Date: 03-09-2018

Case Style:

Case Number: 17-2802

Judge: Easterbrook

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney: John Stephen Xydakis

Defendant's Attorney: Paul Bozych, Paul V. Esposito, Eric D Kaplan, Steven Michael Laduzinsky, Emma Catherine NowackiJohn Adam Powers, John Adam Powers, Robert Lee Reifenberg, Rebecca Rothmann, David F. Ryan, Don R. Sampen, Don R. Sampen, Thomas B. Underwood, Richard Jacob VanSwol, Christopher S. Wunder and Whitney Leigh Burkett, Ms.

Description: In 2002 a Greyhound bus
struck and killed Claudia Zvunca in Colorado. Her daughter,
Cristina Zvunca, witnessed the accident. Cristina was
seven at the time. Now an adult, she is the administrator of
her mother’s estate. In 2016 Cristina seZled all claims against
Greyhound and other potentially responsible persons for
approximately $5 million. But Tiberiu Klein, who was Clau2
No. 17-2802
dia’s husband at the time of the accident and is Cristina’s
stepfather, believes that Cristina allocated too much of the
seZlement to herself (via damages for emotional distress)
and not enough to him or Claudia’s estate, from which he
would benefit. He contends in this federal suit under 42
U.S.C. §1983 that Cristina conspired with state judges, law
firms, Greyhound, and just about anyone else who had anything
to do with the accident or the litigation, to exclude him
from financial benefits to which he claims entitlement.
Sixteen years is a long time to deal with an accident, but
litigation in state court went off the rails when Klein sued as
the purported administrator of Claudia’s estate. This
spawned a host of problems, for Klein had not been appointed
as administrator. Eventually Klein and Cristina became
co-administrators, but Klein was soon removed by a
state judge, leaving Cristina in charge. That has not prevented
Klein from continuing to describe himself as coadministrator
of Claudia’s estate—this very suit was filed
using that false description—and from aZempting to manage
or block the tort litigation. The district judge’s thorough
opinion describes the many state-court suits and decisions.
2017 U.S. Dist. LEXIS 121233 at *3–8 (N.D. Ill. Aug. 1, 2017).
Those details do not maZer for current purposes.
Defendants asked the federal judge to dismiss this suit as
barred by the Rooker-Feldman doctrine—the rule that only the
Supreme Court of the United States has jurisdiction to review
the decisions of state courts in civil litigation. See Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983). Klein did not
ask the federal judge to set aside any particular state judgment;
instead he wants damages for injury that he traces not
No. 17-2802 3
only to Claudia’s death but also to events in or concerning
the state litigation. But defendants contended that any federal
suit whose issues overlap those in the state litigation must
be dismissed.
Aware that the Supreme Court has understood the Rooker-
Feldman doctrine as limited to federal proceedings that ask
state judgments themselves to be changed, see, e.g., Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005);
Lance v. Dennis, 546 U.S. 459 (2006); Skinner v. SwiIer, 562
U.S. 521, 531–33 (2011), the district court addressed the merits
rather than dismissing for lack of jurisdiction. See also
Milchtein v. Chisholm, 880 F.3d 895 (7th Cir. 2018) (deprecating
arguments that all maZers intertwined with state cases
are outside federal jurisdiction). Although the district court’s
opinion is long, it boils down to a simple proposition: if anything
went wrong during the state litigation, the proper step
is to ask the rendering court to modify its judgment to correct
the problem. See, e.g., Harris Trust & Savings Bank v. Ellis,
810 F.2d 700, 705–06 (7th Cir. 1987); Mains v. Citibank,
N.A., 852 F.3d 669, 676–77 (7th Cir. 2017). Collateral litigation
in federal court is blocked not only by principles of preclusion—
Klein is bound by the state judiciary’s decisions about
what goes into Claudia’s estate and whether Klein can act as
the estate’s administrator—but also by the rule articulated in
Rooker that errors commiZed during the course of state litigation
cannot be treated as federal constitutional torts:
If the constitutional questions stated in the [federal suit] actually
arose in the [state] cause, it was the province and duty of the
state courts to decide them; and their decision, whether right or
wrong, was an exercise of jurisdiction. If the decision was wrong,
that did not make the judgment void, but merely left it open to
reversal or modification in an appropriate and timely appellate
4 No. 17-2802
proceeding. Unless and until so reversed or modified, it would
be an effective and conclusive adjudication.
263 U.S. at 415.
Because the district court dismissed the suit on the merits
rather than for lack of jurisdiction, we expected Klein’s brief
to engage the merits. But it did not. Instead Klein argued at
length that the Rooker-Feldman doctrine does not foreclose
federal jurisdiction. Where’s the beef? Instead of briefing issues
decided in his favor, Klein had to brief those issues on
which he lost. We do not think that he had much prospect of
upseZing the district court’s decision, but an appellate brief
that does not even try to engage the reasons the appellant
lost has no prospect of success. All of Klein’s federal contentions
have been forfeited.
The long and tangled history of the wrongful-death litigation,
which the district court’s opinion recounts, has been
caused by Klein’s (or his lawyer’s) inability or unwillingness
to litigate as statutes and rules require. That in this suit
Klein’s aZorney John Xydakis pretended that Klein is a coadministrator
of Claudia’s estate, then forfeited all of his client’s
substantive arguments, are just the latest manifestations
of these problems. Xydakis also named himself as a
plaintiff in this suit, though he has no conceivable standing
to sue. The district court dismissed Xydakis’s claim for lack
of jurisdiction; after appealing on his own behalf as well as
Klein’s, Xydakis filed a brief ignoring the question whether
he is entitled to litigate as a party. After oral argument
Xydakis moved to dismiss himself as a litigant. We grant
that motion but record the episode to show how far Klein
and his lawyer have strayed from the norms of litigation.
No. 17-2802 5
When asked at oral argument why his brief addressed
the Rooker-Feldman doctrine, on which Klein had prevailed,
rather than the merits, on which he had lost, Xydakis told us
that because the defendants invoked the Rooker-Feldman doctrine
that must have been the district court’s ground of decision,
no maZer what the judge’s opinion said. That’s nonsense.
If Xydakis believed that the district judge erred in
making a substantive decision in response to a jurisdictional
motion, he should have asked the judge for an opportunity
to brief the merits, or he might have contended on appeal
that the judge erred by denying him that opportunity. Instead
Xydakis chose to pretend that his client lost on a jurisdictional
ground. Pretense gets a lawyer nowhere.
Just to be sure that this case had been decided on the merits
rather than for lack of jurisdiction, we turned to the back
of Klein’s brief to find the judgment. It is not there, despite
Circuit Rule 30(a), which requires the judgment to be
aZached to the appellant’s brief, and Circuit Rule 30(d),
which requires counsel to certify that all materials required
elsewhere in Rule 30 have indeed been included. Xydakis so
certified, falsely. At oral argument we asked him why; he did
not explain. It soon became clear that Xydakis has no idea
what a “judgment” is. The afternoon of oral argument he
sent a leZer to the court stating that he had been asked
where the district court’s “opinion” could be found and that
it is aZached to the brief. But he had been asked about the
judgment, which under Fed. R. Civ. P. 58 is distinct from the
opinion. We tracked down the judgment and found that it
corresponds to the opinion: it resolves the suit in defendants’
favor on the merits rather than dismissing, without prejudice,
for lack of jurisdiction.
6 No. 17-2802
Klein and Xydakis have caused havoc in the tort litigation.
They are not entitled to divert the time of federal judges,
too, from the needs of more deserving litigants. Klein and
Xydakis must understand that they have reached the end of
the line in federal court. Any further federal litigation related
to the 2002 accident, and the state suits to which it gave rise,
will be penalized under Fed. R. Civ. P. 11(c), Fed. R. App. P.
38 and 46(b), (c), 28 U.S.C. §1927, and other sources of authority
to deal with frivolous and repetitious suits.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

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