Davis v. Gilliam , 2024 IL App (4th) 240308-U ( 2024 )

NOTICE 2024 IL App (4th) 240308-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-24-0308 July 17, 2024
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
CHRISTIAAN DIOR DAVIS, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Ogle County
SERGEANT JAMES GILLIAM, THE ROCHELLE ) No. 23CH13
POLICE DEPARTMENT, THE CITY OF )
ROCHELLE, and ERICA C. MOORE, ) Honorable
Defendants (Erica C. Moore, Defendant- ) John C. Redington,
Appellee). ) Judge Presiding.
JUSTICE VANCIL delivered the judgment of the court.
Justices Steigmann and Knecht concurred in the judgment.
ORDER
¶1 Held: The trial court’s dismissal with prejudice is affirmed where it lost jurisdiction
over a cause after it was removed to federal court.
¶2 Plaintiff, Christiaan Dior Davis, pro se, appeals an order from the circuit court of
Ogle County vacating its default judgment against defendant, Erica C. Moore. The order was
entered after three codefendants filed an amicus curiae brief advising the trial court it lacked
jurisdiction over Moore because plaintiff’s claims against her, along with those against the other
codefendants, had been removed to federal court. In addition to vacating the default judgment,
the trial court dismissed plaintiff’s cause with prejudice. Plaintiff appeals the dismissal. Although
plaintiff’s brief primarily reargues his substantive claims against all four defendants, claims
which are not before us now, we nevertheless glean the argument from his brief and notice of
appeal that the court erred in dismissing his cause with prejudice. We affirm.
¶3 I. BACKGROUND
¶4 In August 2022, plaintiff and Erica Moore visited a bar in Rochelle, Illinois. After
the bar closed, the two attended an “after party” at a separate location. While there, they had an
argument, and Moore, according to plaintiff, stabbed him near his eye with her car keys. Plaintiff
admits he “may have” struck Moore while attempting to extricate himself from her grip. He then
alleges Moore tried to run off, but she tripped twice, smacking the ground “face first.” He
attempted to help her up, but she fled into a nearby building.
¶5 Plaintiff approached the building and asked a resident if he could come inside to
clean his wound and call for a ride home. While searching for a bathroom, plaintiff ended up in a
laundry room, where he was ultimately found by Rochelle Police Sergeant James Gilliam.
Plaintiff alleges Sergeant Gilliam asked what had occurred between him and Moore and
repeatedly referred to Moore as plaintiff’s “girlfriend.” Plaintiff denied that Moore was his
girlfriend and attempted to leave the laundry room. Sergeant Gilliam then placed him under
arrest for domestic battery.
¶6 Plaintiff was convicted on July 10, 2023. On August 11, 2023, he filed a verified
complaint against the City of Rochelle, the Rochelle Police Department, Sergeant James Gilliam
(collectively, Municipal Defendants), and Erica Moore. He amended the complaint on August
29, 2023. In his amended complaint, he listed a multitude of claims, including violations of his
fourth, fifth, eighth, and fourteenth amendment rights (see U.S. Const., amends. IV, V, VIII,
XIV); assault and battery; false arrest; false imprisonment; “malicious arrest/prosecution”;
willful and wanton official misconduct; perjury; obstruction of justice; conspiracy; mental and
emotional distress; and negligence, among others. By August 31, 2023, all Municipal Defendants
had been served with process. Erica Moore had not. On September 8, 2023, Municipal
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Defendants filed a motion to dismiss plaintiff’s complaint. On September 14, 2023, they filed a
notice to remove the case to federal court based on federal question jurisdiction and
supplemental jurisdiction. At the time of the removal, defendant Moore had not been served with
process.
¶7 On December 6, 2023, Moore was served with process. On December 12, 2023,
the United States District Court for the Northern District of Illinois dismissed plaintiff’s
complaint for failing to state a claim and being frivolous. On January 5, 2024, plaintiff filed a
petition in the circuit court of Ogle County for the entry of a default judgment against Moore for
failing to appear or plead after proper service on December 6, 2023. On January 19, 2024, the
trial court entered an order holding Moore in default.
¶8 On January 25, 2024, Municipal Defendants filed an amicus curiae brief with the
trial court, informing it that the entire underlying case had been removed to federal court and
plaintiff’s complaint had subsequently been dismissed there. At the time of the brief, plaintiff
was appealing the dismissal of his complaint before the United States Court of Appeals for the
Seventh Circuit. As a result of the removal, Municipal Defendants advised the trial court lacked
jurisdiction to enter a default judgment on Moore.
¶9 On January 26, 2024, the trial court entered an order vacating the default
judgment against Moore and dismissing the cause with prejudice. Between January 29 and
February 2, 2024, plaintiff filed three motions with the court: a “Motion To Reconsider
Dismissal [E]ntered Against The Plaintiff,” a “Request for Declaratory Judgment” (related to
plaintiff’s claim of self-defense in the underlying case against all defendants), and a “Motion To
Strike City of Rochelle’s Amicus Curiae Brief.” Finally, plaintiff filed a notice of appeal on
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February 13, 2024, which is before us now. He appeals the court’s January 26 order dismissing
his cause.
¶ 10 II. ANALYSIS
¶ 11 We first note that plaintiff’s brief on appeal is difficult to understand, containing
disorganized arguments, irrelevant facts, and inapplicable legal terms (notably, not the same
thing as supporting legal authority). In reviewing his appeal, we address only those arguments
clearly stated and related to the order being appealed.
¶ 12 We further note defendants did not file a brief with this court in response to
plaintiff’s claims on appeal. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63
Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976), our supreme court set forth three distinct
discretionary options a reviewing court may exercise in the absence of an appellee’s brief: (1) it
may serve as an advocate for the appellee and decide the case when the court determines justice
so requires; (2) it may decide the merits of the case if the record is simple and the issues can be
easily decided without the aid of the appellee’s brief; or (3) it may reverse the trial court when
the appellant’s brief demonstrates prima facie reversible error that is supported by the record.
While the record here contains gaps, it is otherwise relatively simple, and we can decide the
issues without the aid of an appellee’s brief.
¶ 13 A. Federal Court Jurisdiction
¶ 14 Plaintiff argues, “At the time of [Municipal Defendants’] removal of their action
to the federal court, defendant Erica C. Moore was not properly serviced and as [a] result, the
federal court lacked the jurisdiction to rule and/or enter a judgment” against her. He also states,
“The [state court] jurisdiction extended to the defendant Erica C. Moore on 12/06/23—when the
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defendant was properly serviced.” We believe defendant misunderstands the effect of the
removal to federal court.
¶ 15 Generally, all defendants in an action must consent to the removal of the action
from state to federal court. 28 U.S.C. § 1446(b)(2)(A) (2018). However, the consent of
defendants who have not been served at the time of the removal is not required to successfully
remove a case. Id. Further, while section 1448 of the United States Code allows a defendant
served after removal to file a motion to remand the case to state court, it contains no requirement
that such defendant explicitly consent to the prior removal. Id. § 1448. Federal courts have
interpreted this to mean that removal remains valid even if a later-served defendant does not
explicitly state her consent. See, e.g., Davis v. Averitt Express, Inc., 2006 WL 3883322, 3 (N.D.
Ill. 2006) (“It would be meaningless to provide that a later served defendant retained the right to
remand a case if *** removal is defective unless later served defendants join.”). A case
containing both federal and state law claims may be removed in its entirety to federal court. 28
U.S.C. § 1441(c). Once a case is removed, the state court loses jurisdiction to proceed further
with the case. Eastern v. Canty, 75 Ill. 2d 566, 571 (1979).
¶ 16 Here, Municipal Defendants successfully removed plaintiff’s case to federal court
on September 14, 2023. Moore was not served with process until December 6, 2023. Because
Moore had not been served at the time of removal, her consent was not required to remove the
case to federal court, consistent with section 1446. Perhaps defendant believes that because
Moore had not been served at the time of removal, the removal divided a singular case into two:
one in the federal court against Municipal Defendants, and one in the state court against
defendant Moore. But this is incorrect. The entirety of the case, including all claims against all
parties, was removed to federal court on September 14, 2023, even though Moore had not been
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served at that time. On that date, the state court lost jurisdiction over all claims and the federal
court acquired it.
¶ 17 We acknowledge the circumstances surrounding service of process on Moore may
create some confusion. Moore was served on December 6, 2023, after the case had been removed
to federal court, by a summons issued before the removal, by the state court. Section
1448provides
“In all cases removed from any State court to any district court of the United
States in which any one or more of the defendants has not been served with
process ***, such process or service may be completed or new process issued in
the same manner as in cases originally filed in such district court.” (Emphasis
added.). 28 U.S.C. § 1448.
Some federal courts have interpreted this language to require a new summons to be issued by the
federal court for defendants who were never actually served prior to removal, as opposed to
those who might have been served with imperfect or defective service. See, e.g., Beecher v.
Wallace, 381 F.2d 372, 373 (9th Cir. 1967). However, others have not. See, e.g., Continental
Illinois National Bank & Trust Co. of Chicago v. Protos Shipping, Inc., 472 F.Supp. 979, 982-83
(N.D. Ill. 1979) (declining to follow Beecher on the basis that Beecher’s interpretation of section
1448 is contrary to the language of the statute). For our purposes, we need not decide if the state
process served on Moore on December 6, 2023, was sufficient to confer personal jurisdiction
over Moore in the federal court. We address only whether the trial court had subject matter
jurisdiction over plaintiff’s case when it entered a default judgment against Moore on January
19, 2024. Based on the successful removal of this case on September 14, 2023, we conclude that
it did not.
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¶ 18 B. Dismissal With Prejudice
¶ 19 Plaintiff next argues the trial court erred in dismissing his cause with prejudice.
He specifically states:
“The court entered an order dismissing this cause with prejudice against the
plaintiff without full and fair opportunity to litigate claims and issues before being
bound by a resolution and a claim should be dismissed with prejudice only where
it is clear that the plaintiff can prove no set of facts that would entitle him to
relief.”
¶ 20 Section 2-619(a)(3) of the Code of Civil Procedure (Code) allows for the
dismissal of a cause of action if “there is another action pending between the same parties for the
same cause.” 735 ILCS 5/2-619(a)(3) (West 2022). Likewise, subsection (a)(1) allows a trial
court to dismiss if it does not have jurisdiction of the subject matter of a cause, “provided the
defect cannot be removed by a transfer of the case to a court having jurisdiction.” Id. § 2-
619(a)(1). Whether dismissed pursuant to subsection (a)(1) or (a)(3), “a complaint should be
dismissed with prejudice only if it is apparent that the plaintiff can prove no set of facts that will
entitle him or her to recover.” Bruss v. Przybylo, 385 Ill. App. 3d 399, 405 (2008). A trial court’s
decision to dismiss pursuant to section 2-619 is reviewed de novo. Pugsley v. Tueth, 2012 IL
App (4th) 110070, ¶ 15. A trial court’s decision to dismiss with prejudice, specifically, is
reviewed for an abuse of discretion. Vogt v. Round Robin Enterprises, Inc., 2020 IL App (4th)
190294, ¶ 15.
¶ 21 While subsections (a)(1) and (a)(3) arguably both apply to the case before us,
plaintiff does not cite either in his brief. Nor does he make any other well-defined legal
arguments with respect to his case. He merely states a general proposition about when dismissal
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with prejudice is proper and cites two cases, one of which is inapplicable (Bocock v. McGuire,
2017 IL App (3d) 150860, which concerns dismissal pursuant to section 2-615 of the Code for
defects apparent on the face of a complaint), and one that does not appear to support his position
(see Przybylo, 385 Ill. App. 3d at 426 (holding a complaint was properly dismissed with
prejudice where trial court was precluded from deciding the issues raised in plaintiff’s
complaint)). We also note that the record on appeal contains no report of proceedings underlying
the trial court’s order vacating the default judgment and dismissing plaintiff’s complaint, so we
do not know on what section of the Code the court based its decision or any explanation it might
have offered.
¶ 22 Yet despite the deficiencies in plaintiff’s brief and the gaps in the record on
appeal, we are able to affirm a trial court’s judgment on any basis appearing in the record.
Akemann v. Quinn, 2014 IL App (4th) 130867, ¶ 21. From the record, we know that plaintiff’s
complaint against all defendants, including Moore, was removed to the United States District
Court for the Northern District of Illinois on September 14, 2023. We therefore know that the
trial court that granted a default judgment against Moore on January 19, 2024, did not have
jurisdiction to do so. Section 2-619(a)(1) allows a court to dismiss a case where it lacks
jurisdiction, “provided the defect cannot be removed by a transfer of the case to a court having
jurisdiction.” 735 ILCS 5/2-619(a)(1) (West 2022). No set of facts plaintiff could plead
regarding Moore’s default would overcome the jurisdictional bar on the trial court. Further,
transferring the judgment against Moore to the federal court to which the case was removed
would not allow the judgment to stand because the federal court already dismissed plaintiff’s
complaint for failing to state a claim. We therefore conclude that, under section 2-619(a)(1), the
trial court was correct in dismissing plaintiff’s cause with prejudice.
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¶ 23 C. Amicus Curiae Brief
¶ 24 For purposes of completeness, we note plaintiff also makes a slew of indefinite
criticisms of the amicus curiae brief filed by Municipal Defendants’ counsel on January 25,
2024. He contends that it was “improperly submitted.” He states that it “improperly attempts to
supplement the record and present arguments that were not before the [state court].” He argues
that “no rule permits amicus curiae to engage in unsolicited motion practice[.] The Municipal
Defendants were[ ]not parties to the controversy, due to their removal of the action to the federal
court.” Finally, with no further explanation, he provides the time frame to file an amicus curiae
brief as provided by Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010).
¶ 25 As with most of plaintiff’s assertions, he fails to provide any supporting legal
authority for his arguments. Indeed, he does not even provide facts to support his statements
beyond the bald contentions themselves. For example, he does not state why the amicus curiae
brief was “improperly submitted.” Perhaps he believes that Municipal Defendants being parties
to the cause before the federal court prohibited them from submitting an amicus curiae brief in
the state court, but this is (1) incorrect and (2) only a guess as to plaintiff’s argument. See Zurich
Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 59 (1987) (stating an amicus curiae is,
by definition, not a party to an action, and its sole function is to advise the court). He also does
not explain how the brief constituted “unsolicited motion practice” or detail the arguments that
are allegedly improperly presented in the brief. “[A] reviewing court is entitled to have the issues
on appeal clearly defined with pertinent authority cited and a cohesive legal argument
presented.” (Internal quotation marks omitted.) Walters v. Rodriguez, 2011 IL App (1st) 103488,
¶ 5. Although plaintiff is clearly dissatisfied with the existence and effect of the amicus curiae
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brief on his prior default judgment against Moore, we are unable to piece together a meaningful
argument from his brief or notice of appeal challenging it. We therefore do not address it.
¶ 26 We conclude by noting that where a court without jurisdiction over a case enters
an order, the order is void. Illinois Licensed Beverage Ass’n v. Advanta Leasing Services, 333 Ill.
App. 3d 927, 933 (2002). Whatever defects plaintiff may see with the amicus curiae brief filed in
this case would not change the outcome. Once the trial court was made aware that it lacked
jurisdiction, it was required to vacate its order entering a default judgment on Moore.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the trial court’s judgment.
¶ 29 Affirmed.
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