Boogaard v. Nat'l Hockey League

• Decision Date: 25 May 2018
• Docket Number: No. 17-2355,17-2355
• Parties: Len BOOGAARD and Joanne Boogaard, Personal Representatives of the Estate of Derek Boogaard, Deceased, Plaintiffs–Appellants, v. NATIONAL HOCKEY LEAGUE, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

891 F.3d 289

Len BOOGAARD and Joanne Boogaard, Personal Representatives of the Estate of Derek Boogaard, Deceased, Plaintiffs–Appellants,

v.NATIONAL HOCKEY LEAGUE, et al., Defendants–Appellees.

No. 17-2355

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2018

Decided May 25, 2018

Rehearing Denied June 25, 2018

J. Timothy Eaton, Allison Czerniak, Attorneys, TAFT STETTINIUS & HOLLISTER LLP, Chicago, IL, for Plaintiffs–Appellants.

Joseph Baumgarten, Adam M. Lupion, Attorneys, PROSKAUER ROSE LLP, New York, NY, for Defendants–Appellees.

Before Easterbrook And Barrett, Circuit Judges, and Stadtmueller, District Judge.^*

Barrett, Circuit Judge.

Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to arguments that would spark excitement—or fear—in the heart of a civil procedure student. There is a Hanna v. Plumer problem—whether Federal Rule of Civil Procedure 17(b)(3) controls the Boogaards’ ability to bring this suit. 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). There is an Erie Railroad Co. v. Tompkins question—whether federal or state law applies if Rule 17(b)(3) does not control. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There is a choice-of-law problem—whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation-back issue—whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3) ’s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct.

At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League’s argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper parties to bring it.

I.

Because we are reviewing a dismissal under Rule 12(b)(6), we treat the allegations contained in the Boogaards’ complaint as true. That does not mean, however, that we vouch for their accuracy. It means only that at this stage of the case, the Boogaards are entitled to have every factual inference drawn in their favor. In what follows, then, we recount the facts as the Boogaards tell them in the complaint they filed against the National Hockey League.

Derek Boogaard ("Derek") was a professional hockey player with the National Hockey League ("NHL").¹ He joined the NHL in 2005 as a member of the Minnesota Wild, where he remained until the summer of 2010. During his time with the Wild, team doctors repeatedly prescribed Derek with pain pills relating to various injuries and procedures. He became addicted to those pills by 2009.

In September of that year, the NHL placed Derek into its Substance Abuse and Behavioral Health Program. The Program is the product of a 1996 agreement (which we’ll call the "substance abuse agreement") between the NHL and its players’ union to create a comprehensive system for addressing substance abuse among NHL players. When a player enters the Program, he is initially permitted to receive his full NHL salary without penalty so long as he complies with the Program. If the player violates the Program’s rules, however, he receives penalties of increasing severity.

Pursuant to the Program, Derek was checked into a California rehabilitation facility for in-patient treatment of his opioid and sleeping-pill addictions. Upon leaving that facility, he was subject to the NHL’s mandatory "Aftercare Program," which required him to refrain from using opioids and Ambien

and to submit to random drug testing. The NHL told Derek that his failure to follow the Aftercare Program conditions could result in his permanent suspension.

Derek signed a contract with the New York Rangers in the summer of 2010. Before long, he began asking trainers for Ambien

, leading an NHL doctor to remind him that he could not use Ambien or opioids. But Derek still relapsed. And over the following months, NHL doctors made Derek’s situation worse by violating various conditions of the Aftercare Program. They prescribed him Ambien and pain medication. They failed to impose penalties when Derek reported that he had purchased pain medications off the street over Christmas break. They again failed to impose penalties when Derek failed urine tests in January and March. And when Derek was admitted to a recovery center in California to treat opioid dependence, they allowed him to leave the facility without a chaperone. While on one such trip, Derek purchased thousands of dollars of opioids off the street; on another, he overdosed on pills and died.

This litigation began two years later. Its procedural history is complicated, so we will keep it to the highlights. Derek’s estate sued the NHL and the other defendants in Illinois state court. The original complaint asserted eight claims, four of which it characterized as arising under Illinois’s Wrongful Death Act and another four under Illinois’s Survival Act. The complaint alleged that the NHL had failed to prevent the over-prescription of addictive medications to Derek, had breached its voluntarily undertaken duty to monitor and curb Derek’s drug addiction in the Program, had been negligent in monitoring Derek for brain trauma

during his career, and had negligently permitted team doctors to inject Derek with an intramuscular analgesic called Toradol

.

The NHL removed the case to federal court. It argued that federal jurisdiction existed under the doctrine of complete preemption, which applies when the scope of a federal law is so broad that it essentially replaces state-law claims. The district court agreed and denied the estate’s motion to remand. It held that at least two of the claims were founded directly on rights created under the parties’ collective bargaining agreement—the claims that the NHL had breached its duties under the Program to care for Derek and address his drug addiction—and were therefore preempted by the Labor Management Relations Act. It had supplemental jurisdiction over any remaining state claims.

The NHL then moved to dismiss the whole complaint for preemption and failure to state a claim. At that point, Len and Joanne Boogaard filed a first amended complaint naming themselves as the successor personal representatives of Derek’s estate. (Someone else had initially represented it.) The amended complaint invoked Minnesota’s wrongful-death and survival statute, although it also kept its references to Illinois law, choosing to characterize the claims as arising under both states’ statutes.

The district court deemed the NHL’s still-pending motion to dismiss to be directed at the Boogaards’ first amended complaint, and the court ordered the NHL to file a supplemental memorandum in support of the motion. The NHL added a new argument for dismissal: Wrongful-death and survival actions can only be brought by a court-appointed trustee under Minnesota law, and the Boogaards were not court-appointed trustees.² And since the time during which a Minnesota court could appoint a trustee for Derek’s estate had run, this was not a problem that the Boogaards could fix. In response, the Boogaards argued that the law of Illinois, not Minnesota, determined who is entitled to bring this wrongful-death and survival action. The district court did not reach this choice-of-law problem. Instead, it granted summary judgment to the NHL on the ground that all of the Boogaards’ claims were preempted.

After summary judgment, the Boogaards moved to file a second amended complaint, which added claims—still under Minnesota and Illinois wrongful-death and survival laws—that the Boogaards said were not preempted. The NHL disputed that contention, but the district court concluded that two of the new counts put forward a "theory of tort—that the NHL unreasonably harmed Boogaard—[that] is viable ... and not preempted by the [Labor Management Relations Act]" and the other two "contain the seed of a viable, non-preempted claim ... that the NHL actively and unreasonably harmed Boogaard by implicitly communicating that head trauma

is not dangerous." It allowed the Boogaards to file the new complaint and told the NHL that it could still move to dismiss the complaint—so long as it did so on grounds other than preemption.

The NHL took the district court’s suggestion. It renewed its argument, which the district court had not yet addressed, that the Boogaards’ claims could only be brought by a trustee appointed pursuant to Minnesota law. In the alternative, it argued that the new complaint did not state a claim no matter which state’s law applied. The Boogaards focused on the NHL’s argument about the Minnesota trustee requirement.³ In addition to the choice-of-law points they had made before, they contended that Federal Rule of Civil Procedure 17(b), which governs the choice-of-law analysis in determining a party’s capacity to sue, required the court to apply Illinois law regarding who can bring a wrongful-death or survival action. The Boogaards said nothing in response to the NHL’s alternative argument that their allegations, even if true, would not entitle them to relief.

The district court granted the motion to dismiss on both grounds pressed by the NHL. It held that Minnesota law applied to the action and thus required a wrongful-death or survival action to be brought by a court-appointed trustee. In the alternative, it held that the Boogaards had forfeited their claims by failing to respond to the NHL’s argument that the complaint failed to state a claim under the law of any state. This appeal followed.

II.

Before we reach the merits, we have some housekeeping to do. Every brief filed by an appellant in our cou...