, Case No. 10-2013, the Seventh Circuit has decided that the conduct of appellants' counsel was so woeful that it reprimanded him, fined him $5,000.00, and ordered that he send his clients copies of the opinion "so that they may consider whether to file malpractice suits against him." This case offers lessons in procedure that litigators should remember, even if their practice does not normally take them before the Seventh Circuit.
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The plaintiffs in
Lee were three employees of the Cook Country prison system. The EEOC issued right-to-sue letters to these employees in March 2008, and recipients have 90 days to commence litigation. The three employees and nine of their co-workers, brought a discrimination case against Cook County. The district court thought that the 12 plaintiffs' contentions were too disparate to justify joint litigation. In September 2008, dismissed the complaint without prejudice and told the plaintiffs that they had 40 days to file individual suits. Their individual cases were not refiled until May 2009 and the relevant district courts dismissed them as barred by the statute of limitations.
On appeal, the Court stated that the original district court erred when it dismissed the 12-person complaint.
There was nothing wrong with the original complaint. Multiple plaintiffs are free to join their claims in a single suit when "
any question of law or fact common to all plaintiffs will arise in the action."
Fed. R. Civ. P. 20(a)(1)(B) (emphasis added). The common question need not predominate; that's a requirement for class actions, not for permissive joinder. Whether the Cook County prison system discriminates against black employees when making promotions is a question common to all plaintiffs' claims.
While an order dismissing a case without prejudice is usually not appealable, it was in this instance. It was now too late to address that original error.
When a federal civil action is dismissed without prejudice, the statute of limitations runs continuously. ... Thus on the very date that Judge Castillo dismissed the original suit, nominally without prejudice, it was already too late for plaintiffs to file individual suits.
They should have appealed immediately. Although a dismissal without prejudice nominally is not final, and thus can't be appealed, when the decision effectively precludes re-filing — as it did here — it is treated as final and appealable. An appeal would have produced a remand with instructions to reinstate the suit in compliance with Rules 20(b) and 21. But [plaintiffs' counsel] did not appeal, the time to do so has long passed, and the fact that an un-appealed order dismissing a suit may have been erroneous does not extend the time to file a replacement suit.
The plaintiffs argued that the district court's order dismissing the case extended the statute of limitations by granting extra time to file replacement actions. The Court stated that district courts do not have that authority and rejected other, similar arguments. It then began seriously criticizing the plaintiffs' counsel.
Greco's calamitous handling of this litigation in the district court has been followed by a sloppy performance in this court. As we've mentioned, Greco has never related why he did not appeal in September 2008 or file new suits by the end of October 2008. And his performance has been marked by procedural gaffes, three of which led to orders to show cause why the appeal should not be dismissed — and one of which led to his clients' brief being struck.
...
Greco's response to this last show-cause order, the fourth in a single appeal, is consistent with his performance throughout the litigation. ... Greco labels his deficient compliance an "oversight" but does not explain why the error was made. We do not penalize lawyers who rely on plausible misreadings of ambiguous rules, but Greco does not contend that
Rule 31(e) is ambiguous or offer any explanation for his failure to do what it commands.
The events recounted in this opinion show that Greco is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how Greco has treated Lee, Washington, and Moore. Greco has not asked for a hearing on the disciplinary order to show cause, and we now conclude that he has comported himself unprofessionally. We reprimand Greco for this unprofessional behavior and fine him $5,000, payable to the Clerk within 14 days. Greco must send Lee, Washington, and Moore copies of this opinion so that they may consider whether to file malpractice suits against him.
The two biggest takeaway from this case are (1) to remember that dismissals without prejudice are still immediately appealable if the dismissal effectively prevents refiling, and (2) judges cannot extend statutes of limitations. However, this case should also remind practitioners to read and follow the local rules of any court in which you are practicing, particularly when you don't normally practice in that court. The Court may not be willing to cut you much slack, if you can attribute your failure to follow its rules to nothing more than an "oversight".
