Gloria E. Swanson v. City of Hammond, Indiana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2011 *
Decided March 10, 2011
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3629
GLORIA E. SWANSON,
Plaintiff‐Appellant,
v.
CITY OF HAMMOND, INDIANA, et
al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 10 C 4309
Charles P. Kocoras,
Judge.
O R D E R
Gloria Swanson, a Chicago resident, has had a tumultuous history with the
Horseshoe Casino in Hammond, Indiana. When she arrived at the casino on July 12, 2008,
the casino contacted Hammond police, and two police officers arrested her for criminal
trespass. The officers took her to the Hammond police station; on the way, according to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 10‐3629 Page 2
Swanson, she suffered a headache from exceedingly high blood pressure and the officers
ignored her repeated requests for medical assistance. At the station Swanson posted bond
(which she says was set at a higher level than it would have been had she been an Indiana
resident).
Swanson filed this suit in the Northern District of Illinois against the Hammond
Police Department1 and the arresting officers, alleging various civil rights violations. The
defendants moved to dismiss for lack of personal jurisdiction, FED. R. CIV. P. 12(b)(2), and
lack of proper venue, FED. R. CIV. P. 12(b)(3). In support of their motion the individual
defendants stated by affidavit (without contradiction from Swanson) that they are police
officers for the City of Hammond who conduct no business in, own no property in, and
engage in no advertising directed at the State of Illinois. Each affiant also alleged that all
events giving rise to Swanson’s claims took place entirely in Indiana. The district court
granted the defendants’ motion on personal‐jurisdiction grounds, finding the venue motion
moot. Swanson appeals; because Swanson has not established personal jurisdiction, we
affirm the district court’s judgment.
Though the district court dismissed Swanson’s case without prejudice under Rule
12(b)(2), the decision was final, so we have jurisdiction to review it. See Nelson v. Bulso, 149
F.3d 701, 703 (7th Cir. 1998); Brady v. Sullivan, 893 F.2d 872, 876 n.8 (7th Cir. 1989) (per
curiam). Our review is de novo, see Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614,
619 (7th Cir. 2007); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1275 (7th Cir. 1997), and,
for the purposes of our review, we accept Swanson’s allegations relating to personal
jurisdiction as true except where the defendants refute them through undisputed affidavits.
Cent. States, Se. and Sw. Areas Pension Fund v. Phencorp Reinsurance Co., 440 F.3d 870, 878 (7th
Cir. 2006); Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983).
Swanson raises three arguments on appeal, but none is availing. She first argues that
the defendants waived their personal‐jurisdiction defense by entering a general appearance
in the district court. But Federal Rule of Civil Procedure 12 long ago abolished the
distinction between general and special appearances. See In re Hijazi, 589 F.3d 401, 413 (7th
Cir. 2009); SEC v. Wencke, 783 F.2d 829, 833 n.3 (9th Cir. 1986); Hous. Auth. of the City of
Atlanta, Ga. v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973); Grammenos v. Lemos, 457 F.2d 1067,
1070 (2d Cir. 1972); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d
1 The caption in the district court listed the Hammond Police Department as a
defendant, but a police department is not suable under § 1983. See Chan v. Wodnicki, 123
F.3d 1005, 1007 (7th Cir. 1997); West v. Waymire, 114 F.3d 646, 646‐47 (7th Cir. 1997). We
have adjusted the caption accordingly.

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No. 10‐3629 Page 3
Cir. 1944); see also 5 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1344, at 28‐35 (3d ed. 2004). As long as defendants comply with the rules by
raising their defenses in their first responsive pleading or consolidate their defenses in a
pre‐pleading motion under FED. R. CIV. P. 12(b), they do not waive their Rule 12(b) defenses.
A review of the district court docket shows that the defendants’ attorneys filed (in order)
appearances, a motion for an extension of time to file a responsive pleading, and, finally, the
defendants’ motion to dismiss. This sequence complied with the rules and, accordingly, the
defendants did not waive their Rule 12(b) defenses.
Swanson also argues that the defendants waived their objections to personal
jurisdiction when they moved for an extension of time to file their responsive pleading. Not
so. Preliminary litigation actions, such as the defendants’ request for an extension of time to
file their responsive pleading, do not waive or forfeit personal‐jurisdiction defenses. See
Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d
440, 442‐43 (7th Cir. 2010). To waive or forfeit their personal‐jurisdiction defense, the
defendants must create the expectation that they will defend the suit on the merits. Id.
Asking for additional time to respond to the complaint could not reasonably affect
Swanson’s expectations about whether the defendants would defend against the complaint
on personal‐jurisdiction grounds.
Finally, on the merits of the defense, Swanson argues that the district court erred in
concluding that she had failed to make a prima facie showing that it had personal
jurisdiction over the Indiana defendants. Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.
2002). But Swanson has alleged nothing to establish contacts sufficient to support the
exercise of specific jurisdiction over the defendants by Illinois courts, much less contacts
“continuous and systematic” enough to permit Illinois courts to exercise general jurisdiction
over the defendants. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414‐16
(1984). The defendants’ affidavits establish that they are Indiana residents, own no Illinois
property, and conduct no business in Illinois. And all the events that gave rise to Swanson’s
claims took place entirely in Hammond, Indiana. Swanson contradicts none of these facts,
but argues that because her bond was set higher than had she been an Indiana resident, the
defendants have established contacts with Illinois. This argument proves only that she
made contact with Indiana, not the other way around.
A FFIRMED.

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