Marseilles Hydro v. Marseilles Land ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1238
MARSEILLES HYDRO POWER, LLC,
Plaintiff-Appellee,
v.
MARSEILLES LAND AND WATER COMPANY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1164—Suzanne B. Conlon, Judge.
____________
ARGUED JANUARY 14, 2002—DECIDED AUGUST 5, 2002
____________
Before POSNER, RIPPLE, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. The plaintiff (“the power com-
pany”) owns a disused hydroelectric plant built in 1912.
When functional the plant was powered by water from
a canal, owned by the defendant (“the canal company”),
that connects the plant to the Illinois River. A contract be-
tween the parties’ predecessors required the owner of the
plant to pay rent to the owner of the canal and required
the latter to keep the canal in good repair. The require-
ment had no practical significance when the plant was not
being used. But the current owner of the plant, that is, the
2 No. 01-1238
power company, decided to put the plant back into ser-
vice and so it became concerned about the state of the ca-
nal and in particular feared that the canal’s wall was about
to collapse. The canal company refused to repair it, and
so the power company brought this suit to enforce the ca-
nal company’s duty under the contract and moved for a
preliminary injunction; but before the motion could be
heard, the canal wall collapsed. The canal company coun-
terclaimed for the rent due under the contract, rent that
the power company refused to pay until the canal was re-
paired. After a bench trial, the judge awarded judgment
for the power company both on its complaint and on
the canal company’s counterclaim. The judgment seems
(the reason for this hedge will appear momentarily) to in-
clude an order injunctive in character that entitles the pow-
er company to enter upon the canal company’s property
for the purpose of repairing the canal wall and to obtain
a lien on the property for the cost of the repair.
Before considering the issues presented by the appeal, we
must satisfy ourselves that we have jurisdiction. Rule 65(d)
of the Federal Rules of Civil Procedure requires that any
injunction issued by a federal district court be detailed and
specific (and also that it be a self-contained document, of
which more shortly). The purpose is to provide a solid
foundation for any subsequent efforts to enforce the injunc-
tion by contempt proceedings or otherwise. PMC, Inc. v.
Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998);
Chicago & North Western Transportation Co. v. Railway La-
bor Executives’ Ass’n, 908 F.2d 144, 149 (7th Cir. 1990). It is
also to spare the courts and the litigants a struggle over the
injunction’s scope and meaning. Schmidt v. Lessard, 414 U.S.
473, 476 (1974) (per curiam); Hispanics United of DuPage
County v. Village of Addison, 248 F.3d 617, 620 (7th Cir. 2001).
Some cases suggest, in the words of the Tenth Circuit, that
No. 01-1238 3
prohibiting vague injunctions is also necessary to protect
“those who are enjoined by informing them of the spe-
cific conduct regulated by the injunction and subject to
contempt.” Consumers Gas & Oil, Inc. v. Farmland Industries,
Inc., 84 F.3d 367, 371 (10th Cir. 1996). But this rationale is
questionable because, if the injunction is vague, it is not en-
forceable by contempt.
Neither party has mentioned Rule 65(d) even though the
“injunction” (essentially against the canal company’s inter-
fering with the power company’s entering the canal com-
pany’s property to repair the canal) violates it blatantly.
Buried in the district judge’s oral opinion terminating the
case (the judgment order merely announces that judgment
is for the power company, and thus violates the precept that
“the judgment should award the relief to which the prevail-
ing party is entitled, not simply announce an entitlement,”
American Inter-Fidelity Exchange v. American Re-Insurance Co.,
17 F.3d 1018, 1020 (7th Cir. 1994) (emphasis in original)), the
“injunction” consists of a statement that “the plaintiff is
entitled to enter upon the defendant’s property in order to
repair the wall in accordance with” a repair plan that had
been submitted to the court, and of little more. Crucial
details, such as the power company’s duty to purchase
insurance against damage to the canal company’s property
from the repair activity, are omitted. The reference to the
repair plan does not cure the deficiency, not only because
the plan also lacks such crucial details as insurance but
also because Rule 65(d) requires that the injunction be self-
contained; its terms may not be filled out by reference to
another document.
So the “injunction” does not satisfy Rule 65(d). The rule
is not jurisdictional, however, and thus the repair plan
incorporated by reference may be looked to for assistance
in deciding whether the injunction is sufficiently definite
4 No. 01-1238
to be enforceable by means of a contempt proceeding.
Chathas v. Local 134 International Brotherhood of Electrical
Workers, 233 F.3d 508, 513 (7th Cir. 2000). That is an in-
quiry of jurisdictional significance because if the injunc-
tion is not at least that definite the canal company can
disobey it with impunity and thus, not being hurt by it,
would lack standing to challenge it, United States v. Board of
Education, 11 F.3d 668, 672 (7th Cir. 1993); Original Great
American Chocolate Chip Cookie Co. v. River Valley Cookies,
Ltd., 970 F.2d 273, 276 (7th Cir. 1992); Chicago & North
Western Transportation Co. v. Railway Labor Executives’ Ass’n,
supra, 908 F.2d at 149; see also Henrietta D. v. Giuliani, 246
F.3d 176, 182 (2d Cir. 2001), since an unenforceable order
is no order at all. But the order in this case is that definite,
at least. Although there are a number of open issues,
there is a core of ascertainable duty imposed by the in-
junction. If the canal company flatly refused without ex-
cuse to allow the power company onto its property for
the purpose of formulating a definite plan of repair, it
would be punishable for contempt.
It does not follow from the fact that the canal company
has standing to appeal from the injunction that there is no
remedy for the district court’s violation of Rule 65(d). True,
neither party has cited the rule; but because injunc-
tions impose continuing responsibilities on courts and
frequently have effects on third parties, courts have an
independent responsibility for assuring the ready admin-
istrability of injunctions. So we could, as in PMC, Inc.
v. Sherwin-Williams Co., supra, 151 F.3d at 619-20, remand
for the redrafting of the injunction. But there is more to
the appeal. For in addition to seeking an injunction, the
power company sought and, in the same oral opinion,
obtained a declaration of its right to go on the canal com-
pany’s property and repair the canal. Rule 65 does not ap-
No. 01-1238 5
ply to declaratory judgments, Metzl v. Leininger, 57 F.3d
618, 619 (7th Cir. 1995), and such judgments are appeal-
able, Gjertsen v. Board of Election Commissioners, 751 F.2d
199, 201 (7th Cir. 1984), even though, if they are disobeyed,
they provide merely a platform for seeking further relief.
Another of the federal civil rules is violated by this dec-
laratory “judgment,” however (and by the “injunction” as
well, for that matter)—Rule 58, which requires that a final
judgment, including a final declaratory judgment, be set
forth in a separate document from the opinion. Metzl v.
Leininger, supra, 57 F.3d at 619; American Inter-Fidelity Ex-
change v. American Re-Insurance Co., supra, 17 F.3d at 1020.
But a final judgment is appealable even if it does not com-
ply with Rule 58. Bankers Trust Co. v. Mallis, 435 U.S. 381,
385-86 (1978) (per curiam).
So we have jurisdiction and can proceed to the merits of
the appeal, where the canal company’s principal argu-
ment, and the only one we strictly need to consider, is that
it was entitled to a jury trial. Rule 38(b) of the civil rules
gives a party only ten days “after the service of the last
pleading directed to the issue” (that is, “any issue triable
of right by a jury,” id.) to demand a jury trial on that issue.
The canal company filed its demand within ten days
after serving on the power company its counterclaim de-
manding payment of the rent specified in the contract
for the use of the canal, which the power company had de-
cided to withhold until the canal was repaired. The district
judge thought the demand had come too late, because the
rent issue was clearly flagged in the power company’s
complaint; part of the declaratory judgment sought was
a declaration that the power company owed no rent until
the canal was back in working order.
The power company and the judge were confused by the
word “issue” in Rule 38(b). They think it means that if an
6 No. 01-1238
issue could give rise to a claim for damages, either party can
demand that it be tried to a jury. That is not correct. If the
only relief sought is equitable, such as an injunction or
specific performance (a type of affirmative injunction),
neither the party seeking that relief nor the party opposing
it is entitled to a jury trial. United States v. Louisiana, 339
U.S. 699, 706 (1950); Great American Federal Savings & Loan
Ass’n v. Novotny, 442 U.S. 366, 374-75 (1979); Townsend v.
Indiana University, 995 F.2d 691, 693 (7th Cir. 1993); Lac Du
Flambeau Band of Lake Superior Chippewa Indians v. Stop
Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249, 1254 (7th Cir.
1993); 9 Charles Alan Wright and Arthur R. Miller, Fed-
eral Practice and Procedure § 2308, pp. 79-80, § 2309, p. 85
(2d ed. 1995); cf. Spinelli v. Gaughan, 12 F.3d 853 (9th Cir.
1993). Rule 38(a), so far as applicable to this case, creates
a right to a jury trial merely coextensive with the Seventh
Amendment, which in turn confines that right to “Suits
at common law.” A suit seeking only equitable relief is
not a suit at common law, regardless of the nature of
the issues likely or even certain to arise in the case, Atlas
Roofing Co. v. Occupational Safety & Health Review Comm’n,
430 U.S. 442, 459 (1977); City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 726 n. 1 (1999) (con-
curring opinion), most of which indeed might be legal,
such as (see Atlas) whether the canal company broke its
contract with the power company, an issue normally de-
termined by the common law of contracts rather than by
some principle of equity jurisprudence.
We state this with confidence though mindful of the
statement in Chauffeurs, Teamsters & Helpers Local No. 391
v. Terry, 494 U.S. 558, 565 (1990) (a plurality opinion, but
the statement in question was agreed to by a majority of
the Justices), that “to determine whether a particular action
will resolve legal rights, and therefore give rise to a jury trial
right, we examine both the nature of the issues involved
No. 01-1238 7
and the remedy sought. First, we compare the statutory ac-
tion to 18th-century actions brought in the courts of Eng-
land prior to the merger of the courts of law and equity.
Second, we examine the remedy sought and determine
whether it is legal or equitable in nature. The second inquiry
is the more important in our analysis.” This formula for
guiding the Seventh Amendment inquiry has been repeated
frequently by lower courts, e.g., Lebow v. American Trans
Air, Inc., 86 F.3d 661, 668 (7th Cir. 1996); Brown v. Sandimo
Materials, 250 F.3d 120, 126 (2d Cir. 2001); Spinelli v.
Gaughan, supra, 12 F.3d at 855-56; Ramos v. Roche Products,
Inc., 936 F.2d 43, 50 (1st Cir. 1991), though criticized in
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D.C.
Cir. 1995): “Where the right at issue is a creature of recent
statute, the search for an 18th-century English analog
typically yields no clear answer. Given the radical difference
between mid-20th-century American ideas of the proper
role of the state and the ideas prevailing in 18th-century
England, this difficulty is hardly surprising; it is certainly
present here. Moreover, as the focus of the inquiry is
on whether the ‘issue to be tried’ was analogous to one
characteristically dealt with in equity or at common law,
and as most traditional issues could be tried in both con-
texts (albeit leading to different remedies), inconclusive
results seem foreordained.” Id. at 745 (emphasis in orig-
inal). But the historical inquiry, and the criticism of it, are
not about unsettling the principle that there is no right to
a jury trial when the plaintiff is seeking only equitable re-
lief; that principle is firm; the inquiry is to determine
whether a modern legal right has a sufficient analogy to
a right enforced by common law courts in the eighteenth
century to be enforceable by “a suit at common law” within
the meaning of the Seventh Amendment. Tull v. United
States, 481 U.S. 412, 420 (1987); City of Monterey v. Del
8 No. 01-1238
Monte Dunes at Monterey, Ltd., supra, 526 U.S. at 726 n. 1
(concurring opinion); Lebow v. American Trans Air, Inc.,
supra, 86 F.3d at 668; 8 Moore’s Federal Practice § 38.10[4][a],
p. 38-49 (3d ed. 1997).
The complaint in this case sought an injunction against
the canal company’s preventing the power company from
going on the canal company’s land to repair the canal at
the latter’s expense, as well as specific performance (the
granting of a lien), also a form of equitable relief. If that
were all, it would be clear there was no right to a jury trial.
But declaratory relief was also sought. Despite the equita-
ble origins of such relief, Edwin Borchard, Declaratory
Judgments 399 (2d ed. 1941), the Supreme Court has said
that actions for declaratory judgments are “neither legal
nor equitable.” Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 284 (1988); see also Moretrench American
Corp. v. S.J. Groves & Sons Co., 839 F.2d 1284, 1286 (7th
Cir. 1988); Hartford Financial Systems, Inc. v. Florida Software
Services, Inc., 712 F.2d 724, 727 (1st Cir. 1983). (So much
for the historical test for Seventh Amendment rights.) Rule
57 of the civil rules provides that “the procedure for obtain-
ing a declaratory judgment pursuant to [the Declaratory
Judgment Act, 28 U.S.C. § 2201] shall be in accordance
with these rules, and the right to trial by jury may be
demanded under the circumstances and in the manner
provided in Rules 38 and 39.” In other words, casting one’s
suit in the form of a suit for a declaratory judgment,
or adding a claim for a declaratory judgment to one’s other
claim or claims for relief, does not create a right to a jury
trial. Rather, as the Third Circuit put it nicely in Owens-
Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1189
(3d Cir. 1979), “If the declaratory judgment action does
not fit into one of the existing equitable patterns but
is essentially an inverted law suit—an action brought by
one who would have been a defendant at common law—
No. 01-1238 9
then the parties have a right to a jury. But if the action is
the counterpart of a suit in equity, there is no such right.”
See also Beacon Theatres, Inc. v. Westover, 359 U.S. 500,
504 (1959); James v. Pennsylvania General Ins. Co., 349 F.2d
228, 230 (D.C. Cir. 1965). (And here it is the latter.) We
prefer the formulation that we just quoted from Owens-
Illinois to that in Petition of Rosenman & Colin, 850 F.2d 57,
60 (2d Cir. 1988): “the nature of the underlying dispute
determines whether a jury trial is available.” The “nature of
the underlying dispute” here is breach of contract, but a
plaintiff who is seeking equitable relief and not damages
cannot wrest an entitlement to a jury trial by the facile
expedient of attaching a claim for declaratory judgment.
Otherwise anyone seeking an injunction could obtain a jury
trial.
So neither the power company nor the canal company
had a right to demand a jury trial on the basis of the com-
plaint. Any such right would have had to arise later. It
did arise later; it arose when the canal company counter-
claimed for the withheld rent. Founded on an alleged
breach of contract by the power company, the counter-
claim was a claim for damages and hence—despite its
being a counterclaim rather than a free-standing lawsuit,
since a counterclaim is a suit, only joined for econ-
omy with an existing suit—it was a suit at common law
within the meaning of the Seventh Amendment. Beacon
Theatres v. Westover, supra, 359 U.S. at 504, 508, 510;
Lee Pharmaceuticals v. Mishler, 526 F.2d 1115, 1116 (2d
Cir. 1975) (per curiam). The canal company’s demand for
a jury, filed within ten days after the counterclaim, was
the earliest either party could have demanded a jury trial.
At that point the fact that there was a common issue
underlying both the equitable and the legal claims, name-
ly the duty if any of the power company to pay rent, and
under that issue perhaps the deeper issue of which party
had actually broken the contract, became significant. Com-
10 No. 01-1238
mon issues, if triable at all in the sense that their resolution
requires resolving a material dispute of fact, as was the
case here, must be tried to a jury in order to prevent a
judge’s determination from foreclosing a party’s right to
have the issues in a common law suit tried by a jury. Dairy
Queen, Inc. v. Wood, 369 U.S. 469, 472-73, 479 (1962); Wade v.
Orange County Sheriff’s Office, 844 F.2d 951, 954 (2d Cir.
1988). So the demand for a jury trial was timely and its
rejection error; and until the jury trial to which the canal
company is entitled is completed issuance of an injunc-
tion is premature.
We need to address two other issues presented by
the appeal in order to guide the proceedings on remand.
(It is of course implicit in our earlier discussion that if the
power company prevails at the jury trial and again seeks
and obtains an injunction, the injunction is to comply
with Rules 58 and 65(d).) The first is whether the dis-
trict judge erred in refusing to allow the canal company to
file a third-party complaint under Fed. R. Civ. P. 14(a)
against Illinois Power Company (a former owner of the
hydroelectric plant), which the canal company’s ex-
pert thought may have contributed to the collapse of
the canal wall by planting utility poles too near the edge of
the canal. The judge thought the canal company had
waited too long to file the third-party complaint, but that
is clearly wrong. The suit was filed in February 2000; in June
the canal company filed its counterclaim and moved to file
the third-party complaint against Illinois Power. We cannot
for the life of us see what procedural economy could be
gained by forcing the canal company to sue Illinois Power
in a separate action or how the plaintiff could be prejudiced.
“As long as a third-party action falls within the general
contours limned by Rule 14(a), does not contravene cus-
tomary jurisdictional and venue requirements, and will
not work unfair prejudice, a district court should not pre-
No. 01-1238 11
clude its prosecution.” Lehman v. Revolution Portfolio L.L.C.,
166 F.3d 389, 395 (1st Cir. 1999). These conditions are so
manifestly satisfied here that we are constrained to deem
the judge’s denial of the canal company’s motion an abuse
of discretion. Ford Motor Co. v. Milby, 210 F.2d 137, 138-39
(4th Cir. 1954) (per curiam).
The second issue arises from the fact that the power
company will have to obtain a license from the Federal
Energy Regulatory Commission to put its hydro-
electric plant back into service. To the canal company’s
argument that the question of what is to be done about
the collapsed wall of the canal is, by virtue of the li-
cense requirement, within FERC’s primary jurisdiction, the
district judge replied that it is no business of the canal
company whether the power company is ever allowed
to generate electricity at its plant because the power com-
pany is entitled under the contract to a supply of water
regardless. We do not agree. It would be inequitable and
indeed extortionate for a court to issue an order that
allowed the power company to repair the canal at the
canal company’s expense if the repair would confer no
value on the power company (or, so far as appears, any-
one else) because it was denied a hydroelectric license
and as a result had no use for the water. The power com-
pany would in that event merely threaten to repair the
canal in order to induce a monetary settlement, that is, a
payment by the canal company to dissuade the power
company from carrying out its threat. Suppose it would
cost $500,000 to repair the canal. The power company, if
the repair would be worthless to it, would be happy to
accept payment from the canal company to give up its
right; at any settlement amount between $0 and $500,000,
both parties would be better off. To issue an injunction
in order to arm a plaintiff to obtain such a windfall would
be a perverse exercise of judicial power. See Youngs v. Old
12 No. 01-1238
Ben Coal Co., 243 F.3d 387, 393 (7th Cir. 2001); Northern
Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d
265, 279-80 (7th Cir. 1986); Odetics, Inc. v. Storage Technol-
ogy Corp., 185 F.3d 1259, 1273-74 (Fed. Cir. 1999); Foster
v. American Machine & Foundry Co., 492 F.2d 1317, 1324
(2d Cir. 1974); Edwards v. Allouez Mining Co., 38 Mich. 46, 48-
51 (1878); see generally Ian Ayres & Kristin Madison,
“Threatening Inefficient Performance of Injunctions and
Contracts,” 148 U. Pa. L. Rev. 45, 47-53 (1999).
But there may be more to the matter than this. The pow-
er company may reasonably want to repair the canal wall
forthwith so that it can begin generating power as soon
as it obtains its license, assuming that happy outcome is
likely (which we do not know). And, realistically, since
the canal company’s finances are distinctly shaky, repair
at the canal company’s expense may mean simply that the
power company will apply to the cost of repairing the ca-
nal the rental payments that it would otherwise owe the
canal company under their contract.
Application of the doctrine of primary jurisdiction
would be premature, moreover. The doctrine comes into
play when an issue arising in a lawsuit is one that the
legislature has confided for determination to an administra-
tive agency, such as FERC. United States v. Western Pacific
R.R., 352 U.S. 59, 63-64 (1956); Arsberry v. Illinois, 244
F.3d 558, 563 (7th Cir. 2001). When properly invoked, as
these cases and many others we could cite explain, the
doctrine requires that the suit be stayed until the agency
resolves the issue, whereupon the lawsuit resumes if
the agency’s resolution (assuming it survives review
by whatever court has jurisdiction to review the agency’s
decisions) has not resolved the entire controversy. See
also 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Ad-
ministrative Law Treatise § 14.1, pp. 271-73 (3d ed. 1994).
No. 01-1238 13
This case, at least at its present stage, lies outside the
heartland of the doctrine. Remember that it is a contract
dispute. No issue concerning the parties’ respective rights
and duties under the contract is within FERC’s jurisdic-
tion, primary or otherwise. FERC comes into the picture
in two ways. First, if it never grants the power com-
pany a license to operate the hydroelectric plant, the
company will not be entitled to the relief it is seeking
against the canal company, although it may, for all we
know, be entitled to other relief, such as abatement of
the rent. Second, FERC may have its own ideas about
how best to repair the canal wall, and it can condition
the license it issues to the power company, if it does issue
a license, on the company’s implementing those ideas, pro-
vided only that they are reasonable. See 16 U.S.C. §§ 799,
803(a)(1), (c), (g); 18 C.F.R. § 12.4(b)(2); David B. Spence,
“Managing Delegation Ex Ante: Using Law to Steer Admin-
istrative Agencies,” 28 J. Legal Stud. 413, 420-21 (1999);
cf. Midwestern Gas Transmission Co. v. McCarty, 270 F.3d
536, 538 (7th Cir. 2001). FERC orders issuing licenses for
hydroelectric generation often reserve regulatory control
over the construction plan, including the waterway, see,
e.g., Midwest Hydraulic Co., 79 F.E.R.C. ¶ 62,101 (1997);
J & T Hydro Co., 66 F.E.R.C. ¶ 62,138 (1994)—including even
repairs to the waterway, as in Windsor Locks Canal Co. &
Windsor Locks Hydroelectric Limited Partnership, 49 F.E.R.C.
¶ 62,300 (1989); see also Seneca Falls Power Corp., 84 F.E.R.C.
¶ 61,005 (1998), just like the present case.
This discussion shows that it would be premature to re-
fer any issue to FERC until the relief stage of this litiga-
tion is reached. Only if the power company again pre-
vails and again obtains an injunction entitling it to repair
the canal might it be necessary to adjust the terms of
the injunction to make sure that the company is not al-
14 No. 01-1238
lowed to do anything contrary to whatever conditions
FERC imposes on plans for repairing the canal wall. But
though there is no issue to refer to the FERC at the present
time it might be a good idea for the district court to stay the
lawsuit until the FERC proceeding concludes, since that
proceeding may quite possibly either render the lawsuit
moot (if the license is denied) except for the matter of
unpaid rent, or require significant changes in the equitable
relief ordered should the power company succeed in
proving its case. Rohr Industries, Inc. v. Washington Metropoli-
tan Area Transit Authority, 720 F.2d 1319, 1324-25 (D.C. Cir.
1983); Leyva v. Certified Grocers of California, Ltd., 593 F.2d
857, 863-64 (9th Cir. 1979). The question whether to stay the
suit is something for the district court to decide in the first
instance.
We trust that in the further proceedings that we are or-
dering the lawyers will be less insouciant about rules and
procedures; for they are courting sanctions. Neither par-
ty seems to have been aware of Fed. R. Civ. P. 65. The pow-
er company seems not to have heard of the Seventh Amend-
ment either. The canal company’s brief makes a hash of
the jurisdictional statement (thus violating 7th Cir. R.
28(a)(1); see Meyerson v. Harrah’s East Chicago Casino, No. 01-
1993, 2002 WL 1483222, at *1 (7th Cir. July 11, 2002) (per
curiam), and cases cited there), alleging that the power
company’s principal place of business is in Illinois, which
if true (it is false) would destroy diversity, and failing
to allege the state of citizenship of the members of the
power company, a limited liability company, so that the
relevant citizenship for diversity purposes is that of the
members, not of the company. Cosgrove v. Bartolotta, 150
F.3d 729, 731 (7th Cir. 1998). The canal company’s brief
omits the statement of the standard of appellate review
required of appellants, Fed. R. App. P. 28(a)(9)(B), while
the power company’s brief states the standard incorrectly.
No. 01-1238 15
It says that procedural rulings are reviewed for abuse
of discretion and substantive rulings (because this is a
diversity case) for clear error. Some procedural rulings are
reviewed for abuse of discretion, others not, while in di-
versity as in other cases findings of fact are reviewed for
clear error but rulings of law, whether substantive or pro-
cedural, are subject to plenary review.
Circuit Rule 36 shall apply on remand.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-5-02