RANDALL EWING and YASMANY GOMEZ v. ERIK CARRIER and D’APRILE PROPERTIES, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2890
RANDALL EWING and YASMANY GOMEZ,
Plaintiffs-Appellants,
v.
ERIK CARRIER and D’APRILE PROPERTIES, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-cv-03791 — John F. Kness, Judge.
____________________
ARGUED MAY 19, 2022 — DECIDED MAY 25, 2022
____________________
Before FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Randall Ewing and Yasmany
Gomez sued 1645 W. Farragut, LLC, for fraud and breach of
contract. After District Judge Coleman denied a motion to add
Erik Carrier (one of the LLC’s members) and D’Aprile Prop-
erties (Carrier’s employer) as additional defendants, a jury re-
turned a verdict of $905,000 in plaintiffs’ favor. Judge Cole-
man has denied the LLC’s motion for judgment as a ma\er of

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2 No. 21-2890
law, but its motion for a new trial remains pending. 2022 U.S.
Dist. LEXIS 80846 (N.D. Ill. May 4, 2022).
Instead of waiting for a final decision and taking an appeal
to argue that Judge Coleman should have allowed them to
add Carrier and D’Aprile, plaintiffs filed a second suit, this
time against Carrier and D’Aprile. The second suit, which
presents the same substantive claims as the first, was assigned
to District Judge Kness. He dismissed it as barred by the doc-
trine of claim preclusion, even though the first suit is ongoing.
2021 U.S. Dist. LEXIS 177381 (N.D. Ill. Sept. 17, 2021). Plaintiffs
call Carrier and the LLC “alter egos,” which if true means that
the law treats them as a single entity. Judge Kness observed
that you can’t sue a single entity twice for the same wrong.
Plaintiffs ask us to reverse that decision and hold that they
can indeed sue a single entity twice, one name per suit. We do
not reach that argument, because there is an antecedent prob-
lem. Plaintiffs are engaged in judge-shopping. They do not
like Judge Coleman’s decision to limit the first suit to the
claims against the LLC, and they have sought the view of a
second district judge. Judge Kness should not have obliged.
Local Rule 40.4 in the Northern District of Illinois permits
district judges to ask the court’s Executive Commi\ee to con-
solidate related suits before a single judge. Rule 40.4(c) says
that a motion to reassign “shall be filed in the lowest-num-
bered case of the claimed related set”. In this set of cases the
motion should have been filed before Judge Coleman. But the
LLC did not have a reason to request transfer, and the plain-
tiffs, who were parties to both suits, did not want transfer.
Their objective is to have two judges consider their claims,
then take the more favorable of the two outcomes.

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No. 21-2890 3
Preventing such a resolution requires initiative by the
judge assigned to the second suit. Even though Rule 40.4 calls
for a motion to be filed in the lower-numbered case, the judge
in a higher-numbered case can act on his own. Judge Kness
knew that the two suits present identical claims by the same
plaintiffs. He knew that the first suit was still pending. He
therefore knew everything necessary to see that both suits
should be handled by one judge.
The judiciary has an interest, independent of litigants’
goals, in avoiding messy, duplicative litigation. Suppose we
were to affirm Judge Kness’s decision. Plaintiffs would retain
a second chance on appeal from the final decision entered by
Judge Coleman, where they would argue that she should
have allowed them to add Carrier and D’Aprile. Win or lose
on that point, plaintiffs could try to collect from Carrier in the
enforcement proceedings following the first suit, as the LLC
apparently does not have the assets to pay the judgment. That
could yield a third appeal. There could be further proceedings
to try to ascertain the basis, if any, on which D’Aprile might
be liable for Carrier’s acts. That might require appeals in the
enforcement proceedings of the first suit, and separately in
the second suit. To add still more complexity, resolving plain-
tiffs’ claims against D’Aprile might require a second jury trial
in the second suit. Plaintiffs say that it won’t, because they
would be entitled to the preclusive effect of the existing jury
decision, but it is not clear how these plaintiffs can use issue
preclusion as a sword while denying Carrier the benefit of
claim preclusion as a shield—and doubly unclear how the
first jury’s decision could bind D’Aprile.
Things are simplified if both suits are before a single judge.
Following a transfer, Judge Coleman undoubtedly would

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4 No. 21-2890
stay proceedings in the second suit until the first reached its
conclusion. If the judgment against the LLC should be set
aside, the basis for a separate suit against Carrier would evap-
orate. And if the judgment against the LLC becomes final,
plaintiffs could enforce that judgment against any alter ego in
collection proceedings under Fed. R. Civ. P. 69. If, as plaintiffs
say, Carrier is the LLC’s alter ego, then Carrier will be re-
quired to satisfy the judgment. A second suit is unnecessary,
then, whether plaintiffs win or lose in the first.
Plaintiffs should not have filed this second suit; the new
defendants should have asked for a transfer or a stay; the sec-
ond judge should have acted even if the parties were content
to duplicate the proceedings. All litigants and lawyers must
avoid multiplying litigation. See 28 U.S.C. §1927; Dugan v. R.J.
Corman R.R., 344 F.3d 662, 670 (7th Cir. 2003); Chicago Title &
Trust Co. v. Verona Sports Inc., 11 F.3d 678, 679 (7th Cir. 1993).
The judgment is vacated, and the case is remanded with
instructions to request the district court’s Executive Commit-
tee to transfer this suit to Judge Coleman.

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