NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 30, 2011*
Decided December 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐2528
SHAHIN EDALATDJU and NASILA Appeal from the United States District
EDALATDJU, Court for the Northern District of Illinois,
Plaintiffs‐Appellees, Eastern Division.
v. No. 09 C 8017
BEN LAZER, Elaine E. Bucklo,
Defendant‐Appellant. Judge.
O R D E R
Ben Lazer, a real‐estate appraiser being sued for performing his job negligently,
appeals from an order denying his motion to file a third‐party claim for contribution against
the plaintiffs’ real‐estate broker, see FED. R. CIV. P. 14(a)(1). Because we lack jurisdiction to
review the district court’s ruling on Lazer’s motion while the underlying claim is pending,
we dismiss the appeal.
*
Appellant has told us he believes oral argument is unnecessary, see FED. R. APP. P.
34(a)(1); CIR. R. 34(f), and, after examining the briefs and the record, we agree. Thus, the
appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 11‐2528 Page 2
In 2009 Lazer was sued by Shahin and Nasila Edalatdju, who contended that his
negligent appraisal led them to buy four Chicago condominiums that all lost value. The
Edalatdjus also sued Guaranteed Rate, Inc., the lender for the mortgages on the condos.
After several delays, Lazer’s attorneys deposed Shahin Edalatdju in May 2011. That
deposition revealed, according to Lazer, that the Edalatdjus’ broker, Richard Cohen,
contributed to the Edalatdjus’ losses by, among other things, failing to review Lazer’s
appraisals or the contracts for purchase of the condos.
Less than two weeks after Shahin’s deposition, Lazer moved to file a third‐party
complaint against Cohen and attached to his motion a proposed complaint. The district
court denied the motion as untimely, reasoning that Lazer should have known earlier of a
potential claim against Cohen. Lazer filed a motion for reconsideration, arguing that the
court had not considered his reasons for delay; the court denied that motion as well. Lazer
then asked the court to direct entry of a final judgment on the order denying leave to file a
third‐party complaint, see FED. R. CIV. P. 54(b), so he could appeal immediately while the
underlying claim was still under consideration. The judge did so after determining that
there was “no just reason for delay.”
On appeal Lazer contends that the district judge abused her discretion in denying his
motion for leave to file a third‐party complaint against Cohen by failing, among other
things, to consider the prejudice he might suffer from not being allowed to pursue his
contribution claim. The Edalatdjus do not oppose the basis of Lazer’s appeal and in fact
agree that litigating the contribution claim in the same proceeding as the primary claim
would be more efficient than forcing Lazer to file a separate action.
Before proceeding to the merits of the appeal, however, we must assure ourselves
that appellate jurisdiction exists. See Gen. Ins. Co. of Am. v. Clark Mall Corp.,
644 F.3d 375, 378
(7th Cir. 2011). We have jurisdiction over “all final decisions of the district courts of the
United States,” see
28 U.S.C. § 1291, but orders, like the one here, that resolve fewer than all
the claims in a case generally are not considered “final.” See Gen. Ins. Co. of Am.,
644 F.3d at
379; Helcher v. Dearborn County,
595 F.3d 710, 717 (7th Cir. 2010).
Lazer identifies three exceptions. First, he points to Federal Rule of Civil Procedure
54(b), which allows a district court to direct entry of a final judgment on one or more claims
in a multiple‐claim case, making the orders as to those claims immediately appealable.
See Eberts v. Goderstad,
569 F.3d 757, 760 (7th Cir. 2009); Payton v. County of Carroll,
473 F.3d
845, 847 (7th Cir. 2007). Lazer contends that the district judge properly directed entry of a
final judgment under Rule 54(b) because all issues relating to the contribution claim were
resolved when she ruled he could not file his third‐party complaint. But Rule 54(b) is not an
appropriate vehicle to appeal a district court’s decision on a claim for contribution while the
No. 11‐2528 Page 3
underlying claim remains pending in the district court. See Factory Mut. Ins. Co. v. Bobst Grp.
USA, Inc.,
392 F.3d 922, 924 (7th Cir. 2004). That is because a contribution claim necessarily
depends in part on the underlying claim; any decision we make regarding Cohen’s potential
liability to Lazer will be moot if Lazer has no liability to the Edalatdjus. See id.; Interstate
Power Co. v. Kansas City Power & Light Co.,
992 F.2d 804, 807–08 (8th Cir. 1993);
Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc.,
807 F.2d 1279, 1284 (6th Cir. 1986);
10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE § 2659 (3d ed. 1998).
Lazer’s second exception is the collateral‐order doctrine, which allows for appeals of
otherwise nonfinal orders that resolve important issues separate from the merits of the
underlying action—issues that will be effectively unreviewable on appeal from a final
judgment. See Mohawk Indus., Inc v. Carpenter,
130 S. Ct. 599, 605 (2009); SEC v. Wealth Mgmt.
LLC,
628 F.3d 323, 330 (7th Cir. 2010). Ordinarily the denial of a motion to implead a third‐
party defendant would not meet this standard because we can review the district judge’s
decision after the underlying claim is decided, see, e.g., Marseilles Hydro Power, LLC v.
Marseilles Land & Water Co.,
299 F.3d 643, 650 (7th Cir. 2002). But Lazer argues that this case
is different because, he contends, his action against Cohen will be time‐barred if we wait
until there is a final judgment on the underlying claim to address the issues raised in this
appeal. He asserts that the deadline for him to file his complaint against Cohen is December
28, 2011, two years from the date he was served with a waiver of service in the underlying
case, see 735 ILCS 5/13‐204(b). What’s more, Lazer notes, if he fails to bring his claim as part
of this case, he will be barred from doing so as part of a separate action. See Harshman v.
DePhillips,
844 N.E.2d 941, 948–49 (Ill. 2006); Laue v. Leifheit,
473 N.E.2d 939, 941–42 (Ill.
1984).
But Lazer’s concern over the statute of limitations is misguided. For one thing, if he
reasonably could not have known of his claim against Cohen until after Shahin’s deposition,
he would have two years from the date of the deposition—or until May 24, 2013—to file his
complaint against Cohen. See 735 ILCS 5/13‐204(b); Brdar v. Cottrell, Inc.,
867 N.E.2d 1085,
1100–01 (Ill. App. Ct. 2007). But more importantly, for purposes of the statute of limitations,
Lazer’s complaint against Cohen was filed when he sought leave to file it and submitted a
proposed complaint; any delay attributable solely to the district court’s rulings will not
affect his complaint’s timeliness. See Schillinger v. Union Pac. R.R. Co.,
425 F.3d 330, 334 (7th
Cir. 2005) (applying Illinois law); Hurst v. Bd. of Fire & Police Comm’n,
952 N.E.2d 1246,
1249–50 (Ill. App. Ct. 2011).
Lazer’s third and final exception is the practical‐finality doctrine, a “close cousin” of
the collateral‐order doctrine. Travis v. Sullivan,
985 F.2d 919, 922 (7th Cir. 1993). But like the
collateral‐order doctrine, the practical‐finality doctrine applies only to otherwise nonfinal
No. 11‐2528 Page 4
orders that address issues that would be effectively unreviewable if the case again reached
the appellate court, see Miami Tribe of Okla. v. United States,
656 F.3d 1129, 1140 (10th Cir.
2011); Travis,
985 F.2d at 922. For the reasons discussed above, that is not the case here.
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
