February 6, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 15-CV-1 - J.P. Stadtmueller,
Wood, Chief Judge, and Kanne and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
government elections rarely produce federal litigation.
Wisconsin law, though, gives students at state universities
rights to organize themselves and to run their governments,
which have the power to spend substantial funds. Wis.Stat.
§ 36.09(5). The combination of those state-law rights
and fiscal powers can produce federal claims, even if the
stakes are more modest than in most other disputes over state
and local governance.
case arises from a long-running feud between rival student
governments at the University of Wisconsin-Milwaukee,
commonly known as UWM. Plaintiffs are the UWM Student
Association and several former and current UWM students.
Plaintiffs allege a wide-ranging conspiracy to interfere with
student governance. They allege that the UWM administration
excluded certain students from student government by
unseating the legitimately elected officers and replacing
them over several years with a supposedly "puppet"
student government with a similar name, the defendant Student
Association at UWM. After considerable procedural fencing-
resulting from plaintiffs' clumsy efforts to pursue an
unmanageable complaint with 44 plaintiffs suing 37 defendants
for claims spanning several years of student politicking-the
district court dismissed the suit with prejudice. We affirm
in part, reverse in part, and remand with instructions to
reinstate certain claims, though it is clear that those
claims are likely to encounter other substantial obstacles on
Factual and Procedural Background
unwieldy, seven-count complaint is now in its fourth
iteration. Plaintiffs are 44 former and current UWM students,
although the complaint is vague about which students
currently attend UWM and the capacity in which they attend.
Among the 37 defendants are UWM's former chancellor and
the University of Wisconsin Board of Regents, as well as
numerous university administration officials and other
students. Plaintiffs filed their lawsuit in Wisconsin state
court, but defendants removed the case to the federal court.
After removal, the district court allowed the plaintiffs to
amend their complaint twice.
operative version of the complaint, the first five counts are
claims under 42 U.S.C. § 1983 alleging denials of due
process and First Amendment retaliation and, in one count, a
violation of one plaintiff's freedom of religion. The
sixth count is a state-law claim alleging a violation of
plaintiffs' right to organize under the Wisconsin statute
on student governance at state universities, Wis.Stat. §
36.09(5). The seventh count alleges violations of
Wisconsin's Public Records Law, Wis.Stat. §§
district court granted defendants' motion to dismiss the
case with prejudice. UWM Student Ass'n v.
Lovell, 266 F.Supp.3d 1121, 1139 (E.D. Wis. 2017). The
court first dismissed claims against individual defendants
whom plaintiffs renamed after the district court had already
dismissed claims against them for lack of timely service.
Next, the court dismissed the state-law right-to-organize
claim based on state sovereign immunity. The court then
dismissed all remaining claims for misjoinder.
summarize our decision, we affirm the dismissal of the claims
against the defendants who were not timely served with
process. We also affirm the dismissal of the
right-to-or-ganize claim under state law. Any claims for
damages on that theory have dropped out of the case, and any
claims for in-junctive or declaratory relief on that theory
are moot. We must reverse, however, the dismissal with
prejudice of the remaining claims for misjoinder. While we
understand the district court's frustration, the remedy
for misjoinder is severance or dismissal without prejudice,
not dismissal with prejudice.
digging into those issues, we address one preliminary matter.
The case was first assigned to Judge Clevert, who retired
while it was pending. The case was then assigned to Judge
Stadtmueller, who made the final decision dismissing the
case. Plaintiffs argue that Judge Stadtmueller erred by not
certifying his familiarity with the record pursuant to Rule
63 of the Federal Rules of Civil Procedure after the case was
assigned to him. Defendants point out correctly that by its
terms, Rule 63 applies only when "a judge conducting a
hearing or trial is unable to proceed." The rule applies
when, for example, a judge has retired or died after hearing
evidence but before issuing a decision. See Marantz v.
Permanente Medical Grp., Inc. Long Term Disability Plan,
687 F.3d 320, 326-27 (7th Cir. 2012). Rule 63 does not apply
here. There was no evidentiary hearing on defendants'
motion to dismiss this version of the complaint, and there
was no trial.
Dismissal of Previously Dismissed Defendants
case illustrates some of the issues that can arise when
plaintiffs fail to serve defendants in cases removed from a
state court to a federal court. Since the district court did
not hold a fact-finding hearing on the issue, our review of
the dismissal of a defendant for insufficient service of
process is de novo. See Cardenas v. City of
Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011), citing
uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421,
423-24 (7th Cir. 2010). The issue of timely service is
governed by 28 U.S.C. § 1448, which provides:
In all cases removed from any State court to any district
court of the United States in which any one or more of the
defendants has not been served with process or in which the
service has not been perfected prior to removal, or in which
process served proves to be defective, such process or
service may be completed or new ...