Golden v. Helen Sigman & Assoc.s

• Decision Date: 02 July 2010
• Docket Number: No. 08-1506.,08-1506.
• Parties: Bruce P. GOLDEN, individually and as Next Friend of Dale Michelle Golden, Plaintiff-Appellant,v.HELEN SIGMAN & ASSOCIATES, LTD., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

611 F.3d 356

Bruce P. GOLDEN, individually and as Next Friend of Dale Michelle Golden, Plaintiff-Appellant,v.HELEN SIGMAN & ASSOCIATES, LTD., et al., Defendants-Appellees.

No. 08-1506.

United States Court of Appeals Seventh Circuit.

Argued Sept. 16, 2009.

Decided July 2, 2010.

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Bruce P. Golden (argued), Chicago, IL, pro se.

Patricia L. Argentati, Attorney (argued), Mulherin, Rehfeldt & Varchetto, Wheaton, IL, Robert W. Fioretti, Paul Peldyak, Attorney (argued), Fioretti & Lower, Ltd., Chicago, IL, for Defendants-Appellees.

Nancy Thomas, Chicago, IL, pro se.

Before CUDAHY, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

In 2004, Bruce Golden's wife Jody Rosenbaum filed for divorce in Illinois state court. The proceedings that followed were fraught with hostility as the parties engaged in a bitter dispute over division of assets and custody of Dale, their only child. After a year of setbacks in state court, Golden filed a multi-count federal lawsuit. He seems to have named anyone who advocated for Rosenbaum in state court as a defendant, including Nancy Thomas, Rosenbaum's friend and neighbor; Helen Sigman, the court-appointed representative for the child; Rosenbaum's counsel; and two of Rosenbaum's business associates.

The district court abstained with respect to Golden's claim that he owned certain copyrights, on the theory that the ownership of assets in general would be resolved in the state divorce proceedings; it granted defendants' motions to dismiss on all other counts. A couple of years later, the district court sanctioned Golden pursuant to Fed.R.Civ.P. 11(b)(2), requiring him to pay defendants' attorneys' fees and expenses. Golden has now appealed, and we affirm.

I

On January 18, 2005, Golden sued the defendants in federal court, raising claims under federal copyright law, 17 U.S.C. §§ 501 et seq., civil RICO, 18 U.S.C. §§ 1962(c) and (d), and 42 U.S.C. § 1983, as well as a variety of state-law theories. Golden's allegations revolve around his stormy divorce. He is convinced that the defendants have acted in concert to damage his relationship with his daughter Dale, impugn his reputation, and destroy his financial well-being.

Golden's complaint alleges that Rosenbaum's attorneys at Nadler, Pritikin & Mirabelli, LLC (collectively “Nadler”) wrote letters defaming him and sought to disrupt his business relationships. He also accused Nadler, along with two of Rosenbaum's business associates, of deliberately infringing his copyright to a real estate listing system. Sigman, Golden asserts, maligned his reputation and abdicated her duty of neutrality by favoring Rosenbaum in the custody proceedings. Finally, he believes that Thomas violated his rights when, in an effort to assist Rosenbaum's claim for child custody, she called 911 to report (falsely, he says) that Golden had abused his daughter.

After Golden amended his complaint, the defendants filed motions to dismiss for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). On November 1, 2005, the district court granted these motions with one exception it stayed proceedings for Count I, which alleged copyright infringement. For that claim, the court decided to abstain and to stay the federal action pending the resolution of ongoing state proceedings. In dismissing Golden's civil RICO claim, the court concluded that he had not properly pleaded the requisite predicate acts and pattern of racketeering activity necessary to state a claim. Golden was not entitled to relief under § 1983, the court found, because Sigman had not acted under color of state law and she enjoyed absolute immunity from suit. As Golden's state-law claims were unrelated to the remaining copyright count, the district court relinquished supplemental jurisdiction over them.

A month later, Nadler filed a motion for Rule 11 sanctions. The magistrate judge issued a report on July 15, 2008, recommending that Nadler's motion be granted. The following week, Sigman and Thomas jumped on the bandwagon and filed their own motions for sanctions; their motions were also endorsed by the magistrate judge. Concluding that many of Golden's positions were wholly devoid of legal support, the district court decided to impose sanctions against him pursuant to Fed.R.Civ.P. 11(b)(2), in the form of attorneys' fees. But because the sanctions related only to certain parts of the complaint, the district court reviewed the defendants' billing records and ordered Golden to pay just the fees related to the offending claims. Soon thereafter, Golden settled with Nadler, which was voluntarily dismissed from the case. At that point, the district court granted Golden's motion for a final judgment under Fed.R.Civ.P. 54(b). This timely appeal followed.

II

Golden has abandoned his civil RICO theory on appeal and instead has concentrated on the district court's dismissal of his § 1983 claim against Sigman. This court reviews a dismissal pursuant to Rule 12(b)(6) de novo. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir.2009). In assessing whether the plaintiff has stated a valid claim for relief, we “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008). The district court concluded that Golden's § 1983 claim against Sigman was a nonstarter for two independent reasons: Sigman was not a state actor, and she was absolutely immune from suit. While Golden challenges this decision on appeal, in the district court he repeatedly said that his acceptance of “[the district court judge's] ruling without seeking further relief before her or elsewhere” should weigh against the imposition of sanctions. Sigman interprets Golden's words as a waiver of his argument against dismissal of his § 1983 claim. “[O]nce a position is announced” in district court, Sigman contends, “backpedaling on appeal cannot be allowed.” Miller v. Willow Creek Homes, Inc., 249 F.3d 629, 631 (7th Cir.2001).

In our view, Golden's statement falls short of a waiver. See United States v. Parker, 469 F.3d 1074, 1079 (7th Cir.2006). This court has found waiver only when an attorney has unambiguously taken a position irreconcilable with that presented on appeal. Miller illustrates the point well. There the court found that the appellants had waived their right to appeal by: (1) withdrawing a motion for reconsideration; (2) notifying the court that “[they were] not going to be appealing” summary judgment; and (3) requesting that any related claims be stricken from the amended complaint. See Miller, 249 F.3d at 631 (emphasizing appellants' “clear statements of their intent” to waive appeal). In contrast, by framing his statement in the past tense (he “accepted” the dismissal order), Golden did not explicitly forswear the possibility of an appeal. Furthermore, noting that the court dismissed his state-law claims for lack of supplemental jurisdiction, Golden points out that referring to “further relief ... elsewhere” might allude to pursuing these claims in state court. We are satisfied that he avoided waiver of appellate review.

Turning to the merits, we begin by observing that we recently held that child representatives in Illinois are entitled to absolute immunity. Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir.2009) (analogizing child representatives to guardians ad litem and court-appointed experts). But Cooney left the door open a crack for some suits against representatives. Immunity extends, it acknowledged, only with respect to conduct that “occurred within the course of [a child representative's] court-appointed duties.” Id. At the time Golden filed his lawsuit, Illinois law made child representatives responsible for acting as the child's attorney, pursuing investigations into the facts, and offering recommendations to the court. 750 ILCS 5/506(a)(3); Cooney, 583 F.3d at 969 (explaining that a “child's representative is a hybrid of a child's attorney, 750 ILCS 5/506(a)(1), and a child's guardian ad litem ”).

Golden asserts that he raised allegations in his complaint that Sigman engaged in misconduct that fell outside the scope of her statutorily defined role. He focuses on Sigman's allegedly false and misleading communications with the parties on matters related to the custody dispute. According to Golden, Sigman falsely told Dale that Golden was dangerous and misrepresented facts about the proceedings to Golden. Even assuming that this were true, however, Sigman was still carrying out her responsibilities as a child representative; those duties centrally include speaking with the relevant actors about the custody proceedings and investigating the facts. Id. (concluding that child representative could not be sued based upon his conversations with a psychiatrist regarding the children in the custody dispute). In this limited capacity, her actions closely resemble those of a guardian ad litem. Thus, she functioned as an “arm[ ] of the court” and “deserve[s] protection from harassment by disappointed litigants, just as judges do.” Id.

More problematic are Golden's allegations that relate to Sigman's acts as an advocate, such as her preparation of court orders and her efforts to eliminate the role of the court-appointed psychiatrist. Though these tasks are part and parcel of a child representative's statutory duties, they involve a form of advocacy that more closely resembles the work carried out by a public defender than that of a guardian ad litem. See Gardner by Gardner v. Parson, 874 F.2d 131, 145-46 & n. 21 (3d Cir.1989) (distinguishing guardian ad litem's advocacy role from her reporting function). Since public defenders are not absolutely immune from suit Tower v. Glover, 467 U.S. 914, 921-23, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984), child representatives may not be protected when they...