NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 20, 2012*
Decided January 20, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 04‐3587
MAC COPELAND, Appeal from the United States District
Plaintiff, Court for the Southern District of Illinois.
v. No. 04‐228‐GPM
TOM’S FOODS, INC., et al., G. Patrick Murphy,
Defendants‐Appellees. Judge.
APPEAL OF:
THOMAS DUCEY and DUCEY &
ASSOCIATES, P.C.,
Appellants.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 04‐3587 Page 2
O R D E R
Thomas Ducey and his defunct law firm, Ducey & Associates, appeal from an order
imposing sanctions for filing a complaint duplicating litigation that an Illinois court already
had referred to arbitration. We affirm the judgment.
The underlying events began nearly two decades ago and arose out of Ducey’s
representation of Mac Copeland, a snack‐food wholesaler in St. Clair County, Illinois. With
Ducey as his attorney, Copeland filed suit in state court in 1993, claiming that Tom’s Foods,
a Georgia manufacturer of snack foods, had authorized two other defendants to distribute
the company’s products within the exclusive sales territory contractually guaranteed to him.
In May 2002, the state court granted the defendants’ motion to compel arbitration and
stayed proceedings until the completion of arbitration. Copeland filed a notice of appeal
from that ruling, but Ducey failed to tender the record to the appellate court, leading to
dismissal of the appeal in August 2002 for lack of prosecution.
Meanwhile, shortly before the state court ordered arbitration, Ducey had filed a
complaint in federal court raising the same claims as in the state litigation. The district court
dismissed the complaint for inadequate pleading of facts supporting diversity jurisdiction.
Soon after that dismissal the state court issued its arbitration ruling, but instead of
submitting the matter for arbitration or following through with the state‐court appeal,
Ducey refiled his federal complaint. Again the district court dismissed the complaint for
inadequate pleading of diversity jurisdiction. Then in May 2004—almost two years after
Copeland’s appeal from the order compelling arbitration had been dismissed—Ducey tried
again in federal court. His complaint in this third federal action mirrors his state suit and
the previous federal complaints. The defendants moved to dismiss the action or to stay the
proceedings in light of the state‐court case. They principally argued that the state court’s
decision compelling arbitration was preclusive. In the alternative, the defendants argued
that the district court lacked subject‐matter jurisdiction to review the state court’s decision
under the Rooker‐Feldman doctrine, see D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and that, if the district court did have
jurisdiction, it should stay proceedings under Colorado River Water Conservation District v.
United States,
424 U.S. 800 (1976). Ducey never responded on Copeland’s behalf, leading the
district court to treat the merits of the motion as admitted and dismiss the case. See S.D. ILL.
R. 7.1(c).
In the same order, the district court sua sponte directed Ducey and his firm to show
cause why they should not be sanctioned under Federal Rule of Civil Procedure 11(c) for
filing the complaint. The order cited the provisions of Rule 11 that the judge believed Ducey
had violated and noted that the complaint “duplicates a ten year old state court case and a
No. 04‐3587 Page 3
case that was previously filed twice and dismissed twice in this district court.” Ducey’s
response acknowledged that the federal litigation involved the “same parties and issues” as
the state case. He told the court that he “did not file this action in this court for the purpose
of harassment” but did not explain why he was filing duplicative litigation or why he was
continuing to pursue Copeland’s claims in federal court after the state court had ordered
them arbitrated. He explained that he failed to respond to the defendants’ motion to dismiss
because his “computer system” had been struck by lightning, erasing his scheduling
information.
The district court ordered Ducey and his law firm to pay the court $3,000 as a
sanction. Noting that Ducey had admitted that Copeland’s federal and state suits were
identical, the court found that the latest federal complaint had been filed for an improper
reason and lacked a sufficient legal foundation. See FED. R. CIV. P. 11(b)(1), (2).
Ducey and his firm have appealed from that ruling. Proceedings in this court were
stayed for six years while Tom’s Foods went through bankruptcy proceedings, and the
intervening years were not kind to Ducey. His law license has been suspended almost
continuously since August 2005 for ethical violations, see Lawyer Search: Attorney’s
Registration and Public Disciplinary Record for Cornelius Thomas Ducey, Jr., available at
https://www.iardc.org/ldetail.asp?id=73825600 (last visited Jan. 9, 2012), and his firm was
dissolved in 2010, see Corporation File Detail Report for Ducey & Associates, P.C., available
at http://www.ilsos.gov/corporatellc/CorporateLlcController (search “Ducey & Associates,
P.C.”) (last visited Jan. 9, 2012). The firm participates in this appeal under the Illinois statute
allowing for post‐dissolution actions. See 805 ILCS 5/12.80; Tamburo v. Dworkin,
601 F.3d 693,
698 n.2 (7th Cir. 2010). Ducey also informs us that he suffered a stroke in 2006 following
brain surgery and has been in speech therapy since. Ducey agrees, however, that with the
bankruptcy proceedings now over, this appeal can proceed to disposition.
Ducey advances three arguments attacking the sanctions order, which we review for
abuse of discretion. Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi.,
649 F.3d 539, 552 (7th
Cir. 2011); Nemsky v. ConocoPhillips Co.,
574 F.3d 859, 868 (7th Cir. 2009). First, he contends
that the district court gave him inadequate notice that he faced possible sanctions. Ducey is
correct that a court contemplating sanctions sua sponte under Rule 11 must give the
offending party notice of the allegedly sanctionable conduct and a chance to respond.
See FED. R. CIV. P. 11(c)(1), (3); Johnson v. Cherry,
422 F.3d 540, 551–52 (7th Cir. 2005). The
notice must specify the offending conduct, but only to the extent necessary to ensure that
the party facing sanctions has an adequate chance to defend himself. See In re Rimstat, Ltd.,
212 F.3d 1039, 1046 (7th Cir. 2000); In re Taylor,
655 F.3d 274, 286–87 (3d Cir. 2011); Clark v.
United Parcel Serv., Inc.,
460 F.3d 1004, 1008 (8th Cir. 2006). The district judge in this case
complied with these requirements. He identified which filing (the complaint) was
No. 04‐3587 Page 4
potentially sanctionable, laid out the provisions of Rule 11 that he believed Ducey had
violated, and gave Ducey almost three weeks to respond. The show‐cause order also noted
that the federal complaint was a carbon copy of the state‐court filing, which Ducey knew
had been referred to arbitration. This was more than enough to put Ducey on notice of the
need to explain his rationale and legal justification for filing the complaint.
Second, Ducey argues that the district court improperly sanctioned him for his state‐
court filings, thereby exceeding the scope of Rule 11. See Bisciglia v. Kenosha Unified Sch. Dist.
No. 1,
45 F.3d 223, 226–27 (7th Cir. 1995); Schoenberger v. Oselka,
909 F.2d 1086, 1087 (7th Cir.
1990). But this contention is baseless. The district court sanctioned Ducey for filing a
complaint in federal court for improper reasons and without sufficient legal support.
See FED. R. CIV. P. 11(b)(1), (2).
Finally, Ducey contends that the district court lacked adequate legal basis to sanction
him. He notes correctly that federal courts may, as a general matter, entertain suits parallel
to actions ongoing in state court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280,
292 (2005); TruServ Corp. v. Flegles, Inc.,
419 F.3d 584, 590 (7th Cir. 2005). But a court acts well
within its discretion when it imposes Rule 11 sanctions for filing claims that already have
been resolved in prior litigation. See Bethesda Lutheran Homes & Servs., Inc. v. Born,
238 F.3d
853, 859 (7th Cir. 2001); Hapaniewski v. City of Chicago Heights,
883 F.2d 576, 580–81 (7th Cir.
1989); Cannon v. Loyola Univ. of Chi.,
784 F.2d 777, 782 (7th Cir. 1986); Kountze ex rel. Gilbert
M. and Martha H. Hitchcock Found. v. Gaines,
536 F.3d 813, 819 (8th Cir. 2008). In this case,
although Copeland had the option of waiting to appeal the order compelling arbitration
until after entry of a final judgment, see Salsitz v. Kreiss,
761 N.E.2d 724, 729–30 (Ill. 2001), he
chose instead to pursue his right to an interlocutory appeal, see id.; Fosler v. Midwest Care
Center II, Inc.,
928 N.E.2d 1, 6 (Ill. App. Ct. 2010). The state court’s decision compelling
arbitration thus became final in 2002, when Copeland’s interlocutory appeal was dismissed
for lack of prosecution, and was entitled to preclusive effect. See John Crane, Inc. v. Admiral
Ins. Co.,
957 N.E.2d 517, 522–23 (Ill. App. Ct. 2011); Woodson v. Chi. Bd. of Educ.,
609 N.E.2d
318, 320–21 (Ill. 1993). We put to the side the subtleties of the Rooker‐Feldman doctrine and
Colorado River abstention and conclude that the district judge did not abuse his discretion in
determining that this duplicative, issue‐precluded suit was filed for an improper purpose
and lacked an adequate legal foundation.
AFFIRMED.
