UWM Student Association v. Michael Lovell , 888 F.3d 854 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2499
UWM STUDENT ASSOCIATION, et al.,
Plaintiffs-Appellants,
v.
MICHAEL LOVELL, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15-CV-1 — J.P. Stadtmueller, Judge.
____________________
ARGUED FEBRUARY 6, 2018 — DECIDED APRIL 25, 2018
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON, Cir-
cuit Judges.
HAMILTON, Circuit Judge. Student government elections
rarely produce federal litigation. Wisconsin law, though,
gives students at state universities rights to organize them-
selves and to run their governments, which have the power to
spend substantial funds. Wis. Stat. § 36.09(5). The combina-
tion of those state-law rights and fiscal powers can produce
2 No. 17-2499
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-Milwau-
kee, commonly known as UWM. Plaintiffs are the UWM Stu-
dent Association and several former and current UWM stu-
dents. Plaintiffs allege a wide-ranging conspiracy to interfere
with student governance. They allege that the UWM admin-
istration 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 As-
sociation at UWM. After considerable procedural fencing—
resulting from plaintiffs’ clumsy efforts to pursue an unman-
ageable complaint with 44 plaintiffs suing 37 defendants for
claims spanning several years of student politicking—the dis-
trict court dismissed the suit with prejudice. We affirm in part,
reverse in part, and remand with instructions to reinstate cer-
tain 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 cur-
rently 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 nu-
merous university administration officials and other students.
Plaintiffs filed their lawsuit in Wisconsin state court, but de-
fendants removed the case to the federal court. After removal,
No. 17-2499 3
the district court allowed the plaintiffs to amend their com-
plaint 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 plain-
tiffs’ right to organize under the Wisconsin statute on student
governance at state universities, Wis. Stat. § 36.09(5). The sev-
enth 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 re-
named after the district court had already dismissed claims
against them for lack of timely service. Next, the court dis-
missed 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-or-
ganize claim under state law. Any claims for damages on that
theory have dropped out of the case, and any claims for in-
junctive or declaratory relief on that theory are moot. We must
reverse, however, the dismissal with prejudice of the remain-
ing claims for misjoinder. While we understand the district
4 No. 17-2499
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 prelimi-
nary 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 as-
signed to him. Defendants point out correctly that by its
terms, Rule 63 applies only when “a judge conducting a hear-
ing 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 Med-
ical Grp., Inc. Long Term Disability Plan, 687 F.3d 320, 326–27
(7th Cir. 2012). Rule 63 does not apply here. There was no ev-
identiary hearing on defendants’ motion to dismiss this ver-
sion 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 dis-
missal 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 gov-
erned 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
No. 17-2499 5
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 pro-
cess or service may be completed or new pro-
cess issued in the same manner as in cases orig-
inally 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 opera-
tive complaint at the time of removal was the first amended
complaint. It named several defendants, including Dr. Mi-
chael Lovell, the Board of Regents, Heather Harbach, Pahoua
Xiong, Amy Watson, Suzanne Weslow, Anthony DeWees, Ni-
kolaus 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 defend-
ants except Lang and Hall. Defendants filed a motion to dis-
miss that complaint. The district court held a hearing and
granted plaintiffs leave to file a third amended complaint.
6 No. 17-2499
And on December 1, 2015, plaintiffs filed their third
amended complaint, again naming all of the previously dis-
missed defendants except Lang and Hall.1 Although plaintiffs
filed additional affidavits showing service following the third
amended complaint, none of these affidavits establishes ser-
vice 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 fed-
eral 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
1 Although Amy Watson and Suzanne Weslow are not named in the
caption, they are named in the recitation of the parties. Instead of naming
Watson and Weslow individually (followed by their office) in the caption,
the caption now lists only their office, “UW-Milwaukee Public Records
Custodian.” It appears that the Public Records Custodian will remain as a
defendant because plaintiffs appear to have served a holder of that office
with the original complaint and because the district court did not dismiss
the office as a defendant. UWM Student Ass’n, 266 F. Supp. 3d at 1131 (dis-
missing “the unserved Defendants who were dismissed by the Court in
its September 30, 2015 order”). The captions of the first and second
amended complaints name Anthony Proccacio, as Public Records Custo-
dian, as a defendant. In an earlier order, the district court noted that the
defendants represented to the district court that Proccacio was “properly
served with the initial pleading in May of 2014.” UWM Student Ass’n, 2015
WL 5795675, at *1. Also, adding to the confusion, the plaintiffs filed an
affidavit indicating that at least one of the dismissed defendants, the
Board of Regents, was served with the original complaint in 2014, but, in
their opening brief on appeal, plaintiffs disclaim reliance on that affidavit.
No. 17-2499 7
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 ser-
vice after the removal? Rule 4(m) requires the district court to
extend the time “if the plaintiff shows good cause for the fail-
ure.” The rule also permits the district court to extend the time
even absent good cause. Coleman v. Milwaukee Bd. of School Di-
rectors, 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 applica-
tion 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 dis-
missed 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 dis-
trict court implicitly extended the service period by allowing
2 Since December 1, 2015, Rule 4(m) has required service within 90
days after the complaint is filed.
3 The 120 days ran on May 2, 2015. Because May 2 was a Saturday, the
service period continued to run until the end of the following Monday.
See Fed. R. Civ. P. 6(a)(1)(C).
8 No. 17-2499
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 period for service); see also 4B
Wright & Miller, Federal Practice and Procedure § 1137 (4th
ed.) (“Filing an amended complaint does not toll the Rule
4(m) service period and thereby provide an additional 90
days for service. However, adding a new party through an
amended complaint initiates a new timetable for service upon
the added defendant.”).
To be cautious, the district court considered the late ser-
vice issue under both state and federal law, but federal law
governs. See 28 U.S.C. § 1448. The court considered whether
it would extend the period for service under Rule 4(m) or 6(b)
and held that plaintiffs did not show “anything approaching
excusable neglect or good cause.” UWM Student Ass’n, 266 F.
Supp. 3d at 1130. While the district court did not specifically
state whether it would have been willing to exercise its dis-
cretion to allow late service under Rule 4(m) despite the lack
of good cause, we are confident from the court’s analysis and
comments that the court would not have been at all inclined
to do so, and that would not be an abuse of its discretion. Ac-
cordingly, we affirm the district court’s dismissal of the claims
against the remaining previously dismissed defendants, Dr.
Michael Lovell, the Board of Regents, Heather Harbach, Pa-
houa Xiong, Amy Watson, Suzanne Weslow, Anthony
DeWees, Nikolaus P. Rettinger III, and Carla Greve, for lack of
timely service.
No. 17-2499 9
B. Dismissal of Right-to-Organize Claim
We turn next to plaintiffs’ right-to-organize claim under
Wisconsin law, which the district court dismissed based on
state sovereign immunity. UWM Student Ass’n, 266 F. Supp.
3d at 1131–36. We review a dismissal on sovereign immunity
grounds as a dismissal for failure to state a claim. See Meyers
v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 820 (7th Cir.
2016) (affirming treatment of motion to dismiss on sovereign
immunity grounds as motion to dismiss for failure to state a
claim). Our review of a district court’s grant of a motion to
dismiss for failure to state a claim is de novo, and we may af-
firm on any basis in the record. Rocha v. Rudd, 826 F.3d 905,
909 (7th Cir. 2016), quoting Brooks v. Ross, 578 F.3d 574, 578
(7th Cir. 2009). The claim should be dismissed, but because of
mootness rather than sovereign immunity.4
Article III of the Constitution limits federal jurisdiction to
actual cases or controversies “at ‘all stages of review, not
merely at the time the complaint is filed.’” Ciarpaglini v. Nor-
wood, 817 F.3d 541, 544 (7th Cir. 2016), quoting Campbell–Ewald
Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (internal citation omit-
ted). “[I]f at any point the plaintiff would not have standing
to bring suit at that time, the case has become moot.” Milwau-
kee Police Ass'n v. Board of Fire & Police Comm'rs, 708 F.3d 921,
929 (7th Cir. 2013). As a general rule, cases or individual
claims for relief become moot “when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest
4 Mootness guides our analysis because plaintiffs do not seek damages
in this claim. See Appellants’ Br. at 41 (“Plaintiffs’ cause of action under
state statute 36.09(5) merely seeks to declare unlawful and enjoin future
instances and effects of these kinds of unlawful actions by state agents”);
id. at 48 (“It’s not about money.”).
10 No. 17-2499
in the outcome.” See Stotts v. Community Unit School Dist. No.
1, 230 F.3d 989, 990 (7th Cir. 2000), quoting Powell v. McCor-
mack, 395 U.S. 486, 496 (1969).
In this case, mootness stems from an application of stand-
ing requirements. Mootness is understood, subject to well-es-
tablished exceptions, as “the doctrine of standing set in a time
frame.” Milwaukee Police Ass'n, 708 F.3d at 929, quoting Friends
of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U.S. 167, 189 (2000). To have standing to maintain a case
in federal court, a plaintiff must establish “(1) an injury in fact,
(2) a sufficient causal connection between the injury and the
conduct complained of, and (3) a likelihood that the injury
will be redressed by a favorable decision.” Simic v. City of Chi-
cago, 851 F.3d 734, 738 (7th Cir. 2017), citing Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). The third prong is
dispositive here. An injunction or declaration at this late stage
would not redress plaintiffs’ alleged but stale injuries.
It is too late for an injunction. For prospective injunctive
relief, plaintiffs must demonstrate a “‘real and immediate’
threat of future injury.” Simic, 851 F.3d at 738, quoting City of
Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). The plaintiffs al-
lege infringements of their right to self-organize, but most of
the events ended in 2014. A prospective injunction would be
pointless. The complaint acknowledges that plaintiffs seek to
revive a student government that is “moribund.” Nearly four
years after the last alleged wrongdoing, plaintiffs do not face
any real and immediate threat of future injury. Although
plaintiffs allege some continuing harms because the defend-
ant Student Association continues to function, they fail to al-
No. 17-2499 11
lege that those continuing harms have stopped them from or-
ganizing on a current basis. An injunction could not redress
plaintiffs’ alleged injuries.
It is also too late for a declaratory judgment because it
could do the plaintiffs no practical good. In Milwaukee Police
Association, we recognized that a request for a declaratory
judgment may not be moot where a defendant’s ongoing pol-
icy continues to affect the parties’ relationship. See 708 F.3d at
930–33. We relied on the reasoning in Super Tire Engineering
Co. v. McCorkle, 416 U.S. 115, 121–127 (1974), where the plain-
tiffs were employers who sought a declaratory judgment that
federal law preempted state regulations providing welfare
benefits to striking workers. The district court dismissed the
claim on the merits. After the underlying strike had ended,
the Third Circuit remanded to the district court with instruc-
tions to vacate and dismiss the entire case as moot. The Su-
preme Court reversed and held that the claim for declaratory
relief was not moot because the policy continued to affect the
parties’ collective bargaining relationship. Super Tire, 416 U.S.
at 122–25.
Consistent with Super Tire, the Supreme Court and other
circuits have recognized that a party may pursue a claim for
declaratory relief where an ongoing policy has continuing ef-
fects analogous to those in Super Tire. See Milwaukee Police
Ass'n, 708 F.3d at 931.5 When this special rule applies, and it
5 At least five circuits (the D.C., Second, Fifth, Ninth, and Eleventh
Circuits) have recognized the Super Tire rule while finding it inapplicable
in the cases before them. See Bayer v. Neiman Marcus Grp., Inc., 861 F.3d
853, 868 (9th Cir. 2017) (claim for declaratory relief failed to satisfy excep-
tion because plaintiff produced no evidence that conduct “presently af-
fects him or can reasonably be expected to affect him in the future”); Carver
12 No. 17-2499
rarely does, it applies because “disputes over an ongoing pol-
icy may continue, even after the specific offense precipitating
the suit has become moot.” Id. at 930. If “a litigant challenges
the policy through a declaratory judgment, then the case
should proceed when ‘the facts alleged, under all the circum-
stances, show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judg-
ment.’” Id., quoting Super Tire, 416 U.S. at 122. To prevail, the
party seeking declaratory relief must demonstrate that the on-
going policy is a “‘continuing and brooding presence’” that
Middle School Gay-Straight Alliance v. School Bd. of Lake County, Florida, 842
F.3d 1324, 1330 (11th Cir. 2016) (plaintiff student’s claim for declaratory
relief failed to satisfy exception because student had “no present interest,
other than vindication, in a declaratory judgment”); Del Monte Fresh Pro-
duce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (recognizing
ongoing policy exception but deciding case under exception for issues ca-
pable of repetition yet evading review); Harris v. City of Houston, 151 F.3d
186, 191 n.5 (5th Cir. 1998) (recognizing exception but declining to apply
it because plaintiffs’ claim for declaratory relief was not based on policy);
Nieves v. Oswald, 498 F.2d 802, 814 (2d Cir. 1974) (recognizing exception
but declining to apply it to claim for declaratory relief by inmates subject
to discipline hearings after Attica prison riots because state dropped pos-
sibility of disciplinary proceedings and prison disciplinary procedures did
not affect “legitimate present interests of the class members”).
The Supreme Court and at least one other circuit have reached similar
conclusions without citing Super Tire. See, e.g., Reno v. Bossier Parish Sch.
Bd., 528 U.S. 320, 327–28 (2000) (claim for declaratory relief regarding elec-
toral redistricting plan not moot because existing plan would have “prob-
able continuing effect” as “baseline” for future redistricting plans); New
York Civil Liberties Union v. Grandeau, 528 F.3d 122, 129–30, 129 n.6 (2d Cir.
2008) (Sotomayor, J.) (claim for declaratory relief regarding lobbying re-
porting policy not moot even though challenged billboard had been taken
down).
No. 17-2499 13
“‘casts … a substantial adverse effect on the interests of the
petitioning parties.’” Id., quoting Super Tire, 416 U.S. at 122 (el-
lipsis in original).
Although plaintiffs allege an ongoing policy in the sense
that the defendant Student Association continues to operate
and is supported by the UWM administration, the Super Tire
rule does not apply. At this stage, actions that the university
administration and the defendant Student Association alleg-
edly took several years ago, with several annual elections hav-
ing occurred in the meantime, could no longer affect plaintiffs
in a real or immediate way and are not continuing or “brood-
ing” with a substantial adverse effect on plaintiffs’ interests.
See id. at 933 (holding that ongoing policy exception did not
apply to union’s challenge of employment termination proce-
dures because policy was neither “brooding” nor substan-
tially adverse).
More specific mootness precedents reinforce the mootness
of this dispute over student government offices for terms that
expired years ago. Expiration of an officeholder’s expected
term of office ordinarily moots claims for injunctive or declar-
atory relief. See Barany v. Buller, 707 F.2d 285, 287 (7th Cir.
1983) (plaintiff’s claims for reinstatement and declaratory
judgment were moot because nearly four years had elapsed
since removal from one-year term of office). Plaintiffs’ request
for a declaratory judgment as to the 2012 and 2013 Student
Association elections is moot because their terms of office ex-
pired years ago. The plaintiffs who did not resign now seek a
declaratory judgment that defendants unlawfully interfered
with the 2012 and 2013 elections that plaintiffs say should
have resulted in their being either elected or appointed to
paid positions for one-year terms. These plaintiffs had, at
14 No. 17-2499
most, an arguably reasonable expectation of continued em-
ployment for one year. As in Barany, the passage of time be-
yond the anticipated one-year term has “dissolved their ‘per-
sonal stake’ in the underlying controversy.” Id., quoting Social-
ist Labor Party v. Gilligan, 406 U.S. 583, 589 (1972).
Plaintiffs also seek a declaration that old student legisla-
tion adopted by plaintiff UWM Student Association should
be reinstated. But the term of office for the government that
passed that legislation is up. The plaintiffs who remain on
campus are free to try to persuade the current government to
re-adopt old legislation or to pass new legislation. The courts
should not interfere at this point.
To the extent plaintiffs seek a declaratory judgment to se-
cure emotional satisfaction from a declaration that they were
wronged, that will not save their claims from being dismissed
as moot. Ashcroft v. Mattis, 431 U.S. 171, 172 (1977), cited in
Volkman v. Ryker, 736 F.3d 1084, 1091 n.1 (7th Cir. 2013). In Ash-
croft, the Court declined to issue a declaratory judgment that
statutes authorizing police action were unconstitutional be-
cause the plaintiff’s “primary claim of a present interest in the
controversy is that he will obtain emotional satisfaction from
a ruling that his son’s death was wrongful.” 431 U.S. at 172.
Here, plaintiffs seek declarations with respect to student fees
and the composition and actions of the Board of Trustees to-
ward past student government elections. A declaration would
not undo the defendant Student Association’s allocations of
student fees or promulgation of legislation, or the actions of
prior Boards of Trustees.
The claims brought by plaintiffs who have graduated are
doubly moot. These plaintiffs are no longer eligible to partic-
No. 17-2499 15
ipate in student government and have no reasonable expecta-
tion of being governed by the defendant Student Association.
See Stotts, 230 F.3d at 991 (suspended student’s challenge to
tattoo rule became moot upon by student’s graduation be-
cause student had no “reasonable expectation of being sub-
jected to the Board’s appearance regulation”).
Neither of the commonly invoked mootness exceptions
applies. See generally Ciarpaglini, 817 F.3d at 544–47 (discuss-
ing exceptions for a defendant’s voluntary cessation and situ-
ations capable of repetition yet evading review). Plaintiffs do
not argue otherwise. Accordingly, plaintiffs’ claims for injunc-
tive and declaratory relief under their right-to-organize the-
ory are moot.
C. Dismissal of Remaining Claims for Misjoinder
The district court correctly found that the remaining
claims under federal law—brought by seven plaintiffs against
twenty-eight defendants about several years of conduct—
were not properly joined in one lawsuit. The court found that
“the only apparent topical commonality between the claims is
that UWM officials allegedly committed bad acts against stu-
dents.” UWM Student Ass’n, 266 F. Supp. 3d at 1137. We agree
with that observation, but the district court erred in dismiss-
ing those remaining claims with prejudice. The remedy for
misjoinder of otherwise proper claims is severance or dismis-
sal without prejudice.
An overview of the joinder rules is helpful. Rule 19 of the
Federal Rules of Civil Procedure requires joinder of certain
parties, but plaintiffs do not contend that joinder was re-
quired here. They rely instead on Rules 18 and 20, which can
work together to allow joinder of multiple claims by multiple
16 No. 17-2499
plaintiffs against multiple defendants. Multiple plaintiffs may
join if they assert a “right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transac-
tion, occurrence, or series of transactions or occurrences” and
a “question of law or fact common to all plaintiffs will arise in
the action.” Fed. R. Civ. P. 20(a)(1). Multiple defendants may
be joined if “any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences” and “any question of law or fact common to all
defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).
These rules are broad, giving district courts considerable
flexibility in managing and structuring civil litigation for fair
and efficient resolution of complex disputes. Still, there are
limits. “Unrelated claims against different defendants belong
in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007). A district judge necessarily has considerable discretion
in applying Rules 18 and 20. The rules “operate[] inde-
pendently” because Rule 20 contains limitations that Rule 18
does not, and the Rule 20 inquiry comes first. See Pace v. Tim-
mermann’s Ranch & Saddle Shop Inc., 795 F.3d 748, 755 n.10 (7th
Cir. 2015), citing Intercon Research Assocs., Ltd. v. Dresser Indus-
tries, Inc., 696 F.2d 53, 56–57 (7th Cir. 1982) (“Rule 18 becomes
relevant only after the requirements of Rule 20 relating to join-
der of parties [have] been met”).
The judge may deny joinder under Rule 20 if “the addition
of the party under Rule 20 will not foster the objectives of the
rule, but will result in prejudice, expense or delay.” 7 Wright
& Miller, Federal Practice and Procedure § 1652 (3d ed.). Al-
though Rule 18 does not contain the same limitations as Rule
20, district courts still have discretion at the pleading stage
No. 17-2499 17
because of Rule 21. See Fed. R. Civ. P. 21 (“On motion or on its
own, the court may at any time, on just terms, add or drop a
party. The court may also sever any claim against a party.”).
District courts also have discretion to sever claims at the trial
stage under Rule 42. See 6A Wright & Miller, Federal Practice
and Procedure § 1586 (3d ed.) (“As a practical matter, how-
ever, Rule 18(a) must be read in conjunction with the practice
under Rule 42(b), which gives the court extensive discretion-
ary power to order separate trials of claims or issues. When-
ever the court determines that this type of treatment will be
conducive to the expeditious handling of the action, will pro-
mote judicial economy, or will avoid prejudice to the litigants,
it may order a properly joined claim or claims to be tried sep-
arately.”).
The district court acted well within its discretion in finding
misjoinder here. Initially, the overarching conspiracy allega-
tion in count six might have arguably connected the claims.
With that claim dismissed, there are limited connections be-
tween the remaining claims. The district court did not abuse
its discretion in finding that counts one through five and
seven do not belong in the same lawsuit, and that counts one
through five were not properly joined with one another.
Where we must disagree with our colleague in the district
court concerns the remedy for this problem. Rule 21 provides:
“Misjoinder of parties is not a ground for dismissing an ac-
tion.” Fed. R. Civ. P. 21; see also Lee v. Cook County, 635 F.3d
969, 971 (7th Cir. 2011) (district court erred by dismissing mis-
joined claims). The proper remedy for violations of Rules 18
and 20 is severance or dismissal without prejudice, not dis-
missal with prejudice. See Wheeler v. Wexford Health Sources,
Inc., 689 F.3d 680, 683 (7th Cir. 2012) (violations of Rules 18
18 No. 17-2499
and 20 should be solved “by severance” or “dismissing the
excess defendants under Fed. R. Civ. Pro. 21”); Lee, 635 F.3d at
971 (“When a federal civil action is severed, it is not dis-
missed. Instead, the clerk of court creates multiple docket
numbers for the action already on file, and the severed claims
proceed as if suits had been filed separately.”).
For these reasons, we AFFIRM the district court’s dismis-
sal of count six and all claims against defendants Dr. Michael
Lovell, the Board of Regents, Heather Harbach, Pahoua
Xiong, Amy Watson, Suzanne Weslow, Anthony DeWees, Ni-
kolaus P. Rettinger III, and Carla Greve. We VACATE the dis-
missal of counts one through five and seven against the re-
maining defendants and REMAND for further proceedings
consistent with this opinion.