Smentek v. Dart, 11–3261.

• Decision Date: 19 June 2012
• Docket Number: No. 11–3261.,11–3261.
• Citation: 82 Fed.R.Serv.3d 1393,683 F.3d 373
• Parties: John SMENTEK, et al., individually and on behalf of all others similarly situated, Plaintiffs–Appellees, v. Thomas J. DART, Sheriff of Cook County, and Cook County, Illinois, Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

683 F.3d 373

82 Fed.R.Serv.3d 1393

John SMENTEK, et al., individually and on behalf of all others similarly situated, Plaintiffs–Appellees,

v.Thomas J. DART, Sheriff of Cook County, and Cook County, Illinois, Defendants–Appellants.

No. 11–3261.

United States Court of Appeals, Seventh Circuit.

Submitted April 23, 2012.

Decided June 19, 2012.

Kenneth N. Flaxman (submitted), Attorney, Chicago, IL, for Plaintiffs–Appellees.

Michael Lambert Gallagher, Attorney, Office of the Cook County State's Attorney, Chicago, IL, for Defendants–Appellants.

Before POSNER, WOOD, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

John Smentek and others, former inmates of Cook County Jail, are plaintiffs in this class action suit under 42 U.S.C. § 1983 against the County and its sheriff. The suit, filed in the federal district court in Chicago, charges that the defendants' failure to make more than a single dentist available to the jail's 10,000 inmates constitutes the imposition of cruel and unusual punishment and thus violates both the Eighth Amendment and the due process clause of the Fourteenth Amendment.

Most people held in jails as distinct from prisons, including most members of the plaintiff class, are pretrial detainees, and the cruel and unusual punishments clause does not apply to persons who though incarcerated have not been convicted and so are not being subjected to “punishment.” But the due process clause has been interpreted to provide equivalent protection. E.g., Zentmyer v. Kendall County, 220 F.3d 805, 810 (7th Cir.2000). It is because some of the members of the class are convicts housed in Cook County Jail that the suit advances claims under both amendments.

Vincent Smith, another former inmate of Cook County Jail, had brought a nearly identical suit prior to Smentek's bringing this one. Smith had asked the district court to certify a class consisting of “all persons who, while confined at Cook County Jail on and after June 29, 2005, requested but were not given timely treatment for dental pain.” The district judge denied class certification in May 2008. Nine months later a different district judge in the same court denied class certification in a materially identical class action suit by still another former inmate of Cook County Jail, Lance Wrightsell. Then came Smentek, the third materially identical suit, filed in the same court in January 2009 and assigned to still another district judge. We don't understand why all three cases were not assigned to the same judge. Besides the usual advantages of consolidation, it would have avoided the problem that has precipitated the appeal in this case, because a single judge would not be of different minds about three identical lawsuits.

Initially the district judge assigned to this case denied class certification on the ground that the denial in the two preceding class action suits (Smith and Wrightsell ) barred, by operation of collateral estoppel, the grant of certification in the third. But the judge reversed her ruling and granted certification after the Supreme Court held in Smith v. Bayer Corp., ––– U.S. ––––, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011), that “neither a proposed class action nor a rejected class action may bind nonparties. What does have this effect is a class action approved under Rule 23 [of the Federal Rules of Civil Procedure].” Id. at 2380. “The definition of the term ‘party’ can on no account be stretched so far as to cover a person ... whom the plaintiff in a lawsuit was denied leave to represent.” Id. at 2379. We applied the Court's holding in Thorogood v. Sears, Roebuck & Co., 678 F.3d 546 (7th Cir.2012), a case like the present one in which, after denial of class certification (one denial, not two as in this case), an unnamed class member filed an identical class action suit, though in a different court.

The Court in Smith v. Bayer Corp. suggested other means for limiting copycat class action litigation besides preclusion, and the defendants in the present case, who have petitioned us for leave to appeal under Fed.R.Civ.P. 23(f) from the grant of class certification, have fastened on one of them: “we would expect federal courts to apply principles of comity to each other's class certification decisions when addressing a common dispute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 198, 120 S.Ct. 1331, 146 L.Ed.2d 171 (2000) (citing Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936)).” 131 S.Ct. at 2382.

We have granted the Rule 23(f) petition, limited to the question of when a district court, in deciding whether to certify a class, should “defer, based on the principles of comity, to a sister court's ruling on a motion for certification of a similar class.”

The Court's reference to “comity” in Smith v. Bayer Corp. was cryptic. Neither of the two cases that the Court cited—Cortez and Landis—discusses comity; Cortez doesn't even mention the word. Both are cases about whether to stay one of two pending parallel suits, a question not presented by either this case or Smith v. Bayer Corp. No more than the two cases that the Court cited does Smith v. Bayer Corp. itself discuss the concept. And the similar suits at issue in that case were in different court systems—state and federal.

A standard definition of “comity” is “the respect that sovereign nations (or quasi-sovereigns such as the states of the United States) owe each other.” Philips Medical Systems Int'l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir.1993); see also Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bank of Augusta v. Earle, 38 U.S. 519, 589, 13 Pet. 519, 10 L.Ed. 274 (1839); United States v. Kashamu, 656 F.3d 679, 683 (7th Cir.2011); JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423–24 (2d Cir.2005). That was a consideration in Smith v. Bayer Corp., because the first class action had been filed in a state court and the copycat class action in a federal court; it is not a factor here, where all three suits were filed in federal court and based on federal law. But as in such cases as Landis, the word “comity” is used in a looser sense to caution judges against stepping on each other's toes when parallel suits are pending in different courts. See Texas Independent Producers & Royalty Owners Ass'n v. EPA, 410 F.3d 964, 980 (7th Cir.2005); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 551–52 (6th Cir.2007); Ulmet v. United States, 888 F.2d 1028, 1031 (4th Cir.1989). This is not such a case either, however, not only because only one court (though more than one judge) is hosting the parallel suits but also because the Smith and Wrightsell cases were over when Judge Lefkow granted the motion for class certification in the present case.

The version of comity announced in dictum in Smith v. Bayer Corp. is novel. It does not involve the mutual respect of sovereigns or quasi-sovereigns and it does not appear to be limited to cases in which parallel suits are pending in different courts (or before different judges) of the same sovereign. If it were so limited, it would have no application if the other parallel suits had been resolved, which may be true here, since class certification in the other Cook County Jail dental cases was denied—or at least very little application, since those cases may continue as individual suits by the former class representatives. The Supreme Court's opinion cites no authority for the extension of the doctrine of comity to mere disagreement between federal judges, and despite the reference to expecting “federal courts to apply principles of comity to each other's class certification decisions” (emphasis added), the Court seems really to have been thinking about cases involving federal-state comity, of which Smith v. Bayer Corp. was one.

Whatever the scope of the Supreme Court's current concept of comity, the defendants' argument that Smith v. Bayer Corp. adopted a rule of comity in class action suits that precludes granting class certification in a copycat class action must be rejected; for if the Court had adopted such a rule it would have affirmed the injunction granted in the district court in that case (and affirmed by the court of appeals) against the copycat class action suit, instead of reversing, as it did. It would have been adopting a rule of preclusion rather than rejecting such a rule. True, the effect of the...