In re African-American Slave Descendants Lit.

• Citation: 471 F.3d 754
• Decision Date: 13 December 2006
• Docket Number: No. 05-3265.,No. 05-3305.,No. 05-3266.,05-3265.,05-3266.,05-3305.
• Parties: In re AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION. Appeals of Deadria Farmer-Paellmann, et al., and Timothy Hurdle, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

471 F.3d 754

In re AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION.

Appeals of Deadria Farmer-Paellmann, et al., and Timothy Hurdle, et al.

No. 05-3265.

No. 05-3266.

No. 05-3305.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2006.

Decided December 13, 2006.

Bruce I. Afran (argued), Carl J. Mayer, Princeton, NJ, Roger S. Wareham (argued), Wareham Law Office, Brooklyn, NY, Benjamin O. Nwoye, Nwoye & Associates, Chicago, IL, Barbara K. Ratliff (argued), Los Angeles, CA, for Plaintiffs-Appellants.

Andrew R. McGaan, Kirkland & Ellis, Chicago, IL, Owen C. Pell (argued), White & Case, New York, NY, Andrew L. Sandler, Skadden, Arps, Slate, Meagher & Flom Llp, Washington, DC, Alan S. Madans (argued), Rothschild, Barry & Myers, Chicago, IL, Thomas F. Gardner, Jones Day, Chicago, IL, Heidi K. Hubbard, Williams & Connolly, Washington, DC, Christina M. Tchen, Ryan J. Rohlfsen, Skadden, Arps, Slate, Meagher & Flom Llp, Chicago, IL, James A. Fletcher, Fletcher & Sippel, Chicago, IL, Michael T. Novak, Homewood, IL, Debra Torres, Fried, Frank, Harris, Shriver & Jacobson, New York, NY, John H. Beisner, O'Melveny & Meyers, Washington, DC, Maya M. Eckstein, Hunton & Williams, Richmond, VA, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and POSNER and MANION, Circuit Judges.

POSNER, Circuit Judge.

Nine suits were filed in federal district courts around the country seeking monetary relief under both federal and state law for harms stemming from the enslavement of black people in America. A tenth suit, by the Hurdle group of plaintiffs, makes similar claims but was filed in a state court and then removed by the defendants to a federal district court. The Multidistrict Litigation Panel consolidated all the suits in the district court in Chicago for pretrial proceedings. 28 U.S.C. § 1407. Once there, the plaintiffs (all but the Hurdle plaintiffs, about whom more shortly) filed a consolidated complaint, and since venue in Chicago was proper and in any event not objected to by the parties (other than the Hurdle group, whose objection we consider later in the opinion), the district court was unquestionably authorized, notwithstanding Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998), to determine the merits of the suit. In re Carbon Dioxide Industry Antitrust Litigation, 229 F.3d 1321, 1325-27 (11th Cir.2000); cf. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed. 167 (1939).

We are also persuaded that a district court to which a case is transferred under section 1407 can rule on a motion to dismiss the case even if the plaintiff has not agreed to let the court decide the merits. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1230-31 (9th Cir.2006); 15 Charles W. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3866 (2006). While it is true that the Supreme Court held in the Lexecon case that a transfer under section 1407 does not authorize the district court to retain the case for trial, the Court left open the question whether pretrial proceedings, which are the business (the exclusive business) of the transferee court, include rulings on dispositive pretrial motions, such as motions to dismiss. But the Court hinted that they do include them. Section 1407(a) states that "each action so transferred [by the multidistrict litigation panel] shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated." Concerning this "provision of § 1407(a) limiting the Panel's remand obligation to cases not `previously terminated' during the pretrial period," the Court remarked that "this exception to the Panel's remand obligation indicates that the Panel is not meant to issue ceremonial remand orders in cases already concluded by summary judgment, say, or dismissal," 523 U.S. at 37, 118 S.Ct. 956 (emphasis added) — implying that the transferee court can indeed decide the entire case at the pretrial stage.

And rightly so. The duty to conduct the pretrial proceedings in a multidistrict litigation entails the transferee court's ruling on a host of pretrial motions, many of which, whether or not formally dispositive, can shape the litigation decisively. There is no reason to exclude from the court's authority rulings on motions to dismiss — especially a motion to dismiss on the ground that there is no federal jurisdiction. It would be odd to require a court to transfer a case to another federal court when it was apparent that neither court had jurisdiction over the case.

Were it not for the Hurdle suit, we wouldn't have to decide whether the district judge could have dismissed the transferred suits had the parties not agreed, by filing a new complaint, to his retaining them after completion of pretrial proceedings. But the Hurdle plaintiffs did not agree, so we cannot duck the question.

The suits are a series of mostly identical class actions on behalf of all Americans descended from slaves with whom one or more of the defendants or their corporate predecessors may have been directly or indirectly involved. The consolidated complaint (the Hurdle complaint is similar, so need not be discussed separately) alleges the following facts, for which we do not vouch, but merely summarize, the complaint having been dismissed before the truth or falsity of the allegations was determined.

The defendants are companies or the successors to companies that provided services, such as transportation, finance, and insurance, to slaveowners. At least two of the defendants were slaveowners; the predecessor of one of the bank defendants once accepted 13,000 slaves as collateral on loans and ended up owning 1,250 of them when the borrowers defaulted, and the predecessor of another defendant ended up owning 346 slaves, also as a consequence of a borrower's default. Even before the Thirteenth Amendment, slavery was illegal in the northern states, and the complaint charges that the defendants were violating the laws of those states in transacting with slaveowners. It also claims that there were occasional enslavements long after the passage of the Thirteenth Amendment and that some of the defendants were complicit in those too. By way of relief, the complaint seeks disgorgement to the class members of the profits that the defendants obtained from their dealings with slaveowners.

The legal basis for the plaintiffs' federal claim is 42 U.S.C. § 1982, which provides that "all citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." See City of Memphis v. Greene, 451 U.S. 100, 119-20, 101 S.Ct. 1584, 67 L.Ed.2d 769 (1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). A claim based on a federal statute invokes the federal-question jurisdiction of the federal courts. But since most of the conduct of which the plaintiffs complain occurred prior to the passage of the Thirteenth Amendment, and indeed prior to the Civil War, section 1982 does not provide a sturdy basis for the retention of federal jurisdiction over the plaintiffs' nonfederal claims. A frivolous federal law claim cannot successfully invoke federal jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1317 (7th Cir.1997); Crowley Cutlery Co. v. United States, 849 F.2d 273, 276-77 (7th Cir.1988); Lovern v. Edwards, 190 F.3d 648, 654-55 (4th Cir.1999). So it cannot provide a perch on which to seat nonfederal claims in the name of the federal courts' supplemental jurisdiction, 28 U.S.C. § 1367. And very few of the plaintiffs have a nonfrivolous claim under section 1982.

But with one exception, all the nonfederal claims are within the federal diversity jurisdiction and so do not require a federal-law handle. The exception is Richard E. Barber, Sr.'s suit; for both he and Brown Brothers, one of the defendants in his suit, are citizens of New Jersey. Since he thus cannot invoke diversity as a basis for federal jurisdiction and does not have a colorable section 1982 claim (in fact he makes no section 1982 claim at all), his suit must be dismissed for want of federal jurisdiction without regard to the other challenges that the defendants mount to federal jurisdiction over these suits.

The district judge ruled that by virtue of both the political-question doctrine and the requirement of standing to sue derived from Article III of the Constitution, there was no federal jurisdiction over any of the suits and that in any event they had no merit because the applicable statutes of limitations had lapsed and anyway the complaint failed to state a claim. 375 F.Supp.2d 721 (N.D.Ill.2005). The dismissal was with prejudice. But if the judge was correct that there is no jurisdiction, he should have dismissed the suits without prejudice and thus not decided their merits.

The political-question doctrine bars the federal courts from adjudicating disputes that the Constitution has been interpreted to entrust to other branches of the federal government. The earliest and still the best example is Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849). Rhode Island had not adopted a new constitution after the break with England, but instead continued to govern itself under its colonial charter. Restive citizens convened a constitutional convention not authorized by the charter. The convention adopted a new constitution to which the charter government refused to submit, precipitating rebellion and the establishment in 1842 of a rival state government. The Supreme Court refused to decide which of the two competing governments was the legitimate one. It would...