Raymond E. KING, Plaintiff-Appellant, v. Steven M. NEWBOLD, et al., Defendants-Appellees.
No. 15-1302
United States Court of Appeals, Seventh Circuit.
Argued December 6, 2016. Decided January 12, 2017
846 F.3d 866
The point, which is equally applicable to the present case, is that members of well-to-do coteries or established expatriate families are not, so far as the record of this case reveals, frequent targets of violence in El Salvador. And unlike applicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016), Rivera failed to present any evidence that he is a likely target of violence, despite the likelihood of his being thought wealthy (though by whom is not indicated) by virtue of his long residence in the United States.
A disturbing feature of the case, however, is the very high crime rate in El Salvador. See, e.g., Roque Planas, “How El Salvador Became the World‘s Most Violent Peacetime Country,” WorldPost, March 4, 2016, www.huffingtonpost.com/entry/el-salvador-most-violent-country_us_56d9e239e4b0000de4047fbe. (Actually Honduras is believed to have the highest homicide rate in the world-90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf.) But Rivera has not presented convincing evidence of how safe or unsafe he will be in El Salvador.
We note finally, for its possible relevance in future cases, that what doesn‘t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant‘s country of origin is, are wrong in thinking that anybody who‘s lived in the United States is likely to be wealthy or have wealthy American connections. If that‘s what the gangs think, and if (a big if, which requires evidence) as a result they hold deportees from the U.S. for ransom and kill them if it isn‘t paid, those deportees are being subjected to persecution. We don‘t think either a court or the immigration agencies could rationally deny that. But it isn‘t this case.
AFFIRMED
Meredith Martin Addy, Attorney, Tabet, Divito & Rothstein, Kimberly A. Beis, Stephen Benson, Attorneys, Katten Muchin Rosenman LLP, Chicago, IL, for Plaintiff-Appellant.
Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Michael John Charysh, Richard A. Tjepkema, Attorneys, Charysh & Schroeder, Ltd., Chicago, IL, for Defendants-Appellees.
Before WOOD, Chief Judge, ROVNER and SYKES, Circuit Judges.
A defect in appellate jurisdiction prevents us from reaching the merits of this appeal. The threshold jurisdictional question is simple: Did the district court abuse its discretion in granting an untimely motion for a Rule 54(b) judgment? Our precedent is clear: An untimely Rule 54(b) motion may be granted only if there is a showing of extreme hardship. Because there was no showing of hardship-let alone extreme hardship-we dismiss the appeal for lack of appellate jurisdiction.
I. Background
Raymond King, an Illinois prisoner, suffers from a severe case of temporomandibular joint dysfunction. Since 2004 he has been confined at two different correctional facilities. He receives some medical care for his condition from healthcare personnel employed directly by the State of Illinois; the rest is overseen by employees of Wexford Health Sources, Inc., a private correctional healthcare company under contract with Illinois. After years of failed treatment for his condition, a complex surgery, and an unsuccessful postsurgical recovery, King sued Wexford and multiple medical professionals alleging that they were deliberately indifferent to his serious medical needs in violation of his rights under the Eighth Amendment.
The defendants moved for summary judgment. On December 16, 2013, a magistrate judge granted the motion in part. Later, one defendant moved for judgment on the pleadings on the remaining claims against him. The judge granted this motion on December 5, 2014. The combined effect of these two orders was to significantly narrow the case; claims against two doctors remain.
On January 15, 2015, more than 30 days after the order granting judgment on the pleadings and more than a year after the partial summary judgment, King made an oral motion at a status conference for entry of a Rule 54(b) judgment on the claims for which summary judgment and judgment on the pleadings were granted. The judge granted the motion, setting up this appeal.
II. Discussion
The federal appellate courts have jurisdiction over “all final decisions of the district courts of the United States.”
A Rule 54(b) motion requires the district court to examine questions of finality and readiness for appeal. That is, the court must first determine whether the order in question is truly final as to one or more claims or parties; if it is, the court must consider whether there is any good reason to delay entry of final judgment until the entire case is finished. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (requiring a district court to determine that it is dealing with a final judgment and that there is no just reason for delay).
Long ago we added a timeliness requirement as a hedge against dilatory Rule 54(b) motions. Schaefer v. First Nat‘l Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972). We held in Schaefer that “as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates.” Id. We recognized that “[t]here may be of course cases of extreme hardship where dilatoriness is not occasioned by neglect or carelessness in which the application of this general rule might be abrogated in the interest of justice.” Id. But “[t]hose occasions,” we said, “ought ... to be extremely rare.” Id.
Here, King‘s Rule 54(b) motion was made 13 months after partial summary judgment was granted and more than 30 days after the entry of partial judgment on the pleadings. Because the motion was seriously tardy, King needed to show hardship. He has not done so; nor has he given any good reason for the delay. Applying Schaefer, the appeal must be dismissed for lack of appellate jurisdiction.
Dismissed.