. Cts. L. Rev. 2 (2003); Denlow,
“What Is an Attorney to Do? Ensuring Federal Jurisdic-
tion Over Settlement Agreements in Light of Recent
Seventh Circuit Cases,” The Circuit Rider: The Journal of the
Seventh Circuit Bar Association, May 2007, p. 24, assume that
combining dismissal with prejudice with retention of
jurisdiction to enforce the settlement is a permissible
method of retaining authority to decide disputes arising
from the settlement. The principal argument that Magis-
trate Judge Denlow makes for that procedure is that a
defendant is unlikely to settle a case unless the case is
dismissed with prejudice, as otherwise the defendant
would be exposed to a repeat suit by the plaintiff, and
therefore settlements that the district court is empowered
to enforce will be discouraged. The obvious alternative,
however, as suggested in Shapo v. Engle, supra, 463 F.3d at
646, is for the court to dismiss without prejudice but the
parties to include in the settlement a release of the defen-
dant (as was done here, making dismissal with prejudice
redundant). That has the same effect as enabling a dis-
missal to be pleaded in a subsequent suit as res judicata,
but avoids the paradox of dismissing a case with finality
yet at the same time retaining it.
Magistrate Judge Denlow expresses concern that a
release does not give a defendant as much security against
further suit as a dismissal with prejudice, which allows
the dismissal to be pleaded as res judicata. But both
accord and satisfaction (the formal legal name of a re-
lease) and res judicata are affirmative defenses to a subse-
quent suit, and if the district court, by having dismissed
without prejudice, retains the power to enforce the settle-
6 No. 07-1655
ment, it can enforce the release (a term of the settlement)
directly, without putting the defendant to the trouble
of having to plead release as a defense in a renewed suit.
It is true that dismissal without prejudice, because it
merely allows the suit to be refiled, will allow adjudication
of issues relating to the settlement only if the refiled suit
is timely; and when a suit is dismissed without prejudice,
the statute of limitations continues to run from the date
(normally the date of the injury) on which the claim
accrued. E.g., Coleman v. Milwaukee Board of School Directors,
290 F.3d 932, 934 (7th Cir. 2002); United States v. Carlone, 666
F.2d 1112, 1113-14 (7th Cir. 1981). But the statute of limita-
tions is just another affirmative defense, which the parties
can waive in the settlement if they want the district
court to be able to adjudicate disputes after the limitations
period has run. Alternatively, they can elide any issue of
untimeliness by embodying the settlement in a consent
decree.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-31-07