Len Boogaard v. National Hockey League , 891 F.3d 289 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2355
LEN BOOGAARD and JOANNE BOOGAARD, Personal Represent-
atives of the Estate of DEREK BOOGAARD, Deceased,
Plaintiffs-Appellants,
v.
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.
____________________
ARGUED JANUARY 11, 2018 — DECIDED MAY 25, 2018
____________________
Before EASTERBROOK and BARRETT, Circuit Judges, and
STADTMUELLER, District Judge. *
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
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 17-2355
Boogaard. They devote their appeal almost entirely to argu-
ments that would spark excitement—or fear—in the heart of
a civil procedure student. There is a Hanna v. Plumer prob-
lem—whether Federal Rule of Civil Procedure 17(b)(3) con-
trols 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 prob-
lem—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 par-
ties to bring it.
I.
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 in-
ference drawn in their favor. In what follows, then, we re-
No. 17-2355 3
count 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 proce-
dures. 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 Pro-
gram 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 address-
ing substance abuse among NHL players. When a player en-
ters 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 Cali-
fornia rehabilitation facility for in-patient treatment of his
opioid and sleeping-pill addictions. Upon leaving that facili-
ty, he was subject to the NHL’s mandatory “Aftercare Pro-
gram,” which 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 Pro-
gram conditions could result in his permanent suspension.
1 We call him “Derek” to distinguish him from his parents, Len and
Joanne Boogaard, who represent Derek’s estate in this appeal.
4 No. 17-2355
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 After-
care Program. They prescribed him Ambien and pain medi-
cation. 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 facil-
ity without a chaperone. While on one such trip, Derek pur-
chased thousands of dollars of opioids off the street; on an-
other, he overdosed on pills and died.
This litigation began two years later. Its procedural histo-
ry is complicated, so we will keep it to the highlights.
Derek’s estate sued the NHL and the other defendants in Il-
linois state court. The original complaint asserted eight
claims, four of which it characterized as arising under Illi-
nois’s Wrongful Death Act and another four under Illinois’s
Survival Act. The complaint alleged that the NHL had failed
to prevent the over-prescription of addictive medications to
Derek, had breached its voluntarily undertaken duty to
monitor and curb Derek’s drug addiction in the Program,
had been negligent in monitoring Derek for brain trauma
during his career, and had negligently permitted team doc-
tors to inject Derek with an intramuscular analgesic called
Toradol.
No. 17-2355 5
The NHL removed the case to federal court. It argued
that federal jurisdiction existed under the doctrine of com-
plete 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 bar-
gaining agreement—the claims that the NHL had breached
its duties under the Program to care for Derek and address
his drug addiction—and were therefore preempted by the
Labor Management Relations Act. It had supplemental ju-
risdiction 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 nam-
ing 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 refer-
ences to Illinois law, choosing to characterize the claims as
arising under both states’ statutes.
The district court deemed the NHL’s still-pending motion
to dismiss to be directed at the Boogaards’ first amended
complaint, and the court ordered the NHL to file a supple-
mental 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 court-appointed
trustee under Minnesota law, and the Boogaards were not
court-appointed trustees. 2 And since the time during which
2 Minnesota law has a special statutory regime for appointing a trus-
tee to prosecute wrongful-death and survival actions on behalf of the
6 No. 17-2355
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 Illi-
nois, 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 un-
der Minnesota and Illinois wrongful-death and survival
laws—that the Boogaards said were not preempted. The
NHL disputed that contention, but the district court con-
cluded 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 via-
ble, non-preempted claim … that the NHL actively and un-
reasonably 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
decedent’s living spouse and next of kin. Being appointed as such a trus-
tee is different from being appointed personal representative of the de-
cedent 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 of a wrongful-death trustee is an ex-
ercise of the principle that “those entitled to recovery as a result of the
wrongful death shall be represented by the trustee without compro-
mise”). 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.
No. 17-2355 7
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 trus-
tee 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 require-
ment. 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 determin-
ing a party’s capacity to sue, required the court to apply Illi-
nois law regarding who can bring a wrongful-death or sur-
vival 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 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.
3 They also responded to the NHL’s contention that the First
Amendment protected it from the Boogaards’ claim that the NHL pro-
moted violence. The parties’ arguments on that issue are not relevant to
this appeal.
8 No. 17-2355
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 observa-
tion 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 juris-
diction, 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.
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 jurisdic-
tional issue right.
4 Diversity jurisdiction does not exist, because the parties cannot sat-
isfy the complete diversity of citizenship requirement.
No. 17-2355 9
The district court did get it right. The doctrine of com-
plete 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
collective-bargaining agreement,” then § 301 governs those
claims. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (ci-
tation omitted).
The Boogaards’ complaint makes plain that at least two
of their initial claims were based on a duty allegedly con-
tained 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 the procedures
it had agreed to use in administering the Program. For ex-
ample, 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 ac-
cordance 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 obli-
10 No. 17-2355
gations and violations of the Program, leading unavoidably
to the conclusion that the Boogaards’ claims rely on applying
and interpreting the substance abuse agreement, which dic-
tated 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 inte-
gration clause stating that this agreement “and any existing
letter agreements between the parties that are not incon-
sistent 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 han-
dle 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.
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 juris-
diction 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 supple-
mental 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
No. 17-2355 11
III … L.”). The Boogaards’ late-coming jurisdictional chal-
lenge 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 dis-
trict court dismissed the case—it held in the alternative that
the Boogaards had forfeited their claims by failing to re-
spond 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 chal-
lenge 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
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.
12 No. 17-2355
The Boogaards’ second argument is not much better.
They do not—and cannot—deny 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.J. 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 amend-
ed complaint adding the new claims. They insist that they
were thus justified in believing that the NHL was simply re-
gurgitating an argument that it had already lost.
The record belies that contention. The district court en-
tered summary judgment on the Boogaards’ first amended
complaint solely on preemption grounds. When the NHL
opposed the Boogaards’ request to file a second amended
complaint, it insisted that amendment would be futile be-
cause 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 NHL moved to dismiss on
grounds the Boogaards claim to believe were impliedly fore-
closed, the prudent course was to clarify matters with the
district court or respond to those arguments anyway. By re-
maining 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 forfei-
ture, and amending the underlying complaint does not cure
their forfeiture. Furthermore, the Boogaards have not ex-
plained 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.