Harl v. City of La Salle, 81-1147

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL and CUDAHY, Circuit Judges, and GRANT; CUDAHY; PELL
Citation679 F.2d 123
PartiesNancy HARL, d/b/a Public House, Plaintiff-Appellant, v. The CITY OF LA SALLE and Mayor Aloysius A. Gunia, Liquor Commissioner, Defendants-Appellees.
Docket NumberNo. 81-1147,81-1147
Decision Date24 May 1982

Page 123

679 F.2d 123
Nancy HARL, d/b/a Public House, Plaintiff-Appellant,
v.
The CITY OF LA SALLE and Mayor Aloysius A. Gunia, Liquor
Commissioner, Defendants-Appellees.
No. 81-1147.
United States Court of Appeals,
Seventh Circuit.
Argued Nov. 10, 1981.
Decided May 24, 1982.

Page 124

Carl W. Telford, Ltd., LaSalle, Ill., for plaintiff-appellant.

Stephen R. Swofford, Hinshaw, Culbertson, Moelman, Hoban & Fuller, Chicago, Ill., for defendants-appellees.

Before PELL and CUDAHY, Circuit Judges, and GRANT, Senior District Judge. *

CUDAHY, Circuit Judge.

Plaintiff Nancy Harl ("Harl") brought this action under 42 U.S.C. § 1983 (1976) alleging that the defendants violated her rights to due process and equal protection by revoking her liquor license without providing notice or a hearing. The district court, 506 F.Supp. 1067, granted defendants' motion to dismiss, holding that Harl's action here was barred under principles of res judicata because an Illinois state court had dismissed Harl's claims on the merits in an earlier proceeding. We believe the district court misapplied Illinois law governing dismissals and their res judicata consequences and therefore reverse.

I.

On January 21, 1980, Harl filed a complaint in LaSalle County, Illinois, Circuit Court alleging that the defendants revoked her liquor license in violation of both state law and the United States Constitution. Defendants subsequently moved for a dismissal of the complaint on four grounds: 1) failure to state a cause of action; 2) failure to allege exhaustion of administrative remedies under state law; 3) failure to provide statutory notice to the municipality; and 4) preclusion under the Illinois Tort Immunity Act. On July 10, 1980, the state trial court judge granted the defendants' motion to dismiss. The order entered by the court did not specify the ground or grounds for the dismissal. 1 Moreover, the order expressly allowed Harl until August 15, 1980, to amend the complaint.

Harl did not amend the complaint within the time allowed by the court's order. On September 3, 1980, the trial court sua sponte entered an order dismissing Harl's complaint. The text of that handwritten order reads:

This matter coming on court's own motion and it appearing that an order of dismissal having been entered on July 10, 1980 and plaintiff not having filed additional pleadings within time allowed by that order(,)

It is ordered that the order of July 10, 1980 dismissing said suit is confirmed. 2

On September 12, 1980, Harl filed this action in federal court. The district court

Page 125

granted defendants' motion for summary judgment on December 24, 1980, and denied plaintiff's subsequent motion for reconsideration. In granting summary judgment, the court first reasoned that the September 3 order was a final judgment on the merits under Illinois Supreme Court Rule 273, Ill.Rev.Stat. ch. 110A, P 273 (1979), and thus must be given res judicata effect. The court then compared Harl's state court complaint to her federal complaint and concluded that the latter was barred by res judicata since either the federal claims were actually raised in the state court action or these claims could have been raised in the state court action.

II.

The dispositive issue in this case is whether the order entered by the Illinois trial court on September 3 is a final order on the merits. Under Illinois law, only a final order is res judicata for subsequent litigation. See People v. Kidd, 398 Ill. 405, 75 N.E.2d 851 (1947); Schmitt v. Woods, 73 Ill.App.3d 498, 29 Ill.Dec. 498, 392 N.E.2d 55 (5th Dist. 1979). Under the Rules of Decision Act, 28 U.S.C. § 1738 (1976), we are bound to give the prior Illinois judgment the same res judicata effect as would be provided by Illinois courts. See Gilbert v. Braniff International Corp., 579 F.2d 411, 413 (7th Cir. 1978). Thus, only if we find that the state court order is a final adjudication on the merits (and treated as res judicata by Illinois courts) would we then proceed to the further steps of determining whether the parties and claims in the first litigation are the same as the parties and claims present here for purposes of res judicata.

The district court held that the September 3 order is a final order on the merits as defined in Illinois Supreme Court Rule 273. That rule provides:

Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.

Ill.Rev.Stat. ch. 110A, P 273 (1979) (emphasis supplied). The court found that the September 3 order fell neither within any of the three stated exceptions to the rule nor did the order of dismissal "otherwise specif(y)," and thus the order was a final adjudication. But the district court did not fully or correctly consider whether the September 3 order constituted a dismissal for want of prosecution under Illinois law and thus was governed by a "statute ... (which) otherwise specifies." 3 See, infra, note 4.

The statute which we believe "otherwise specifies" is section 24 of the Illinois Limitations Act. That section states, inter alia, that if an "action is dismissed for want of prosecution, ... the plaintiff ... may commence a new action within one year or within the remaining period of limitation, whichever is greater ...." Ill.Ann.Stat. ch. 83, P 24a (Smith-Hurd 1981 Supp.) (emphasis supplied). Illinois decisions have squarely held that section 24 is one of the statutes which may "otherwise specif(y)" in the terms of Rule 273. Kutnick v. Grant, 65 Ill.2d 177, 2 Ill.Dec. 313, 315, 357 N.E.2d 480, 482 (1976); O'Reilly v. Gerber, 95 Ill.App.3d 947, 51 Ill.Dec. 11, 13-14, 420 N.E.2d 425, 427-28 (1st Dist. 1981); Mages Sports Arenas, Inc. v. Winston Park Shopping Center, Inc., 112 Ill.App.2d 409, 251 N.E.2d 334, 336-37 (1st Dist. 1969). Moreover, "it is clear from a perusal of (Illinois) cases that a dismissal for want of prosecution has always been considered not to be an adjudication on the merits, not to prejudice the case of the party against whom it is entered, and

Page 126

not to act as a bar to a subsequent suit on the same issues ...." O'Reilly v. Gerber, 95 Ill.App.3d 947, 51 Ill.Dec. 11, 13, 420 N.E.2d 425, 427 (1st Dist. 1981). 4 Thus, the issue before us ultimately becomes one of whether the September 3 order of dismissal is one "for want of prosecution."

We believe that the only fair interpretation of the September 3 order is that it was a dismissal for want of prosecution. Although the order does not explicitly state that the dismissal is for want of prosecution, we do not find this deficiency conclusive in this case because the order fails to state any ground for the dismissal. 5 Moreover, it is undisputed that the trial court entered the September 3 order only after Harl did not amend her complaint pursuant to the trial court's July 10 order. In fact, the court's September 3 order clearly stated that its renewed interest in the complaint was specifically prompted by Harl's failure to amend the complaint after almost two months. We think this amounts to a dismissal for lack of prosecution.

Our conclusion in this respect is inescapable under the Illinois Appellate Court's recent decision in O'Reilly v. Gerber, 95 Ill.App.3d 947, 51 Ill.Dec. 11, 420 N.E.2d 425 (1st Dist. 1981). In O'Reilly, the trial court granted defendant's motion to strike the plaintiff's complaint but allowed plaintiff 28 days to file an amended complaint. Plaintiff did not file an amended complaint and defendant subsequently gave notice that he would move for a dismissal in 10 days. Several days later, plaintiff gave notice that she would seek a voluntary dismissal of the action on the same day defendant sought a dismissal. The trial court heard both motions on the same day and, notwithstanding that plaintiff could still dismiss her case at this point if she paid costs, the trial court granted the defendant's motion with prejudice "because 'the plaintiff has no complaint on file having failed to comply with this court's order of November 22, 1978.' " 51 Ill.Dec. at 12, 420 N.E.2d at 426.

The appellate court held that the trial court correctly refused plaintiff's request for voluntary dismissal since plaintiff refused to tender costs. 51 Ill.Dec. at 12, 420 N.E.2d at 426. But the appellate court held that the trial court incorrectly granted defendant's motion for dismissal with prejudice because the only plausible ground for the dismissal was want of prosecution. And a dismissal for want of prosecution, since it is not a final order, must be without prejudice. The appellate court explained:

The trial court did not use the words "dismissal for want of prosecution" in its order. However, a suit may be dismissed for want of prosecution for the failure or refusal to file an amended complaint (3

Page 127

Nichols Illinois Civil Practice § 2848), and it seems clear that was what the court was doing here. Thus, it seems equally clear that the dismissal should have been without prejudice.

51 Ill.Dec. at 13, 420 N.E.2d at 427. The O'Reilly court's analysis is closely in point to the instant case. In both cases, the trial courts did not use the magic words, "dismissal for want of prosecution." Instead, these courts both noted in their orders that the dismissals were entered only after plaintiff failed to amend pleadings within the time allowed in a previous order. In the absence of a more explicit order, 6 we, like the O'Reilly court, have no basis for concluding that the dismissal is for a reason other than want of prosecution. Cf. Bruer v. Livingston County Board of Zoning Appeals, 66 Ill.App.3d 938, 23 Ill.Dec. 145, 383 N.E.2d 1016 (4th Dist. 1978) (trial court dismissed action with prejudice after plaintiff failed to amend complaint; held, where plaintiff experienced delay in filing...

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17 practice notes
  • Eliason Corp. v. BUREAU OF SAF. AND REG. OF MICH., K81-126 CA4.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 25, 1983
    ...to a state-court judgment whenever the courts of that state would do so. Allen, 449 U.S. at 96, 101 S.Ct. at 415; Harl v. City of LaSalle, 679 F.2d 123, 125 (7th Cir.1982); Southern Jam, Inc. v. Robinson, 675 F.2d 94, 97-98 (5th The principles of res judicata in Michigan were recently canva......
  • Schultz v. Owens-Illinois Inc., OWENS-ILLINOIS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 22, 1982
    ...was not presented below, we ordinarily would not, absent special circumstances, consider it on appeal. See Harl v. City of LaSalle, 679 F.2d 123 (7th Cir.1982). The Union, apparently in support of its assertion that the argument was presented below, quotes a phrase from the district court's......
  • LiButti v. Commissioner, Docket No. 5977-75
    • United States
    • United States Tax Court
    • June 26, 1985
    ...unless so specified in the court's order of dismissal. See Lesser v. Migder, 328 F. 2d 47 (2d Cir. 1964); cf. Harl v. City of La Salle, 679 F. 2d 123, 126 (7th Cir. 1982) (Federal court must give state judgment same res judicata effect as would be provided by State court). Since we have fou......
  • LOCAL 1006, AFSCME, AFL-CIO v. Wurf, 76 C 2744.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 10, 1982
    ...the case of Harl v. City of LaSalle, 506 F.Supp. 1067 (N.D.Ill.1980). This case was reversed by the Court of Appeals on May 24, 1982. 679 F.2d 123 (7th Cir.1982). The case which "changed the law" according to the defendants and compelled the filing of the instant motion for summary judgment......
  • Request a trial to view additional results
17 cases
  • Eliason Corp. v. BUREAU OF SAF. AND REG. OF MICH., K81-126 CA4.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 25, 1983
    ...to a state-court judgment whenever the courts of that state would do so. Allen, 449 U.S. at 96, 101 S.Ct. at 415; Harl v. City of LaSalle, 679 F.2d 123, 125 (7th Cir.1982); Southern Jam, Inc. v. Robinson, 675 F.2d 94, 97-98 (5th The principles of res judicata in Michigan were recently canva......
  • Schultz v. Owens-Illinois Inc., OWENS-ILLINOIS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 22, 1982
    ...was not presented below, we ordinarily would not, absent special circumstances, consider it on appeal. See Harl v. City of LaSalle, 679 F.2d 123 (7th Cir.1982). The Union, apparently in support of its assertion that the argument was presented below, quotes a phrase from the district court's......
  • LiButti v. Commissioner, Docket No. 5977-75
    • United States
    • United States Tax Court
    • June 26, 1985
    ...unless so specified in the court's order of dismissal. See Lesser v. Migder, 328 F. 2d 47 (2d Cir. 1964); cf. Harl v. City of La Salle, 679 F. 2d 123, 126 (7th Cir. 1982) (Federal court must give state judgment same res judicata effect as would be provided by State court). Since we have fou......
  • LOCAL 1006, AFSCME, AFL-CIO v. Wurf, 76 C 2744.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 10, 1982
    ...the case of Harl v. City of LaSalle, 506 F.Supp. 1067 (N.D.Ill.1980). This case was reversed by the Court of Appeals on May 24, 1982. 679 F.2d 123 (7th Cir.1982). The case which "changed the law" according to the defendants and compelled the filing of the instant motion for summary judgment......
  • Request a trial to view additional results

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