Wiesmueller, Christo v. Kosobucki, John ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2601
CHRISTOPHER L. WIESMUELLER,
Plaintiff-Appellant,
v.
JOHN KOSOBUCKI, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-C-211-S—John C. Shabaz, Judge.
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SUBMITTED DECEMBER 4, 2007—DECIDED JANUARY 29, 2008
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Before POSNER, RIPPLE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Wisconsin allows graduates of
the two law schools in the state to be admitted to the
practice of law without having to take the Wisconsin bar
exam. The plaintiff, a graduate of an out-of-state law
school, brought this suit against the members of the
Wisconsin Board of Bar Examiners and the Supreme Court
of Wisconsin, charging a violation of the commerce
clause of Article I of the Constitution and seeking injunc-
tive relief. The plaintiff moved for summary judgment; the
defendants moved to dismiss. After the judge denied the
plaintiff’s motion but while the defendants’ motion to
dismiss was pending, the plaintiff moved to certify a
2 No. 07-2601
class consisting of other graduates of out-of-state law
schools who want to practice law in Wisconsin. The dis-
trict judge granted the motion to dismiss the plaintiff’s
claim and having done so denied as moot the plaintiff’s
motion to certify the class.
The plaintiff has appealed. But shortly after filing his
notice of appeal, he took the Wisconsin bar exam, and now
he has learned that he passed it. The defendants ask us to
dismiss his appeal as moot. Moot it is as far as his claim
for relief on his own behalf is concerned, for the object
of his suit, now attained, was to satisfy a prerequisite to
being licensed to practice law in Wisconsin. The question
is whether his appeal from the denial of class certifica-
tion is moot.
If, on the one hand, the class in a class-action suit is
certified before the named plaintiff’s claim becomes moot,
the mooting of his claim does not doom the suit. For the
suit is not moot unless the claims of all the unnamed class
members have also become moot; if not, they have a live
claim against the defendant. United States Parole Commission
v. Geraghty, 445 U.S. 388, 404 (1980); Franks v. Bowman
Transportation Co., 424 U.S. 747, 755-56 (1976). Were the
rule otherwise “the defendant could delay the action
indefinitely by paying off each class representative in
succession,” Primax Recoveries, Inc. v. Sevilla, 324 F.3d
544, 547 (7th Cir. 2003); see Deposit Guaranty National
Bank v. Roper, 445 U.S. 326, 332-33, 339 (1980), though
that is not what happened in this case.
Since the named plaintiff is the representative of the
unnamed class members, the evaporation of his claim no
more bars him from continuing in that capacity (pro-
vided a class has been certified), Sosna v. Iowa, 419 U.S.
393, 402 (1975), than a lawyer is barred from representing
a litigant just because the lawyer himself has no dispute
No. 07-2601 3
with the defendant. The named plaintiff who no longer
has a stake may not be a suitable class representative,
but that is not a matter of jurisdiction and would not
disqualify him from continuing as class representative
until a more suitable member of the class was found to
replace him. Robinson v. Sheriff of Cook County, 167 F.3d
1155, 1157-58 (7th Cir. 1999); Walters v. Edgar, 163 F.3d 430,
433 (7th Cir. 1998). Here, as in the Geraghty case, see 445
U.S. at 396, an unnamed class member (the plaintiff’s
wife, in fact, who has a law degree from an out-of-state
school and has not taken the Wisconsin bar exam), has
expressed interest in substituting for the plaintiff as
class representative.
If, on the other hand, the named plaintiff’s claim becomes
moot before the class is certified, the suit must be dis-
missed because no one besides the plaintiff has a legally
protected interest in the litigation. Board of School Commis-
sioners v. Jacobs, 420 U.S. 128 (1975) (per curiam); Bertrand
ex rel. Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir. 2007).
But coming to our case, what if the district court denies
the plaintiff’s motion to certify a class, the plaintiff ap-
peals from that denial, and his appeal is pending when
his substantive claim evaporates? In that case, the ap-
peal is not moot, Deposit Guaranty National Bank v. Roper,
supra, 445 U.S. at 335-37; United States Parole Commission v.
Geraghty, supra, 445 U.S. at 404, because unless and until
the appellate court affirms the denial of the motion to
certify a class, there may be people other than the plaintiff
with a legally protected interest in the suit—namely the
unnamed members of the class.
The district judge seems to have thought that once he
rejected the plaintiff’s claim on the merits, there was no
point in considering whether to certify a class, because the
suit, whether on the plaintiff’s behalf or on behalf of any
4 No. 07-2601
other graduate of an out-of-state law school who wants
to practice in Wisconsin without taking the Wisconsin
bar exam, wasn’t going anywhere. But a district judge
does not have the last word on the merits of a plaintiff’s
claim. The fact that he thinks it unsound doesn’t mean that
a class action by the plaintiff is doomed to failure. More-
over, the fact that a suit lacks merit does not “moot” the
question of class certification, as pointed out in Bertrand
ex rel. Bertrand v. Maram, supra, 495 F.3d at 455, since if a
class is certified, its members (unless they opt out of the
class), and not just the named plaintiff, are bound by the
judgment.
Which is not to say that the district judge may never
dismiss a case on summary judgment without first ruling
on the plaintiff’s motion to certify a class. As we ex-
plained in Cowen v. Bank United of Texas, FSB, 70 F.3d 937,
941-42 (7th Cir. 1995) (citations omitted), “It is true that
Rule 23(c)(1) of the civil rules requires certification as
soon as practicable, which will usually be before the case
is ripe for summary judgment. But ‘usually’ is not ‘always,’
and ‘practicable’ allows for wiggle room. Class actions
are expensive to defend. One way to try to knock one off
at low cost is to seek summary judgment before the suit
is certified as a class action. A decision that the claim of
the named plaintiffs lacks merit ordinarily, though not
invariably, . . . disqualifies the named plaintiffs as proper
class representatives. The effect is to moot the question
whether to certify the suit as a class action unless the
lawyers for the class manage to find another representative.
They could not here because the ground on which
the district court threw out the plaintiff’s claims would
apply equally to any other member of the class. After
granting the defendant’s motion for summary judgment,
therefore, and since (as was predictable, given the district
No. 07-2601 5
judge’s ground) no one stepped forward to pick up the
spear dropped by the named plaintiffs, the judge denied
the motion for class certification. When the procedure
that we have just described is followed, the defendant
loses the preclusive effect on subsequent suits against
him of class certification but saves the added expense of
defending a class action and may be content to oppose
the members of the class one by one, as it were, by mov-
ing for summary judgment, every time he is sued, before
the judge presiding over the suit decides whether to
certify it as a class action. If we reverse, the plaintiffs
will be able to renew their motion for class certification;
that is no doubt why they appealed the adverse judgment
in this ostensibly trivial case.”
It is true that in this case the plaintiff, as well as the
district judge, put the cart before the horse, by moving
for class certification after moving for summary judg-
ment. But when the motion for class certification was
filed, the judge had not yet ruled on the defendants’ motion
to dismiss, and he could have decided the motion for class
certification, applying the criteria in Fed. R. Civ. P. 23,
before deciding the case on the merits. This case is unlike
Banks v. National Collegiate Athletic Association, 977 F.2d
1081, 1085-86 (7th Cir. 1992), where the parties agreed to
defer the issue of certification until after the judge ruled on
the merits, or Toms v. Allied Bond & Collection Agency, Inc.,
179 F.3d 103, 104 (4th Cir. 1999), and Dugas v. Trans Union
Corp., 99 F.3d 724, 728 (5th Cir. 1996), cases in which the
plaintiff settled his claim and the court ruled that part of
the settlement was the plaintiff’s agreeing to give up his
right to press for class certification. Conceivably this may
be the exceptional case, like Cowen, in which deciding the
merits of the case first and the motion for class certification
6 No. 07-2601
second is proper. But the district judge never ruled on the
merits of the motion, because he thought that his ruling on
the merits of the suit had made the motion moot. It had
not.
The denial of class certification is therefore reversed
and the case remanded for further proceedings con-
sistent with this opinion.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-29-08