In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1029
M ELVIN K IMBRELL,
Plaintiff-Appellant,
v.
K ARY B ROWN and K OETTER W OODWORKING, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-511-JPG—J. Phil Gilbert, Judge.
A RGUED N OVEMBER 5, 2010—D ECIDED JULY 11, 2011
Before E VANS, S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. Melvin Kimbrell, a citizen of
Illinois, brought personal-injury claims against Kary
Brown and Brown’s employer, Koetter Woodworking,
Inc., citizens of Indiana. After Brown notified the
district court that he had filed for Chapter 13 bank-
ruptcy, the district court stayed the case as to Brown, as
required by the Bankruptcy Code. The district court
then dismissed Kimbrell’s claims against Koetter Wood-
2 No. 10-1029
working with prejudice, finding that Kimbrell failed to
exercise reasonable diligence in serving process under
Illinois Supreme Court Rule 103(b).
Kimbrell appealed the district court’s dismissal of his
claims against Koetter Woodworking. We dismiss the
appeal for lack of jurisdiction. The dismissal of Kimbrell’s
claims against Koetter Woodworking was not a final
judgment because Kimbrell continues to seek adjudica-
tion of his claims against Brown.
I. Background
In October 2006 on a road in St. Clair County, Illinois, a
tractor-trailer that Kary Brown was driving for Koetter
Woodworking collided with a car in which Melvin
Kimbrell was a passenger, causing physical injuries to
Kimbrell. In October 2008, shortly before the two-year
statute of limitations was to expire, see 735 ILL. C OMP.
S TAT. 5/13-202 (2011), Kimbrell filed personal-injury
claims in Illinois state court against Brown and Koetter
Woodworking. Kimbrell did not serve process on the
defendants until eight months later in June 2009. The
defendants removed the case to the Southern District of
Illinois based on diversity jurisdiction. Brown then in-
formed the district court that he had filed for Chapter 13
bankruptcy in February 2008. The district court stayed
the case as to Brown pursuant to 11 U.S.C. § 362(a)(1),
the provision of the Bankruptcy Code that mandates a
stay of any proceeding against a bankruptcy petitioner
for claims arising out of prepetition events. Koetter
Woodworking, on the other hand, moved to dismiss
No. 10-1029 3
Kimbrell’s complaint for failure to exercise reasonable
diligence in serving process under Illinois Supreme
Court Rule 103(b). The district court noted that Illinois
law “does not carry bright lines or finite deadlines” for
serving process after filing a complaint. Kimbrell v.
Brown, No. 09-cv-511-JPG, 2009 U.S. Dist. LEXIS 118901,
at *11 (S.D. Ill. Dec. 17, 2009). Instead, it calls for plain-
tiffs to “exercise reasonable diligence” in serving process,
as measured by “the totality of the circumstances.” ILL.
S. C T. R. 103(b). After weighing the relevant circum-
stances, which we need not detail here, the district court
granted the motion to dismiss. The district court never
entered any judgment, however; the docket simply
shows the case as “terminated” with respect to Koetter
Woodworking, and no such entry appears for Brown.
Kimbrell appealed the district court’s dismissal of his
claims against Koetter Woodworking. We noted prelimi-
narily that the district court’s order of dismissal might
not be a final appealable judgment and asked the
parties to file memoranda on appellate jurisdiction.
The parties did so, and we permitted the appeal to
proceed but ordered the parties to more fully address
appellate jurisdiction in their merits briefs.
II. Discussion
Kimbrell contends that we have jurisdiction over his
appeal because the district court’s dismissal of his
claims as to Koetter Woodworking was an appealable
final judgment under 28 U.S.C. § 1291. The final-judgment
rule holds that a decision is final where it “ends the
4 No. 10-1029
litigation on the merits and leaves nothing more for the
court to do but execute the judgment.” Wingerter v.
Chester Quarry Co., 185 F.3d 657, 661 (7th Cir. 1998) (quota-
tion marks omitted). In other words, “[s]o long as the
matter remains open, unfinished or inconclusive” in the
district court, “there may be no intrusion by appeal.” Id.
The purpose of § 1291 and the final-judgment rule “is
to combine in one review all stages of the proceeding
that effectively may be reviewed and corrected if and
when final judgment results.” Id. at 662.
This case raises the question whether a district court’s
dismissal of claims against one defendant constitutes
a final judgment when in the same case, the plaintiff’s
claims against another defendant were automatically
stayed under 11 U.S.C. § 362(a)(1). Under this provision
of the Bankruptcy Code, a petition for bankruptcy
operates as a stay, applicable to all entities, of the
commencement or continuation . . . of a judicial,
administrative, or other action or proceeding against
the debtor that was or could have been commenced
before the commencement of the case under this title,
or to recover a claim against the debtor that arose
before the commencement of the case under this title.
Id. The automatic stay “is designed to protect debtors
from all collection efforts while they attempt to regain
their financial footing.” In re Schwartz, 954 F.2d 569, 571
(9th Cir. 1992); see also Easley v. Pettibone Mich. Corp., 990
F.2d 905, 910 (6th Cir. 1993). By halting litigation
against the debtor, the stay “gives the debtor a breathing
spell from his creditors. It stops all collection efforts, all
No. 10-1029 5
harassment, and all foreclosure actions. It permits the
debtor to attempt a repayment or reorganization plan, or
simply to be relieved of the financial pressures that drove
him into bankruptcy.” H.R. R EP. N O . 95-595, at 340 (1978),
reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97.
Kimbrell maintains that his lawsuit against Brown
was void ab initio because it was filed during the
pendency of Brown’s bankruptcy petition in violation of
the automatic-stay provision. Therefore, his argument
goes, the only “true” defendant in the case was Koetter
Woodworking, so the district court’s order dismissing
the claims against that defendant disposed of all claims
against all “true” parties and is therefore a final appealable
judgment.
Kimbrell may or may not be correct that his lawsuit
against Brown was void ab initio. We have recognized
that there is a “debate among the circuits over whether
[actions filed in violation of the automatic stay] are void
or merely voidable.” Middle Tenn. News. Co., Inc. v.
Charnel of Cincinnati, Inc., 250 F.3d 1077, 1082 n.6 (7th Cir.
2001). We have had “no occasion to . . . forage into the
debate,” id., and this case doesn’t present an opportunity
to do so. Even assuming that Kimbrell’s suit as to
Brown was “void ab initio” in the sense that other
courts have used this term to describe actions filed in
violation of the automatic stay, the Bankruptcy Code
allows for later adjudication of such suits, which pre-
cludes finality under the circumstances presented here.
The Code gives the bankruptcy court broad authority
to grant relief from the automatic stay “such as by termi-
6 No. 10-1029
nating, annulling, modifying, or conditioning” the stay
in various enumerated circumstances. 11 U.S.C. § 362(d).
As an example of the operation of this rule, in Sikes v.
Global Marine, Inc., 881 F.2d 176, 177 (5th Cir. 1989), the
plaintiffs, like Kimbrell here, filed a complaint against a
defendant that had, unbeknownst to them, filed for
bankruptcy. Upon learning of the automatic stay, the
plaintiffs moved the bankruptcy court for relief, which
the bankruptcy court granted. Id. at 180. Therefore, the
claims were ordered to proceed to judgment in the
district court. Id. at 180-81; see also In re Schwartz, 954
F.2d 569, 572-73 (9th Cir. 1992) (recognizing that § 362(d)
“gives the bankruptcy court wide latitude in crafting
relief from the automatic stay”).
In addition, under 11 U.S.C. § 108(c), when a plaintiff
receives notice that a defendant’s automatic stay has
been terminated, he may pursue a claim against that
defendant within 30 days of receiving such notice, even
if the applicable statute of limitations expired during the
stay.1 See also Easley, 990 F.2d at 912. The automatic stay
1
Section 108(c) provides:
[I]f applicable nonbankruptcy law . . . fixes a period for
commencing or continuing a civil action in a court other
than a bankruptcy court on a claim against the
debtor . . . and such period has not expired before the
date of the filing of the petition, then such period does
not expire until the later of (1) the end of such period,
including any suspension of such period occurring on
or after the commencement of the case; or (2) 30 days after
(continued...)
No. 10-1029 7
also tolls the statute of limitations under Illinois law,
providing another basis for plaintiffs to press claims
that would otherwise become time-barred during the
stay. See 735 ILL. C OMP. S TAT. 5/13-216 (2011).
Kimbrell appears to have used the bankruptcy stay to
engage in procedural maneuvering in contravention of
the final-judgment rule. He has taken contradictory
positions here and in the district court about whether
his claim against Brown remains alive. At oral argument
we pressed Kimbrell’s counsel about the inconsistency
of his positions, and he was unable to offer any explana-
tion:
C OUNSEL: We are treating the suit against Mr. Brown
as having been void ab initio . . . .
T HE C OURT: Apparently, that’s not been communicated
to the district court. . . .
C OUNSEL: I don’t think the trial court has been advised
that the claim against Mr. Kary [Brown] is void
ab initio, . . . that there is no pending claim.
T HE C OURT: Don’t you think they might want to
know?
C OUNSEL: Probably. . . .
1
(...continued)
notice of the termination or expiration of the stay
under section 362, 922, 1201, or 1301 of this title [11 U.S.C.
§§ 362, 922, 1201 or 1301], as the case may be, with respect
to such claim.
8 No. 10-1029
T HE C OURT: You haven’t communicated this idea
that the lawsuit is void?
C OUNSEL: I’ve raised various issues with trial
[co]counsel, but there has been no communication
with the district court advising them of this.
T HE C OURT: Well, what are we to make of that? Because
apparently . . . your cocounsel is keeping the case
alive, and you’re telling us it’s void. I don’t think you
can have it both ways.
C OUNSEL: I think that’s a fair assessment, Your
Honor. . . . I don’t have a response other than
it has not been communicated.
Our own research has since revealed that, in fact,
Brown’s bankruptcy stay was lifted several weeks
before the oral argument in this court,2 and Kimbrell
filed a new complaint against Brown in Illinois state
court just two days before the argument. This second
case was removed to the Southern District of Illinois
2
To be precise, there were actually two bankruptcy stays,
the second of which was lifted several weeks before the Novem-
ber 5, 2010 oral argument in this court. The bankruptcy
court lifted Brown’s first stay on or about June 10, 2010, and
dismissed his bankruptcy petition on August 19. Four days
later, Brown filed a second bankruptcy petition, which
invoked another stay. Kimbrell filed a motion for relief from
that stay. The bankruptcy court granted it and lifted the stay
on October 19. See Kimbrell v. Brown, No. 10-cv-1018-WDS,
2011 U.S. Dist. LEXIS 51830, at *3 (S.D. Ill. May 16, 2011).
No. 10-1029 9
and assigned to Judge Stiehl. See Kimbrell v. Brown, No. 10-
cv-1018-WDS (S.D. Ill. filed Dec. 15, 2010). Kimbrell
made no mention of the second suit to this court, nor
did he promptly apprise Judge Gilbert, to whom the first
case was assigned and before whom Kimbrell’s initial
claim against Brown remained, although in stayed
status. It was not until January 2011 that Kimbrell in-
formed Judge Gilbert that Brown’s bankruptcy stay had
been lifted and that he had filed the second suit against
Brown because he believed the first suit was void ab initio.
Kimbrell v. Brown, No. 09-cv-511-JPG, 2011 U.S. Dist. LEXIS
2000, at *1 (S.D. Ill. Jan. 10, 2011). Judge Gilbert held that
he lacked “jurisdiction to act . . . until the Seventh
Circuit Court of Appeals decides the ongoing appeal.” Id.
at *2. Kimbrell continued to press his claims in the
second suit, and last month, Judge Stiehl issued a stay
pending Judge Gilbert’s resolution of the case in his
court. Kimbrell v. Brown, No. 10-cv-1018-WDS, 2011 U.S.
Dist. LEXIS 51830, at *7 (S.D. Ill. May 16, 2011).
This maneuvering brings to mind the equitable
principle of judicial estoppel, which precludes litigants
from “deliberately changing positions according to the
exigencies of the moment,” New Hampshire v. Maine, 532
U.S. 742, 749-50 (2001) (quotation marks omitted),
thereby “prevailing in one phase of a case on an argu-
ment and then relying on a contradictory argument to
prevail in another phase,” In re Airadigm Commc’ns, Inc.,
616 F.3d 642, 662 (7th Cir. 2010) (quotation marks omit-
ted). Strictly speaking, Kimbrell’s case does not meet the
requirements for invoking judicial estoppel. See Pakovich
v. Broadspire Servs., 535 F.3d 601, 606 (7th Cir. 2008)
10 No. 10-1029
(“[O]ne of the requirements for judicial estoppel to
apply is that the party to be estopped must have
prevailed upon the first court to adopt the position.”
(emphasis added) (quotation marks omitted)). Even so,
this kind of gamesmanship—arguing to this court that
the dismissal of his claims against Koetter Woodworking
should be treated as a final judgment while continuing
to pursue his claims against Brown in the district
court—confirms why we cannot adjudicate this appeal
on the merits. When a case is pending in both the
district court and this court at the same time, posing
jurisdictional issues, we expect counsel on appeal and
in the district court to communicate with each other
and with the respective courts about material develop-
ments. It simply is not acceptable for appellate counsel
to remain ignorant—or to claim ignorance—of his
client’s activities in the district court and state courts.
In Arrow Gear Co. v. Downers Grove Sanitary District,
629 F.3d 633, 636-37 (7th Cir. 2010), we confronted an
appeal in an analogous procedural posture and ex-
plained why it was problematic. The plaintiff, Arrow
Gear, sued multiple defendants. As to all but two of the
defendants, the district court dismissed Arrow’s claims
as barred by res judicata. Id. at 636. With respect to those
two remaining defendants, Arrow took a voluntary
dismissal without prejudice and then attempted to
appeal the district court’s dismissal as to the other defen-
dants. Id. Arrow’s voluntary dismissal of the two defen-
dants left open the possibility for Arrow to later refile
its claims against them. We observed that “if after the
decision of this appeal the plaintiff filed new claims
against the dropped defendants, . . . it would be as if
No. 10-1029 11
interlocutory appeals were freely permissible.” Id. That
is, “Arrow’s maneuver, if allowed, would prevent the
entirety of the contested issues, involving all the
parties, from being resolved in a single appeal; it would
exemplify piecemeal appealing, which is disfavored in
the federal court system.” Id. We said Arrow had to
make a choice: either “stand [its] ground and [this
court would] dismiss the appeal,” or else “convert [its]
dismissal of the other two defendants to dismissal with
prejudice, which will bar . . . refiling [of] claims against
them.” Id. at 637. During oral argument, Arrow agreed
to the latter option, “committing not to refile the suit
against” the two defendants it had voluntarily dismissed.
Id. Here, in contrast, Kimbrell is obviously unwilling
to make a similar commitment.
The bottom line is that Kimbrell’s case remains “open,”
“unfinished,” and “inconclusive” in the district court,
so there was no final judgment. Wingerter, 185 F.3d at
661. He has tried to “start over” with his claims
against Brown and could later return to us with another
appeal after the resolution of those claims. See Arrow
Gear, 629 F.3d at 636-37. The final-judgment rule
requires “combin[ing] in one review all stages of [a]
proceeding.” Wingerter, 185 F.3d at 662.
We note that in Robison v. Canterbury Village, Inc., 848
F.2d 424 (3d Cir. 1988), a similar case involving two
defendants, one of whom filed for bankruptcy, the
district court issued a certification under Rule 54(b) of
the Federal Rules of Civil Procedure that its dismissal
of the claims against the noninsolvent defendant consti-
tuted a final judgment despite the pending stay against
12 No. 10-1029
the insolvent defendant.3 This enabled the plaintiff to
appeal the dismissal as to the noninsolvent defendant.
Id. at 426-27; see also Arrow Gear, 629 F.3d at 636 (“Arrow
could have asked the judge to enter a final judgment
under Rule 54(b) . . . , which permits a district judge,
upon finding no ‘just reason’ to delay an appeal, to enter
a final judgment—which is then appealable under
section 1291—with respect to one or more, but fewer
than all, claims or parties. But the judge was not asked
to enter a Rule 54(b) judgment and did not.”). Kimbrell
made no attempt to obtain a Rule 54(b) certification
from Judge Gilbert in this case.
3
Rule 54(b) provides:
Judgment on Multiple Claims or Involving Multiple
Parties. When an action presents more than one claim
for relief . . . or when multiple parties are involved, the
court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties and
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights
and liabilities.
No. 10-1029 13
For the foregoing reasons, we D ISMISS Kimbrell’s
appeal for lack of jurisdiction.
7-11-11