Seventh Circuit Busts Plaintiffs for “Judge Shopping,” Vacates and Remands Second Case to Be Reassigned to the Original Judge

In Ewing v. Carrier, No. 21-2890 (7th Cir. May 25, 2022), the Seventh Circuit skips a decision on the merits of a fraud and breach or contract case, finding that it was related to a pending case and should not have been filed as a new matter in front of a second judge. It vacates and remand the case with a mandate that it be reassigned to the first judge.

Plaintiffs “sued 1645 W. Farragut, LLC, for fraud and breach of contract. After District Judge Coleman denied a motion to add Erik Carrier (one of the LLC’s members) and D’Aprile Properties (Carrier’s employer) as additional defendants, a jury returned a verdict of $905,000 in plaintiffs’ favor.” That case was pending on post-trial motions at the time this opinion issued.

“Instead of waiting for a final decision and taking an appeal to argue that Judge Coleman should have allowed them to add Carrier and D’Aprile, plaintiffs filed a second suit, this time against Carrier and D’Aprile. The second suit, which presents the same substantive claims as the first, was assigned [a second district court judge]. He dismissed it as barred by the doctrine of claim preclusion, even though the first suit is ongoing.”

“Plaintiffs ask us to reverse that decision and hold that they can indeed sue a single entity twice, one name per suit. We do not reach that argument, because there is an antecedent problem. Plaintiffs are engaged in judge-shopping. They do not like [the first judge]’s decision to limit the first suit to the claims against the LLC, and they have sought the view of a second district judge. [The second judge] should not have obliged.”

The Seventh Circuit criticizes the parties’ decision not to follow the local procedure. “Local Rule 40.4 in the Northern District of Illinois permits district judges to ask the court’s Executive Committee to consolidate related suits before a single judge. Rule 40.4(c) says that a motion to reassign ‘shall be filed in the lowest-numbered case of the claimed related set’. In this set of cases the motion should have been filed before [the original judge]. But the LLC did not have a reason to request transfer, and the plaintiffs, who were parties to both suits, did not want transfer. Their objective is to have two judges consider their claims, then take the more favorable of the two outcomes.”

The panel also faults the second judge for abiding by the parties’ wishes instead of transferring the case to the original judge. “The judiciary has an interest, independent of litigants’ goals, in avoiding messy, duplicative litigation.”

The panel finally sees complications awaiting if it decides the merits of this appeal. “Suppose we were to affirm [the second judge]’s decision. Plaintiffs would retain a second chance on appeal from the final decision entered [in the original case], where they would argue that [the first judge] should have allowed them to add Carrier and D’Aprile. Win or lose on that point, plaintiffs could try to collect from Carrier in the enforcement proceedings following the first suit, as the LLC apparently does not have the assets to pay the judgment. That could yield a third appeal . . . Things are simplified if both suits are before a single judge.”

In sum, “[p]laintiffs should not have filed this second suit; the new defendants should have asked for a transfer or a stay; the second judge should have acted even if the parties were content to duplicate the proceedings. All litigants and lawyers must avoid multiplying litigation.” (Indeed, the panel might not have known that the Northern District of Illinois civil cover sheet, filed with all new matters, requires the filer to affirmatively indicate with a check box whether a filing is a related case and if so to identify the related matter.)

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