Johnson v. Burken

• Decision Date: 22 April 1991
• Docket Number: No. 90-1756,90-1756
• Parties: Donald J. JOHNSON, Plaintiff-Appellee, v. Patrick H. BURKEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1202

930 F.2d 1202

Donald J. JOHNSON, Plaintiff-Appellee, v. Patrick H. BURKEN, Defendant-Appellant.

No. 90-1756.

United States Court of Appeals Seventh Circuit.

Argued Jan. 18, 1991.

Decided April 22, 1991.

Ripple, Circuit Judge, dissented and filed opinion.

Edgar K. Collison, III, Early, Collison, Tousey, Regan & Sullivan, Northbrook, Ill., Esther Joy Schwartz, Stellato & Schumacher, Chicago, Ill., for plaintiff-appellee.

Herbert P. Carlson, Gerard Fosco, Iversen, Carlson & Associates, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and POSNER and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

In May 1988, Donald Johnson brought suit against Patrick Burken in an Illinois state court for damages arising out of an automobile accident that had occurred in August 1986. At the time of the accident Burken was a sailor stationed at the Great Lakes naval base in Illinois, although he was a domiciliary--and hence, for purposes of federal diversity jurisdiction, a citizen, Galva Foundry Co. v. Heiden, 924 F.2d 729 (7th Cir.1991)--of Iowa. But by the time the suit was filed, Burken had left Illinois for duty at sea. Illinois' nonresident motorist statute allows service of process on a nonresident by serving a copy of the complaint or other process on the secretary of state of Illinois and, within ten days thereafter, sending a copy "by registered mail" to the defendant at his last known address. Ill.Rev.Stat. ch. 95 1/2, p 10-301(b). Johnson's lawyer duly served the secretary of state with his copy, but mailed Burken's copy by certified mail (return receipt requested) rather than by registered mail. Burken did not receive his copy, having failed to leave a forwarding address.

Several months later, Johnson's lawyer wrote Burken's insurer suggesting settlement. This was the first that either Burken or the insurance company knew of the suit. The insurance company retained a lawyer to defend the case. He made a special appearance to contest jurisdiction and moved that the case be dismissed on the ground that service had not been made in accordance with the statute and therefore the court had not obtained jurisdiction over Burken. The state judge denied the motion without giving reasons. Burken then removed the case to federal district court--the parties being of diverse citizenship--and renewed his motion to dismiss for lack of proper service. In September the district judge denied the motion on the ground that the state judge's ruling had not been clearly erroneous and therefore was binding in subsequent proceedings under the doctrine of the law of the case. Burken then moved for a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.App. Secs. 501 et seq. (see Sec. 521), and also moved for a certification to permit him to take an immediate appeal to this court under 28 U.S.C. Sec. 1292(b). In January of last year the district judge granted both motions. Shortly before, in November 1989, Johnson had again attempted to serve Burken under the Illinois nonresident statute, this time sending him his copy in Norfolk, Virginia, where Burken was stationed. The validity of this service has not been determined; nor whether it was made within the statute of limitations. A motions panel of this court agreed to hear Burken's interlocutory appeal.

Three jurisdictional issues require consideration before we can get to the merits of the appeal. The first is whether the stay that the district judge granted under the Soldiers' and Sailors' Civil Relief Act bars further proceedings in this court as well as in the district court. The Act entitles a member of the armed forces to a stay of legal proceedings to which he is a party while he is on active duty, unless the judge decides that the serviceman's litigation prospects are not materially affected by his service status. Nothing in the Act excepts proceedings in a Court of Appeals, Kesler v. Kesler, 682 S.W.2d 44, 45 n. 1 (Mo.App.1984)--on the contrary, the Act applies "at any stage" of a case, although it is rare that being on active duty will "materially affect" a litigant's case on appeal, since he does not have to be present in person. Id.; Briner v. Briner, 60 Cal.App.2d 473, 140 P.2d 995 (1943). But none of this is important, because the Act does not limit the jurisdiction of the federal courts. It merely gives a procedural right to a class of litigants. Like most procedural rights, it can be waived. Roberts v. Fuhr, 523 So.2d 20, 28 (Miss.1987); McMahon v. McMahon, 70 Cal.App.2d 317, 160 P.2d 893 (1945); Lankford v. Milhollin, 201 Ga. 594, 600-01, 40 S.E.2d 376, 380 (1946); Deacon v. Witham, 131 Misc.2d 217, 499 N.Y.S.2d 317 (City Ct.1985). In asking for leave to take an interlocutory appeal, Burken waived his right to a stay of proceedings in this court--he could not appeal and stay the appeal at the same time. Alternatively and with the same effect he sought and received merely a limited stay. Nothing in the Act precludes a limited stay.

The second jurisdictional question is whether the appeal is proper under section 1292(b). We are free to reexamine the motion panel's determination of that question unembarrassed by the law of the case doctrine or by the requirement that a panel opinion overruling a decision of this court be circulated in advance to all the judges in regular active service. 7th Cir.R. 40(f). Decisions by motions panels are summary in character, made often on a scanty record, and not entitled to the weight of a decision made after plenary submission. United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). Certainly when the panel is merely deciding whether an appeal should be heard, rather than disposing of the appeal, its decision should be regarded as tentative, and therefore revisable by the merits panel.

Section 1292(b) requires that the ruling sought to be appealed "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Whether strict or substantial compliance is the test under the Illinois nonresident motorist statute is a question of law, and being a threshold question its resolution now may materially advance the ultimate termination of the litigation. But is it a "controlling" issue, given that the validity of the second attempt at service has not been determined? If the second service was completed within the period of limitations and was valid, the validity of the first service is immaterial.

We think "controlling" means controlling in light of the situation that exists when the district judge makes his certification under section 1292(b) and when we exercise our discretion to accept the certified ruling for an immediate appeal. True, the fact that the litigation may later take a twist or turn that demotes the "controlling" question's significance, or that the district judge's ruling on the question may later be discovered not to have been dispositive, would permit us to dismiss the appeal as having been improvidently granted. Molybdenum Corp. of America v. Kasey, 279 F.2d 216 (9th Cir.1960) (per curiam); 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure Sec. 3929, at p. 142 (1977). But it would not require us to do so, as would a development that made the district judge's ruling of which an immediate appeal was sought moot. Moreau v. Tonry, 554 F.2d 163 (5th Cir.1977) (per curiam); see also New York City Health & Hospitals Corp. v. Blum, 678 F.2d 392, 397 (2d Cir.1982); Oneida Indian Nation v. County of Oneida, 622 F.2d 624, 628-29 (2d Cir.1980). Jurisdiction ordinarily is determined by the facts that exist when the case is filed, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 109 S.Ct. 2218, 2222, 104 L.Ed.2d 893 (1989); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957); appellate jurisdiction, therefore, by the facts that exist when the appeal is filed. Of course a court can lose jurisdiction, as when a case becomes moot, but the fact that subsequent events in a litigation made a ruling less plainly dispositive than it had seemed at first would not do this. One reason that events subsequent to filing ordinarily do not destroy jurisdiction is that, if they did, this would be an invitation to strategic behavior. For example, a party might change his state of citizenship in order to defeat diversity jurisdiction--might do it even after judgment had been rendered against him in the diversity suit. Another reason, more pertinent here, for disregarding postfiling developments is that, otherwise, piecemeal litigation would be encouraged. Imagine if the plaintiff had made his second attempt at service after the filing of the appeal from the district judge's ruling concerning the first attempt and had then moved to dismiss the appeal on the ground that it no longer involved a controlling question of law.

Yet such a tactic would succeed if "controlling" were read literally. It is not read literally. It could not be, because it is never one hundred percent certain in advance that the resolution of a particular question will determine the outcome or even the future course of the litigation. Therefore "a growing number of decisions have accepted the rule that a question is controlling, even though its decision might not lead to reversal on appeal, if interlocutory reversal might save time for the district court, and time and expense for the litigants." 16 Wright, Miller, Cooper & Gressman, supra, Sec. 3930, at pp. 159-60 (footnote omitted). Illustrative decisions are In re Cement Antitrust Litigation, 673 F.2d 1020, 1026-27 (9th Cir.1982), and Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.1974), the latter stating that " 'controlling' means serious to the conduct of the litigation, either practically or legally."

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