*2 complaint. The text of that handwritten Before CUDAHY, PELL and Circuit order reads: Judges, GRANT,* District Senior coming This matter on court's own mo- Judge. tion and it appearing that an order of CUDAHY, having been July Circuit entered on Judge. 1980 and plaintiff having filed addi- Plaintiff Nancy (“Harl”) Harl brought tional pleadings within time allowed this action (1976) under 42 U.S.C. order[,] alleging that the defendants violated her It is July ordered that the order of rights to process due equal protection is dismissing said suit confirmed.2 by revoking her liquor license without pro- viding notice or a hearing. 12, 1980, The district On Harl filed this 506 F.Supp. granted defend- action court. district court federal * Grant, August Honorable Robert A. District Senior 1980 to [a]mend Judge Indiana, for the Northern District of pleadings.” her Plaintiff’s Brief at A-2. sitting by designation. Brief at A-l. 2. Plaintiffs stated, simply 1. The handwritten order allowed, motion to dismiss “[d]efendant’s a statute the order of dismissal or Unless summary motion granted defendants’ an invol- specifies, of this state otherwise 24,1980, and denied December judgment on action, other than untary dismissal of an for reconsid- subsequent motion jurisdiction, a dismissal for lack of judgment, granting summary eration. venue, an improper join or for failure to court first reasoned that adju- indispensable party, operates as an merits was a final 3 order dication merits. 273, 111. Rule under Illinois Court *3 thus 110A, (1979), and 110A, ch. (1979) Rev.Stat. (empha- ch. 1273 Ill.Rev.Stat. 1273 effect. judicata must be res The court found that supplied). sis state court com- Harl’s compared court then within any 3 order fell neither September conclud- complaint and plaint to her federal the rule exceptions to of the three stated judica- res was barred ed that the latter “otherwise the order of dismissal nor did claims were actu- the federal ta since either the order was a final and thus specif[y],” these court action or in the state ally raised the district court did not adjudication. But in the state could have been raised claims Sep- whether the correctly or consider fully court action. for constituted a dismissal tember 3 order Illinois law and prosecution want of

II. ... a “statute governed by thus was See, infra, specifies.”3 case is otherwise issue in this dispositive [which] 4. by the Illinois note the order entered whether 3 is a final order September

trial court on we “other which believe The statute law, only a Illinois on the merits. Under 24 of the Illinois is section specifies” wise subsequent order is res final states, inter That section Limitations Act. 405, Kidd, Ill. v. 398 litigation. People See alia, for want if an “action is dismissed Woods, (1947); v. 73 75 N.E.2d 851 Schmitt may ... prosecution, of ... 498, 498, 29 Ill.Dec. 392 N.E.2d 55 Ill.App.3d year within one a new action commence (5th 1979). the Rules of Deci Dist. Under limitation, remaining period of within the ” (1976), we are Act, 28 1738 sion U.S.C. § .... Ill.Ann.Stat. greater whichever Illinois give prior bound to (em 83, (Smith-Hurd Supp.) 1981 ch. 124a judicata effect as would be the same res decisions have Illinois phasis supplied). v. courts. Gilbert provided by Illinois See 24 is one of the that section squarely held 411, Corp., 579 F.2d Braniff International specif[y]” “otherwise which statutes Thus, (7th 1978). only if we find Cir. Grant, Kutnick v. Rule 273. the terms of adjudi is a final the state court order 313, 315, 177, 357 N.E.2d 2 Ill.Dec. 65 Ill.2d (and cation merits treated as res on the Gerber, 95 Ill. 480, O’Reilly v. (1976); courts) Illinois would we then 11, 13-14, 947, 420 N.E.2d 51 Ill.Dec. App.3d determining proceed steps to the further 1981); Mages Sports 425, (1st Dist. 427-28 parties whether and claims first Arenas, Shopping Cen v. Winston Park Inc. litigation parties are the as the same 334, 409, ter, Inc., present judi claims here purposes Moreover, “it is 1969). (1st 336-37 Dist. cata. cases that a perusal clear from [Illinois] has al prosecution want of court dismissal for Septem- The district held that adjudica not to be an been considered ways ber 3 order is a final order on merits as merits, the case prejudice not Illinois tion on defined in Court Rule 273. entered, it is against whom party of the provides: That rule case, argue that in this that Harl never We believe Defendants raised the not raised below. it is not 3. argument this to consider an abuse of discretion dismissal for want of thus, find precluded we argument controlling O’Reilly 947, the Illinois decision because the court below and raising from Gerber, here, citing argument v. Lambert v. — (1st Conrad, 1976). Ill.Dec. 536 F.2d clear, however, court district after the that it is within rendered Lambert makes —was in the instant case. discretion to consider an decision the court’s subsequent complaint not file not to act as a bar to a suit on Plaintiff did an amended ” O’Reilly Gerber, notice subsequently gave same issues .... and defendant in 10 that he would move for dismissal 1981).4 Thus, later, no- days plaintiff gave days. Several becomes ultimately issue before us one of voluntary dis- tice that she would seek 3 order of whether the day the same de- missal of the action on prosecution.” is one “for The trial court sought fendant a dismissal. and, day heard both motions on the same only fair We believe that inter could still notwithstanding pretation 3 order is that it paid if she point dismiss her case at this prosecution. was a dismissal for want costs, the defend- the trial Although explicitly the order does state ‘the prejudice ant’s motion with “because prosecu for want of the dismissal is having no on file has tion, deficiency we do not find this conclu court’s order of comply failed to this this because the order sive in case fails to ” 22,1978.’ Ill.Dec. at November ground state for the dismissal.5 More any *4 N.E.2d at 426. over, it is that the trial court undisputed September only entered the 3 order after The the trial appellate court held complaint pursuant Harl did not amend her request court correctly refused fact, to the trial 10 order. In July court’s for voluntary plaintiff dismissal since refus- clearly court’s 3 order stated 12, ed to tender costs. 51 Ill.Dec. at complaint its interest renewed 426. But appellate N.E.2d at court held specifically prompted by was Harl’s failure the trial court incorrectly granted de- complaint to amend the after almost two preju- fendant’s motion for dismissal with months. We think this amounts to a dis dice only plausible ground because the for missal for prosecution. lack of prosecution. the dismissal was want of And a dismissal for want prosecution, respect inescap- Our conclusion in this order, since it is not a final without must be Appellate able under the Illinois Court’s prejudice. appellate explained: court Gerber, recent O’Reilly decision in v. 11, The trial court did not 51 Ill.Dec. 420 N.E.2d use the words (1st 1981). prosecution” “dismissal for want of Dist. In the trial court in its However, a suit may defendant’s motion to strike the order. be dismissed plaintiff’s complaint prosecution but allowed for want of for the failure or 28 days complaint. (3 to file an amended complaint refusal to file an amended 4. Because Rule 273 is modeled after Fed.R. ing previous July that the 10 order was “con 41(b), mistakenly However, July Civ.P. mined that case rule could be the res prosecution. the district court deter- firmed.” fails to 10 order likewise authority under the federal specify (if any) possi which of the four helpful question of effect of a dismissal for want of to resolve the by grounds governed ble offered defendants judicata original complaint. dismissal of Harl’s Of The res effect of this defendants, the four raised at law, governed by dismissal is U.S.C. state see 28 failure to least two—failure provide exhaust and § law here is and state would, they if were the basis notice— clearly inconsistent with federal cases constru- dismissal, constitute a dismissal for lack ing the res effect of dismissals for jurisdiction and thus fall within one of the want of courts. federal Cf. exceptions other Nelson, to Rule 273. See Luker v. Migden, (2d Lesser v. 328 F.2d Ill, F.Supp. (N.D.Ill.1972). 114-15 (court applied New York law under which dis- Moreover, Sep interpret we are hesitant to prosecute adjudica- missal for failure to is not solely 3 order as a final order because it tember merits). tion on Whatever be the wisdom previous July “confirmed” the 10 dismissal rule, of the federal cf. Restatement Second of undisputed July when it is that the 10 order Judgments 19(1981) (adopting preclu- rule § Bradley a final v. was not itself order. Cf. prosecution dismissals), sion for we are Burrell, 53 Ill.Dec. apply point. bound to Illinois law on this 1981) (trial court lacks thirty jurisdiction modify after a final order order, 5. ambiguous stating after first days). complaint failed to amend her prescribed, within the time concludes stat- adjudication a final on the case was not Civil Practice Nichols Illinois second clear that was what the court should not bar the it seems merits and thus Thus, here. doing equally it seems not- appellate disagreed, action. The the dismissal should have been clear that after an pleading, a dismissal of a ing that prejudice. without was a pleading, to stand on the election judicata bar to subse- final order and a res at 420 N.E.2d at 427. The 51 Ill.Dec. suits, under Illi- quent Rule 273 and point court’s O’Reilly analysis closely law, nois at 469-70. common cases, the instant the trial case. both words, magic did not use the “dis- courts here assert incorrectly Defendants Instead, for want prosecution.” missal respect to the instant case “that a courts both noted in their orders that these failure to file an amended dismissal for after only dismissals were entered the. original is dismissed complaint after pleadings failed to amend within plaintiff’s part to constitutes an election on the time order. previous allowed in a complaint.” original, stricken stand his order,6 we, explicit the absence of a more Defendants-Appel Argument Brief and O’Reilly like the have no basis indicate, nothing 16. There is lees at concluding that the is for a reason however, Harl elected to stand on her other than want of Cf. Bruer prosecution. 3 order of after Zoning Ap- Board of Livingston County Brainerd, hand, on the other dismissal. peals, the failure to amend that it is not suggests 1978) (trial court or other taking of an but rather the after prejudice plain- dismissed action with *5 decision the trial court held, challenging action tiff to where complaint; failed amend to stand on a that constitutes an election plaintiff experienced delay filing in com- ex rel. People Scott plaint, complaint. dismissal should have been for stricken Cf. Inc., West, prosecution). 88 Carriage Way 387-88, 384, 384, 410 N.E.2d 297, 43 Ill.Dec. Brainerd v. First Lake National County 1980), (1st rev’d on other 387-88 Dist. Bank, 780, (1st 1 Ill.App.3d 300, 754, 58 Ill.Dec. 430 grounds, 88 Ill.2d distinguished Dist. which was (1981) (state elected to stand N.E.2d 1005 see, 14, 51 Ill.Dec. at 420 N.E.2d at bringing mandamus ac by its complaint on 428, change analysis. does not our complaint); Camp struck tion after court Brainerd, plain- the trial court dismissed Harrison, bell v. tiff’s first for failure to state a (1st (plaintiff 644-45 N.E.2d plaintiff cause of action but allowed addi- complaint by to stand on dismissed tional elected complaint. time to file an amended bringing appeal). complaint, Plaintiff did not amend that the the trial court dismissed subsequently Defendants also contend here that Thereafter, action for failure to amend. is a final September the 3 order of dismissal plaintiff Brainerd unsuccessfully appealed. adjudication on the merits because the or Bank, 109 v. First Lake National County der was entered for failure to comply Ill.App.2d 251, (1st Dist. an order of the trial court. We believe that 1969). by A instituted second then suit was Illinois this contention misconstrues on the plaintiff against the same defendant holding cases that a dismissal for failure to same claim. to dismiss moved Defendant given judi with a court res comply order is 48(l)(d), on Ill.Rev.Stat. ch. Chicago cata effect. In Keilholz v. & barred the suit was Co., Ill.2d Railway Northwestern previous judgment, trial court and the example, appeal, motion. On dismissed, dis- pursuant contended that in the first case was the dismissal Harl, judge agree asserts that in the instant in which the trial 6. We with the district court weight was entered without the self- his 3 order case that no is to be accorded judge prejudice. serving filed affidavit of the state trial covery provisions sending sanction not chosen to do so and is the case Ill.Rev.Stat. 110A, ch. & after failed for what seems rather obvious to me back person pretrial attend in conference. judicial will be a time because of waste Illinois Court held that a dis- a defense probable being ultimate result missal for failure obey discovery orders the merits. Because the case prosecution not a dismissal for want of back, notwithstanding that I being sent under section 24 and thus would be than nothing think we need to do more judicata res effect. Accord Brewer v. opinion, I will address adopt Judge Aspen’s Moore, opinion. aspects majority certain 1978). The instant case matter, to me that an initial it seems As is, therefore, quite distinguishable since the even reach the res we need not statutory basis for the dismissal in Keilholz that Harl appears issue as it did not raise permits a court to with prejudice dismiss for-want-of-prosecution argument issue only for a violation of discovery orders and, therefore, in the court below should be not for want of (through failure precluded raising from in this to amend the complaint). See Ill.Rev.Stat. majority opinion court. The attempts 110A, 11218(d), 219(c) (1979).7 ch. brush aside this contention of the defend ants in a footnote on the basis that Lam III. Conrad, 1183, 1186 (7th bert v. F.2d We therefore hold that clear, however, 1976) “makes that it is with order was a dismissal prosecu- for want of argu the court’s discretion to consider an tion and thus is not a bar to Lambert, ment not raised below.” how Harl’s action in the federal court. ever, talking was not about the discretion Reversed and Remanded. appellate argu of an court to consider an ment not raised below. Lambert PELL, Circuit Judge, dissenting. argued proper had that it was not In our zeal to assure every litigant for the defendant to raise the issue of res we, has a day merits, in court on the it judicata by pre-answer motion because it me, seems to by giving sometimes err more was not one of the defenses enunciated in than day one to a case not such warranting 12(b). Fed.R.Civ.P. This court held that we *6 attention, the inevitable result of which is might properly disregard argument this be that at day least another of time is taken in it cause was raised for the first time on already whereby overburdened courts the appeal “but it is nevertheless clear that res disposition awaiting of meritorious cases at- judicata may be raised pre-answer mo delayed. tention is further I think the tion or at least that it is within the district present already case had had its full meas- court’s discretion to allow it to be so carefully ure of time when it was and cor- raised.” simply This court was that saying rectly considered and by Judge decided As- it was within the district court’s discretion pen. I respectfully therefore dissent. bearing upon which has no the discretion one, appeal

This is in my opinion, which we have when an brought is not properly could have been disposed of to the attention of the district court and is the excellent adopting opin- memorandum first appeal seeking raised on reversal. Judge ion and order of the Aspen opinion as This is not the situation in which certainly however, of majority, this court. The has courts have affirmed a district court’s opin- ing both of discretion for the trial courts to pleadings, case rather than plaint. case as Harl is not ed complaint expired. an had Hadley amended 7. Defendants’ reliance on Swedien v. cases, Blind, the courts held that it matter was a School for the 27 Ill. accept 1979), late Dec. might Robins, and that a court dismiss a Shroat v. accept a amended com- misplaced. late is also present That issue is not in the instant plaintiff issue in cases those was whether a attempting to file an amend- complaint would be allowed to amend a after a complaint though in the Illinoistrial court. granted dismissal even the time fil- nothing than There was in the nature those grounds other ion for case, present based its to dismiss in the how- opinion. motion which the district ever, dilatory procedural but the similar to a gener- situation1 frequent This is a when it, O’Reilly. is a which was involved in rule, litigant motion al as I understand trial to each ground to a court and Here in its first directed theory to raise a fails went theory, complaint count of the the defendants the trial court address the have asserting waived expressly jugular by deemed insofar theory ordinarily is a allege concerned.2 This failed to facts to state plaintiff it on is had raising as applicable in action. In the state court might arguably not be a cause of rule case, was filed no memo- present plaintiff the error constitu- the situation in which regard hearing not a before the I do there was tionally egregious, but randum but which, though such situation. even no tran- judge case as trial present presenting assume, made, can unless the was we script the majority Turning aspects to other upon incompetence now plaintiff relying solely almost opinion, opinion rests counsel, presented rea- plaintiff that the appellate one of an intermediate opinion motion sons to the defendant’s responsive Illinois, O’Reilly v. court of the State the motion. granting denying Gerber, this case that We know from the record in (1981). the factual situa- When argued case were to merits of the the case at tion in O’Reilly compared they although federal district court and bar, support O’Reilly simply does validity, appear questionable to be of O’Reilly, result reaches. majority was the record demonstrates pertinent the initial action directed to the made to arguments aware of what could be it to be complaint was to strike it and order set forth complaint demonstrate that bar, made more In the case at definite. sufficient state a cause of action. facts complaint initial action was to dismiss the course, did not have to The district on the defendant’s motion to dismiss. This conclusion, reach the merits because of the difference is important merely and is not judica- justified, I was which think matter of words or form. In it is applicable. ta was obvious that the had trouble artic- footnote ad ulating opinion in a sufficiently specific complaint majority of the motion challenge grounds withstand a in the old dresses the four to what that two of practice apparently common law have been de- dismiss and concedes would pertain to the merits of specif- nominated as a motion to make more the four litigation. was As to one of the other complaint ic. The motion to strike the above, and, pleader grounds, provide “statutory failure to no as stated tice,” opines that this would be to make the more the footnote ordered jurisdiction, citing that the a dismissal for lack of definite and was ordered Nelson, Ill, 114-15 days F.Supp. should have to file a Luker v. twenty-eight *7 (N.D.Ill.1972). While it is true that in Luk- complaint. third amended Gowran, 238, 245, theory Helvering in the v. U.S. 58 tries his case on one 1. 302 154, 158, (1937) (“In Court, any the indication of other S.Ct. 82 L.Ed. 224 District possible without judicial theories, proceedings ordinarily rule is settled review of the he will not be correct, appeal.” press that if the decision below is it must be other theories on heard to those affirmed, although upon (This 41(b) the relied lower court was a rule Id. at 849 n.10 reason.”) wrong ground gave wrong a a below)). Co., Gateway Transportation Miller v. 616 Co., Indemnity 489 States v. Home United (7th (“As in other F.2d cases, 275 n.7 Cir. (7th 1973). (“Although the rule F.2d 1004 Cir. ‘may any ground finds we affirm on that absolute, litigant ordinarily a cannot ex- is not record,’ support in the Mints v. Board of Educa- theory pect in trial court on one and to lose the tion, in 523 F.2d n.2 another.” Id. at 1007 win on appeals summary judgments.”) from (citation omitted) (There (footnote omitted) below)). a dismissal of the case America, University 2. Browzin v. Catholic of (“Where (D.C.Cir.1975). 527 F.2d 843 the a it would also seem to be bar to the quired er the district court held that dismissal be- jurisdic- cause of failure to notice was no give if there had been exhaustion. action tional, however, respect to with due that present to the In as contrasted opinion, agree it does with the law of case, at the court it clear that no time made City Highland Illinois.3 In of Schear v. one the defendant treat the dismissal as did Park, action did failure to state a cause of nor (1968), Moran, Justice of then a member the in its brief to the anytime, the defendant at Court, Illinois Appellate now on the Illinois court, deny the dis- O’Reilly appellate Court, court, in speaking prosecution. was for of missal stated: at 14-15, at N.E.2d 428-29. Ill.Dec. Failure to the notice comply re- [with bar, aspect of the every In the case at the quirement] complete bar to action to to the lack motion dismiss was oriented we, therefore, require- regard and the of merits or to matters which would be ment as a matter of substance rather to the it was stated bar action as procedure. than complaint. The granting 289, 244 Illinois Appel Id. at N.E.2d at 74. motion, complaint. dismissed the have consistently late Courts followed this Ill.App.2dProceeding of Septem- now to the order position. Stanley Denning, 3rd, I find for the majority ber no basis the court expressions only the in- opinion’s fair Moran again speaking through Justice stat is that it terpretation the order was a ed: dismissal for want of or that it to We adhere our former decision. prosecu- lack of amounted dismissal for we provision Schear found the notice all, significance tion. First of I no in find procedural. be substantive rather than the the fact the dismissal of “said suit” This was based the fact that the six sponte was sua the of the part on court.4 required months’ notice was a condition Further, the seems majority opinion to me precedent the cause of action. As unrealistic the 3rd analyzing such, it becomes an additional element dismissal of the suit. It is customary to be necessary alleged proved, good judicial practice where a cause ac- same as the other basic elements litigant tion is not to afford a stated anoth- plaintiff’s cause of action. Failure to so all er bite at and that is apple allege would be failure to state cause of See, giving state trial court did here in to a Ottawa, action. City Walters v. 259, 88 date specified privilege amending (1909); Ill. also N.E. 651 Hoff man v. Evans, ^[129] pleadings. If, example, N.E.2d 140 had in fact notice she was to have the (1970). Instead, that fact. privilege alleging Id. at 264 N.E.2d at 524. See also let the go by time and did not file Shook, Brown v. a further nor did she pleading any make (1971). effort which of the discover various opinion The majority also footnote cites were the basis grounds advanced for the proposition Luker that the failure to 10, 1980, July ruling which allowed her jurisdictional. exhaust was also Luker does more than a to amend. month not seem to address that at question all. While be arguable it having whether The court waited until two weeks merits exhaustion is required, specified if it re- after the for amending date then tators, present purposes, accept majori- pur- 3. For the I which matter need not collateral be *8 ty opinion ques- that Illinois law controls the here. sued tion of whether is final on a judicata purposes merits for res in a later fed- agree majority opinion 4. I do with the that no notwithstanding proceeding, eral court some weight self-serving should be accorded to apparent exceptions to that doctrine and some judge filed affidavit of the Harl. state trial being doubt cast the doctrine commen-

did on its own motion dismiss the suit. why

Under these circumstances I fail to see permitted should be to start again

over in another forum. As far as the

matter stood before the state trial plead- had elected to stand on her

ing. I disagree majority as to the

inapplicability of Brainerd v. First Lake

County Bank, National and think on the basis of alone,

that case the judgment of the district

court should be affirmed. Quarles Kinney, Brady,

Ross R. & Mil- JADAIR, waukee, Wis., INC., plaintiff-appellant. Plaintiff-Appellant, Christensen, Lardner, Foley Robert A. & Milwaukee, Wis., defendant-appellee. COMPANY, INC., The WALT KEELER Defendant-Appellee. CUMMINGS, Judge, Before Chief ** No. 81-1380. WOOD, Judges. SPRECHER Circuit United Appeals, States Court of CUMMINGS, Judge. Chief Seventh Circuit. Jadair, (“Jadair”), corpo- Inc. a Wisconsin

Submitted Jan. ration, *. brought declaratory judgment ac- against tion Wisconsin state court May Decided 1982. Company, (“Keeler”), Walt Keeler Inc. 18, 1982. Denied Certiorari Oct. corporation. Kansas Keeler removed the 258. See S.Ct. suit to federal court under 28 U.S.C. 1441(a). removal, challenged Jadair arguing that Keeler had failed to demon- controversy strate an amount in in excess $10,000. In a March 1980 memorandum Judge and order Warren denied Jadair’s motion to remand the case to state court. Then moved to dismiss the federal Keeler jurisdiction, personal suit for lack of and in 1981 memorandum and order February Keeler’s motion. Judge Warren phrased F.Supp. 879. Jadair’s have in the alternative: the case should remanded; not, been if the federal court jurisdiction have exercised over Keel- should * ** Judge Sprecher Robert A. read the This case was scheduled for oral Circuit briefs, January Owing participated in the conference and voted 1982. to severe winter weather, However, reviewing parties agreed to submit it on the to affirm. he died without opinion. briefs. this