Doe v. Howe Military School et al, 99-3057

• Citation: 227 F.3d 981
• Decision Date: 21 September 2000
• Docket Number: No. 99-3057,99-3057
• Parties: (7th Cir. 2000) Jane R. Doe and Jane C. Doe, Plaintiffs-Appellants, v. Howe Military School et al., Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 981

227 F.3d 981 (7th Cir. 2000)

Jane R. Doe and Jane C. Doe, Plaintiffs-Appellants, v. Howe Military School et al., Defendants-Appellees.

No. 99-3057

In the United States Court of Appeals For the Seventh Circuit

Argued February 10, 2000

Decided September 21, 2000

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 395-CV-0206RM & 395-CV-0717RM--Robert L. Miller, Jr., Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Coffey and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

The two Jane Does before us in this case claim that they suffered from a variety of forms of sexual harassment, abuse, and fraud when they attended Howe Military School, in Howe, Indiana, in the early 1990s. They relied on Title IX of the Educational Amendments of 1972, 20 U.S.C. sec.sec. 1681-88, and a variety of state law theories to support their claims. The district court dismissed all but Jane C. Doe's fraud claim on the ground that those claims were barred by the applicable statutes of limitations. With the grant of summary judgment for Howe on the remaining fraud claim, the proceedings in the district court were over, and the plaintiffs took this appeal. Finding no error in the court's rulings, we affirm.

I

In 1989 and 1990, Jane R. Doe and Jane C. Doe enrolled as students at Howe Military School. Howe is a military boarding school operated as a not-for-profit Indiana corporation. At the time of enrollment, Jane C. was 14 and Jane R. was 15. The two women allege that they suffered various forms of abuse during their time as students at Howe. Specifically, they allege that John R. Giles, a U.S. Army Sergeant who worked as a Military Instructor and Tactical Officer at the school, sexually abused them repeatedly. Giles would offer to cancel their demerits or to give them special privileges--like soda pop, candy and cigarettes--in return for sexual favors. Jane R. and Jane C. felt compelled to agree. In addition, they allege that Giles and other Howe employees made derogatory comments about them, implying they were immoral and unchaste; that the school's employees spoke poorly about female cadets in general; and that male cadets harassed and abused them.

Years later, Jane R. and Jane C. sued Howe Military School, Giles, Thomas Merritt (Superintendent of Howe), Lawrence E. Cowles (Commandant of Howe), and Timothy L. Cook (Tactical Officer at Howe), the latter three in both their individual and official capacities. Although their suits were separate, they filed identical seven-count complaints. Count I of each complaint alleged quid pro quo sexual harassment under Title IX; Count II alleged hostile environment discrimination under Title IX; Count III alleged negligence; Count IV alleged intentional harm; Count V alleged assault and battery; Count VI alleged invasion of privacy; Count VII alleged defamation. Jane C. also added a Count VIII to her complaint, alleging fraud. Both plaintiffs explained the timing of their legal action by noting that the suits were filed within a year of their becoming aware of their injuries. For Jane R., the date of that realization was April 1994; she filed suit the following March. Jane C. became aware of her injuries in April 1995 and filed suit in August of that year. On May 13, 1996, the district court consolidated the two cases, along with those of three other former Howe students.

The district court eventually dismissed Counts I - II (Title IX claims) and Counts III - VII (state law claims) on the grounds that the claims were time-barred. The court then granted summary judgment on Jane C.'s Count VIII (fraud). At that point, it entered a final judgment on the consolidated cases, the effect of which we now address.

II

Before we can reach the merits, we must first decide whether we have jurisdiction over Jane R.'s appeal. The answer depends on the degree to which these two cases were consolidated in the district court. If they merged entirely, then there was no appealable final judgment until the last claim of the last party was resolved. Moreover, if they merged entirely, then the filing of a timely motion under Fed. R. Civ. P. 59(e) by one party sufficed to toll the time for filing a notice of appeal for all parties. See Fed. R. App. P. 4(a)(4)(A)(iv). If, on the other hand, the two cases were still technically separate enough to require separate final judgments, then one person's filing of a Rule 59(e) motion would be of no help to the other, and Jane R.'s appeal would be untimely.

In order to sort all of this out, we need to examine the history of the cases and their consolidation. Jane C.'s case was originally assigned the case number 395-CV-717; Jane R.'s case had the number 395-CV-206. On May 13, 1996, the district court consolidated these two cases with three others, stating:

. . . the court CONSOLIDATES, for purposes of discovery and trial, the following cases

395- 206RM, 395-240RM, 395-453RM, 395-717RM, and 395-818RM. All filings in these five consolidated cases shall henceforth be docketed in Cause No. 395-CV-206, and the Scheduling Order entered in 395-CV-206 shall govern these five consolidated cases.

Later orders related to these cases were issued under docket number 395-CV-206 (which had originally pertained only to Jane R.'s case), often with the notation "consolidated" somewhere in the caption.

The consolidated case proceeded. Over time, all of Jane R.'s seven claims were dismissed in a set of three orders issued on August 29, September 23, and October 25, 1996. As Jane R.'s part of the case appeared to be over, on January 30, 1997, the defendants filed a motion under Fed. R. Civ. P. 50 and 54(b) to enter a final judgment in her case. Ten months later, on November 17, 1997, the district court denied the motion. The district court acknowledged the defendants' desire to put to rest Jane R.'s claims, but it found that granting the motion for a final judgment in Jane R.'s case would inevitably lead to successive appeals on identical issues, since Jane C. would in all likelihood appeal the resolution of the claims she had in common with Jane R. once all of her claims had been finally adjudicated.

As it turned out, Jane C.'s case was the last of the five cases to be fully resolved. (The three other plaintiffs whose cases had been consolidated with Jane C.'s and Jane R.'s settled their claims.) On June 21, 1999, the district court entered two judgments. The first one had a caption listing all five of the plaintiffs in the consolidated cases and their individual case numbers; the consolidated case number appears under the heading "Judgment in a Civil Case." The other judgment listed only Jane C. Doe as plaintiff; under the heading "Judgment in a civil case" appears Jane C.'s individual case number as well as the notation "(Member case to case consolidation with lead case 395-CV-206 RM)." The text of both documents was identical,reading:

IT IS ORDERED AND ADJUDGED that no issues remaining, judgment is hereby entered for the defendants on the amended complaint (all claims) of Jane C. Doe in consolidated cause 3:95-CV-206 and shall close 395-CV-717, the case in which Jane C. Doe's complaint was originally filed.

(Italics added.) Jane C. then filed a Rule 59(e) motion on July 6, 1999. The court denied her motion on July 12, 1999, and both Jane R. and Jane C. filed a joint notice of appeal on August 11, 1999.

The defendants urge that the judgments of June 21, 1999, addressed only Jane C.'s case, and thus that Jane R. was too late in filing her notice of appeal. They focus on Jane R.'s failure to join in Jane C.'s Rule 59 motion, rather than arguing that the final judgment in Jane R.'s case was entered back around October 25, 1996. In their response to this argument, the Does inadvertently raise a different potential problem with Jane R.'s appeal. They suggest in their reply brief that perhaps "no final judgment as to Jane R. Doe's claims was ever entered." Reply Brief at 5; see also id. at 7. Putting to one side the effect of the consolidated June 21 judgment that lists Jane R's docket number, this statement is literally true. The district court entered no Rule 58 judgment in Jane R.'s case after the October 25, 1996, order disposing of the last of her claims; it declined to enter a Rule 54(b) judgment in her case; and there is no separate Rule 58 judgment for Jane R. in the record. Instead, we have a consolidated Rule 58 judgment whose caption (but not text) refers to her case, and we have a separate Rule 58 judgment whose caption and text refer only to the final disposition of Jane C.'s case. If the defendants are correct that Jane R. could not take advantage of Jane C.'s Rule 59 motion, then her effort to appeal would be barred as untimely. If the plaintiffs are correct that there was never a final judgment for Jane R., then the proper course would be to dismiss her appeal as premature and wait for the district judge to complete proceedings in her case. And if the plaintiffs' original position is correct--that the consolidation cures all these problems--then we can proceed to the merits on both claims.

While we regret that this became so complicated, we conclude that the third of these possibilities best describes what happened below, and thus that both appeals are properly before us. Two questions are relevant to this determination: (a) whether each plaintiff's case retained its separate identity and, if not, (b) whether the district court in fact disposed of all the claims, rendering the case appealable even in the absence of a formal Rule 58 judgment. See Otis v. City of Chicago, 29 F.3d 1159, 1165- 66 (7th Cir. 1994) (en banc) (holding Rule 58 judgment not necessary for appellate jurisdiction).

Unfortunately, the fact that the district court consolidated the cases under Rule 42(a) does not give a simple answer to the first question. The...