John LUCILLE, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
No. 94-1106.
United States Court of Appeals, Seventh Circuit.
August 3, 1994.
Rehearing Denied Sept. 22, 1994.
31 F.3d 546
Sances believed, based on his study of Pries’ injuries, that she was ejected through the window. This opinion, which accords with the view of Honda‘s experts, is within Sances’ area of expertise—but, if it is correct, then our conclusion that the glazing was not defective forecloses all of Pries’ arguments other than her attack on the design of the seat belt mechanism. Rosenbluth, who believed that Pries was ejected through an open door, has a theory of defect but needs to explain how the door could have closed again consistent with the mechanics of its opening. We cannot say that the record absolutely precludes additional efforts to show a defect along these lines, but they seem unlikely to do much beyond distracting the jury from the principal theory of defect.
Lest there be any doubt in light of the district judge‘s antipathy to inconsistent theories, we add that it does not count against Pries that her experts do not agree about how she came to be outside the car. Litigants are not bound by their witness‘s statements; the voucher theory is long gone. We find it comforting to see experts with analyses derived independently, rather than parroting a consistent (but often bogus) theory concocted by counsel. Pries left by either the door or the window; that experts cannot agree on which route she took hardly demonstrates the lack of an injurious defect. Cf.
3. Our concentration on the question whether Pries fastened her seat belt does not imply that if she fastened the belt, and nonetheless slipped out during an accident, the assembly must have been defectively designed. As we have emphasized here and in Bammerlin, Indiana requires the plaintiff to show that another design not only could have prevented the injury but also was cost-effective under general negligence principles. Rosenbluth testified that particular additional devices would have kept the belt tight in a rollover, but he conceded that no car in production anywhere in the world in 1988 used the combination of devices he favored. This, coupled with the absence of data about either the costs of additional precautions or the aggregate injuries avoidable by using them, raises a serious question whether failure to adopt such a combination was negligent. Rosenbluth is not an engineer; his education stopped with a master‘s degree in industrial design. Without the aid of an engineer or statistician to set out the factors relevant to negligence (on which see Bammerlin and, e.g., United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947)), Pries may find it impossible to prevail. But decision on this subject lies ahead.
REVERSED AND REMANDED.
Thomas M. Arnett (argued), Chicago, IL, for plaintiff-appellant.
Mary L. Smith, CC, Office of the Corp. Counsel, James D. Montgomery, Montgomery & Associates, Lawrence Rosenthal, DCC, Jean Dobrer, ACC (argued), Kelly R. Welsh, ACC, Nancy Van Allen, Benna R. Solomon, Susan S. Sher, Office of the Corp. Counsel, Appeals Div., Arthur N. Christie, Burke & Ryan, Chicago, IL, for defendant-appellee.
Before CUDAHY, FLAUM, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
In 1985 John Lucille sought to have the City of Chicago held in contempt of court for violating the consent decree in Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979), by considering his politics when deciding to discharge him from employment. In December 1989 the parties settled their differences. The
Although McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir.1985), held that a district court may not enforce a settlement agreement unless there is an independent basis of federal jurisdiction, the district judge did not discuss this initial hurdle. Lucille and the City are not of diverse citizenship. McCall-Bey disposes of the contention that just because the initial suit sought to vindicate a federal right, the court possesses federal-question jurisdiction under
The Shakman consent decree rests on
What about ancillary jurisdiction? Kokkonen eliminates any contention that enforcing a settlement of federal litigation automatically comes within the ancillary jurisdiction. “No case of ours asserts, nor do we think the concept of limited federal jurisdiction permits us to assert, ancillary jurisdiction over any agreement that has as part of its consideration the dismissal of a case before a federal court.” U.S. at —, 114 S.Ct. at 1676. The Justices observed, however, that a federal court has ancillary jurisdiction to protect and enforce its judgments. Thus if the judgment explicitly incorporates the settlement, or reserves authority to enforce the settlement, the court possesses ancillary jurisdiction. Id. — U.S. at —, 114 S.Ct. at 1677. We concluded in McCall-Bey that the court also possesses jurisdiction if the judgment implicitly incorporates the terms of a settlement that itself provides for continuing jurisdiction. 777 F.2d at 1188-89. But the district court‘s judgment in this case does not incorporate the settlement or reserve power to enforce the parties’ agreement. Instead it sets out the principal terms, directing Chicago to pay $25,000 and reinstate Lucille. Having put some but not all of the terms in the judgment, the district court has identified which it will enforce and which it will not. Violation of terms that are not in the judgment cannot be thought to flout the court‘s order or imperil the court‘s authority, and claims of such violations therefore do not activate the ancillary jurisdiction of the court. And although the judgment recognizes the parties’ settlement, this case differs from McCall-Bey because neither the judgment nor the settlement so recognized
Lucille relies on a provision in the settlement agreement requiring reinstatement with “seniority ... retroactive to July 16, 1980,” which he believes entails an entitlement to extra leave credits and contribution of pension funds sufficient to permit him to take early retirement as if he had been at work during the intervening years. Chicago relies on a clause extinguishing “all claims for salary, accumulation of vacation days, sick days and other benefits of employment” to which Lucille would have been entitled had he been continuously employed. Neither of these provisions made it into the judgment. Terms amounting to a release may be enforced in federal court as a defense, if the dispute is within federal jurisdiction, but a release does not create that jurisdiction. Doubtless the contract provides a context for interpretation of the judgment. Ambiguities in the court‘s order should be resolved consistently with the more detailed provisions of the parties’ bargain. But Lucille does not contend that any term of the judgment is ambiguous—indeed, Lucille‘s brief does not mention the judgment.
The only potential ambiguity we could find lies in the judgment‘s closing words: “John Lucille shall be further afforded career service upon reinstatement to that position.” Does “career service” entail retroactive leave and pension credits? At oral argument Lucille‘s lawyer said that it does not, and the settlement agreement confirms this understanding. Paragraph B of the settlement reads:
On or before January 16, 1990, the City shall reinstate Plaintiff to the position of Foreman of Sewer Cleaning with the City of Chicago, Department of Sewers. Plaintiff shall be afforded seniority in that title retroactive to July 16, 1980, and shall further be afforded career service status upon said reinstatement to that position.
Thus the parties understood “seniority ... retroactive to July 16, 1980” and “career service status” as different things. Lucille relies on the former, but only the latter is to be found in the judgment. Although Lucille contends that vacation and pension credits come with any “reinstatement,” we join the district judge in rejecting that position. Most lawyers use “reinstatement” to refer to a renewal of employment. Additional benefits such as back pay and fringe benefits that would have accumulated during time missed (or that were lost on discharge) are negotiated and provided for separately.
The district court possessed ancillary jurisdiction to interpret and enforce its judgment; it lacked jurisdiction to interpret and enforce the contract. All we need consider, then, are the provisions of the judgment. For reasons we have covered, that judgment affords Lucille no comfort. The decision denying his petition for additional relief is therefore
AFFIRMED.
CUDAHY, Circuit Judge, concurring.
I agree with much of the analysis and with the result reached by the majority opinion, but write separately with respect to one interpretation that the majority does not pursue. The majority states that, “the district court‘s judgment in this case does not incorporate the settlement...” But the Judgment Order by its own terms “is entered in accordance with the Settlement Agreement which has been signed by all parties ...” It is not much of a stretch to construe “entered in accordance with” as language of incorporation. In fact, in McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir.1985), an opinion the majority describes as portending (and approved by) the Supreme Court‘s recent opinion in Kokkonen v. Guardian Life Ins. Co., — U.S. —, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), we held that a judgment entered “pursuant to” a settlement agreement incorporated that agreement. Kokkonen is silent as to what words a district court must use to incorporate a settlement agreement, and I see no reason to depart (as the majority appears to) from our approach in McCall-Bey.
In any event, one of Lucille‘s principal arguments involves interpretation of the word “reinstatement” from the settlement agreement. He says that this means he is entitled to leave and pension credits, essentially restoring his situation to what it would
Since I agree with the district court that “reinstate” was not intended to mean what Lucille claims it means, I agree that the City prevails and the district court should be affirmed.
UNITED STATES of America, Plaintiff-Appellee,
v.
Reinhold AMAN, Defendant-Appellant.
No. 93-3372.
United States Court of Appeals, Seventh Circuit.
Argued May 17, 1994.
Decided Aug. 4, 1994.
Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, WI (argued) for U.S.
Hans Peter Koesser, Kenosha, WI (argued) for Reinhold Aman.
Before POSNER, Chief Judge, and HILL* and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
After his divorce, Dr. Reinhold Aman began mailing threatening letters to his ex-wife, her attorney, and the judge presiding over