Luker v. Nelson, No. 72 C 48.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtClausen, Hirsh, Miller & Gorman, Chicago, Ill., for defendants Kleven and Zabel
Citation341 F. Supp. 111
PartiesWinston Steve LUKER, Plaintiff, v. Thomas F. NELSON et al., Defendants.
Decision Date29 March 1972
Docket NumberNo. 72 C 48.

341 F. Supp. 111

Winston Steve LUKER, Plaintiff,
v.
Thomas F. NELSON et al., Defendants.

No. 72 C 48.

United States District Court, N. D. Illinois, E. D.

March 29, 1972.


341 F. Supp. 112
COPYRIGHT MATERIAL OMITTED
341 F. Supp. 113
Richard Sikes, Taylor, Taylor & Sikes, Chicago, Ill., for plaintiff

Clausen, Hirsh, Miller & Gorman, Chicago, Ill., for defendants Kleven and Zabel.

John Cadwalader Menk, Ronald Bishop, Chicago, Ill., for defendants Clark Oil & Refining Co.

MEMORANDUM OPINION

WILL, District Judge.

The plaintiff, a young man who was charged in March of 1969 with the crimes of robbery and aggravated battery and held in state custody for nineteen days until a preliminary hearing was had in state court wherein it was determined that no probable cause existed to hold him on these charges, has

341 F. Supp. 114
brought this Civil Rights action against the defendants with jurisdiction predicated upon 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 1983, 1985. The defendants Kleven and Zabel are police officers of the Village of Willowbrook, an Illinois municipal corporation. The defendant Clark Oil and Refining Company does business in Willowbrook and the defendant Nelson is allegedly its agent. Specifically, the plaintiff charges that the defendants each, by concerted action under color of state law, subjected and conspired to subject the plaintiff to the deprivation of his constitutionally guaranteed rights by falsely accusing him of the criminal charges above described and causing him to be arrested and confined without probable cause. Because of a prior and currently pending state suit of an allegedly similar nature, the defendants move to dismiss the complaint or to stay the proceedings herein

THE STATE SUIT. To discuss the effect of the state suit on this federal action, a brief description and history of the state action is necessary. Surprisingly, neither the plaintiff nor the defendants have attached a copy of the complaint in the state suit, but we surmise from both plaintiff's and defendants' descriptions thereof that it does not allege any federal constitutional theory of suit but only alleges a common law suit for false arrest.

The state suit was filed in the Circuit Court of the 18th Judicial Circuit of Illinois, DuPage County, on March 22, 1971 under the name of Luker v. Clark Oil and Refining Company, Inc., et al., No. 71-748-G against, among others, all the parties named herein. On May 21, 1971, the presiding judge dismissed the defendants Kleven and Zabel and the Village of Willowbrook (not a defendant herein) from that suit on the ground that the plaintiff had failed to comply with an Illinois statute that requires notice to be given to a municipality within six months after the accrual of certain types of causes of action before that entity or its employees may be sued. See, Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat., Ch. 85, §§ 8-101—8-103 (discussed below in detail).

On June 15, 1971, plaintiff filed an amended complaint and the defendants again renewed their motions to dismiss. After a hearing and the filing of briefs, the presiding judge again dismissed the complaint as to the police officers and the Village of Willowbrook. That suit, as it currently stands, is apparently against only Clark Oil and its agents and is on the May 1972 trial calendar. The time for appealing the decision dismissing the police officers from the suit apparently will not begin to run until the suit is concluded in its entirety.

RES JUDICATA. The defendants Kleven and Zabel initially argue that this federal suit should be dismissed for lack of jurisdiction on the basis of the state court's ruling and the doctrine of res judicata. They contend that a final state court judgment is res judicata and binding upon a later federal suit where the parties and subject matter are the same notwithstanding the pendency of an appeal from the state court decision. We agree with these general propositions of law, but disagree with their proposed application in this case.

The general rule of the doctrine of res judicata stated above must be qualified by the caveat that the judgment entered must be on the merits. Of course, a determination of lack of jurisdiction will be deemed judicially conclusive in a subsequent suit on the same cause of action as to the precise issue of jurisdiction previously ruled upon. See, American Surety Company v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231 (1932). Consistently, a dismissal for jurisdictional reasons by a state court is res judicata as to that jurisdictional issue in a subsequent federal suit when jurisdiction for the second suit is based upon diversity of citizenship and the federal court is sitting as another court of the state. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947).

A dismissal for lack of jurisdiction, however, will not preclude a second suit between the same parties unless the

341 F. Supp. 115
same jurisdictional issue is again decisive. Thus, if the jurisdictional defects that lead to the first dismissal either are cured or otherwise lose their controlling force, a second suit is no longer barred and the merits of the suit may be reached. See, e. g., Madden v. Perry, 264 F. 2d 169 (7th Cir. 1959), cert. denied, 360 U.S. 931, 79 S.Ct. 1450, 3 L.Ed.2d 1544 (1959)

A reading of the Circuit Court's order dismissing the defendants Kleven and Zabel clearly indicates that the dismissal was for lack of jurisdiction because of the plaintiff's failure to comply with the jurisdictional prerequisite of providing notice stated by Ill.Rev. Stat., Ch. 85, § 8-102. This ruling in the state false arrest suit, even assuming its finality which is open to question, would be res judicata if the plaintiff brought a second false arrest suit here with federal jurisdiction based solely upon diversity of citizenship. The plaintiff's instant suit, however, is based upon federal question jurisdiction under federal statutes and the court is not sitting, so far as this case is concerned, as an adjunct of the state court system. Accordingly, the state court's jurisdictional ruling is not binding upon this Court as res judicata and does not preclude this Court from reaching the merits of plaintiff's claims so long as he has satisfied the federal requisites for jurisdiction.

FEDERAL JURISDICTION AND THE EFFECT THEREON OF STATE LAW.

The defendants Kleven and Zabel next argue that, even if the state jurisdictional decision is not binding upon this Court through the doctrine of res judicata, the same notice requirements of Ill.Rev.Stat., Ch. 85, § 8-102, should be deemed as a jurisdictional prerequisite for this federal cause of action and that the same result of dismissal as occurred in the state suit must be reached herein. To fully understand the basis of this argument, a brief review of the federal civil rights statutes involved herein must be made.

Section 1983 of Title 42 of the United States Code authorizes suit against any party acting under color of state law who subjects a person to the deprivation of any of his constitutionally guaranteed rights. No statute of limitations or any other requirements for suit, such as the notice provisions of the Illinois statutes, are set forth in § 1983. Section 1988 of the same title, however, states in pertinent part:

The jurisdiction in civil ... matters conferred on the district courts by the provisions of this chapter . . ., for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law, the common law, as modified and changed by the ... statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause ...

Finally, in this vein, the Rules of Decision Act, 28 U.S.C. § 1652, requires that the laws of the several states shall be regarded as rules of decision in civil actions in federal courts in cases where they apply except when Acts of Congress otherwise require.

In construing these three statutes and holding that the state statute of limitations of the state in which the district courts sits is binding in § 1983 suits in federal courts, our Court of Appeals has concluded that § 1988 was designed to supplement but not supplant the Rules of Decision Act and is applicable only when federal substantive law is not suitably adapted or sufficient to provide an appropriate remedy and the states have remedial

341 F. Supp. 116
provisions of law which, if applied, will help achieve the goals desired by the Civil Rights Act. Baker v. F. & F. Investment Company, 420 F.2d 1191, 1193-1197 (7th Cir. 1970), cert. denied, Universal Builders, Inc. v. Clark, 400 U. S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970). After reviewing the legislative history behind the Rules of Decision Act and § 1988, the Court there concluded that the Rules of Decision Act requires the application of state law in federal question suits where Congress has not specifically legislated on the particular aspect of law covered by the state law and where no uniform federal common law is felt by the courts to be required, and if application of the state law does not deny or conflict with the very right to relief created by the federal law

In applying these general conclusions with its review of the history of § 1983, the Court further concluded that the application of state statutes of limitations in § 1983 suits was proper and required under...

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53 practice notes
  • Shapiro v. Columbia Union Nat. Bank and Trust Co., No. 60561
    • United States
    • United States State Supreme Court of Missouri
    • December 18, 1978
    ...contrary to Beauregard v. Wingard are: Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927, 937 (1972); Luker v. Nelson, 341 F.Supp. 111, 116 (N.D.Ill.1972); Davis v. Towe, 379 F.Supp. 536, 538 (E.D.Va.1974) aff'd. without opinion, 526 F.2d 588 (4th Cir. 1975); International Pr......
  • Tedder v. Fairman, Nos. 16002
    • United States
    • United States Appellate Court of Illinois
    • March 6, 1981
    ...772; see also Bennum v. Board of Governors of Rutgers State University (D.C.N.J.), 413 F.Supp. 1274; Luker v. Nelson (N.D.Ill.1972), 341 F.Supp. 111, 116.) In Luker, the opinion stated that the notice provision of the Illinois legislation concerning tort actions against governmental units w......
  • Brown v. U.S., No. 81-2083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1984
    ...Paschall v. Mayone, 454 F.Supp. 1289, 1298 (S.D.N.Y.1978); Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis.1978); Luker v. Nelson, 341 F.Supp. 111, 118 (N.D.Ill.1972); Williams v. Horvath, 16 Cal.3d 834, 129 Cal.Rptr. 453, 548 P.2d 1125 (1976); Overman v. Klein, 103 Idaho 795, 654 P.2d 888, 892 ......
  • Dozier v. Ford Motor Co., No. 82-1270
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 18, 1983
    ...Thus, suit may be brought again where a jurisdictional defect has been cured or loses its controlling force. See Luker v. Nelson, 341 F.Supp. 111, 115 (N.D.Ill.1972). Here we are not dealing with such a curable defect and the ... bar of res judicata Page 1198 Stewart Securities Corp. v. Gua......
  • Request a trial to view additional results
53 cases
  • Shapiro v. Columbia Union Nat. Bank and Trust Co., No. 60561
    • United States
    • United States State Supreme Court of Missouri
    • December 18, 1978
    ...contrary to Beauregard v. Wingard are: Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927, 937 (1972); Luker v. Nelson, 341 F.Supp. 111, 116 (N.D.Ill.1972); Davis v. Towe, 379 F.Supp. 536, 538 (E.D.Va.1974) aff'd. without opinion, 526 F.2d 588 (4th Cir. 1975); International Pr......
  • Tedder v. Fairman, Nos. 16002
    • United States
    • United States Appellate Court of Illinois
    • March 6, 1981
    ...772; see also Bennum v. Board of Governors of Rutgers State University (D.C.N.J.), 413 F.Supp. 1274; Luker v. Nelson (N.D.Ill.1972), 341 F.Supp. 111, 116.) In Luker, the opinion stated that the notice provision of the Illinois legislation concerning tort actions against governmental units w......
  • Brown v. U.S., No. 81-2083
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1984
    ...Paschall v. Mayone, 454 F.Supp. 1289, 1298 (S.D.N.Y.1978); Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis.1978); Luker v. Nelson, 341 F.Supp. 111, 118 (N.D.Ill.1972); Williams v. Horvath, 16 Cal.3d 834, 129 Cal.Rptr. 453, 548 P.2d 1125 (1976); Overman v. Klein, 103 Idaho 795, 654 P.2d 888, 892 ......
  • Dozier v. Ford Motor Co., No. 82-1270
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 18, 1983
    ...Thus, suit may be brought again where a jurisdictional defect has been cured or loses its controlling force. See Luker v. Nelson, 341 F.Supp. 111, 115 (N.D.Ill.1972). Here we are not dealing with such a curable defect and the ... bar of res judicata Page 1198 Stewart Securities Corp. v. Gua......
  • Request a trial to view additional results

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