UWM Student Ass'n v. Lovell

• Decision Date: 25 April 2018
• Docket Number: No. 17-2499,17-2499
• Citation: 888 F.3d 854
• Parties: UWM STUDENT ASSOCIATION, et al., Plaintiffs-Appellants, v. Michael LOVELL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

888 F.3d 854

UWM STUDENT ASSOCIATION, et al., Plaintiffs-Appellants,

v.Michael LOVELL, et al., Defendants-Appellees.

No. 17-2499

United States Court of Appeals, Seventh Circuit.

Argued February 6, 2018

Decided April 25, 2018

Rehearing and Rehearing En Banc Denied June 4, 2018

Gary Grass, Attorney, GARY E. GRASS ATTORNEY AT LAW, Milwaukee, WI, for Plaintiffs-Appellants.

Christopher J. Blythe, Sean Michael Murphy, Attorneys, OFFICE OF THE ATTORNEY GENERAL, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before Wood, Chief Judge, and Kanne and Hamilton, Circuit Judges.

HAMILTON, Circuit Judge.

Student government elections rarely produce federal litigation. Wisconsin law, though, gives students at state universities rights to organize themselves and to run their governments, which have the power to spend substantial funds. Wis. Stat. § 36.09(5). The combination of those state-law rights and fiscal powers can produce federal claims, even if the stakes are more modest than in most other disputes over state and local governance.

This case arises from a long-running feud between rival student governments at the University of Wisconsin-Milwaukee, commonly known as UWM. Plaintiffs are the UWM Student Association and several former and current UWM students. Plaintiffs allege a wide-ranging conspiracy to interfere with student governance. They allege that the UWM administration excluded certain students from student government by unseating the legitimately elected officers and replacing them over several years with a supposedly "puppet" student government with a similar name, the defendant Student Association at UWM. After considerable procedural fencing—resulting from plaintiffs' clumsy efforts to pursue an unmanageable complaint with 44 plaintiffs suing 37 defendants for claims spanning several years of student politicking—the district court dismissed the suit with prejudice. We affirm in part, reverse in part, and remand with instructions to reinstate certain claims, though it is clear that those claims are likely to encounter other substantial obstacles on remand.

I. Factual and Procedural Background

The unwieldy, seven-count complaint is now in its fourth iteration. Plaintiffs are 44 former and current UWM students, although the complaint is vague about which students currently attend UWM and the capacity in which they attend. Among the 37 defendants are UWM's former chancellor and the University of Wisconsin Board of Regents, as well as numerous university administration officials and other students. Plaintiffs filed their lawsuit in Wisconsin state court, but defendants removed the case to federal court. After removal, the district court allowed the plaintiffs to amend their complaint twice.

In the operative version of the complaint, the first five counts are claims under 42 U.S.C. § 1983 alleging denials of due process and First Amendment retaliation and, in one count, a violation of one plaintiff's freedom of religion. The sixth count is a state-law claim alleging a violation of plaintiffs' right to organize under the Wisconsin statute on student governance at state universities, Wis. Stat. § 36.09(5). The seventh count alleges violations of Wisconsin's Public Records Law, Wis. Stat. §§ 19.31 – 19.39.

The district court granted defendants' motion to dismiss the case with prejudice. UWM Student Ass'n v. Lovell , 266 F.Supp.3d 1121, 1139 (E.D. Wis. 2017). The court first dismissed claims against individual defendants whom plaintiffs renamed after the district court had already dismissed claims against them for lack of timely service. Next, the court dismissed the state-law right-to-organize claim based on state sovereign immunity. The court then dismissed all remaining claims for misjoinder.

II. Analysis

To summarize our decision, we affirm the dismissal of the claims against the defendants who were not timely served with process. We also affirm the dismissal of the right-to-organize claim under state law. Any claims for damages on that theory have dropped out of the case, and any claims for injunctive or declaratory relief on that theory are moot. We must reverse, however, the dismissal with prejudice of the remaining claims for misjoinder. While we understand the district court's frustration, the remedy for misjoinder is severance or dismissal without prejudice, not dismissal with prejudice.

Before digging into those issues, we address one preliminary matter. The case was first assigned to Judge Clevert, who retired while it was pending. The case was then assigned to Judge Stadtmueller, who made the final decision dismissing the case. Plaintiffs argue that Judge Stadtmueller erred by not certifying his familiarity with the record pursuant to Rule 63 of the Federal Rules of Civil Procedure after the case was assigned to him. Defendants point out correctly that by its terms, Rule 63 applies only when "a judge conducting a hearing or trial is unable to proceed." The rule applies when, for example, a judge has retired or died after hearing evidence but before issuing a decision. See Marantz v. Permanente Medical Grp., Inc. Long Term Disability Plan , 687 F.3d 320, 326–27 (7th Cir. 2012). Rule 63 does not apply here. There was no evidentiary hearing on defendants' motion to dismiss this version of the complaint, and there was no trial.

A. Dismissal of Previously Dismissed Defendants

This case illustrates some of the issues that can arise when plaintiffs fail to serve defendants in cases removed from a state court to a federal court. Since the district court did not hold a fact-finding hearing on the issue, our review of the dismissal of a defendant for insufficient service of process is de novo . See Cardenas v. City of Chicago , 646 F.3d 1001, 1005 (7th Cir. 2011), citing uBID, Inc. v. GoDaddy Group, Inc. , 623 F.3d 421, 423–24 (7th Cir. 2010). The issue of timely service is governed by 28 U.S.C. § 1448, which provides:

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.

The case was removed on January 2, 2015, and the operative complaint at the time of removal was the first amended complaint. It named several defendants, including Dr. Michael Lovell, the Board of Regents, Heather Harbach, Pahoua Xiong, Amy Watson, Suzanne Weslow, Anthony DeWees, Nikolaus P. Rettinger III, Carla Greve, Angela Lang, and Dakota Hall.

On September 30, 2015, the district court dismissed these defendants because they had not been properly served with a summons and the original or first amended complaint. UWM Student Ass'n v. Lovell , No. 15-C-0001, 2015 WL 5795675, at *1 (E.D. Wis. Sept. 30, 2015). The court also granted plaintiffs leave to file a second amended complaint. Id. at *3.

On October 13, 2015, plaintiffs filed their second amended complaint, renaming all of the previously dismissed defendants except Lang and Hall. Defendants filed a motion to dismiss that complaint. The district court held a hearing and granted plaintiffs leave to file a third amended complaint.

And on December 1, 2015, plaintiffs filed their third amended complaint, again naming all of the previously dismissed defendants except Lang and Hall.¹ Although plaintiffs filed additional affidavits showing service following the third amended complaint, none of these affidavits establishes service on the previously dismissed defendants before or within 120 days of removal.

The district court found that plaintiffs had failed to serve timely the remaining previously dismissed defendants under either state or federal law. Because § 1448 provides that federal law governs these procedural issues after the removal, we focus on the federal standards.

Under the version of Federal Rule of Civil Procedure 4(m) in effect when this case was removed, plaintiffs had to serve defendants within 120 days of removal.² For cases originally filed in federal court, Rule 4(m)'s service clock starts on the date the complaint is filed. For removed cases, the combined effect of § 1448 and Rule 4(m) starts the clock on the date of removal. See Cardenas , 646 F.3d at 1004.

What happens when the plaintiffs fail to make timely service after the removal? Rule 4(m) requires the district court to extend the time "if the plaintiff shows good cause for the failure." The rule also permits the district court to extend the time even absent good cause. Coleman v. Milwaukee Bd. of School Directors , 290 F.3d 932, 934 (7th Cir. 2002) (collecting cases and noting that "excusable neglect" may support extension), cited in 4B Wright & Miller, Federal Practice and Procedure § 1137 (4th ed.) ; see also Fed. R. Civ. P. 4(m) advisory committee's note to 1993 amendment (noting that rule "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown").

The case was removed to federal court on January 2, 2015, so defendants needed to be served by May 4, 2015.³ Plaintiffs provide no evidence or argument that the previously dismissed defendants were served before that date, so they were not timely served under the federal rule.

To overturn the dismissal, the plaintiffs argue that the district court implicitly extended the service period by allowing an amended complaint. But filing an amended complaint does not restart the clock for serving defendants who are added to an amended complaint after having been dismissed from a prior one. See Del Raine v. Carlson , 826 F.2d 698, 705 (7th Cir. 1987) (court order permitting amended complaint did not trigger new 120-day...