The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
The defendant, Cook County Sheriff Thomas Dart, has moved to stay proceedings in this Court pending his interlocutory appeal of a purported Eleventh Amendment issue, specifically, the Court's ruling denying his motion for judgment as a matter of law at the recent jury trial. Defendant's interlocutory appeal is frivolous. Accordingly, the Court denies his motion to stay these proceedings.
Plaintiffs, on behalf of two certified classes, sued the defendant for constitutional violations stemming from strip searches performed on incoming detainees at Cook County Jail (CCJ). Some of the plaintiffs' claims concerned whether any strip search was appropriate; other claims concerned the manner in which strip searches were conducted.
The Court granted partial summary judgment in favor of one of the classes and a portion of the other class on the issue of liability. See Young v. County of Cook, 616 F. Supp. 2d 834 (N.D. Ill. 2009). Defendant's interlocutory appeal does not concern that ruling. The plaintiffs' remaining claims were tried to a jury in August 2009 on the issue of liability. The claims that were tried did not involve whether defendant was permitted to conduct a strip search at intake. Rather, the claims considered at the trial all involved the manner of intake strip searches conducted at the CCJ from February 2007 through March 2009.
During the trial, defendants filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. The motion included an argument that plaintiffs' claims were barred by the Eleventh Amendment to the United States Constitution. See Dkt. No. 415. Specifically, defendants contended that a provision of the Illinois Administrative Code required them to conduct strip searches, thereby transforming county officials into agents of the State of Illinois and conferring Eleventh Amendment immunity on them as state actors. Id. at 11-12. The Court denied that motion in an oral ruling. The jury subsequently found in favor of plaintiffs on each of their claims.
On August 21, 2009, defendants filed a notice of appeal from the Court's denial of their Rule 50 motion. The notice of appeal referenced only the denial of that particular motion, not any other ruling by the Court.*fn1 Defendants also filed a motion to stay proceedings in this Court during the pendency of their interlocutory appeal. The Court ordered expedited briefing on defendants' motion to stay.
An interlocutory appeal on Eleventh Amendment immunity grounds typically requires a stay of further proceedings in the district court. See generally Apostol v. Gallon, 870 F.2d 1335, 1337-40 (7th Cir. 1989). Exceptions exist to the general rule. "[A] notice of appeal may be so baseless that it does not invoke appellate jurisdiction." Id. at 1339. Thus this Court may decline to stay proceedings if defendants' interlocutory appeal is frivolous. Id. Frivolousness that would justify denying a motion to stay includes when the decision concerning immunity "is so plainly correct that nothing can be said on the other side." Id. Additionally, a motion to stay may be denied where defendants "forfeit" the right to a stay or where "they use [a] claim[ ] of immunity in a manipulative fashion." Id.
In the current case, defendants' interlocutory appeal is frivolous, for at least two reasons. First, defendants forfeited their Eleventh Amendment defense by failing to plead it or to assert it in timely fashion. Second, the defense is plainly lacking in merit, because the trial in this case concerned the manner of the strip searches, not whether defendant was entitled to conduct strip searches. In reaching these conclusions, the Court is cognizant that the Seventh Circuit has instructed district court judges to exercise "restraint" when using their power to find an interlocutory appeal concerning immunity frivolous. Id.
Immunity from suit is an affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (qualified immunity); cf. Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 734 n.5 (7th Cir. 1994) (defendant bears burden of persuasion on Eleventh Amendment assertion). "[F]ailure to raise [an affirmative] defense in a timely manner will result in a forfeiture." Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (internal quotation marks omitted).*fn2
Defendant contends that he has not forfeited the Eleventh Amendment defense raised in his Rule 50 motion, which forms the basis for his interlocutory appeal, because it appeared in his answer and affirmative defenses to the third amended complaint. The Court disagrees; that was a different Eleventh Amendment defense. In that answer, defendant asserted that he has "absolute immunity from suit for monetary damages under the Eleventh Amendment . . . because [he was] executing a valid Court Order and therefore [has] judicial immunity." Answer & Aff. Defs. to Pls.' 3d Am. Compl. (dkt. no. 154) at 43 ¶ 6. Execution of a court order is not the Eleventh Amendment defense that defendant later asserted in his Rule 50 motion and that forms the basis for his interlocutory appeal. Rather, the Rule 50 motion was expressly premised on the purported ...