Montaño v. City of Chicago

Decision Date13 July 2004
Docket NumberNo. 02-3738.,02-3738.
Citation375 F.3d 593
PartiesEsteban MONTAÑO, et al., Plaintiffs-Appellees, v. CITY OF CHICAGO, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

David A. Cerda (argued), Cerda & Associates, Chicago, IL, for Plaintiffs-Appellees.

Emily K. Paster (argued), Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants-Appellants.

Before RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Behind a knotty set of questions relating to the coordination of parallel suits in state and federal court lies an unfortunate incident on the streets of Chicago, during which a group of Mexican-Americans were savagely beaten with metal flashlights, fists, and feet by some Chicago police officers. They were arrested and, after further abuse, released; ultimately all criminal charges against them were dismissed. The victims (to whom we refer collectively as Montaño, after the lead plaintiff Esteban Montaño) sued the City and the officers in federal court on both federal and state law theories.

Rather than deciding the whole case, the district court chose to keep the federal-law claims and to sever the supplemental state claims and dismiss them without prejudice. Faced with this turn of events, Montaño re-filed the state claims in state court. The district court then resolved all but two of the federal claims in favor of the City defendants. At that point, matters took a highly unusual turn. Acting on its own initiative, the court first stayed the remaining federal claims pending the resolution of the parallel state-court action, and then it converted the stay into a dismissal without prejudice pending resolution of the state-court action.

Believing that it has effectively lost its right to have a federal forum resolve (at a minimum) the federal claims, the City has appealed from the dismissal of the remaining federal claims. It wants us to undo the mess and reinstate the action in the federal court. Montaño responds that the City is too late — it should in his opinion have filed immediate appeals from the earlier (interlocutory) orders. As we asked at oral argument, can we put this Humpty Dumpty-like case back together again? We think there is a way, and so we reverse and remand for further proceedings.


On September 14, 1997, festivities commemorating Mexican Independence Day (which actually falls on September 16) were taking place in the Little Village section of Chicago. Esteban Montaño and several of his friends — including Ricardo Ruiz, Julio Perales, and Yesenia and David Mendez — were among the celebrants when they were set upon by several officers of the City of Chicago Police Department. The incident began when Officers Atilano and LaFrancis, who claimed to be responding to the throwing of a beer bottle at their squad car, confronted Montaño, Ruiz, and Perales at a street corner. During the ensuing pat-down for weapons, Officer Atilano allegedly punched Montaño in the groin, and a scuffle ensued. Officers Toolis and Kusar arrived on the scene to provide backup, and a significant amount of force was applied to Montaño, including blows to his head and back with metal flashlights, as well as choking and kicking.

When Ruiz and Perales protested Montaño's treatment, officers arrested them, too, twice knocking Ruiz to the ground. By now a group of Montaño's friends had assembled, as well as additional police back-up, including Officers Hopkins, Skol, Maresso, Tamez, and Zeleswki. When David Mendez attempted to leave the scene, he warned the officers, "I'll see you on Channel 5 News." An officer arrested him, tackling him and repeatedly kicking him in the ribs and stepping on his face in the process. Officer Zeleswki arrested Yesenia Mendez as well when she asked why her husband (David) and brother (Montaño) had been arrested.

The arrestees were transported to the Tenth District police station. Montaño suffered more beatings at the station, and all of the plaintiffs were subjected to a variety of racial epithets and other verbal abuse. Montaño, Perales, and Ruiz were strip-searched. Yesenia Mendez was later transferred to the Eleventh District station, where she, too, was strip-searched. All told, Montaño and his friends were held for some four hours. Although Montaño, Perales, and Ruiz needed medical treatment as a result of their confrontation with police, none was provided. All the plaintiffs were charged with various combinations of disorderly conduct, drinking on a public way, and resisting arrest, and then released. Some time later, all charges were dropped.

Two months later, on November 19, 1997, Montaño filed a nine-count complaint against the City of Chicago and sixteen individual defendants. Five of the counts advanced federal-law claims under 42 U.S.C. §§ 1983 and 1985 (excessive force, false arrest, malicious prosecution, failure to intervene, and conspiracy), and four raised state-law claims (battery, false arrest malicious prosecution, and intentional infliction of emotional distress). Eight out of the nine counts raised claims against the individual officers. The remaining count was a federal claim against the City based on Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). On September 25, 2001, after the completion of discovery, the district court granted summary judgment to the City on some of the counts against the individual officers, and, acting on its own initiative, decided to relinquish jurisdiction over the state-law claims. On October 10, 2001, Montaño filed the dismissed state-law claims in Illinois state court.

The federal-law claims proceeded to trial in the district court. On November 15, 2001, at the conclusion of the presentation of Montaño's case-in-chief, the district court granted judgment as a matter of law in favor of the officers on all but two of the remaining counts. At this point, only Montaño's individual claim against Officer Lopez for excessive force and Yesenia Mendez's claim against Officer Lambert, alleging an illegal strip search remained to be decided. The district court declared a mistrial on those two counts. The court also noted its displeasure with the plaintiffs and threatened sanctions, stating its belief that the plaintiffs were inspired to bring their suit by the Rodney King incident, rather than a desire to obtain compensation for their injuries.

On November 27, 2001, before the two remaining claims could be retried, the court denied the City's Rule 59 motion to reconsider its September 25 dismissal of the state-law claims. The district court, once again acting on its own, then entered an order staying the federal litigation pending the resolution of the state-court action. This order was not accompanied by a memorandum and did not otherwise state the grounds on which the stay was to be entered or the form of abstention that the court was invoking.

Montaño filed an interlocutory appeal on December 18, 2001, challenging the district court's grant of summary judgment to various of the defendants in the September 25 order. The appeal also sought a writ of mandamus to overturn various discovery orders. The City filed a cross-appeal on January 2, 2002, seeking review of the September 25 order refusing to retain supplemental jurisdiction over the state-law claims, and also that portion of the November 27 order that stayed the federal action pending resolution of the state-court proceedings. A motions panel of this court disposed of the appeal by order, finding that Montaño had given insufficient notice of his intent to appeal that part of the November 27 order staying the federal action, and that his appeal of the entry of summary judgment in favor of some of defendants was otherwise premature. Montaño v. City of Chicago, Nos. 01-4284 & 02-1034, slip op. at 2 (7th Cir. Mar. 20, 2002). Finding Montaño's appeal improper, we also declined jurisdiction over the City's cross-appeal, determining it was time-barred under Abbs v. Sullivan, 963 F.2d 918 (7th Cir.1992), which holds that where a party filing the first appeal does not have a right to appeal, any cross-appeal is time-barred if the cross-appellant does not file her notice of appeal within the prescribed time period. Id. at 925.

On March 19, 2002, the district court entered a further order, again without any warning to the parties or explanation, dismissing the federal case without prejudice pending the outcome of the state-court proceedings. Two weeks later (within ten business days), on March 29, 2002, the City filed a motion to vacate three separate orders: the September 25 order declining to retain supplemental jurisdiction over the state-law counts, the November 27 order staying the federal litigation, and the March 19 order dismissing the federal-law counts without prejudice. The district court denied this motion by order dated September 30, 2002. The City now appeals.


Our first order of business concerns appellate jurisdiction. The City asks us to vacate the three different orders of the district court just identified. Montaño responds that we lack jurisdiction to review either of the earlier two orders because of the City's failure to file timely appeals as to each. With respect to the September 25 order, Montaño notes that the City filed a motion for reconsideration on October 1, 2001. That motion was denied on October 24, 2001. On November 2, 2001, the City filed a second motion for reconsideration, which the district court denied at the outset of trial, on November 7, 2001. In Montaño's view, November 7 is the critical date for a challenge of the September 25 order; the City had 30 days from that point to file a notice of appeal, but it failed to do so. This, Montaño contends, constitutes waiver and divests this court of appellate jurisdiction to review the September 25 order.


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