Ralph Licari v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1708
Ralph Licari,
Plaintiff-Appellant,
v.
City of Chicago, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6773--George W. Lindberg, Judge.
Submitted August 9, 2001--Decided August 20, 2001
Posner, Circuit Judge, in chambers. I
have before me a motion to reconsider my
denial of the appellees’ motion (a one-
judge motion under the rules of this
court, see 7th Cir. Operating Proc.
1(a)(1)), for leave to file a second
appellees’ brief in this appeal. The
underlying suit, dismissed by the
district court, sought damages from the
defendants (now the appellees) in both
their individual capacities and in their
official capacities as members of a
municipal retirement board. The
defendants hired two sets of lawyers to
defend the suit. One set (I’ll call it
"Off" for official) represented the
defendants against the official-capacity
claim, and the other set ("Ind")
represented them against the individual-
capacity claim. On July 7, Off filed a
brief labeled the appellees’ brief but
limited to the official-capacity claim.
On July 23, the appellees filed a motion
to authorize the filing of a second
appellees’ briefs, to be signed by Ind
and address the plaintiff’s claim against
the appellees in their individual
capacities. The motion described itself
as a "courtesy," for it claimed that the
appellees have a right to file a second
brief. The principal reasons, as
explained in the motion to reconsider,
are, first, that a lawsuit against a
person in both his individual and his
official capacity is really two lawsuits,

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and second that the first brief was
signed by a lawyer for the retirement
board and the defendants when sued in
their individual capacities are entitled
to be represented by counsel of their
choice.
The federal appellate rules and the
rules of this court do not forbid
separate parties to file separate briefs
even if their interests are aligned,
although we reserve the right to require
consolidated briefing where necessary to
avoid undue duplication. United States v.
Torres, 170 F.3d 749 (7th Cir. 1999) (per
curiam). But I reject the suggestion that
an individual sued in different
capacities is two parties with the rights
that such duality would confer. It is
true that the cases loosely state that a
suit against an individual in his
official capacity is really a suit
against the state, e.g., Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71
(1989); Power v. Summers, 226 F.3d 815,
818 (7th Cir. 2000), but what they mean
of course is that the individual named as
a defendant in such a suit can interpose
the state’s defense of sovereign
immunity. The fact that a defendant has a
defense against one claim in the suit
that is unavailable against a second
claim is no basis for treating him as two
people. Otherwise a defendant in the very
common type of suit in which a publicly
employed individual is sued in both his
individual and his official capacity
would have a prima facie entitlement to
file a brief twice as long as the
plaintiff in the same case. Such an
entitlement wouldn’t make any sense at
all, and there is no basis in the rules
or in case law for it.
As for the fact that the first brief was
submitted by a government lawyer, that’s
no different from a situation in which a
liability insurance company provides a
lawyer to defend its insured. If the
defendants were worried that the
government lawyer would rest after
asserting sovereign immunity, a defense
that would not help them against the
individual-capacity claim, they could ask
to participate in the drafting of the
brief; in the unlikely event not here al
leged that the lawyer refused to include
defenses against the individual-capacity
claim, the appellees could ask us for
leave to file a separate brief. No one is

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questioning the right of the appellees to
hire their own lawyers to defend against
the individual-capacity claim; but that
has no bearing on whether defendants in
such a case should have twice as many
pages as the plaintiff.
The two capacities = two briefs argument
makes no more sense than a two claims =
two briefs argument would. Many suits
consolidate separate claims--there may be
multiple plaintiffs, or one plaintiff may
allege that the defendant committed
multiple wrongs. None of these configura
tions automatically increases the
permitted number or length of briefs. Nor
would the defendant get the right to file
an extra brief just because he hired two
lawyers, one to defend against claim #1
(say, based on contract) and another to
defend against claim #2 (say, based on
the securities laws). The "two
capacities" situation is no different
from a "two claims" situation.
The motion for reconsideration is
denied.

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