James, Linda v. McDonald's Corp

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2383
LINDA JAMES,
Plaintiff-Appellant,
v.
MCDONALD’S CORPORATION,
SIMON MARKETING, INCORPORATED,
and ANTE ENTERPRISES LLC, doing
business as MCDONALD’S RESTAURANT,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 2791—Matthew F. Kennelly, Judge.
____________
ARGUED JANUARY 7, 2005—DECIDED AUGUST 2, 2005
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Linda James filed this action in the
United States District Court for the Western District of
Kentucky alleging state law contract and tort claims against
McDonald’s Corporation, Simon Marketing, Inc. and the
owner-operators of two McDonald’s restaurants (collec-
tively “McDonald’s”). The action was transferred to the
Northern District of Illinois, under 28 U.S.C. § 1407(a), as
2 No. 04-2383
part of the In re McDonald’s Corporation Promotional Game
Litigation, No. 1437, multi-district proceeding. The district
court granted McDonald’s motion to compel Ms. James to
arbitrate her claims and to stay judicial proceedings pend-
ing the outcome of arbitration. Ms. James did not pursue
arbitration; instead, nearly a year later, she asked the district
court to reconsider its order. The district court denied the
motion and later dismissed the case for failure to prosecute.
Ms. James has appealed. For the reasons set forth in the
following opinion, we now affirm the judgment of the
district court.
I
BACKGROUND
A.
In 2001, McDonald’s was promoting sales of its food
products by sponsoring a game called “Who Wants to be a
Millionaire.” Ms. James obtained a game card in May of
2001 when she purchased an order of french fries at the
drive-thru window of a McDonald’s restaurant in Franklin,
Kentucky. She believed the game card to be a grand prize
winner worth one million dollars. In order to redeem her
prize, Ms. James sent in the original game card to the
McDonald’s redemption center. On June 14, 2001, however,
the redemption center sent her a letter explaining that,
“[t]hrough security codes on your Game Card we have been
able to determine that it is a Low-level Prize Game Card.
Low-level prizes included food prizes and $1 to $5 in cash.”
R.1.
In August 2001, the Federal Bureau of Investigation
arrested eight employees of Simon Marketing who allegedly
had stolen the winning game cards from the “Who Wants to
No. 04-2383 3
be a Millionaire” game and another McDonald’s promotion.
Ms. James filed suit alleging that McDonald’s induced her
to purchase its food products by the chance to win the
“Who Wants to be a Millionaire” game when it knew that,
due to the theft of winning game cards, the odds of winning
were less than represented. She also alleged that, as part of
its fraud scheme, McDonald’s had used a false pretense to
refuse to honor her winning game card.
McDonald’s filed a motion to compel Ms. James to arbi-
trate her claims. It relied on an arbitration clause contained
in the rules for the “Who Wants to be a Millionaire” game
(“Official Rules”), which stated:
Except where prohibited by law, as a condition of parti-
cipating in this Game, participant agrees that (1) any
and all disputes and causes of action arising out of or
connected with this Game, or any prizes awarded, shall
be resolved individually, without resort to any form
of class action, and exclusively by final and binding
arbitration under the rules of the American Arbitration
Association and held at the AAA regional office nearest
the participant; (2) the Federal Arbitration Act shall
govern the interpretation, enforcement and all proceed-
ings at such arbitration; and (3) judgment upon such
arbitration award may be entered in any court having
jurisdiction.
R.1, Ex.A at 12. McDonald’s presented evidence, credited by
the district court, that the Official Rules were posted openly
in participating restaurants. The rules were posted near the
food counter, on the back of in-store tray liners and near the
drive-thru window. Also, the french fry cartons to which
game cards were affixed had language directing partici-
pants to see the Official Rules for details.
4 No. 04-2383
B.
On February 4, 2003, the district court granted
McDonald’s motion to compel Ms. James to arbitrate her
claims. Applying Kentucky law, the district court concluded
that Ms. James could not avoid the arbitration clause by
claiming that she never saw or read the Official Rules. Next,
the court determined that arbitration, not the court, was the
appropriate forum for resolving Ms. James’ claim that the
arbitration clause should not be enforced because McDon-
ald’s fraudulently had induced her to participate in the
game. This was because the alleged fraud related to the
entire contract, as opposed to the agreement to arbitrate in
particular. See Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
388 U.S. 395, 403 (1967). Finally, the district court found
unavailing Ms. James’ claim that it should not enforce the
arbitration clause because the costs of arbitration were pro-
hibitive. The district court noted that Green Tree Financial
Corp.-Alabama v. Randolph, 531 U.S. 79 (2000), and the other
cases upon which Ms. James relied, concerned a party’s
ability to pursue federal statutory claims. In contrast,
Ms. James submitted no authority to support the proposi-
tion that prohibitive costs could defeat an agreement to
arbitrate common law or state law claims.
Despite the district court’s order, Ms. James did not file a
demand for arbitration. At a status hearing held in August
2003, her counsel informed the district court that Ms. James
had not initiated arbitration because she could not afford to
advance the necessary costs. On December 15, 2003, Ms.
James’ counsel explained that Ms. James still had not
proceeded to arbitration due to the costs. At that time,
counsel requested the district court to transfer the case back
to the Western District of Kentucky. Counsel sought to file
in the transferor court a motion for reconsideration of the
district court’s order compelling arbitration. The district
No. 04-2383 5
court denied the motion on the ground that granting it
would defeat the purpose of the multi-district litigation
process. The district court set a deadline of January 15, 2004,
for Ms. James to file any requests for reconsideration.
On January 15, 2004, Ms. James filed a motion for recon-
sideration; in the alternative, she requested that her case be
dismissed “so that she may exercise her right of appeal.”
R.28 at 9. The district court denied the motion as untimely.
In essence, the court explained that Ms. James merely reiter-
ated her original arguments and was “not entitled to forego
arbitration, wait nearly a year, and only then seek reconsid-
eration.” R.32 at 3. The court further held that, even if the
motion was deemed timely, it had no merit. Among other
things, the court explained that no genuine factual issue
existed as to whether a contract was entered:
Ms. James has not contradicted the factual showing
made by McDonald’s that the french fry carton that
contained her game piece made specific reference to the
contest rules and told her what she needed to do to
review them. Her only contention is that she did not
actually see the rules. Under the circumstances, this
amounts to a claim that she did not read the rules even
though they were clearly and undisputably identified to
her as being part of the contest.
Id. at 4. In concluding its order, the district court expressed
that “[i]t is clear from the events since our February 2003
order that James does not intend to pursue her claim in
arbitration.” Id. at 6. Therefore, the court granted Ms. James
one week to file a motion to show cause why her case
should not be dismissed for failure to prosecute in arbitra-
tion.
Three weeks later, Ms. James filed a one-page submission
containing the same arguments previously raised. The
6 No. 04-2383
district court concluded that Ms. James “will not pursue the
case in the manner the court has ruled the law requires. This
amounts to a failure to prosecute.” R.34 at 1. Accordingly,
the court dismissed Ms. James’ case with prejudice.
II
ANALYSIS
A. Standard of Review
We review a district court’s decision, under the Federal
Arbitration Act (“FAA”), to compel parties to arbitrate their
disputes de novo. See Fyrnetics (Hong Kong) Ltd. v. Quantum
Group, Inc., 293 F.3d 1023, 1027 (7th Cir. 2002). We review
the district court’s findings of fact for clear error. Id.
B. Arbitration
Ms. James contends that the district court erred by order-
ing her to submit her claims to arbitration on three grounds:
(1) that she did not enter into a valid agreement to arbitrate
her claims; (2) that she cannot afford the costs of arbitration;
and (3) that the contract is invalid because it was induced by
fraud.
1. Agreement to Arbitrate
The FAA provides that a “written provision in any . . .
contract . . . to settle by arbitration” any future controversy
arising out of such contract “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
No. 04-2383 7
1
equity for the revocation of any contract.” 9 U.S.C. § 2. The
FAA was designed “to reverse the longstanding judicial
hostility to arbitration agreements . . . and to place [them]
on the same footing as other contracts.” Gilmer v. Interstate/
Johnson Lane Corp., 500 U.S. 20, 24 (2000). The FAA embodies
a “liberal federal policy favoring arbitration agreements.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 24-25 (1983). Any doubts with respect to arbitrability
therefore should be resolved in favor of arbitration. Id.
However, a party can be compelled to arbitrate only those
matters that she has agreed to submit to arbitration. First
Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 945 (1995);
Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126,
1130 (7th Cir. 1997) (“An agreement to arbitrate is treated
like any other contract. . . . If there is no contract there is to
be no forced arbitration.” (internal quotation and citation
omitted)). In deciding whether the parties agreed to arbi-
trate a certain matter, federal courts generally should rely
on state contract law governing the formation of contracts.
1
Section 2 of the FAA provides in full:
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such
contract or transaction, or the refusal to perform the whole or
any part thereof, or an agreement in writing to submit to
arbitration an existing controversy arising out of such a con-
tract, transaction, or refusal, shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.
9 U.S.C. § 2.
8 No. 04-2383
2
First Options of Chicago Inc., 514 U.S. at 944.
Ms. James contends that she should not be forced to arbi-
trate her claims because she never entered into an agreement
to arbitrate her dispute. She submits that she was not aware
of the Official Rules, much less that the rules deprived her
of a jury trial. For the same reasons, Ms. James contends
that, if there was an agreement to arbitrate, it is unconscio-
nable and should not be enforced. To support her position,
Ms. James submits that one cannot assume that she knew of,
and accepted, the arbitration clause in the Official Rules
simply because she ate at a McDonald’s restaurant. She
maintains that customers cannot be expected to read every
container of food they purchase in order to know that they
are entering a contract. Rather, she submits that it was
McDonald’s burden to assure her understanding of, and
willingness to be bound by, the arbitration provision.
Certainly, as Ms. James urges, a contract includes only
terms on which the parties have agreed. See ProCD, Inc. v.
Zeidenberg, 86 F.3d 1447, 1450 (7th Cir. 1996). However, one
of the things that Ms. James agreed to by participating in the
“Who Wants to be a Millionaire” game was to follow the
game’s rules in order to win the promised prize. As a
general rule, a participant in a prize-winning contest must
comply with the terms of the contest’s rules in order to form
a valid and binding contract with the contest promoter. The
promoter’s obligation is limited by the terms of the offer,
2
The parties dispute whether Kentucky or Illinois law applies in
this case. See Appellant’s Br. at 9-10; Appellee’s Br. at 13-14.
However, neither party argues, nor do we conclude, that the
outcome of this case would be different depending on which law
we apply. The principles of contract construction in this case are
“matters of hornbook law.” Paladino v. Avnet Computer Techs., Inc.,
134 F.3d 1054, 1061 n.1 (11th Cir. 1998).
No. 04-2383 9
including the conditions and rules of the contest that are
3
made public.
Ms. James challenges the district court’s reliance on
Kentucky case law that provides that a party who had the
opportunity to read a contract, but did not, is bound by the
contract terms. Merten v. Vogt, 208 S.W.2d 739, 740
(Ky. 1948); Conseco Fin. Serv. Corp. v. Wilder, 47 S.W.3d 335,
341 (Ky. Ct. App. 2001). Ms. James insists that these cases
are inapposite because they involve contracts that were
negotiated and signed by the parties. Instead, she relies on
Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193, 199
(Ky. 2002), which held that an employee could not validly
agree to arbitrate without “actual notice” of the employer’s
arbitration policy. The district court’s ruling is not inconsis-
tent with Oakwood, however, because the court found that
the Official Rules were “clearly and undisputably identified
to [Ms. James] as being part of the contest.” R.32 at 4. It is
axiomatic that a contest normally has rules regarding eligi-
bility to win the promised prize. Moreover, Ms. James can-
not claim, on the one hand, that a valid contract obligates
McDonald’s to redeem her prize and, on the other hand,
argue that no contract binds her to the contest rules. A con-
3
See, e.g., Workmon v. Publishers Clearing House, 118 F.3d 457, 459
(6th Cir. 1997); Barnes v. McDonald’s Corp., 72 F. Supp. 2d 1038,
1042-43 (E.D. Ark. 1999), aff ’d, 230 F.3d 1362 (8th Cir. 2000)
(unpublished); Nat’l Amateur Bowlers, Inc. v. Tassos, 715 F. Supp.
323, 325 (D. Kan. 1989); Johnson v. BP Oil Co., 602 So. 2d 885, 888
(Ala. 1992); Harlem-Irving Realty Inc. v. Alesi, 425 N.E.2d 1354,
1357 (Ill. App. Ct. 1981); 1 E. Allan Farnsworth, Farnsworth on
Contracts § 3.10, at 260-62 & n.34 (3d ed. 2004); 1 Richard A. Lord,
Williston on Contracts § 4.3, at 360 (1990); Michael P. Sullivan,
Annotation, Private Contests and Lotteries: Entrants’ Rights and
Remedies, 64 A.L.R. 4th 1021 (1988).
10 No. 04-2383
test participant cannot pick and choose among the terms
and conditions of the contest; the rules stand or fall in their
entirety.
Outside the promotional-contest context, this court has
held that parties are bound to an arbitration provision even
if they did not read the provision. For instance, in Hill v.
Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.), cert. denied, 522
U.S. 808 (1997), the purchasers of a computer conceded that
they had noticed the terms printed inside the box in which
their computer was shipped. However, they maintained that
they had not read it closely enough to see the arbitration
clause. See id. at 1148. We held that the arbitration clause
was enforceable because the purchasers had the opportunity
to return the computer after reading the terms. We stated
that “[a] contract need not be read to be effective; people
who accept take the risk that the unread terms may in
retrospect prove unwelcome.” Id.; see also ProCD, 86 F.3d at
1452 (binding consumer to arbitration clause printed inside
box of software because consumer had the opportunity to
return the software after reading the terms). In Hill, we
explained that
[p]ractical considerations support allowing vendors to
enclose the full legal terms with their products. Cashiers
cannot be expected to read legal documents to cus-
tomers before ringing up sales. If the staff at that the
other end of the phone for direct-sales operations such
as Gateway’s had to read the four-page statement of
terms before taking the buyer’s credit card number, the
droning voice would anesthetize rather than enlighten
many potential buyers. Others would hang up in a rage
over the waste of their time. And oral recitation would
not avoid customers’ assertions (whether true or
feigned) that the clerk did not read term X to them, or
that they did not remember or understand it.
No. 04-2383 11
Hill, 105 F.3d at 1149; see also ProCD, 86 F.3d at 1451. The
situation faced by McDonald’s presents an apt comparison.
To require McDonald’s cashiers to recite to each and every
customer the fourteen pages of the Official Rules, and then
have each customer sign an agreement to be bound by the
rules, would be unreasonable and unworkable. The Official
Rules were identified to Ms. James as part of the contest,
and that identification is sufficient in this case to apprise her
of the contents of the rules.
2. Costs of Arbitration
Ms. James also contends that the arbitration clause should
not be enforced because the high up-front costs of arbitra-
tion prohibit her from pursuing a remedy in that forum. Ms.
James relies on Green Tree, 531 U.S. at 81, in which the
Supreme Court recognized that “the existence of large
arbitration costs may well preclude a litigant . . . from
effectively vindicating” statutory rights in arbitration.
Ms. James’ reliance on Green Tree is misplaced. In Green Tree,
the Court was concerned with whether the existence of a
federal statutory right under the Truth In Lending Act
(“TILA”), 15 U.S.C. § 1608 et seq., evinced Congress’ intent
to supersede the FAA when necessary to provide access to
a legal forum. 531 U.S. at 80-81. It remains unclear whether
the rationale of Green Tree applies to situations that do not
involve the assertion of federal statutory rights. See Richard
M. Alderman, Pre-Dispute Mandatory Arbitration in Consumer
Contracts: A Call for Reform, 28 Hous. L. Rev. 1237, 1253
(2001); see also Brown v. Wheat First Sec., Inc., 257 F.3d 821,
825 (D.C. Cir.), cert. denied, 534 U.S. 1067 (2001) (declining to
extend to non-statutory claims a prior holding prohibiting
an employer from requiring an employee to arbitrate all
disputes relating to the employment relationship as a
12 No. 04-2383
condition of employment and also to require the employee
to bear all or part of the costs of arbitration). The cases relied
on by Ms. James similarly involve federal statutory claims.
See Appellant’s Br. at 15-18.
Without deciding whether Green Tree extends to common
law or state law claims, we note that, in any event,
Ms. James has not made a showing that the expenses that
she necessarily and definitely would incur would make
arbitration prohibitive. “[A] party seeking to invalidate an
arbitration agreement on the ground that arbitration would
be prohibitively expensive bears the burden of showing the
likelihood of incurring such costs.” Green Tree, 531 U.S. at
81. Ms. James relies on the affidavit of Michael Eiben, who
is a member of the Panel of Neutrals for the American
Arbitration Association (“AAA”), to establish the costs of
arbitration. Eiben estimated that Ms. James would have to
pay $38,000 to $80,000 in fees and service costs before arbi-
tration commenced in order to pursue her claims. See R.28,
Ex.2 at 1. Ms. James filed a sworn affidavit stating that she
does not have the financial resources to advance those fees.
See R.28, Ex.1 at 2.
The AAA’s Commercial Rules contain provisions to pro-
tect parties from prohibitive expenses. The Eighth Circuit
has recognized that the
AAA . . . has a fee waiver procedure. It decides whether
or not to waive, in whole or in part, a fee on the basis of
a claimant’s financial situation. It is clear, however,
from our reading of the evidentiary hearing transcript,
that the [plaintiff] never fully explored the AAA’s fee
waiver procedures because [he] refused to provide his
family’s financial information to the AAA. This is an
important step that must be taken before an
unconscionability determination can be made.
No. 04-2383 13
Dobbins v. Hawk’s Enters., 198 F.3d 715, 717 (8th Cir. 1999);
see also American Heritage Life Ins. Co. v. Orr, 294 F.3d 702,
712 (5th Cir. 2002), cert. denied, 537 U.S. 1106 (2003) (“[T]he
rules of the AAA provide . . . sufficient avenues to request
fee-paying relief, if necessary.”). Ms. James has submitted
no evidence indicating how her financial situation would be
factored into an assessment of the arbitration costs under
4
this hardship provision. Furthermore, Ms. James has not
provided any evidence concerning the comparative expense
of litigating her claims. The cost differential between arbitra-
tion and litigation is evidence highly probative to Ms. James’
claim that requiring her to proceed through arbitration,
rather than through the courts, will effectively deny her
legal recourse. See Bradford v. Rockwell Semiconductor Sys.,
Inc., 238 F.3d 549, 556 (4th Cir. 2001) (applying a case-by-
case analysis in the employment discrimination context
focused on “ability to pay the arbitration fees and costs, the
4
We are not persuaded, in contrast, by McDonald’s submission
that, if the arbitrator imposes burdensome costs on Ms. James,
she can return to the district court and seek review of the cost
allocation. See DeGroff v. Masotech Forming Techs.-Fort Wayne, Inc.,
179 F. Supp. 2d 896, 912 (N.D. Ind. 2001) (“[S]hould [plaintiff]
appeal any arbitration award, the reviewing court could assess
whether unreasonable arbitration fees were imposed.”). Ms.
James maintains that she cannot afford to pursue arbitration in
the first instance. A review of the allocation of costs conducted
after the arbitration would be of little help to her. Also, we find
little relevance to McDonald’s claim that it offered to pay Ms.
James the costs of arbitration, if she would be willing to conduct
the arbitration according to the AAA’s Consumer Dispute-
Related Rules. These rules have a truncated procedure and apply
to claims that do not exceed ten thousand dollars. Ms. James
believed her claim was worth at least one million dollars, the
purported value of her game card, plus interest and costs.
Therefore, she was under no obligation to accept McDonald’s
limiting offer.
14 No. 04-2383
expected cost differential between arbitration and litigation
in court, and whether the cost differential is so substantial
as to deter the bringing of claims”).
3. Fraud in the Inducement
Finally, Ms. James claims that the arbitration clause is
unenforceable as a matter of public policy because it was
part of McDonald’s alleged scheme to defraud. The Su-
preme Court has spoken to this issue:
[I]f the claim is fraud in the inducement of the arbitra-
tion clause itself—an issue which goes to the “making”
of the agreement to arbitrate—the federal court may
proceed to adjudicate it. But the statutory language [of
the FAA] does not permit the federal court to consider
claims of fraud in the inducement of the contract gen-
erally. . . . We hold, therefore, that in passing upon a § 3
[of the FAA] application for a stay while the parties
arbitrate, a federal court may consider only issues relat-
ing to the making and performance of the agreement to
arbitrate.
Prima Paint, 388 U.S. at 403. Thus, “a court may consider a
claim that a contracting party was fraudulently induced to
include an arbitration provision in the agreement but not
claims that the entire contract was the product of fraud.”
Sweet Dreams Unlimited v. Dial-A-Mattress Int’l, Ltd., 1 F.3d
5
639, 641 n.4 (7th Cir. 1993).
5
Ms. James relies on a contrary statement of the law in Marks v.
Bean, 57 S.W.3d 303 (Ky. Ct. App. 2001). However, Marks was
overruled expressly by Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d
850 (Ky. 2004), which applied the Prima Paint standard to the
Kentucky Uniform Arbitration Act. In any event, Kentucky’s
(continued...)
No. 04-2383 15
Ms. James’ complaint alleged that she was induced into
participating in the “Who Wants to be a Millionaire” game
by McDonald’s allegedly deceptive practices. Her allega-
tions say nothing of fraud related uniquely to the arbitration
clause. Therefore, under Prima Paint, Ms. James’ fraud claim
was a matter to be resolved by an arbitrator, not by the
district court.
In sum, the district court appropriately granted
McDonald’s motion to compel arbitration.
C. Dismissal for Failure to Prosecute
A district court has the authority under Federal Rule of
Civil Procedure 41(b) to enter a sua sponte order of dis-
missal for lack of prosecution. This authority “has generally
been considered an ‘inherent power,’ governed not by rule
or statute but by the control necessarily vested in courts to
manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962). We review a district court’s
dismissal of a complaint for failure to prosecute for an abuse
of discretion. Id. at 633. We shall presume that the district
court “acted reasonably, and reversal is warranted only if it
is plain that the dismissal was a mistake or that the judge
did not consider factors essential to the exercise of sound
discretion.” Sharif v. Wellness Int’l Network, Ltd., 376 F.3d
720, 725 (7th Cir. 2004) (internal quotation and citation
omitted).
5
(...continued)
interpretation of its state arbitration statute does not control this
case. The arbitrability of contracts involving interstate commerce,
such as here, is governed by federal substantive law, not state
law. See Lee v. Chica, 983 F.2d 883, 886 (8th Cir. 1993); Goodwin v.
Elkins & Co., 730 F.2d 99, 108 (3d Cir. 1984).
16 No. 04-2383
“Once a party invokes the judicial system by filing a
lawsuit, it must abide by the rules of the court; a party can
not decide for itself when it feels like pressing its action and
when it feels like taking a break because ‘[t]rial judges have
a responsibility to litigants to keep their court calendars as
current as humanly possible.’ ” GCIU Employer Ret. Fund v.
Chicago Tribune Co., 8 F.3d 1195, 1198-99 (7th Cir. 1993)
(quoting Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608
(7th Cir. 1986)).
Ms. James contends that dismissal was too harsh of a
sanction. Specifically, she maintains that the delay was not
caused by neglect or dilatory tactics on her part. Rather, she
“very much wanted to pursue her cause,” but could not
because the district court compelled her to arbitrate her
claims, which she could not afford to do. Reply Br. at 8; see
Appellant’s Br. at 19-20. The district court noted that
Ms. James continued to assert the same arguments that it
already had ruled were not meritorious. In denying
Ms. James’ motion for reconsideration and, alternatively, for
dismissal, the court stated:
This request comes far too late in the day. . . . James
took no steps following the Court’s February 2003 order
compelling arbitration to carry out that order’s direc-
tive, seek reconsideration, or request certification for an
interlocutory appeal. Our ruling did not give James the
option of foregoing arbitration, waiting nearly a year,
asking this Court for another bite at the same apple, and
then reviving for appeal purposes a ruling made more
than a year ago. If James wanted to appeal the February
2003 order, she should have made that request within a
reasonable time after the order was entered.
R.32 at 6. The district court concluded that the law required
it to compel Ms. James to arbitrate her claims. Once it so
ordered, it was incumbent upon Ms. James to abide by the
No. 04-2383 17
district court’s ruling and not to continue submitting argu-
ments that the district court already had determined were
meritless. Likewise, her failure to pursue promptly the
court’s reconsideration, or this court’s review on interlocu-
tory appeal, shows that the district court did not clearly
abuse its discretion in dismissing Ms. James’ case with
prejudice.
Conclusion
For all of the foregoing reasons, we affirm the judgment
of the district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-05