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Bishop Harvey, Jr., et al v. Town of Merrillville

July 11, 2011

BISHOP HARVEY, JR., ET AL., PLAINTIFFS-APPELLANTS,
v.
TOWN OF MERRILLVILLE, AN INDIANA MUNICIPAL CORPORATION, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 07 CV 98-Joseph S. Van Bokkelen, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.

ARGUED MAY 13, 2011

Before CUDAHY, KANNE, and TINDER, Circuit Judges.

Henry David Thoreau found solace when he lived near Walden Pond. Homeowners perhaps seeking the same from a small pond in the Innsbrook subdivision in Merrillville, Indiana, claim to have found anything but. They allege that the retention pond their lots abut is a haven not for tranquility but for algae and mosquitoes, a source of flooding and frustra- tion rather than inspiration and insight. They feared that a proposed expansion of the subdivision would only exacerbate their problems with the pond, and they at-tempted to voice their concerns with Merrillville town officials during and after the subdivision approval process. The disgruntled homeowners, most of whom are African American, claim that Merrillville refused to listen to them, with a town council member (also African American) allegedly turning his back to them on one occasion and slinging a racial epithet at them on another. They also contend that Merrillville violated their Fourteenth Amendment equal protection rights by being more responsive to similar complaints lodged by white residents of another subdivision years later.

Twenty-one of the aggrieved Innsbrook residents obtained counsel and sought redress for the alleged equal protection violations against the Town of Merrillville ("Town"), sixteen individuals who worked for the Town in various capacities (collectively the "Town Defendants"), and the Town's acting engineer ("Warmelink") by filing suit pursuant to 42 U.S.C. § 1983 in the Northern District of Indiana. The Innsbrook residents also raised several state law claims against these and a collection of other defendants, a total of thirty-one in all. The Town and Town Defendants responded to the residents' sprawling scattergun complaint by filing a counterclaim seeking a declaration that the Town was not obligated to maintain the retention pond.

About three years and over 400 docket entries into the case, the residents moved for summary judgment on twelve issues, among which was whether "the Town of Merrillville and the Town Defendants deprived [them] of equal protection of the law." The Town and Town Defendants responded in kind, moving for summary judgment on all the residents' claims as well as their counterclaim. Among other things, they argued that they were entitled to summary judgment on the § 1983 claim because "plaintiffs cannot establish that there exist similarly situated communities to serve as comparators." R.434 at 59. Defendant Warmelink separately moved for summary judgment on the residents' claims against him.

In an order dated December 2, 2010, the district court granted summary judgment in favor of the Town and the Town Defendants, finding that the residents' § 1983 equal protection claim could not succeed because they failed to identify a similarly situated class that the Town and Town Defendants treated more favorably. Believing this order fully disposed of the residents' sole federal claim, the district court declined to exercise supplemental jurisdiction over the state law claims and ordered the case "remanded to state court." But the next day, Warmelink, who was not mentioned in the December 2 order, filed a motion seeking clarification as to the status of his summary judgment motion. The district court issued an order ("the December 3 order") in which it invoked Fed. R. Civ. P. 60(a) and purported to enter, "[f]or the same reasons stated in its December 2, 2010, Opinion and Order . . . summary judgment in favor of Defendant John E. Warmelink on Plaintiffs' § 1983 claim against him, because Plaintiffs are unable to establish that any constitutional violation occurred." The court went on to deny as moot Warmelink's motion for clarification.

On December 28, 2010, four residents timely filed a notice of appeal as to the December 2 order. The notice mentioned the Town, the Town Defendants, and Warmelink, but not the December 3 order. Later, at Warmelink's request, the district court entered a separate judgment pursuant to Fed. R. Civ. P. 58(a). This February 15, 2011, order mentioned by name all relevant defendants, including Warmelink. The residents did not file a new notice of appeal after the February 15 order was issued.

Warmelink contends that the peculiar procedural posture we just described precludes us from exercising jurisdiction over him. Because the notice of appeal fails to mention either the December 3 or February 15 orders, the only orders in which he is named, Warmelink asserts that the residents failed to comply with Fed. R. App. P. 3(c)(1)(B), which requires appellants to "designate the judgment, order, or part thereof being appealed."

The requirements of Rule 3(c) are technically jurisdictional, see Smith v. Barry, 502 U.S. 244, 248 (1992), but as a general rule " 'inept' attempts to comply with Rule 3(c) are accepted as long as the appellee is not harmed," Moran Foods, Inc. v. Mid-Atl. Mkt. Dev. Co., 476 F.3d 436, 440 (7th Cir. 2007). That means that "an error in designating the judgment will not result in a loss of appeal if the intent to appeal from the contested judgment may be inferred from the notice and if the appellee has not been misled by the defect." United States v. Dowell, 257 F.3d 694, 698 (7th Cir. 2001). Warmelink makes quite a fuss about the residents' failure to comply with Rule 3, but conspicuously absent from his argument is any allegation that he was misled or otherwise prejudiced by the imprecision of the residents' notice of appeal, which explicitly named him as an appellee. And while he correctly observes that a copy of the December 3 order is absent from the residents' briefing, see Fed. R. App. P. 30(a)(1); Cir. R. 30(a), he fails to note that the residents included a copy of the February 15 order, which unambiguously enters judgment in his favor. Because "the notice afforded by a document . . . determines the document's sufficiency as a notice of appeal," Smith, 502 U.S. at 248, and Warmelink was plainly "apprise[d] . . . of the issues challenged," United States v. Segal, 432 F.3d 767, 772 (7th Cir. 2005), we conclude that we have jurisdiction over the appeal as to him.

Warmelink contends in the alternative that the residents waived any argument as to him by failing to adequately develop one in their opening brief. See, e.g., Long v. Teachers' Ret. Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009) ("[U]nsupported and underdeveloped arguments are waived."(quotation omitted)). We again disagree. The residents' briefing, while not exemplary by any means, discusses Warmelink and includes in its appendix the Rule 58(a) judgment he requested. It also implicitly addresses Warmelink inasmuch as the residents' claim against him rises or falls with their claims against the other defendants. That is enough, barely.

The underdeveloped argument as to him is not the only briefing deficiency Warmelink identifies. He, like the Town and Town Defendants, also argues that the residents' opening brief so egregiously violates Fed. R. App. P. 28(a)(7) and Circuit Rule 28 that all or parts of it should be stricken. See, e.g., Gross v. Town of Cicero, Ill., 619 F.3d 697, 701-03 (7th Cir. 2010); Casna v. City of Loves Park, 574 F.3d 420, 423-24 (7th Cir. 2009).

It is true that the residents' briefing leaves much to be desired. Portions of the facts section have a decidedly argumentative tinge (there are eight sentences beginning with"Consistent with the other irregularities . . .", and several featuring conclusory statements like "the town did not hold [Innsbrook developer] Washburn to the requirements of the law"), several propositions lack citations, and many of the unusually formatted citations that are included do not actually support the propositions they purport to. These deficiencies render both the residents' and our jobs more difficult than they ought to be. See Gates v. Caterpillar, Inc., 513 F.3d 680, 688 n.4 (7th Cir. 2008); cf. Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) ("[W]e will not root through the hundreds of documents and thousands of pages that make up the record here to make [plain-tiff's] case for him."); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in [the record]."). Perhaps most troubling is the residents' reliance on allegations made in their complaint as "evidence" to support their claims on summary judgment, which is "not the proper standard for summary judgment." Mosley v. City of Chi., 614 F.3d 391, 400 (7th Cir. 2010); see also Fed. R. Civ. P. 56(c); Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) ("[T]he Federal Rules of Civil Procedure require the nonmoving party to 'set forth specific facts showing that there is a genuine issue for trial.' Conclusory allegations, unsup-ported by specific facts, will not suffice." (quoting Fed. R. Civ. P. 56(e))).

We nevertheless decline appellees' invitations to strike the residents' brief. We caution counsel, however, that flouting the rules in the future may well lead to striking or even sanctions. See L.S.F. Transp., Inc. v. N.L.R.B., 282 F.3d 972, 975 n.1 (7th Cir. 2002). Even without much help from the residents, we are confident that we have located and considered the relevant evidence such that ...


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