27 F.3d 569
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Carl GULLEY, Plaintiff-Appellant,
v.
STATE of WISCONSIN, Wisconsin Department of Health and
Social Services, Gary J. Maier and Laurence C.
Gram, Jr., Defendants-Appellees.
No. 92-2996.
United States Court of Appeals, Seventh Circuit.
March 4, 1994.
Before BAUER, CUDAHY and KANNE, Circuit Judges.
ORDER
This case comes before us on a petition for rehearing filed by the defendants pursuant to Federal Rule of Appellate Procedure 40(a). On appeal, the defendants argued that summary judgment in favor of the Wisconsin Department of Health and Social Services (Department) be affirmed, and we declined. The defendants now petition for rehearing on the ground that summary judgment was never entered in favor of the Department, the Department having been dismissed from this suit pursuant to Fed.R.Civ.P. 12(b)(6) by the district court's order of July 16, 1992. See Gulley v. State of Wisconsin, No. 92 C 160 (W.D.Wis. July 16, 1992). We agree.
"An appeal from a final judgment brings up for review by the appellate court all orders (except those that have become moot) rendered by the trial court previously in the litigation." In re Grabill Corp., 983 F.2d 773, 775 (7th Cir.1993) (citing United States v. Clark, 445 U.S. 23, 25-26 n. 2 (1980)). We therefore consider whether Gulley's state law claim against the Department was properly dismissed under Rule 12(b)(6). Our review of the record and controlling law leads us to conclude that the supplemental jurisdiction of the district court was properly invoked, the Department was a proper defendant in this case, and Gulley's complaint states an arguable claim for relief against the Department under Wis.Stat. Sec. 51.61 and Wis.Admin.Code Secs. HSS 94.01-94.29. See, e.g., State ex rel. v. Jones v. Gerhardstein, 141 Wis. 2d 710, 416 N.W.2d 883 (Wis.1987); State ex rel Watts v. Combined Community Services Bd., 122 Wis. 2d 65, 362 N.W.2d 104 (Wis.1985). We therefore REVERSE the dismissal of Gulley's pendent state claim against the Department.
The disposition of this case remains the same in all other respects. Thus, summary judgment in favor of Judge Gram is AFFIRMED, and summary judgment in favor of the State of Wisconsin and Dr. Gary J. Maier is VACATED for the reasons stated in this court's order of October 25, 1993. This case is remanded for further proceedings consistent with this order.