Farmer-Paellmann v. Brown & Williamson ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3265, 05-3266, 05-3305
IN RE:
AFRICAN-AMERICAN SLAVE DESCENDANTS LITIGATION.
APPEALS OF:
DEADRIA FARMER-PAELLMANN, et al., and
TIMOTHY HURDLE, et al.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern District.
No. 02 C 7764—Charles R. Norgle, Sr., Judge.
____________
ARGUED SEPTEMBER 27, 2006—DECIDED DECEMBER 13, 2006
____________
Before EASTERBROOK, Chief Judge, and POSNER and
MANION, Circuit Judges.
POSNER, Circuit Judge. Nine suits were filed in federal
district courts around the country seeking monetary
relief under both federal and state law for harms
stemming from the enslavement of black people in Amer-
ica. A tenth suit, by the Hurdle group of plaintiffs, makes
similar claims but was filed in a state court and then
removed by the defendants to a federal district court. The
Multidistrict Litigation Panel consolidated all the suits
in the district court in Chicago for pretrial proceedings. 28
2 Nos. 05-3265, 05-3266, 05-3305
U.S.C. § 1407. Once there, the plaintiffs (all but the Hurdle
plaintiffs, about whom more shortly) filed a consoli-
dated complaint, and since venue in Chicago was proper
and in any event not objected to by the parties (other than
the Hurdle group, whose objection we consider later in
the opinion), the district court was unquestionably autho-
rized, notwithstanding Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26, 28 (1998), to determine the
merits of the suit. In re Carbon Dioxide Industry Antitrust
Litigation, 229 F.3d 1321, 1325-27 (11th Cir. 2000); cf. Neirbo
Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68
(1939).
We are also persuaded that a district court to which a
case is transferred under section 1407 can rule on a mo-
tion to dismiss the case even if the plaintiff has not agreed
to let the court decide the merits. In re Phenylpropanolamine
(PPA) Products Liability Litigation, 460 F.3d 1217, 1230-31
(9th Cir. 2006); 15 Charles W. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3866
(2006). While it is true that the Supreme Court held in the
Lexecon case that a transfer under section 1407 does not
authorize the district court to retain the case for trial, the
Court left open the question whether pretrial proceedings,
which are the business (the exclusive business) of the
transferee court, include rulings on dispositive pretrial
motions, such as motions to dismiss. But the Court hinted
that they do include them. Section 1407(a) states that “each
action so transferred [by the multidistrict litigation panel]
shall be remanded by the panel at or before the conclusion
of such pretrial proceedings to the district from which it
was transferred unless it shall have been previously
terminated.” Concerning this “provision of § 1407(a)
limiting the Panel’s remand obligation to cases not ‘previ-
Nos. 05-3265, 05-3266, 05-3305 3
ously terminated’ during the pretrial period,” the Court
remarked that “this exception to the Panel’s remand
obligation indicates that the Panel is not meant to issue
ceremonial remand orders in cases already concluded by
summary judgment, say, or dismissal,” 523 U.S. at 37(emphasis added)—implying that the transferee court can
indeed decide the entire case at the pretrial stage.
And rightly so. The duty to conduct the pretrial proceed-
ings in a multidistrict litigation entails the transferee
court’s ruling on a host of pretrial motions, many of
which, whether or not formally dispositive, can shape
the litigation decisively. There is no reason to exclude from
the court’s authority rulings on motions to dismiss—
especially a motion to dismiss on the ground that there
is no federal jurisdiction. It would be odd to require a
court to transfer a case to another federal court when it
was apparent that neither court had jurisdiction over the
case.
Were it not for the Hurdle suit, we wouldn’t have to
decide whether the district judge could have dismissed
the transferred suits had the parties not agreed, by filing
a new complaint, to his retaining them after completion of
pretrial proceedings. But the Hurdle plaintiffs did not
agree, so we cannot duck the question.
The suits are a series of mostly identical class actions on
behalf of all Americans descended from slaves with
whom one or more of the defendants or their corporate
predecessors may have been directly or indirectly in-
volved. The consolidated complaint (the Hurdle com-
plaint is similar, so need not be discussed separately)
alleges the following facts, for which we do not vouch, but
merely summarize, the complaint having been dismissed
before the truth or falsity of the allegations was deter-
mined.
4 Nos. 05-3265, 05-3266, 05-3305
The defendants are companies or the successors to
companies that provided services, such as transportation,
finance, and insurance, to slaveowners. At least two of
the defendants were slaveowners; the predecessor of one
of the bank defendants once accepted 13,000 slaves as
collateral on loans and ended up owning 1,250 of them
when the borrowers defaulted, and the predecessor of
another defendant ended up owning 346 slaves, also as a
consequence of a borrower’s default. Even before the
Thirteenth Amendment, slavery was illegal in the northern
states, and the complaint charges that the defendants
were violating the laws of those states in transacting
with slaveowners. It also claims that there were occa-
sional enslavements long after the passage of the Thir-
teenth Amendment and that some of the defendants
were complicit in those too. By way of relief, the com-
plaint seeks disgorgement to the class members of the
profits that the defendants obtained from their dealings
with slaveowners.
The legal basis for the plaintiffs’ federal claim is 42 U.S.C.
§ 1982, which provides that “all citizens of the United
States shall have the same right, in every State and Terri-
tory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal
property.” See City of Memphis v. Greene, 451 U.S. 100, 119-
20 (1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). A
claim based on a federal statute invokes the federal-
question jurisdiction of the federal courts. But since most
of the conduct of which the plaintiffs complain occurred
prior to the passage of the Thirteenth Amendment, and
indeed prior to the Civil War, section 1982 does not
provide a sturdy basis for the retention of federal juris-
diction over the plaintiffs’ nonfederal claims. A frivolous
Nos. 05-3265, 05-3266, 05-3305 5
federal law claim cannot successfully invoke federal
jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536-37 (1974);
Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1317 (7th Cir.
1997); Crowley Cutlery Co. v. United States, 849 F.2d 273, 276-
77 (7th Cir. 1988); Lovern v. Edwards, 190 F.3d 648, 654-
55 (4th Cir. 1999). So it cannot provide a perch on which to
seat nonfederal claims in the name of the federal courts’
supplemental jurisdiction, 28 U.S.C. § 1367. And very
few of the plaintiffs have a nonfrivolous claim under sec-
tion 1982.
But with one exception, all the nonfederal claims are
within the federal diversity jurisdiction and so do not
require a federal-law handle. The exception is Richard E.
Barber, Sr.’s suit; for both he and Brown Brothers, one
of the defendants in his suit, are citizens of New Jersey.
Since he thus cannot invoke diversity as a basis for federal
jurisdiction and does not have a colorable section 1982
claim (in fact he makes no section 1982 claim at all), his
suit must be dismissed for want of federal jurisdiction
without regard to the other challenges that the defendants
mount to federal jurisdiction over these suits.
The district judge ruled that by virtue of both the
political-question doctrine and the requirement of stand-
ing to sue derived from Article III of the Constitution,
there was no federal jurisdiction over any of the suits and
that in any event they had no merit because the applicable
statutes of limitations had lapsed and anyway the com-
plaint failed to state a claim. 375 F. Supp. 2d 721 (N.D. Ill.
2005). The dismissal was with prejudice. But if the judge
was correct that there is no jurisdiction, he should have
dismissed the suits without prejudice and thus not decided
their merits.
6 Nos. 05-3265, 05-3266, 05-3305
The political-question doctrine bars the federal courts
from adjudicating disputes that the Constitution has been
interpreted to entrust to other branches of the federal
government. The earliest and still the best example is
Luther v. Borden, 48 U.S. (7 How.) 1 (1849). Rhode Island
had not adopted a new constitution after the break with
England, but instead continued to govern itself under its
colonial charter. Restive citizens convened a constitu-
tional convention not authorized by the charter. The
convention adopted a new constitution to which the
charter government refused to submit, precipitating
rebellion and the establishment in 1842 of a rival state
government. The Supreme Court refused to decide
which of the two competing governments was the legiti-
mate one. It would have been exceedingly difficult to
gather and assess, by the methods of litigation, the facts
needed for such a decision. Id. at 41-42. It would have
been even more difficult to formulate a legal concept of
revolutionary legitimacy to guide the decision. Formulat-
ing and enforcing a remedy would have presented ad-
ditional stumbling blocks. The case simply exceeded
judicial capabilities. So the Court left the matter to the
President, to whom Congress had delegated the duty of
resolving it. Id. at 43; see also Ohio ex rel. Bryan v. Akron
Metropolitan Park District, 281 U.S. 74, 79-80 (1930); Pacific
States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 133-
50 (1912).
A case that sought reparations for the wrong of slavery
would encounter similar obstacles, but the plaintiffs have
been careful to cast the litigation as a quest for conven-
tional legal relief. All they are asking the federal judiciary
to do is to apply state law (plus the one federal statute, 42
U.S.C. § 1982) to the defendants’ conduct. They face, of
Nos. 05-3265, 05-3266, 05-3305 7
course, formidable obstacles, quite apart from the severely
limited applicability of section 1982. To name just one of
those obstacles, it is highly unlikely that antebellum laws
in northern states were intended to confer financial or
other benefits on the twenty-first century descendants of
slaves. But the obstacles to the vindication of the plain-
tiffs’ legal claims have the form at least of conventional
defenses to a lawsuit. If one or more of the defendants
violated a state law by transporting slaves in 1850, and the
plaintiffs can establish standing to sue, prove the viola-
tion despite its antiquity, establish that the law was
intended to provide a remedy (either directly or by provid-
ing the basis for a common law action for conspiracy,
conversion, or restitution) to lawfully enslaved persons
or their descendants, identify their ancestors, quantify
damages incurred, and persuade the court to toll the
statute of limitations, there would be no further obstacle
to the grant of relief.
But we think that the district court was correct, with
some exceptions to be noted, in ruling that the plaintiffs
lack standing to sue. It would be impossible by the meth-
ods of litigation to connect the defendants’ alleged mis-
conduct with the financial and emotional harm that the
plaintiffs claim to have suffered as a result of that conduct.
See generally James R. Hackney, Jr., “The Jurisprudence
of Slavery Reparations: Ideological Conflict, African
American Reparations, Tort Causation, and the Case for
Social Welfare Transformation,” 84 B.U. L. Rev. 1193 (2004).
For example, Aetna is alleged to have written several
insurance policies on slaves in the 1850s in violation of
state law applicable to the company, and to have obtained
premiums from the insureds—the slaveowners—that (we’ll
assume) exceeded the cost of the insurance to Aetna (its
8 Nos. 05-3265, 05-3266, 05-3305
expenses plus the payment of proceeds if the insured
event came to pass). The plaintiffs argue that Aetna’s net
income from this insurance was a wrongful profit that
the company should be ordered to restore to the plaintiff
classes.
If the insurance business was competitive back then (and
the plaintiffs do not argue that it was not), Aetna did
not profit in an economic sense from the transactions of
which the plaintiffs complain (its “profit” would just be its
cost of equity capital), and in any event it would have
distributed any profits from the transactions to its share-
holders long ago. All that to one side, there is a fatal
disconnect between the victims and the plaintiffs. When a
person is wronged he can seek redress, and if he wins,
his descendants may benefit, but the wrong to the ancestor
is not a wrong to the descendants. For if it were, then
(problems of proof to one side) statutes of limitations
would be toothless. A person whose ancestor had been
wronged a thousand years ago could sue on the ground
that it was a continuing wrong and he is one of the victims.
The plaintiffs introduce another claim of injury by
asserting that had the defendants refused to violate their
own states’ laws by doing business with slaveowners, there
would have been less slavery because the refusal would
have been tantamount to subjecting the slaveowners to a
partial boycott. That would have raised their costs, and, by
making slavery less profitable, might have reduced the
amount of it. (“Might,” not “would,” because the higher
costs might simply have depressed the price of a slave.)
And had there been less slavery, the argument continues,
some of the ancestors of the members of the plaintiff
classes would not have been slaves, but instead free
laborers, and they would have had some disposable
Nos. 05-3265, 05-3266, 05-3305 9
income part of which they might have saved rather than
spent, and left to their heirs.
But this causal chain is too long and has too many weak
links for a court to be able to find that the defendants’
conduct harmed the plaintiffs at all, let alone in an
amount that could be estimated without the wildest
speculation. It is impossible to determine how much, if
any, less slavery there would have been had the defen-
dants not done business with slaveowners, what effect a
diminution of slavery would have had on bequests by
ancestors of the class members, and how much of the
value of those bequests would have trickled down to the
class members.
Suppose a class member could prove that he was de-
scended from one of the slaves insured by Aetna or
transported by the Union Pacific Railroad (another defen-
dant) or bought with money lent to the buyer by the
predecessor of the JPMorgan Chase Bank (still another
defendant), and that these transactions were illegal and
that the descendants of slaves are among the people
whom the laws were intended to protect. Had he not been
insured or transported or bought with a bank loan, how
would the financial welfare of his remote descendant be
affected? Would this ancestor have been freed, or per-
haps never enslaved in the first place? As the plaintiffs
stress, slavery was profitable; is it conceivable that slave-
holders would have been unable to insure, transport, and
finance the purchase of slaves if northern companies had
been excluded from the provision of these services or had
refused to violate their states’ laws that sought to keep
them from providing the services?
Even if compliance with those laws would have cur-
tailed slavery and even if it could be shown (it could
10 Nos. 05-3265, 05-3266, 05-3305
not be) that as a result of that hypothetical curtailment a
plaintiff’s remote ancestor would not have been a slave but
instead a free laborer, how could the wages that the
ancestor would have earned as a free laborer be shown to
have influenced the wealth of his remote descendant?
Economists actually study such issues, under the rubric of
“intergenerational mobility,” see, e.g., Kerwin Kofi Charles
& Erik Hurst, “The Correlation of Wealth Across Genera-
tions,” 111 J. Pol. Econ. 1155 (2003); Keith N. Hylton, “The
Jurisprudence of Slavery Reparations: Slavery and Tort
Law,” 84 B.U. L. Rev. 1209, 1239-41 (2004), but these are
studies of aggregate effects, not of the effects of particular
acts, affecting particular individuals, on the wealth of
specific remote descendants. There is no way to determine
that a given black American today is worse off by a spe-
cific, calculatable sum of money (or monetized emotional
harm) as a result of the conduct of one or more of the
defendants.
Nor are the problems of measuring and tracing elided by
recasting the relief sought as restitution rather than dam-
ages. Restitution—the transfer of the wrongdoer’s gain to
his victim—is an alternative to damages, the monetization
of the victim’s loss. ConFold Pacific, Inc. v. Polaris Industries,
Inc., 433 F.3d 952, 957-58 (7th Cir. 2006); Charter Communica-
tions Entertainment I, DST v. Burdulis, 460 F.3d 168, 182 (1st
Cir. 2006); Kerr v. Charles F. Vatterott & Co., 184 F.3d 938,
944 (8th Cir. 1999); 1 Dan B. Dobbs, Dobbs Law of Remedies
§ 4.1, pp. 551, 555 (2d ed. 1993). It is a sensible remedy for
egregious misconduct because it makes the conduct
worthless to the defendant by taking away his profit even
if it exceeds the loss to the plaintiff. But it presupposes an
injury—it is a remedy for a legal wrong—and there is no
way in which to determine what if any injury the defen-
dants inflicted on the members of the plaintiff classes.
Nos. 05-3265, 05-3266, 05-3305 11
And again, if there were a legal wrong, it would not be
a wrong to any living persons unless they were some-
how the authorized representatives to bring suits on
behalf of their enslaved ancestors. With some exceptions
to be noted, the plaintiffs are suing to redress harms to
third parties (their ancestors), without being authorized to
sue on behalf of those parties. It is like a suit by a descen-
dant of a Union soldier, killed in battle, against a Civil
War era gun manufacturer still in business that sold guns
to the Confederacy in violation of federal law. A federal
court could not entertain the suit because the plaintiff
would be unable to prove a harm to an interest of his (such
as his bank account) that the law protects. E.g., Raines v.
Byrd, 521 U.S. 811, 818-19 (1997); Sierra Club v. Morton,
405 U.S. 727, 739-40 (1972). It is possible that had the
ancestor not died when he did he would have become a
wealthy person and left bequests so immense that his
remote descendant, the plaintiff, would have inherited
more money from his parents or grandparents than he
actually did. But that is too speculative an inquiry to
provide a basis for a federal suit. See McConnell v. FEC,
540 U.S. 93, 225-26 (2003); Branton v. FCC, 993 F.2d 906,
909 (D.C. Cir. 1993).
The two cases just cited, and others, treat remoteness as
a limitation on Article III standing. Still other cases treat
it as a nonjurisdictional limitation on who may sue in
federal court—but still a limitation. Holmes v. Securities
Investor Protection Corp., 503 U.S. 258, 268-69 (1992); Blue
Shield of Virginia v. McCready, 457 U.S. 465, 476-77 (1982);
Israel Travel Advisory Service, Inc. v. Israel Identity Tours, Inc.,
61 F.3d 1250, 1257 (7th Cir. 1995); Allegheny General Hospital
v. Philip Morris, Inc., 228 F.3d 429, 435 (3d Cir. 2000).
Another group of cases would deem the suit barred by
12 Nos. 05-3265, 05-3266, 05-3305
Article III because one function of the Article III stand-
ing doctrine is to prevent parties with slight interests in
a litigation from crowding those who have the main
interests. Valley Forge Christian College v. Americans United
for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982);
Morlan v. Universal Guardian Life Insurance Co., 298 F.3d
609, 621 (7th Cir. 2002); Illinois DOT v. Hinson, 122 F.3d 370,
373 (7th Cir. 1997); People Organized for Welfare & Employ-
ment Rights (P.O.W.E.R.) v. Thompson, 727 F.2d 167, 173 (7th
Cir. 1984); Abraham v. Intermountain Health Care Inc., 461
F.3d 1249, 1268 (10th Cir. 2006). In our hypothetical case
of the Union soldier, the litigant with the paramount
interest in the case would be his estate and the damages
that the estate could recover would include whatever
amount of money he would have wanted his descendant
to inherit. If the descendant could sue the tortfeasor
directly for that amount (or for the tortfeasor’s profit, in
a suit for restitution), there would be either double re-
covery or an impossible task of allocating the monetary
recovery between the descendant and the estate.
A few of the plaintiff’s claims, however, as we noted
at the outset, are claims of subjection to involuntary
servitude after it was outlawed by the Thirteenth Amend-
ment, and indeed into the twentieth century. Cain Wall,
Sr. claims that “during the time that [he] was enslaved”—
which he contends extended into the 1960s—“one or more
of the defendants were doing business in Mississippi or
Louisiana. Some of the defendants had reason to know
of the enslavement of Cain Wall and yet failed to take
steps to eliminate same, while they continued to inure
benefits from the illegal, but sanctioned system of
servitude post-emancipation.” But there is no claim that the
defendants subjected Wall (or any other class member) to
Nos. 05-3265, 05-3266, 05-3305 13
involuntary servitude or did anything to perpetuate or
exacerbate his condition. The claim is that they took no
steps to free him. The briefs suggest no basis for thinking
that there is any kind of Good Samaritan legal duty to
eliminate a violation of the Thirteenth Amendment com-
mitted by someone else.
The limitations that Article III places on the right to
sue in a federal court require us to affirm, on the basis of
lack of standing, the greater part of the district court’s
judgment. But there are three qualifications. First, although
most of the plaintiffs and class members are suing as
descendants rather than as representatives of their ances-
tors’ estates authorized to sue on those ancestors’ behalf,
a few do claim to be suing in such a representative capac-
ity. It is highly unlikely that the estate of anyone who
died a century or more ago, or indeed more than half a
century ago (for although many former slaves survived
into the twentieth century, very few would still have
been alive 50 years ago, which is to say in 1956, 91 years
after the end of the Civil War), has not yet been closed. But
the district judge accepted that the purported representa-
tives had a right to sue on behalf of their ancestors, and
the defendants offer only a perfunctory rebuttal. We
shall assume without deciding that some of the plaintiffs
are legal representatives of their slave ancestors. These
plaintiffs not only escape the objection to standing that
the suits seek damages for injuries actually suffered by
third parties (the ancestors—no longer third parties, but the
real parties in interest, merely represented by the plain-
tiffs), but have less to prove. They just have to prove the
injury to the ancestors; the trickle-down question is elided.
In all likelihood it would still be impossible for them to
prove injury, requiring as that would connecting the
14 Nos. 05-3265, 05-3266, 05-3305
particular slavery transactions in which the defendants
were involved to harm to particular slaves. But in any
event, suits complaining about injuries that occurred
more than a century and a half ago have been barred for
a long time by the applicable state statutes of limitations.
It is true that tolling doctrines can extend the time
to sue well beyond the period of limitations—but not to
a century and more beyond. Slaves could not sue, and
even after the Thirteenth Amendment became effective
in 1865 suits such as these, if brought in the South,
would not have received a fair hearing. However, some
northern courts would have been receptive to such suits,
and since the defendants are (and were) northern compa-
nies, venue would have been proper in those states. Even
in the South, descendants of slaves have had decades of
effective access to the courts to seek redress for the
wrongs of which they complain. And it’s not as if it had
been a deep mystery that corporations were involved in
the operation of the slave system. See, e.g., Edgar J.
McManus, Black Bondage in the North 174 (1973); Kenneth
M. Stampp, The Peculiar Institution: Slavery in the Ante-
Bellum South 397 (1956).
The second qualification concerns a claim, rather buried
in the complaint but not forfeited, that in violation of
state fraud or consumer protection law members of the
plaintiff classes have bought products or services from
some of the defendants that they would not have bought
had the defendants not concealed their involvement in
slavery. This claim has nothing to do with ancient viola-
tions and indeed would be unaffected if the defendants’
dealings with slaveowners had been entirely legal. It is a
complaint of consumers’ being deceived because sellers
have concealed a material fact. The injury is the loss
Nos. 05-3265, 05-3266, 05-3305 15
incurred by buying something that one wouldn’t have
bought had one known the truth about the product.
It is true that under no consumer protection law known
to us, whether a special statute or a doctrine of the com-
mon law of contracts or torts, has a seller a general duty
to disclose every discreditable fact about himself that
might if disclosed deflect a buyer. To fulfill such a duty
he would have to know much more about his consumers
than he possibly could. But the plaintiffs are charging
the defendants with misrepresenting their activities in
relation to slavery. A seller who learns that some class of
buyers would not buy his product if they knew it con-
tained some component that he would normally have no
duty to disclose, but fearing to lose those buyers falsely
represents that the product does not contain the compo-
nent, is guilty of fraud. An example would be a manufac-
turer who represented that his products were made in the
United States by companies that employ only union labor,
whereas in fact they were made in Third World sweat-
shops. See Kasky v. Nike, Inc., 45 P.3d 243, 248 (Cal. 2003);
Price v. Philip Morris, Inc., 848 N.E.2d 1, 19 (Ill. 2005);
Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 154-55 (Ill. 2002);
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1185 (3d Cir.
1993).
We do not offer an opinion on the merits of the consumer
protection claims, but merely reject the district court’s
ruling that they are barred at the threshold.
The third qualification concerns the Hurdle suit and is
related to the second qualification. Unlike the other
plaintiffs, the Hurdle plaintiffs didn’t want to remain in
the district court in Chicago. They wanted to return to the
California district court from which their case had been
transferred to Chicago for pretrial proceedings, when the
16 Nos. 05-3265, 05-3266, 05-3305
pretrial proceedings concluded. Actually they wanted to
return to the California state court from which the defen-
dants had removed their case to the district court, but that
is an issue for that district court to resolve if and when the
case is returned. As we pointed out at the beginning of
this opinion, the district court, as the transferee court in a
transfer pursuant to 28 U.S.C. § 1407, was authorized to
rule on a motion to dismiss the Hurdle suit. But though
the district judge in the exercise of that power rightly
dismissed so much of that suit as attacks wrongs done to
the plaintiffs’ ancestors, the Hurdle plaintiffs are among
the plaintiffs who have consumer protection claims as
well. As to them there will be further pretrial proceedings,
and they will be conducted in Chicago. So the Hurdle
plaintiffs can’t go back to California, at least not yet.
To summarize, the district court’s dismissal, for want
of standing, of all but the claims brought by legal represen-
tatives of slaves plus the consumer protection claims is
modified to be a dismissal without prejudice, and as so
modified is affirmed. (Barber’s suit is dismissed, also
without prejudice, for want of diversity.) The dismissal of
the claims brought by the plaintiffs who claim to be legal
representatives is affirmed, but on the merits (statute of
limitations) and so with prejudice. The dismissal of the
consumer protection claims is reversed and the case
remanded to the district court for further proceedings on
those claims consistent with this opinion. The district
court is authorized to retain those claims for the duration
of the litigation, except in the case of the Hurdle plaintiffs,
as to whom the court is authorized only to conduct pretrial
proceedings under 28 U.S.C. § 1407.
MODIFIED AND AFFIRMED, IN PART;
REVERSED IN PART AND REMANDED.
Nos. 05-3265, 05-3266, 05-3305 17
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-13-06