Onischuk, Dan v. Johnson Controls , 182 F. App'x 532 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2006*
Decided May 4, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 05-2049 & 05-3458
DANIEL ONISCHUK, Appeals from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 04-C-0786
JOHNSON CONTROLS INC., et al., Charles N. Clevert, Jr.,
Defendants-Appellees. Judge.
ORDER
Dan Onischuk brought suit under Title VII of the Civil Rights Act of 1964
claiming that Johnson Controls and several of its employees discriminated against
him because he is Canadian. The district court denied his application to proceed
in forma pauperis because he did not provide financial information about his wife.
The court also commented that it might not have subject-matter jurisdiction to
consider the merits of the case because Onischuk had waived his Title VII claim
under the terms of a settlement agreement and, the court reasoned, attempts to
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeals are submitted on the briefs and
the record. See Fed. R. App. P. 34(a)(2).
Nos. 05-2049 & 05-3458 Page 2
void a settlement are governed by state law. The court gave Onischuk 20 days to
amend his application to supply information about his wife’s finances, and when
Onischuk did not respond the court dismissed the complaint. Onischuk appealed
the dismissal and afterward filed six different postjudgment motions seeking to
explain and excuse his failure to respond to the court’s order. The court analyzed
all six motions under Federal Rule of Civil Procedure 60(b) and denied them in a
single order, reasoning that in his motions Onischuk conceded both that he received
the court’s order in time to respond and that his wife’s previously undisclosed
income disqualifies him for pauper status. Onischuk appealed this ruling as well,
and we have consolidated the two cases.
Although issues concerning the formation, construction, and enforcement of a
settlement agreement are governed by state law, Sims-Madison v. Inland
Paperboard and Packaging, Inc., 379 F.3d 445, 448 (7th Cir. 2004), the district
court was wrong to surmise that the validity of the prior settlement might affect its
jurisdiction; a release is an affirmative defense to a lawsuit, Fed. R. Civ. P. 8(c);
Deckard v. Gen. Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002), not a jurisdictional
infirmity. The court, though, did not purport to decide the jurisdictional question,
and so the only issues before us are the denial of pauper status and the refusal to
set aside that ruling. Onischuk’s challenges to these decisions are frivolous
because, as the district court noted, Onischuk conceded that he “would not qualify
for pauperis status” because his wife earns “over $2500 US per month, and she has
other assets.”
The judgments are AFFIRMED.