Cain et al v. Deutsche Bank Aktiengesellschaft et al

Filing 50

AMENDED Memorandum Opinion and Order. Signed by the Honorable James B. Zagel on 7/24/2013. (ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JIMMIE CAIN, CAROLYN SAVAGE, and
CAROLYN E. CAIN, on behalf of themselves
and all others similarly situated,
No. 12 C 10194
Judge James B. Zagel

Plaintiffs,
v.
DEUTSCHE BANK
AKTIENGESELLSCHAFT a/k/a
DEUTSCHE BANK AG a/k/a DEUTSCHE
BANK USA a/k/a DEUTSCHE BANK NA;
et al.
Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

Plaintiffs Jimmie Cain, Carolyn Savage, and Carolyn E. Cain, on behalf of themselves
and all others similarly situated, have brought this action for trespass, trespass to chattels,
conversion, and violations of the Illinois Consumer Fraud Act (“ICFA”), and the Chicago
Residential Landlord Tenant Ordinance (“RLTO”). Currently before the Court is Plaintiffs’
motion to remand the case back to state court. For the following reasons, that motion is granted.
BACKGROUND
In October 2004, the named plaintiffs became tenants at 358 N. Hamlin, First Floor, in
Chicago, Illinois. In late May 2008, a foreclosure complaint was filed against the owners of the
property. The foreclosure was completed a year later, and in October 2009, an eviction
complaint was filed against the named plaintiffs for possession of the property. The court

entered an order of possession in favor of Deutsche Bank, N.A., now one of the defendants in the
instant case, but the plaintiffs continued to live on the property. In August 2010, they were
allegedly evicted.
The named plaintiffs then brought this action in the Circuit Court of Cook County on
behalf of themselves and four putative classes. The seven class counts of the complaint allege,
inter alia, violations of the ICFA and the RLTO, and essentially challenge the procedure by
which the plaintiffs were evicted. The complaint also contains four individual counts for
trespass, trespass to chattels, conversion, and another violation of the RLTO, all arising from the
allegedly wrongful eviction.
In December 2012, Defendants removed this action from the Circuit Court to Federal
District Court. Plaintiffs now move to remand the case back to state court. Because subject
matter jurisdiction in this Court is barred by the Rooker-Feldman doctrine, Plaintiffs’ motion to
remand is granted.
DISCUSSION
A federal court may generally remove to its jurisdiction a civil suit filed in state court so
long as the district court has original jurisdiction. 28 U.S.C. § 1441. The removal statute is to be
interpreted narrowly, and any doubt regarding jurisdiction should be resolved in favor of the
states. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).
“[T]he Rooker-Feldman doctrine precludes lower federal court jurisdiction over claims
seeking review of state court judgments.” Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002);
see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983). At its core, Rooker-Feldman requires a
party seeking review of a state court judgment, or presenting a claim that a state judicial

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proceeding has violated their constitutional rights, to pursue relief through the state court system
and ultimately to the United States Supreme Court. Long v. Shorebank Development Corp., 182
F.3d 548, 544 (7th Cir. 1999).
Broadly speaking, Rooker-Feldman applies in two instances. The less complicated of the
two is where a claim is brought in federal court which directly seeks to set aside a state court
judgment; such claims are barred without further inquiry.
More complicated is where the district court is “in essence” being called upon to review a
state court decision. See Feldman, 460 U.S. at 483-84 n. 16. In such cases, the claim at issue is
found to be “inextricably intertwined” with the state court judgment, and lower federal court
review is barred, just as if the claim had sought direct review of a state court judgment.
Accordingly, even claims that a federal plaintiff did not bring in a prior state court proceeding,
where they are subsequently found to be inextricably intertwined with the state court judgment
handed down on the claim that was brought, may be barred from federal review.
In an effort to protect against a potential injustice occurring under such circumstances,
the court makes one additional inquiry. The court must determine whether the federal plaintiff
had a “reasonable opportunity” to raise the claim at issue in the state court proceeding. Long,
182 F.3d at 558 (citing Wood v. Orange County, 715 F.2d 1543, 1547 (11th Cir. 1983)). “Where
the plaintiff has had no such opportunity, he cannot fairly be said to have ‘failed’ to raise the
issue.’” Id. Thus, although the claim the plaintiff wishes to bring in federal court may appear to
essentially call upon the court to review a state court decision, the plaintiff is saved from
dismissal, and federal jurisdiction is retained, where the plaintiff had no reasonable opportunity
to bring the claim in state court. See id.

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As will be discussed in greater detail below, this case offers a somewhat unusual
application of Rooker-Feldman, at least relative to almost all of the cases cited by the parties. In
the cases cited by both Plaintiffs and Defendants, Rooker-Feldman generally operates as an
obstacle to plaintiffs seeking an audience in federal court. See, e.g., Brown v. Bowman, 668 F.3d
437 (7th Cir. 2012); Beth-El All Nations Church v. City of Chicago, 486 F.3d 286 (7th Cit.
2007); Taylor v. Federal Nat. Mortg. Ass’n, 374 F.3d 529 (7th Cir. 2004); Brokaw v. Weaver,
305 F.3d 660 (7th Cir. 2002); Long, 182 F.3d at 548; Nationscredit Home Equity Services Corp.
v. City of Chicago, 135 F.Supp.2d 905 (N.D.Ill. 2001); but see Bergquist v. Mann Bracken, LLP,
592 F.3d 816, 817-19 (7th Cir. 2010); Sheenan v. Mortgage Electronic, Registration Systems,
Inc., 2011 WL 3501883 (D.N.J. August 10, 2011). It is the plaintiff in these cases who urges
that the doctrine does not apply. Here, Rooker-Feldman serves the plaintiffs’ ends, as they wish
to be heard, not in federal court, but in state court. It is instead the Defendants who argue that
the doctrine does not apply, lest it interfere with their removal of this action under 28 U.S.C. §
1441.
Defendants offer four reasons why Rooker-Feldman does not apply here. Each argument
fails.
First, while tacitly conceding that Plaintiffs seek to set aside the state court eviction
judgment, Defendants argue that the complaint does not seek to set aside the foreclosure
judgment. Rooker-Feldman, Defendants assert, thus does not apply to the foreclosure judgment.
As Plaintiff notes, however, the complaint does appear to reach foreclosure judgments:
Class A consists of all persons in the State of Illinois who were defendants in civil
court proceedings, including without limitation eviction proceedings…Class B
consists of all persons living in homes and/or buildings in the State of Illinois
subject to foreclosure proceedings… (emphasis added).

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Moreover, as described above, it is not necessary that a plaintiff directly seek to set aside
a state court judgment in order for Rooker-Feldman to apply. Claims that are inextricably
intertwined with a state court judgment, and thus seek its review, “in essence,” are also RookerFeldman barred. As discussed further below, I am persuaded that the claims in connection with
the foreclosure are inextricably intertwined with the state court judgment.
Defendants next argue that Class Counts III-VII and Individual Counts I-IV are
independent of the state court judgment, and thus are not inextricably intertwined with it.
Determining whether a given claim is inextricably intertwined with a state court judgment
“hinges on whether the federal claim alleges that the injury was caused by the state court
judgment, or, alternatively, whether the federal claim alleges an independent prior injury that the
state court failed to remedy.” Taylor v. Federal National Mortgage Association, 374 F.3d 529,
533 (7th Cir. 2004).
Defendants cite to Long in support of the contention that an alleged injury is not
inextricably intertwined with a given state court judgment where the propriety of the state court
judgment is not “directly at issue” with the claims raised by the alleged injury. See Long, 182
F.3d at 556. Defendants then argue that Rooker-Feldman does not apply to the claims raised in
Counts III-VII and the Individual Counts because those claims do not directly challenge the
propriety of the underlying eviction judgment.
But a closer reading of Long makes clear that whether a given claim is “directly at issue”
with a prior state court judgment is not the operative inquiry. In Long, the Court noted that an
alleged violation of the FDCPA was “independent of and complete prior to” the entry of the
relevant prior state court judgment. Id. It was this independence and prior completeness that led

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the Court to conclude that the FDCPA claim was sufficiently separate from the state court
judgment that Rooker-Feldman did not apply. Id.
By contrast, the Court found that alleged due process violations that took place after entry
of the state court judgment likely would not have occurred but for the state court judgment. Id.
at 556-57. Accordingly, the Court held that those violations were not independent of or
complete prior to the earlier state court judgment, and thus could not be considered separate from
that decision.1 Id.
Here, the injuries underlying Counts III-VII and the Individual Counts were not complete
prior to the state court judgment, and they likely would not have occurred but for the state court
judgment. The Counts challenge the procedure with which the plaintiffs were evicted, and the
allegedly violative courses of action would not have been undertaken “absent the eviction order.”
See id. at 557; see also Taylor, 374 F.3d at 534. As such, I am persuaded that the claims are not
independent of the state court judgment for purposes of Rooker-Feldman. To the contrary, they
are inextricably intertwined with it, and Rooker-Feldman thus bars them from being heard in this
Court.
But what of the reasonable opportunity exception? As noted above, a claim that would
otherwise be barred by Rooker-Feldman is saved from dismissal where the federal plaintiff had
no reasonable opportunity to bring the claim at issue in the earlier state court proceeding. And,
in their third argument, Defendants assert that Illinois law would have precluded Plaintiffs from
bringing their claims for money damages when Plaintiffs were the defendants in the state court
proceedings. Defendants thus urge that Plaintiffs had no reasonable opportunity to bring the
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As Defendants correctly note, and as will be unpacked in further detail below, the Long Court ultimately found that
the due process claims were not barred by Rooker-Feldman. Nevertheless, the analysis by which the Court came to
its threshold determination – that, but for the reasonable opportunity exception, the claims brought by the federal
plaintiff, in essence, sought federal review of the earlier state court judgment – remains relevant. See Long, 182
F.3d at 556-57; see also Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 605 (7th Cir. 2008).

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claims for money damages in state court, and, at least with respect to those claims, RookerFeldman does not apply. Cf. Long, 182 F.3d at 559.
But the procedural posture of this case is quite distinct from Long and the other cases in
which courts have conducted the “reasonable opportunity” inquiry. In those cases, the plaintiff
brought a claim in federal court that (arguably) sought federal review of a previous state court
decision. There, Rooker-Feldman threatened the plaintiffs with dismissal. Here, Plaintiffs have
initiated a subsequent state court proceeding which arguably seeks review of a previous state
court decision.2 Defendants have removed that action to federal court, thus creating a potential
Rooker-Feldman problem. Here, however, Rooker-Feldman threatens, not dismissal, but remand
back to state court. See Abbas v. RBS Citizens Nat. Ass’n, 2012 WL 1932690, *5 (N.D.Ill. May
29, 2012) (and cited cases).
On the face of it, applying the reasonable opportunity inquiry under these circumstances
would be incongruous. In any event, there essentially appears to be no case in which a court has
endeavored to do so.3 Consider the concerns that prompted the exception. “Because the

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Of course, whether Plaintiffs’ claim will be precluded on remand (assuming Plaintiffs ultimately do return to state
court) will be a matter for the state court judge. I do not take up that question here. See Taylor, 374 F.3d at 535
(noting that, “where Rooker-Feldman applies, lower federal courts have no power to address other affirmative
defenses, including res judicata.”).

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To begin with, there are very few cases in which Rooker-Feldman has been analyzed in the context of this
procedural posture – that is, a defendant seeking removal to federal court, as opposed to a plaintiff seeking an
audience in federal court. Essentially non-existent are any cases from among that tiny subset that actually consider
the reasonable opportunity exception to Rooker-Feldman. Taylor acknowledges that a Rooker-Feldman problem
may arise in the removal context, but cites to no such cases. Taylor, 374 F.3d at 535. Bergquist v. Mann Bracken,
LLP, 592 F.3d 816, 817-19 (7th Cir. 2010), raises Rooker-Feldman in the removal context, but the analysis does not
reach the reasonable opportunity exception. See also Dempsey v. JP Morgan Chase Bank, N.A., 272 Fed.Appx. 499,
501-03 (7th Cir. 2008) (same); Sheenan v. Mortgage Electronic, Registration Systems, Inc., 2011 WL 3501883, *3-4
(D.N.J. August 10, 2011) (same).

Perhaps most interesting is Abbas v. RBS Citizens Nat. Ass’n, 2012 WL 1932690, *3-5 (N.D.Ill. May 29, 2012),
where Rooker-Feldman is at issue in the removal context and the reasonable opportunity exception is indeed raised.
Perhaps underscoring the incongruousness of applying the reasonable opportunity exception in this context,
however, the parties both misconstrued the way each side of the argument cuts, and they each unintentionally argued
for a position that the other side favored. Id. at *5. The unfortunate upshot is that the tension inherent in applying
the exception under such circumstances is essentially lost in the parties’ befuddled briefing, obscuring an

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Rooker–Feldman doctrine extends beyond issues actually raised in state court to issues that are
inextricably intertwined with such issues, a plaintiff failing to raise his claims in state court may
forfeit his right to obtain review of the state court decision in any federal court.” Long, 182 F.3d
at 557-58 (citing Feldman, 460 U.S. at 482 n. 16). The reasonable opportunity inquiry, first set
forth in Wood, places a limitation on the circumstances under which this rule may be applied –
that is, it limits the circumstances under which a plaintiff may be held to have forfeited federal
review of a claim despite the fact that the claim was not actually raised in the relevant state court
proceeding. “The rule can apply only where the plaintiff had a reasonable opportunity to raise
his federal claim in state proceedings. Where the plaintiff has had no such opportunity, he
cannot fairly be said to have ‘failed’ to raise the issue.” Long, 182 F.3d at 558; Wood, 715 F.2d
at 1547. Accordingly, such a plaintiff is not denied access to federal court.
Here, however, unlike Long and the other cited cases, the plaintiff is not seeking an
audience in federal court. Defendants have not satisfactorily shown why an inquiry centered
around determining whether a plaintiff may fairly be held to have forfeited his or her right to
federal review should be relevant when the plaintiff is not seeking to exercise that right in the
first place.
The plaintiffs here wish to be in state court. Plaintiffs brought their claim in state court,
and Defendants removed it. Applying the analysis implemented by the Seventh Circuit in Long
and later in Taylor, I am persuaded that Plaintiffs’ claims are inextricably intertwined with a
previous state court decision and barred by Rooker-Feldman. To be sure, Wood created a shield
for federal plaintiffs threatened with dismissal under Rooker-Feldman when they had had no
reasonable opportunity to bring their claims in state court. See Wood, 715 F.2d at 1547. But the
rule would be turned on its head were it now used as Defendants’ sword, keeping Plaintiffs out
opportunity for the Court to confront this puzzle head on.

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of state court and their chosen forum. I am not persuaded that this is what the Eleventh Circuit
had in mind when it created the reasonable opportunity exception, nor is it what I believe the
Seventh Circuit had in mind when it adopted it.
There is a plausible counter-argument to my ruling. One might say that the reasonable
opportunity inquiry is not so much a measure of whether it would be fair to deny a plaintiff
federal review of his or her claim, but rather a more neutral measure of simply how “connected”
the federal claim is to the previous state proceeding. See id. (“an issue that a plaintiff had no
reasonable opportunity to raise cannot properly be regarded as part of the state case”). Seen in
that light, the reasonable opportunity inquiry is less an exception to the Rooker-Feldman rule
than it is a measuring stick for when the rule should apply. But see Kelly, 548 F.3d at 605
(making express reference to the “reasonable opportunity exception”) (emphasis added); Abbas,
2012 WL 1932690, *3 (same); Nationscredit, 135 F.Supp.2d at 912-13 (same); Neely v. Law
Offices of Kevin J. Hermanek, P.C., 122 F.Supp.2d 923, 925-26 (N.D.Ill. 2000) (same).
Defendants cite no case that has taken up that view of Wood, or the reasonable
opportunity inquiry generally, nor have they themselves advanced this argument. Further,
adopting this view would require marginalizing the focus that the reasonable opportunity inquiry
places on (1) whether a court can fairly hold that a plaintiff has “failed” to raise the claim in the
state court proceeding; and (2) the due process concerns potentially raised by denying a plaintiff
access to federal court. See Wood, 715 F.2d at 1547. Both of these concerns are a poor fit in this
context, where the plaintiffs have access to state court, where they wish to litigate in state court,
and where they are not seeking to excuse any “failing” in a previous state court proceeding that
might have barred their access to federal court.

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It is also worth noting that the consequence of finding that a given claim is RookerFeldman barred varies depending on whether the doctrine is applied in the context of a plaintiff
seeking access to federal court on the one hand, or the context of a defendant seeking to remove
an action from state court on the other. The former results in dismissal, and the defendant
prevails. Wood’s inclination in that context to identify an exception that shields plaintiffs from
being unfairly denied access to federal court is consistent with this more dire potential
consequence. See Wood, 715 F.2d at 1547 (noting the due process concerns raised by a rule that
might deprive a plaintiff of “any forum, state or federal,” to bring his or her claim.)
The latter context results in a disposition that is by no means immaterial, but is certainly
less severe. The action is merely remanded back to state court, neither party actually prevails,
and the case continues. See Abbas, 2012 WL 1932690, *5 (and cited cases). The danger that
appears to have prompted both the Wood Court and the Long Court to embrace the reasonable
opportunity exception does not seem quite so dramatic here.
This is concededly a close call. These considerations, however, along with the threshold
understanding that there is a presumption in favor of the plaintiff’s choice of forum and that
doubt regarding jurisdiction should be resolved in favor of the states, Allied-Signal, 985 F.2d at
911, persuade me that Rooker-Feldman does indeed bar Defendants’ removal of this action to
federal court.
Finally, Defendants assert that the classes in connection with Counts I, II and VII are not
limited to “state court losers.” Because one of Rooker-Feldman’s threshold requirements is that
the federal plaintiff was a “state court loser,” Defendants argue, those counts, at least, cannot be
remanded.

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These classes, however, have not yet been certified. And as Plaintiff notes, the Supreme
Court has taken it as all but a given that a non-named class member is not a party to the litigation
prior to the class being certified. See Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 1349
(2013); Smith v. Bayer Corp., 131 S.Ct. 2368, 2379 (2011). It is difficult to see how this Court’s
subject-matter jurisdiction over the action could be founded upon the claims of non-parties.
Accord Gibson v. Chrysler Corp., 261 F.3d 927, 938 (9th Cir. 2001) (noting that no reported
decision has held to the contrary). The relevant claimants, the actual parties to the case, did
indeed lose in the state court proceedings. That is the operative inquiry for Rooker-Feldman
purposes, and Defendants’ fourth argument also fails.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to remand is granted.

ENTER:

James B. Zagel
United States District Judge

DATE: July 24, 2013

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