Maria A. Gilbert and Rosita C. Gilbert v. Braniff International Corporation
579 F.2d 411
7th Cir.
1978
Check Treatment

*2 PELL, Before SWYGERT and Circuit trict court entered summary judgment in CAMPBELL, Judges, and Senior District favor of the defendant on the grounds of Judge.* judicata.

* Judge Campbell person, port, locality, Senior District William J. lar description or sitting by Northern transportation District Illinois is any traffic in respect air in designation. subject any particular whatsoever person, or port, locality, description or in traffic air 1374(b) provides: 1. 49 U.S.C. § transportation any unjust discrimination foreign any No air or carrier air carrier shall or prejudice or undue unreasonable or make, give, any or disadvantage any cause undue or unreason- respect whatsoever. preference advantage any particu- able or impor factor considered assessed —a that the doctrine

It well settled determining finality to bar a of an order be invoked tant can of res prior action only supra, 347 N.E.2d at 288. claim if in Bates v. subsequent judgment. See: by a final Moreover, the did not seek the was terminated defendant Saalfield, *3 241 v. U.S. by Merriam the entry of an order Circuit Court (1916); Premier 477, 868 60 L.Ed. S.Ct. County dismissing prej the case with v. Miller-Davis Co. Construction Electrical plaintiffs for of the to file an udice failure 1970); v. (7th People Co., 1132 Cir. F.2d 422 prac complaint, apparent as is the amended 1, 545 Harkness, 339 N.E.2d Ill.App.3d 34 Harrison, Campbell v. 16 Ill. tice. See: fi- Further, order is considered an (1975). 570, (1973); 306 N.E.2d 643 Brain App.3d litigation between the terminates nal if it Liberty Co. Nat. Bank of v. First Lake erd suit, finally and deter- parties to the the 780, (1971). ville, Ill.App.3d 1 275 N.E.2d 468 rights as disposes of their fixes, and mines, considerations, these we view the light In v. by suit. Peach issues made to the with leave to amend the of dismissal order 504 218 N.E.2d Ill.App.2d Peach, 73 speci complaint as within “otherwise (1966). 273, and, hence, exception of Rule fies” 273, Rule Ill.Rev. Court Illinois is not a conclude that the order final order (S.H.A.1968) provides: 110A, 273 Stat, ch. § v. by operation of the Rule. See: Stutzke aor statute 296, of dismissal 832, order Edwards, Ill.App.3d Unless the 58 16 Ill.Dec. an invol- specifies, state otherwise (No. 76-571, 1978); of this Gray 1071 v. 374 N.E.2d action, than other of an untary dismissal 555, Ill.App.3d 353 N.E.2d 703 Starkey, 41 for jurisdiction, for lack of a dismissal (1976). join to an venue, failure or for improper Because the state court dismissal order adju- party, as an operates indispensable adjudication not final on the merits was a merits. upon the dication by operation of action of Rule of the cause case, that the Circuit it is clear In this 273, properly could not be in- County’s order of dismissal of Cook Court to subsequent filing bar the feder- voked involuntary dismissal in an resulted complaint al of a based on same court and must be con- plaintiffs, respect to the Thus, upon the cases operative facts. relied operation of Su- by order a final sidered urged by court and defend- it can be dem- 273 unless Court Rule preme Co., here, v. Hunt 505 F.2d ant Hanson Oil specifies otherwise. the order onstrated that Conrad, 1974) (8th Lambert v. Cir. 1237 particu a determining whether In 1976), inapposite are (7th F.2d 1183 Cir. 536 courts final, reviewing Illinois lar order is prior final ad- those cases involved because order, rather substance of to the look judications on the merits which were then Browning v. Herit form. technical than its litigation under subsequent bar raised to 622, Co., Ill.App.3d 314 20 age Insurance judicata. The instant ease principles of res v. 38 Ill. (1974); Bates 1 N.E.2d closely v. First resembles Brainerd more (1976); 203, 286 O’Fallon 347 N.E.2d App.3d Libertyville, supra, Bank Co. Nat. Lake O’Fallon, 43 City v. Development Co. 468, complaint a was where dis- 275 N.E.2d 6, 348, 356 N.E.2d 1293 2 Ill.Dec. Ill.App.3d to for failure state a cause of action missed v. Peach, supra, Martin ; Peach v. (1976) given plaintiff time to additional was 348, N.E.2d 770 Masini, Ill.App.2d It was not complaint. an amended to file involved in viewing the order (1967). So with leave to amend order of dismissal case, finality. it that lacks we find this of dismissal subsequent rather the order but plaintiff to prejudice” when failed itself, “with very of the order terms complaint an that was held file amended dismissing cause of action striking and of Rule operation be a final order to file an amended plaintiffs with leave to Similarly at N.E.2d 469-470. 273. 275 finality and lack reveals complaint, Harrison, N.E.2d supra, v. Campbell something yet is there indicates that striking that an order Further, the court found no costs were in the case. done complaint plaintiff with leave to file N.E.2d (1973); Gray an Starkey, v. 41 Ill. complaint amended was not a final order App.3d (1976); 353 N.E.2d 703 Stutzke a subsequent dismissing but rather order Edwards, 58 Ill.App.3d 16 Ill.Dec. plaintiff the case because the did not file an 374 N.E.2d No. 76-571 (1978). final, appealable amended was a say Bates does judge’s trial award of order. 306 N.E.2d at 644-645. probative costs is of his intent underlying final, order be because nonfinal Accordingly, for the reasons stated here- orders do in, authority not create the order of the district court is to award reversed costs, for further but the case pro- surely and the cause remanded does not hold or ceedings opinion. not inconsistent with this even imply that the lack of an award of costs indicates nonfinality. Brainerd only AND REMANDED.

REVERSED *4 holds that a dismissal of an action with prejudice for failure to amend within PELL, Judge, dissenting. Circuit granted by time an operates earlier order fully agree majority that I with the this merits, on the not that nailing- later principles case must dismissed under down order is a prerequisite finality to and July if the order of operation on the merits in circumstances Court of County Circuit was or such as are Campbell, before us. relying on became final order. I Because believe Brainerd, says only that waiting for the plaintiffs’ that failure to their amend state forthcoming nailing-down order before fil days granted court complaint within the 28 ing a notice of appeal did not order, waive the by the or to seek leave to amend right appeal. Gray to holds that nearly dismissal years within the three have that with leave to amend to one, correct transpired, easily since made the order a final an remedied respectfully deficiency I technical dissent. is not a final judgment. is, course, There sugges no Supreme does, Illinois Court Rule 273 tion that the dismissal herein was of that course, make it clear that an involuntary nature. any ground dismissal of an action on other specified (none than the three therein Stutzke does contain language some here) operates apply judicata. which as res which might appear to support the rule County Brainerd v. First Lake National articulated the majority, but I think the 780, Libertyville, Ill.App.3d Bank of 1 275 language unfortunate dicta and the case (1971), majori- N.E.2d 470 on which the First, clearly non-dispositive. the dismissal relies, however, ty points out, in Stutzke was merely of two counts of a rule, before the a dismissal with an [e]ven complaint, not of the whole complaint and complaint to on election stand was certainly not of the action. As the court final, appealable deemed a order and a properly noted, Illinois Court Rule to plaintiff bar future suits 273 all, thus did not apply quite at unlike against arising the same defendants out Second, this case. while the court indicated of the same transaction. omit- [Citations that a trial court has discretion to allow ted.] amendment after the time specified in a Nothing purports in Rule 273 to undercut order, dismissal it noted that there was rule, I this common law cannot con- authority ways both as to whether it would ceive that the Illinois courts would not con- be an abuse of that grant discretion to plaintiffs’ apparently strue total inaction on days leave 52 granted after the time had their state court lawsuit as an election to expired. I have no doubt what the court stand on the filed therein. would have thought an attempt about my revive an The authorities which on brothers abandoned action three years la- rely persuade Finally, do not me ter. placed otherwise. See Stutzke primary re- v. Ill.App.3d Maple Bates 38 347 liance on Investment Develop- (1976); Brainerd, supra; Camp- Skore, N.E.2d 286 ment Corporation v. 38 Ill.App.3d Harrison, bell Ill.App.3d 16 306 (1976), N.E.2d which involved holding a denial totally inapposite judgment with to vacate a of a motion judgment, open file a motion

leave to stay of execu ordered a also

which denial further until proceedings

tion and further having (no further order the court

order of entered), did not terminate

ever been judg a final was thus not

litigation and specifically em court

ment. Stutzke Maple Invest

phasized the statement petition to denying a an order

ment that days to allowing but

vacate a final, not was petition

file an amended Maple point, For this order.

appealable Wenzel, 35 Ill. Vosnos v. cited

Investment (1962), which N.E.2d 193

App.2d during the attempt appeal an

involved period.

30-day leave *5 the Illinois believe simply

I do not involved here the order regard would

courts and I point, at this anything but final

as affirm accordingly

would court. America, STATES

UNITED

Plaintiff-Appellee, MATHIS, Defendant-Appellant.

Barry L. 77-2075.

No. Appeals, States Court

United

Seventh Circuit.

Argued April 1978. June 1978.

Decided 29, 1978.

As June Amended