Nate Carter v. Homeward Residential , Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1156
NATE C ARTER ,
Plaintiff-Appellant,
v.
HOMEWARD R ESIDENTIAL , INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8403 — Rubén Castillo, Chief Judge.
____________________
SUBMITTED J UNE 18, 2015 — D ECIDED J ULY 23, 2015
____________________
Before P OSNER , MANION, and W ILLIAMS , Circuit Judges.
P OSNER , Circuit Judge. Nate Carter lost his home in Crete,
Illinois, after the mortgage on it was foreclosed. In this suit
against the financial institutions involved in making, servic-
ing, or foreclosing his mortgage, he alleges that the “fore-
closing entity” (which he does not identify) did not hold the
note or mortgage at the time of the foreclosure. Claiming
that the defendants violated the federal Constitution, he
seeks to quiet title to the foreclosed home. (His only claim is

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federal; he does not invoke the diversity jurisdiction of the
federal courts.) The district court dismissed the suit as frivo-
lous, precipitating this appeal. The suit is indeed frivolous,
like the identical suit (except for the homeowner’s address,
mortgage, and several dates) that was before us in Sturdivant
v. Select Portfolio Servicing, Inc., 602 Fed. Appx. 351 (7th Cir.
2015), where we agreed with the district court that the suit
was frivolous and so affirmed its dismissal. In neither case
did the complaint allege anything that might support an in-
ference that the defendants were state actors, suable there-
fore under 42 U.S.C. § 1983. Nor can we infer or even imag-
ine any alternative basis for supposing that either case is
within the jurisdiction of the federal courts.
Our opinion in Sturdivant is an “unpublished” opinion
(as nonprecedential opinions are still often called, though
they are all published). We have decided to publish (and
thus make precedential) our opinion in the present case in
order to draw attention to what seems a needless redundan-
cy in judicial opinions dismissing suits for failure to present
a justiciable claim.
Conventional legal doctrine deems a suit frivolous if it is
apparent from a reading of the complaint that there is no
need to await the defendant’s answer or motion to dismiss,
or discovery or legal research, to determine that the case is
going nowhere—that there’s no possibility of the court’s
having authority to provide relief to the plaintiff. Reed v. Co-
lumbia St. Mary's Hospital, 782 F.3d 331, 336 (7th Cir. 2015);
Ricketts v. Midwest National Bank, 874 F.2d 1177, 1180–83 (7th
Cir. 1989); Crowley Cutlery Co. v. United States, 849 F.2d 273,
276–77 (7th Cir. 1988); Association of American Physicians &
Surgeons v. Sebelius, 746 F.3d 468, 473 (D.C. Cir. 2014); ACS

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No. 15-1156 3
Recovery Services, Inc. v. Griffin, 723 F.3d 518, 523 (5th Cir.
2013); In re Stock Exchanges Options Trading Antitrust Litiga-
tion, 317 F.3d 134, 150 (2d Cir. 2003). Such a suit does not in-
voke the jurisdiction of a federal court; “if it is clear beyond
any reasonable doubt that a case doesn’t belong in federal
court, the parties cannot by agreeing to litigate it there au-
thorize the federal courts to decide it.” Carr v. Tillery, 591
F.3d 909, 917 (7th Cir. 2010).
In contrast, a complaint that makes a claim that if true
would provide a basis on which a federal court could grant
the plaintiff monetary or other relief, but is later shown
(normally by a motion to dismiss or other action taken by
the defendant) to have no merit, nevertheless successfully
invokes federal jurisdiction and so if it’s dismissed the dis-
missal is on the merits. Steel Co. v. Citizens for a Better Envi-
ronment, 523 U.S. 83, 89 (1998); LaSalle National Trust, N.A. v.
ECM Motor Co., 76 F.3d 140, 143–44 (7th Cir. 1996); Holloway
v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th
Cir. 2012); Blue Cross & Blue Shield of Alabama v. Sanders, 138
F.3d 1347, 1353–54 (11th Cir. 1998). In the Carr decision cited
above we pointed to a “presumption … that the dismissal of
even a very weak case should be on the merits rather than
because it was too weak even to engage federal jurisdiction.
Otherwise courts would spend too much time distinguishing
degrees of weakness. And there is a certain perversity in a
jurisdictional dismissal; it permits the plaintiff to refile his
case, albeit (as we noted) not on the ground on which the
dismissal was based.” 591 F.3d at 917 (citations omitted).
But we also said that “a suit that is utterly frivolous does
not engage the jurisdiction of the federal courts.” Id. (em-
phasis added). In retrospect the insertion (not original with

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4 No. 15-1156
us) of the adverb—“utterly” before “frivolous”—was unfor-
tunate. It suggested that maybe even if the plaintiff’s claim
was frivolous, unless it was utterly frivolous the case could
be decided on the merits. Later we sensibly questioned the
wisdom of “distinguishing so finely among degrees of sub-
stantive weakness,” McCoy v. Iberdrola Renewables, Inc., 769
F.3d 535, 537 (7th Cir. 2014)—how indeed would one distin-
guish “frivolous” from “utterly frivolous”? Worse, the cases
have taken to substituting “insubstantial” for “frivolous”
and then distinguishing among degrees of “insubstantiali-
ty”; so we are treated to distinctions between “insubstantial”
and “wholly insubstantial,” between “so utterly frivolous”
and “so insubstantial,” between “plainly unsubstantial” and
“not substantial enough” versus “sufficiently substantial,”
between “essentially fictitious and “obviously without mer-
it,” and between “frivolous” and “insubstantial.” Hagans v.
Lavine, 415 U.S. 528, 536–37 (1974); Bovee v. Broom, 732 F.3d
743, 744 (7th Cir. 2013); Ricketts v. Midwest National Bank, su-
pra, 874 F.2d at 1180, 1182, 1185; Crowley Cutlery Co. v. United
States, supra, 849 F.2d at 278; Association of American Physi-
cians & Surgeons v. Sebelius, supra, 746 F.3d at 473; Arena v.
Graybar Electric Co., 669 F.3d 214, 222 (5th Cir. 2012); Karnak
Educational Trust v. Bowen, 821 F.2d 1517, 1520 (11th Cir.
1987).
This explosion of redundant verbiage can be traced back
to Bell v. Hood, 327 U.S. 678, 682–83 (1946), and perhaps far-
ther (but we haven’t tried), and was enlarged and emphati-
cally endorsed in Hagans v. Lavine, supra, 415 U.S. at 537–38
(long enough ago to invite reconsideration, one might think),
as having “cogent legal significance.” The Court contributed
to the list of synonyms (besides “plainly unsubstantial”)
“obviously frivolous,” “so attenuated and unsubstantial as

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No. 15-1156 5
to be absolutely devoid of merit,” “no longer open to discus-
sion,” “essentially fictitious,” “prior decisions inescapably
render the claims frivolous,” and “plainly unsubstantial, ei-
ther because [the federal question] is ‘obviously without
merit’ or because ‘its unsoundness so clearly results from the
previous decisions of this court as to foreclose the subject
and leave no room for the inference that the question sought
to be raised can be the subject of controversy.’” Id. at 536–38;
see also Morrison v. YTB International, Inc., 649 F.3d 533, 536
(7th Cir. 2011); Gammon v. GC Services Ltd. Partnership, 27
F.3d 1254, 1256 (7th Cir. 1994); Davis v. U.S. Sentencing Com-
mission, 716 F.3d 660, 666–67 (D.C. Cir. 2013); Harris v. Blue
Cross/Blue Shield of Alabama, Inc., 951 F.2d 325, 327 (11th Cir.
1992); Molina-Crespo v. Califano, 583 F.2d 572, 573–74 (1st Cir.
1978).
The bare word “frivolous” should be enough to denote a
complaint that on its face does not invoke federal jurisdic-
tion. “Utterly frivolous” is redundant. As for “wholly insub-
stantial,” “too insubstantial,” “not substantial enough,” and
all the rest, these are confusing substitutes for “frivolous”
that imply misleadingly that a merely “insubstantial” (as
opposed to a “too insubstantial” or “wholly insubstantial”)
claim might suffice to invoke federal jurisdiction—in other
words that there is a sliding scale of substantiality, and at
some point on the scale a claim is actionable. No one has ex-
plained how that point is to be determined. It remains inde-
terminate, a source of needless uncertainty.
And mightn’t it be better to purge “frivolous” too—a
word that in modern American English is synonymous with
such words as “skittish,” “flighty,” “giddy,” “silly,”
“foolish,” “superficial,” “shallow,” “irresponsible,”

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6 No. 15-1156
“thoughtless,” “featherbrained,” “empty-headed,” “pea-
brained,” “birdbrained,” “vacuous,” and “vapid,” Oxford
Thesaurus of English 358 (2009)—from the legal lexicon, and
say rather that a complaint that fails to invoke federal juris-
diction is to be dismissed for want of jurisdiction, while a
complaint that invokes federal jurisdiction but pleads itself
out of court (for example by making a claim expressly reject-
ed in a Supreme Court decision) should be dismissed by the
district court on the merits without awaiting a pleading from
the defendant? One might call such a claim “groundless,”
and a claim that doesn’t invoke federal jurisdiction “nonjus-
ticiable.” That would avoid confusion arising from the fact
that “frivolous” is sometimes used in federal statutes to
mean simply lacking merit. See, e.g., 28 U.S.C. § 1915; 26
U.S.C. § 6702. In short, may not the time have come for the
Supreme Court to reexamine its 41-year-old decision in Ha-
gans?
A FFIRMED

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