Glenn Miller v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐1536
KHALID ALI,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees,
APPEAL OF:
GLENN MILLER,
Petitioning Intervenor–Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19‐cv‐00022 — Edmond E. Chang, Judge.
____________________
ARGUED FEBRUARY 17, 2022 — DECIDED MAY 17, 2022
____________________
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. In this appeal, we consider the
timeliness of appellant Glenn Miller’s motion to intervene af‐
ter a settlement was reached in another person’s civil rights
suit that had not been pled as a class action. In some circum‐
stances, such a post‐settlement motion may be timely because
2 No. 21‐1536
the would‐be intervenor had reasonably relied on other par‐
ties—such as representatives of a putative class—to protect
her interests. E.g., United Airlines, Inc. v. McDonald, 432 U.S.
385, 394–95 (1977). This case, however, had not been litigated
as a class action. Plaintiff Khalid Ali brought the case as an
individual claim against the City of Chicago and multiple po‐
lice officers. He alleged that his constitutional rights were vi‐
olated when he was detained overnight on an out‐of‐county
warrant for another person with the same name and was not
permitted to post bond.
About one year into the litigation, the district court re‐
jected Ali’s attempt to move for class certification without
amending his complaint. Ali then moved for leave to amend,
but the court denied that motion as well. Shortly after that, Ali
settled his claim. Appellant Miller was never a party to Ali’s
case, but he wanted to challenge the district court’s rulings.
He moved to intervene, represented by the same law firm that
had represented Ali. The district court denied Miller’s motion
as untimely. The court reasoned that, unlike potential inter‐
venors in other cases, including United Airlines v. McDonald,
Miller could not have relied on Ali to protect his interests be‐
cause Ali had not brought his case as a class action.
On appeal, Miller raises three issues: (1) whether the dis‐
trict court abused its discretion in denying his motion to in‐
tervene as untimely; (2) whether the district court erred by
striking Ali’s motion for class certification because the com‐
plaint did not include any class allegations; and (3) whether
the court erred by later denying Ali’s motion for leave to
amend his complaint to add class allegations. The first issue
is decisive. The district court did not abuse its discretion in
denying Miller’s motion to intervene as untimely. That means
No. 21‐1536 3
he is not a party to this lawsuit and cannot pursue the other
challenges. See United States v. City of Milwaukee, 144 F.3d 524,
531 (7th Cir. 1998) (“We have recognized repeatedly that, until
a movant for intervention is made a party to an action, it can‐
not appeal any orders entered in the case other than an order
denying intervention.”); see also SEC v. First Choice Manage‐
ment Services, Inc., 767 F.3d 709, 711 (7th Cir. 2014) (holding
that party whose motion to intervene was denied by the dis‐
trict court had “no right to appeal from rulings of the court
other than … the ruling denying intervention”).
I. Facts and Procedural History
In January 2019, plaintiff Ali brought this civil rights ac‐
tion against the City of Chicago and several police officers. He
alleged that the officers had violated his Fourth and Four‐
teenth Amendment rights when they arrested and detained
him overnight based on a warrant for a different “Khalid Ali.”
That warrant had been issued by an Illinois state judge in an‐
other county. In his second amended complaint, Ali alleged
that the officers were following a City policy “of refusing to
release on bond an arrestee taken into custody on an arrest
warrant issued by an Illinois state court outside of Cook
County.” In each version of his complaint, Ali requested com‐
pensatory and punitive damages. None of the complaints,
however, included any class allegations or requests for class‐
wide relief.
In December 2019, two days before the deadline for com‐
pleting fact discovery, Ali moved to certify a class of all per‐
sons who, on or after January 1, 2017, were detained by Chi‐
cago police officers on out‐of‐county warrants and were not
permitted to post bond at the police station. He asserted in a
footnote that he was not required to amend his complaint to
4 No. 21‐1536
include class allegations. The City moved to strike the motion
for class certification, objecting that the complaint had never
included any class allegations and that Ali had waited until
the close of fact discovery to file his motion.
The district court granted the City’s motion to strike. Since
Ali had not added class allegations to his complaint, the cer‐
tification motion “amounted to a request, at the end of fact
discovery, to add a class‐action claim to the case.” The court
concluded that such a request had to be denied because “no‐
tice of some kind must be given to the defense that Plaintiff is
pursuing a class action.” Ali petitioned this court for interloc‐
utory review pursuant to Federal Rule of Civil Procedure
23(f), but we denied the petition.
Ali then moved for leave to amend his complaint to in‐
clude class allegations. He argued that he did not have evi‐
dentiary support for the existence of the alleged City policy
until the deposition of a police lieutenant in November 2019.
The City replied that it had admitted to following the policy
in discovery responses served on Ali months earlier. The dis‐
trict court agreed with the City and denied the motion for
leave to amend. The court said that the request came too late
in the case, particularly since it had been clear at least as early
as September 2019 that Ali “was probably not alone in being
subject to a broad policy requiring an appearance in bond
court.” Ali v. City of Chicago, 503 F. Supp. 3d 661, 667 (N.D. Ill.
2020).
Several weeks later, Ali settled his case. The settlement
agreement did not permit him to appeal the district court’s
class certification ruling. On January 25, 2021, the parties filed
a stipulation to dismiss. The district court entered an order
No. 21‐1536 5
dismissing the case without prejudice and with leave to rein‐
state by April 12, 2021.
On the same day that Ali stipulated to dismissal, January
25, appellant Glenn Miller moved to intervene in the case un‐
der Rule 24. Miller asserted that he was a member of Ali’s pro‐
posed class because he had been arrested by Chicago police
officers in January 2018 and had not been permitted to post
bond at the police station because of the City’s policy. Miller
sought to appeal the district court’s orders striking Ali’s mo‐
tion for class certification and denying leave to amend the
complaint.
Almost one month later, with his motion to intervene still
pending, Miller filed a notice of appeal from the district
court’s January 25 order. That appeal was docketed in this
court as No. 21‐1353. Miller asked this court to remand to the
district court so that it could rule on his motion to intervene.
The City responded that the appeal was premature because
the district court had dismissed the case only “without preju‐
dice and with full leave to reinstate via motion.”
On March 24, while that appeal was pending, the district
court denied Miller’s motion to intervene. The court con‐
cluded that intervention was untimely because plaintiff Ali
had “never presented an operative complaint with a proposed
class action,” so Miller “did not reasonably rely on Ali’s case
to pursue class certification.” Ali v. City of Chicago, No. 19‐CV‐
00022, 2021 WL 1193791, at *2 (N.D. Ill. Mar. 24, 2021). Miller
then filed a second notice of appeal, challenging both the de‐
nial of intervention and the January 25 order. That second no‐
tice was docketed in this court as this appeal, No. 21‐1536.
6 No. 21‐1536
In June 2021, a motions panel of this court dismissed the
first appeal (No. 21‐1353) as “unnecessary, if not premature
because the district court had not issued its ruling on [Mil‐
ler’s] motion to intervene” at the time the appeal was filed.
II. Appellate Jurisdiction
Before turning to the merits, we must clarify the basis and
scope of our jurisdiction. In general, federal courts of appeals
have jurisdiction over “appeals from all final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. A judg‐
ment “is not final for purposes of § 1291 until it disposes of all
claims in the suit.” Wisconsin Central Ltd. v. TiEnergy, LLC, 894
F.3d 851, 854 (7th Cir. 2018); see also Borrero v. City of Chicago,
456 F.3d 698, 700 (7th Cir. 2006) (explaining that judgment is
final under § 1291 “if the district judge is finished with the
case”).
The district court’s January 25 order was not final. The or‐
der said that “the case is dismissed without prejudice and
with full leave to reinstate via motion filed by 04/12/2021. If
no motion to reinstate is filed by that date, then the dismissal
will automatically convert to a dismissal with prejudice, with‐
out further action by the Court.”
We have often expressed concerns about dismissals with
leave to reinstate and their potential to create jurisdictional
confusion, which we tried to reduce in Otis v. City of Chicago,
29 F.3d 1159, 1163 (7th Cir. 1994) (en banc). We have ex‐
plained: “Because the conditional ability to revive the case
renders the dismissal a disposition without prejudice, neither
side may appeal immediately.” Id. Instead, we treat “the order
dismissing the case as the appealable order, with finality
springing into existence when the time to satisfy the condition
No. 21‐1536 7
expires.” Id. at 1166. A dismissal without prejudice and with
leave to reinstate “does not terminate the litigation in the dis‐
trict court in any realistic sense and so is not a final decision
within the meaning of 28 U.S.C. § 1291.” JTC Petroleum Co. v.
Piasa Motor Fuels, Inc., 190 F.3d 775, 776 (7th Cir. 1999); see
also Baltimore & Ohio Chicago Terminal Railroad Co. v. Wisconsin
Central Ltd., 154 F.3d 404, 408 (7th Cir. 1998) (“A dismissal
with leave to reinstate is not appealable as a final order….”);
cf. Davis v. Advocate Health Center Patient Care Express, 523 F.3d
681, 683 (7th Cir. 2008) (“When a judge conditionally dis‐
misses a suit, but gives the plaintiff time to fix the problem
that led to dismissal … the order becomes an appealable ‘final
decision’ once the time for correction has expired, whether or
not the court enters a final judgment.”).1
Miller invites us to reconsider the motions panel’s deci‐
sion to dismiss his first appeal. Miller did not raise this point
in that first appeal, No. 21‐1353, as perhaps through a petition
for panel rehearing. The dismissal of that appeal became final
long ago. In any event, the motions panel correctly concluded
that Miller’s initial appeal was not viable because the January
25 order was not final and the district court had not ruled on
his motion to intervene.
Our jurisdiction over Miller’s second appeal is secure,
however, because a denial of intervention “is a final, appeala‐
ble decision.” Driftless Area Land Conservancy v. Huebsch, 969
F.3d 742, 745 (7th Cir. 2020), quoting CE Design, Ltd. v. Cy’s
1 In this case, the district judge followed our guidance in Otis by mak‐
ing crystal‐clear that the dismissal would convert to one “with prejudice”
on April 12 absent a motion to reinstate. In other words, the judge “an‐
nounced a plan to dismiss in the future unless something happened.” Otis,
29 F.3d at 1163.
8 No. 21‐1536
Crab House North, Inc., 731 F.3d 725, 730 (7th Cir. 2013); see
also Illinois v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019)
(“Because denial of a motion to intervene essentially ends the
litigation for the movant, such orders are final and appeala‐
ble.”). Miller filed a timely notice of appeal once the district
court denied his motion to intervene, so we have jurisdiction
over that order under § 1291.
III. Timeliness of Intervention
The decisive issue here is whether Miller’s motion to inter‐
vene was timely. Federal Rule of Civil Procedure 24 permits
intervention on “timely motion.” We review timeliness deci‐
sions under Rule 24 for abuse of discretion, City of Chicago, 912
F.3d at 984, meaning that we will affirm if the district court’s
decision was a reasonable one under the circumstances, re‐
gardless of whether we would have made the same decision
in the district court’s position.
For intervention under Rule 24, timeliness “is not limited
to chronological considerations but is to be determined from
all the circumstances.” Lopez‐Aguilar v. Marion County Sheriff’s
Department, 924 F.3d 375, 388 (7th Cir. 2019), quoting City of
Bloomington v. Westinghouse Electric Corp., 824 F.2d 531, 534
(7th Cir. 1987). Four factors are relevant to whether a motion
to intervene is timely: “(1) the length of time the intervenor
knew or should have known of his interest in the case; (2) the
prejudice caused to the original parties by the delay; (3) the
prejudice to the intervenor if the motion is denied; (4) any
other unusual circumstances.” City of Chicago, 912 F.3d at 984,
quoting Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719
F.3d 785, 797–98 (7th Cir. 2013). This is essentially a reasona‐
bleness test: “potential intervenors need to be reasonably dil‐
igent in learning of a suit that might affect their rights, and
No. 21‐1536 9
upon so learning they need to act reasonably promptly.”
Lopez‐Aguilar, 924 F.3d at 388, quoting Reich v. ABC/York‐Estes
Corp., 64 F.3d 316, 321 (7th Cir. 1995).
A. The McDonald Rule
Instead of engaging with this totality‐of‐the‐circumstances
test, Miller argues that United Airlines, Inc. v. McDonald, 432
U.S. 385 (1977), established a bright‐line rule that makes his
motion to intervene timely. In his view, a motion to intervene
is timely so long as it is filed “within the applicable time for
filing an appeal.” Id. at 396 n.16. Since Miller filed on the same
day the district court entered its order of dismissal, he says,
his motion was timely.
The argument is not persuasive. Unlike Ali, the named
plaintiff in McDonald had brought the case as a class action
from the beginning. She sued the airline on behalf of herself
“and all other United stewardesses discharged because of the
no‐marriage rule,” which required “female stewardesses to
remain unmarried as a condition of employment.” 432 U.S. at387–88. The district court had granted United’s motion to
strike the class allegations in the complaint, finding that the
numerosity requirement of Rule 23 was not satisfied. This
court declined to accept an interlocutory appeal challenging
that order. But the district court did allow “12 married stew‐
ardesses who had protested the termination of their employ‐
ment to intervene as additional parties plaintiff.” Id. at 388.
From there, the lawsuit had “proceeded as a joint suit on
behalf of the original and the intervening plaintiffs.” 432 U.S.
at 389. The district court eventually entered a judgment of dis‐
missal after the parties agreed to reinstatement and backpay
for the plaintiffs. Respondent McDonald had been a member
10 No. 21‐1536
of the putative class as defined in the original complaint.
When the plaintiffs settled, McDonald realized that they did
not intend to appeal the denial of class certification. She filed
a motion to intervene within the thirty‐day appeal period. The
district court denied her motion as untimely, explaining that
she had not sought any relief from the court during five years
of litigation. This court reversed, holding that McDonald was
entitled to intervene when she did, that the district court had
erred years earlier in denying class certification, and that the
class was entitled to relief. Romasanta v. United Airlines, Inc.,
537 F.2d 915, 920 (7th Cir. 1976).
Reviewing only the timeliness issue, the Supreme Court
affirmed. The Court held that “once the entry of final judg‐
ment made the adverse class determination appealable,
[McDonald] quickly sought to enter the litigation.” McDonald,
432 U.S. at 394. And in every case, the “critical inquiry … is
whether in view of all the circumstances the intervenor acted
promptly after the entry of final judgment.” Id. at 395–96.
This court has made clear that McDonald did not create a
bright‐line rule for evaluating the timeliness of a motion to
intervene. We have described the rule as follows:
The motion [to intervene] is timely if filed
promptly after the entry of the final judgment in
the class action—at least in a case in which, be‐
cause “the named plaintiffs had attempted to
take an interlocutory appeal from the order of
denial at the time the order was entered, there
was no reason for the respondent to suppose
that they would not later take an appeal until
she was advised to the contrary after the trial
court had entered its final judgment.”
No. 21‐1536 11
Larson v. JPMorgan Chase & Co., 530 F.3d 578, 582 (7th Cir.
2008), quoting McDonald, 432 U.S. at 393–94. In Larson, the
would‐be intervenor sought to appeal a three‐and‐a‐half‐
year‐old summary judgment order. Id. at 580. But since that
party “had no good excuse for failing to seek intervention (or
bringing its own suit) years ago,” we held that the district
court did not abuse its discretion in denying intervention. Id.
at 583–84. In doing so, we expressly rejected the bright‐line
rule that Miller proposes: “We do not read United Airlines as
establishing an inflexible rule that a motion to intervene in a
class action to appeal an earlier order in that action is always
timely provided it is filed shortly after the final judgment in
the class action.” Id. at 583.
Miller’s case for post‐settlement intervention is even
weaker than the intervention sought and rejected in Larson,
which at least had been brought as a class action. See 530 F.3d
at 580. In McDonald, moreover, the respondent promptly
moved to intervene once it became clear that her interests
“would no longer be protected by the named class represent‐
atives.” 432 U.S. at 394. In this case, however, as the district
court observed, plaintiff Ali was not a named class representa‐
tive and “never even successfully proposed a class action.” Ali,
2021 WL 1193791, at *2. He filed three complaints, but none
included any class allegations or demands for class‐wide re‐
lief. Unlike the McDonald intervenor, therefore, Miller could
not have been reasonably relying on any “named class repre‐
sentatives” to protect his interests because this case was not
proceeding as a class action. Cf. McDonald, 432 U.S. at 392–93
(emphasizing that lawsuit “had been commenced by the
timely filing of a complaint for classwide relief, providing
United with ‘the essential information necessary to determine
both the subject matter and size of the prospective
12 No. 21‐1536
litigation’”), quoting American Pipe & Construction Co. v. Utah,
414 U.S. 538, 555 (1974).2
To be sure, where a party has failed to intervene because
she reasonably expected named plaintiffs or other relevant
parties to protect her interests, that expectation is relevant to
the timeliness inquiry. E.g., McDonald, 432 U.S. at 394 (ex‐
plaining that “there was no reason for [McDonald] to suppose
that [the named plaintiffs] would not later take an appeal un‐
til she was advised to the contrary after the trial court had en‐
tered its final judgment”); Flying J, Inc. v. Van Hollen, 578 F.3d
569, 572 (7th Cir. 2009) (holding that post‐judgment motion to
intervene was timely where state attorney general had been
defending statute but then did not appeal district court’s rul‐
ing that it was unconstitutional). No such expectation would
have been reasonable in this case. Ali was litigating only his
own claim against the City; he was not representing Miller’s
interests. The district court did not abuse its discretion in
denying intervention.
B. “Stealth” Class Actions?
In his reply brief, Miller argues that the lack of class alle‐
gations in Ali’s complaint is not relevant to the timeliness is‐
sue. According to Miller, “nothing in the Federal Rules of
Civil Procedure requires that a complaint include class
2 As Miller points out, McDonald also recognized in a footnote that
post‐judgment intervention “has been found to be timely even in litigation
that is not representative in nature.” 432 U.S. at 395 n.16. All that shows,
however, is that intervention might be allowed as timely in such cases if
the would‐be intervenor has acted promptly in light of all the circum‐
stances. That does not establish the bright‐line rule Miller urges nor indi‐
cate that the district court abused its discretion in denying Miller’s motion
to intervene.
No. 21‐1536 13
allegations.” In effect, Miller’s position would allow a plaintiff
to bring a class action—and therefore give potential interve‐
nors a right to assert the reliance interests of class members—
without including class allegations or demands for class‐wide
relief in either the original complaint or an amended com‐
plaint.
That is not how the Federal Rules of Civil Procedure work.
Rule 23(a) says explicitly that class actions allow class mem‐
bers to “sue or be sued as representative parties.” Rule
23(c)(1)(A) provides that the district court must decide “[a]t
an early practicable time after a person sues or is sued as a
class representative … whether to certify the action as a class
action.” The district court cannot make that determination
early in the case if the plaintiff is allowed to keep his class‐
action intentions hidden. We have also said that Rule 23(e)
“presumptively applies to all complaints containing class alle‐
gations.” Baker v. America’s Mortgage Servicing, Inc., 58 F.3d 321,
324 (7th Cir. 1995) (emphasis added), quoting Glidden v. Chro‐
malloy American Corp., 808 F.2d 621, 626 (7th Cir. 1986).3
Rule 8 requires that a pleading contain “a short and plain
statement of the claim” and “a demand for the relief sought.”
Fed. R. Civ. P. 8(a)(2)–(3). The purpose of those requirements
is “to provide a defendant with fair notice of the claims
against him.” Hahn v. Walsh, 762 F.3d 617, 632 (7th Cir. 2014);
3 The “early practicable time” phrasing of Rule 23(c)(1)(A) was
adopted in 2003, replacing an earlier requirement that the court decide
class certification “as soon as practicable after commencement of an ac‐
tion.” See Fed. R. Civ. P. 23 advisory committee’s notes to 2003 amend‐
ment. The change was intended to give district courts more flexibility in
managing putative class actions. It was certainly not intended to allow
“stealth” class actions.
14 No. 21‐1536
see also 7B Wright & Miller, Federal Practice and Procedure
§ 1798 (3d ed.) (“As in all federal suits, the pleading stage of a
class action is designed to inform the parties of the nature of
the claims and defenses being asserted and the relief de‐
manded.”). Miller’s theory would contravene that purpose
and the requirement that relief be demanded by allowing
plaintiffs to spring “stealth” class actions on defendants late
in a case, without earlier warning. A class action “must be
brought as a class action.” LG Display Co. v. Madigan, 665 F.3d
768, 772 (7th Cir. 2011) (holding that state attorney general’s
parens patriae action was not a class action under federal Class
Action Fairness Act). The complaint should identify the case
as a class action if the plaintiff intends to pursue a class ac‐
tion.4
Miller rests his argument that class allegations need not be
included in the complaint on Chapman v. First Index, Inc., 796
F.3d 783 (7th Cir. 2015), a class action complaining about un‐
wanted receipt of an advertiser’s faxes. The plaintiff proposed
in his complaint, and later moved to certify, a class of all per‐
sons who had received faxes from the defendant without giv‐
ing their consent. After the court denied the motion, the plain‐
tiff proposed a different class, this time including all persons
who had received faxes without an opt‐out notice or with a
deficient notice. The court declined to certify that class as well,
4That is not to say, of course, that the absence of class allegations in
the original complaint controls all later developments. A plaintiff may
move for leave to amend the complaint to assert a class claim, thus notify‐
ing the defendant of the possibility of class‐wide liability, as Ali eventually
tried to do here (albeit too late in the district court’s view). Such amend‐
ments are governed by the generally liberal standards of Rule 15 for
amending pleadings.
No. 21‐1536 15
concluding that the plaintiff could not change the focus of the
litigation almost five years into the case. Id. at 784–85.
On appeal, we observed that both parties and the district
court had proceeded as if the second certification proposal re‐
quired an amendment to the complaint, but we could not see
why: “A complaint must contain three things: a statement of
subject‐matter jurisdiction, a claim for relief, and a demand
for a remedy. Class definitions are not on that list.” 796 F.3d
at 785 (internal citation omitted). Instead, we noted, “the obli‐
gation to define the class falls on the judge’s shoulders.” Id.
Although the judge may ask the parties for help, “motions
practice and a decision under Rule 23 do not require the plain‐
tiff to amend the complaint.” Id.
Those comments cannot bear the weight Miller tries to
place on them. For one, they were dicta, as we said that the
amendment issue did “not affect the disposition.” 796 F.3d at
785; see also id. at 788 (affirming denial of class certification).
More fundamental, this case did not involve an effort to mod‐
ify a class definition that was already in the case. Unlike the
plaintiff in Chapman, Ali did not bring his case as a class ac‐
tion. His complaint did not include “a claim for relief” and “a
demand for a remedy,” see id. at 785, notifying the defendant
that it faced the prospect of class‐wide liability. If Ali had filed
such a complaint and had then later sought to change the def‐
inition of his class, Chapman suggests that amending the com‐
plaint would not have been necessary. That makes sense. As
the district court here observed, proposed class definitions are
often narrowed or expanded as the parties engage in discov‐
ery at the class certification stage. Cf. Beaton v. SpeedyPC Soft‐
ware, 907 F.3d 1018, 1023 (7th Cir. 2018) (“District courts may
amend class definitions either on motion or on their own
16 No. 21‐1536
initiative.”); Schorsch v. Hewlett‐Packard Co., 417 F.3d 748, 750
(7th Cir. 2005) (“Litigants and judges regularly modify class
definitions ….”). Since there was no operative class action
complaint in Ali’s case, however, Chapman is not relevant on
this point.
The denial of Miller’s motion to intervene is
AFFIRMED.