Frederiksen, Michell v. Caneva, Ron

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 03-2678
MICHELLE FREDERIKSEN, JEFF TALANO,
and ANTHONY J. TALANO,
Plaintiffs-Appellants,
v.

CITY OF LOCKPORT, et al.,
Defendants-Appellees.

____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 C 7656—Suzanne B. Conlon, Judge.
____________
SUBMITTED AUGUST 31, 2004—DECIDED SEPTEMBER 16, 2004
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Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
EASTERBROOK, Circuit Judge. A state court authorized
the demolition of plaintiffs’ building in Lockport, Illinois.
Lockport v. Talano, 318 Ill. App. 3d 1241, 789 N.E.2d 944
(3d Dist. 2000) (unpublished). The ex-owners have filed
eight federal suits under 42 U.S.C. §1983 contesting the
condemnation and associated steps, such as inspections. We
held in the first of these suits that federal courts lack
jurisdiction, because only the Supreme Court of the United
States may review decisions of state courts in civil litiga-
2 No. 03-2678

tion. See Talano v. Lockport, No. 00-1697 (7th Cir. Apr. 26,
2001) (unpublished order relying on Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983)). That did not stop
the ex-owners. Surprisingly, none of the more recent seven
suits has ended in sanctions for vexatious litigation.
Perhaps that is because the federal defendants have taken
to ignoring them and thus incur few costs; in this appeal
only one of the many defendants bothered to file a brief.
The district judge permitted the ex-owners to file a total
of four complaints. The first three were dismissed, without
prejudice, as unintelligible. Each time, the judge drew the
plaintiffs’ attention to Fed. R. Civ. P. 10(b), which requires
allegations to be separated into numbered paragraphs, and
distinct claims to be separated into counts. The judge in-
formed plaintiffs that the plenitude of defendants must be
identified and claims against each related separately. Con-
cluding that the fourth try was little better than the first—
the fourth complaint put numbers in front of some para-
graphs, but most of them are absurdly long and cover multiple
parties and grievances—the district judge finally threw up
her hands and told the plaintiffs that they would have no
more opportunities to satisfy Rule 10(b). The judge also
invoked the Rooker-Feldman doctrine, believing that she
could decipher enough of the complaint to tell that the court
lacked jurisdiction. Instead of dismissing for lack of jurisdic-
tion, however, the court entered this judgment: “IT IS
HEREBY ORDERED AND ADJUDGED that this action is
dismissed with prejudice.”
Plaintiffs’ appellate brief reveals that this is frivolous and
vexatious litigation. Legal disputes must be resolved in a
single proceeding. Nine suits—one in state court, eight in
federal court—is eight too many. We will issue an order under
Rule 38 directing them to show cause why they should not
be sanctioned. See Homola v. McNamara, 59 F.3d 647 (7th
Cir. 1995). Cf. Support Systems International, Inc. v. Mack,
No. 03-2678 3

45 F.3d 185 (7th Cir. 1995). The reason why we are issuing
a published opinion, however, is to clean up an inconsis-
tency in the district court’s handling of the suit, and in our
own precedents.
The Rooker-Feldman doctrine is a rule of federal jurisdic-
tion. A suit dismissed for lack of jurisdiction cannot also be
dismissed “with prejudice”; that’s a disposition on the
merits, which only a court with jurisdiction may render. See
Johnson v. Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004).
“No jurisdiction” and “with prejudice” are mutually exclu-
sive. When the Rooker-Feldman doctrine applies, there is only
one proper disposition: dismissal for lack of federal jurisdic-
tion. A jurisdictional disposition is conclusive on the ju-
risdictional question: the plaintiff cannot re-file in federal
court. But it is without prejudice on the merits, which are
open to review in state court to the extent the state’s law of
preclusion permits. See T.W. v. Brophy, 124 F.3d 893, 898
(7th Cir. 1997).
Most decisions applying the Rooker-Feldman doctrine in
this circuit have ended with the proper judgment (or a
remand to dismiss on jurisdictional grounds). Some of our
decisions, however, have affirmed dismissals “without pre-
judice,” which misleadingly implies that the plaintiff may
pursue the same claim again in federal court, or “with pre-
judice,” which implies that even a state court is powerless
to act. See, e.g., Taylor v. Federal National Mortgage Co.,
374 F.3d 529 (7th Cir. 2004) (dismissal with prejudice). The
panel in Taylor recognized that dismissal with prejudice
was a mistake yet did not remand for entry of a proper
jurisdictional dismissal. (Several unpublished orders have
done the same without noting the problem at all.) And T.W.,
which carefully distinguished between jurisdictional and
merits dismissals, contains a little language suggesting that
the district court should dismiss “without prejudice.” Quite
a few unpublished orders have followed the “without
prejudice” language of T.W. without recognizing that the
4 No. 03-2678

opinion used the phrase “without prejudice” only to drive
home the point that a jurisdictional dismissal in federal
court does not block litigation in a different judicial system
that does have jurisdiction.
Because different panels have announced or followed dif-
ferent approaches to Rooker-Feldman dismissals, we have
circulated this opinion to all active judges under Circuit
Rule 40(e). We now hold that the right disposition, when the
Rooker-Feldman doctrine applies, is an order under Fed. R.
Civ. P. 12(b)(1) dismissing the suit for lack of subject-
matter jurisdiction. No judge favored a hearing en banc on
this subject.
One final matter. The complaint, though largely gobbledy-
gook, does advert to a claim that is outside the scope of the
Rooker-Feldman doctrine. It maintains that in July 1999,
while mowing his lawn, Jeff Talano was arrested without
probable cause. This is distinct from the condemnation, just
as a wrongful arrest may be distinct from a criminal conviction
for purposes of the rule in Heck v. Humphrey, 512 U.S. 477
(1994). Compare Gonzalez v. Entress, 133 F.3d 551 (7th Cir.
1998), with Okoro v. Callaghan, 324 F.3d 488 (7th Cir.
2003). On this subject, however, the district court was
within its discretion to dismiss with prejudice when, after
four opportunities spread over more than two years,
plaintiffs still had not complied with Rule 10(b). Cf. United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374
(7th Cir. 2003). The district judge saw this as defiance of
her orders as well as nonconformity to the rule; given
plaintiffs’ track record, it is impossible to quarrel with that
appreciation.
The judgment is affirmed to the extent that it dismisses
Jeff Talano’s wrongful-arrest claim with prejudice. It is
otherwise vacated, and the case is remanded with instruc-
tions to dismiss for lack of subject-matter jurisdiction.
Plaintiffs have 14 days to show cause why sanctions should
not be imposed for pursuing a frivolous appeal.
No. 03-2678 5

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—9-16-04