Jane F. Girard v. Marissa Girard

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 25-1854
JANE F. GIRARD,
Plaintiff-Appellee,
and
K ENTON GIRARD,
Defendant-Appellee,
v.
M ARISSA GIRARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:25-cv-04586 — Jeremy C. Daniel, Judge.
____________________
DECIDED N OVEMBER 25, 2025
____________________
Before S YKES , HAMILTON , and J ACKSON -A KIWUMI , Circuit
Judges.
SYKES, Circuit Judge. A few years after their divorce, Jane
and Kenton Girard became ensnared in acrimonious post-
judgment proceedings concerning the custody of their two

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2 No. 25-1854
minor children. Kenton had remarried shortly after the
divorce, and in 2023 the Illinois state court added his wife
Marissa Girard as a party to the postjudgment litigation. Her
joinder complicated the already protracted proceedings:
Kenton later cross-claimed against Marissa when they
disagreed about his obligations under a “postnuptial
agreement” that purported to require him to indemnify her
for legal expenses and any reduction in her earnings incurred
in connection with the custody dispute.
Marissa responded by removing the entire case to federal
court in the Northern District of Illinois. It had a short shelf
life there: the district judge concluded that the case did not
present a federal question, so he remanded it to state court for
lack of jurisdiction. Marissa appealed, and we dismissed the
case for lack of appellate jurisdiction.
Jane Girard now moves for sanctions under Rule 38 of the
Federal Rules of Appellate Procedure, arguing that Marissa’s
appeal was frivolous. Indeed it was (in more ways than one),
so we grant the motion for sanctions.
According to the state-Œ˜ž›ȱ ›ŽŒ˜›œȱ ŠĴŠŒ‘Žȱ ˜ȱ ‘Žȱ
removal notice, Jane and Kenton Girard were divorced in
November 2015 in an order issued by the Cook County
Circuit Court. The divorce judgment resolved custody issues
regarding their two minor daughters—at least initially.
Not long after the divorce, Kenton married Marissa
Girard, and within a few years, he and Jane were back in court
in a contentious custody dispute. Protracted postjudgment
proceedings ensued. In 2023 Jane moved to add Marissa to
the postjudgment proceedings as a third-party respondent,

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No. 25-1854 3
accusing her of ŠĴŽ–™’—ȱ ˜ȱ ™˜’œ˜—ȱ ‘Žȱ –˜‘Ž›–daughter
relationship. The judge granted the joinder motion.
In February 2025 the court set a trial date to resolve the
ongoing custody issues. A few days before trial, Kenton cross-
claimed against Marissa seeking a declaration that he had no
obligations under a supposed “™˜œ—ž™’Š•ȱ ’—Ž–—’ęŒŠ’˜—ȱ
agreement” that ostensibly required him to reimburse her for
legal expenses and any reduction in her earnings if Jane’s
actions in the custody dispute “proximately cause[d]” a
violation of her rights under the Constitution or federal law.
That same day Marissa removed the entire case to federal
court. Jane promptly moved to remand it to state court,
asserting that the case did not present a substantial federal
question. She noted that the case was a state-law domestic-
relations dispute and that Kenton’s cross-claim concerned
only the interpretation of the postnuptial agreement, an issue
governed exclusively by state contract law. The district judge
agreed and remanded the case to state court, explaining that
Kenton’s cross-claim “center[ed] on domestic disputes”
related to the postnuptial agreement, so it did not confer
federal-question jurisdiction.
Marissa appealŽǯȱŽ˜›Žȱ‹›’Žę—ȱcommenced, we issued
an order requiring her to explain why her appeal should not
be dismissed for lack of jurisdiction. We noted that remand
orders are not appealable unless the case is removed under
28 U.S.C. § 1442, the federal-˜ĜŒŽ› removal provision, or
§ 1443, the civil-rights removal provision. See 28 U.S.C.
§ 1447(d). In response Marissa argued—˜›ȱ ‘Žȱ ꛜȱ ’–Ž—
that she had removed the case pursuant to § 1443 because she
faced a “barrage” of motions against her in the state-court

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4 No. 25-1854
proceedings, which she claimed amounted to discrimination
based on her race and disability.
We dismissed Marissa’s appeal for lack of jurisdiction,
explaining that her belated invocation of § 1443 was frivolous.
She had not removed the case under § 1443, nor had she
established—as the statute requires—that she had been
denied or could not enforce a racial-equality right in state
court because of a barrier imposed by some formal expression
of state law, like a statute. See Fenton v. Dudley, 761 F.3d 770,
774–75 (7th Cir. 2014). Marissa moved for panel rehearing,
and when that motion was denied, she obtained an extension
˜ȱ’–Žȱ˜ȱꕎȱŠȱ™Ž’’˜—ȱ˜›ȱŠȱ ›’ȱ˜ȱŒŽ›’˜›Š›’ȱ’—ȱ‘Žȱž™›Ž–Žȱ
Court.
Meanwhile, after we dismissed the appeal for lack of
jurisdiction, Jane moved for sanctions against Marissa under
Rule 38 of the Federal Rules of Appellate Procedure, which
authorizes an award of “just damages and single or double
costs” incurred in defending against a frivolous appeal. She
œŽŽ”œȱŠ—ȱŠ Š›ȱ˜ȱǞŘǰŞŖŞǯŝśȱ˜ȱŒ˜ŸŽ›ȱ‘Ž›ȱŠĴ˜›—Ž¢ȂœȱŽŽœȱŠ—ȱ
costs on appeal. The –˜’˜—ȱ’œȱ Ž••ȱ“žœ’ꮍȱŠ—ȱ Žȱ›Š—ȱ’ǯ
“An appeal is frivolous when the result is obvious or when
the appellant’s argument is wholly without merit.” Upchurch
v. O’Brien, 111 F.4th 805, 813 (7th Cir. 2024) (quotation marks
˜–’ĴŽǼǯ Š—Žȱ Œ˜—Ž—œȱ ‘Šȱ Š›’œœŠȂœȱ Š™™ŽŠ•ȱ œŠ’œęŽœȱ ‘’œȱ
demanding standard. We agree. Although a decision to
impose sanctions under Rule 38 is not one we make lightly,
see Goyal v. Gas Tech. Inst., 732 F.3d 821, 823–24 (7th Cir. 2013),
this appeal was doubly frivolous. Marissa’s challenge to the
judge’s removal order was doomed to fail, and we
unquestionably lacked appellate jurisdiction to hear it.

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No. 25-1854 5
Taking those points in order, there was never any basis to
remove this case to federal court ’—ȱ‘Žȱꛜȱ™•ŠŒŽ. Because the
parties—all citizens of Illinois—are not diverse, “the
propriety of removal depend[ed] on the existence of a federal
question.” Ne. Rural Elec. Membership Corp. v. Wabash Valley
Power Ass’n, 707 F.3d 883, 890 (7th Cir. 2013). But Kenton’s
cross-claim—‘Žȱ ™›˜ěŽ›Žȱ ‹Šœ’œȱ ˜›ȱ ›Ž–˜ŸŠ•—is a state-law
contract claim. See Am. Well Works Co. v. Layne & Bowler Co.,
241 U.S. 257, 260 (1916) (“A suit arises under the law that
creates the cause of action.”). And it is the “rare” state-law
claim that gives rise to federal-question jurisdiction. Webb v.
Fin. Indus. Regul. Auth., Inc., 889 F.3d 853, 860 (7th Cir. 2018).
To do so, the claim must “necessarily raise[]” a “substantial”
and “actually disputed” federal question. Gunn v. Minton,
568 U.S. 251, 258 (2013).
As the district judge correctly concluded, Kenton’s cross-
claim raises contract and domestic-relations issues—‘Žȱœžěȱ
of which state law is quintessentially concerned. Wis. Cent.
Ltd. v. TiEnergy, LLC, 894 F.3d 851, 854 (7th Cir. 2018); Allen v.
Allen, 48 F.3d 259, 261 (7th Cir. 1995). Although the
postnuptial agreement ̎Ž’—•¢ȱ mentions federal law, the
dispute remains one of state contract and domestic-relations
law; it does not require the resolution of any federal
question—much less a substantial one. See Minor v. Prudential
Sec., Inc., 94 F.3d 1103, 1105 (7th Cir. 1996). In short, the
judge’s decision to remand the case for lack of subject-–ŠĴŽ›ȱ
jurisdiction was unassailable, so Marissa was “guaranteed to
lose” on appeal. McCurry v. Kenco Logistics Servs., LLC,
942 F.3d 783, 791 (7th Cir. 2019).
On top of that, the order was not reviewable on appeal. As
our dismissal order explained, we have “consistently

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6 No. 25-1854
reminded litigants” that remand orders are ordinarily not
appealable. See, e.g., Phoeni¡ Container, L.P. v. Sokoloě, 235 F.3d
352, 354–55 (7th Cir. 2000). Section 1447(d) makes this crystal
clear: an order remanding a case to state court is not
appealable—regardless of whether the decision was correct—
unless § 1442 or § 1443 supplied the basis for removal.
N. League, Inc. v. Gidney, 558 F.3d 614, 614 (7th Cir. 2009) (per
curiam); see Mac Naughton v. Asher Ventures, LLC, 76 F.4th 539,
543 (7th Cir. 2023) (“We have held repeatedly that appellants
risk Rule 38 sanctions when they litigate in the face of
controlling authority that they pretend does not exist.”).
Marissa relied on neither provision when removing the
case to federal district court. Although she cited § 1443 in
response to our jurisdictional order as part of a last-ditch
ŠĴŽ–™ to justify her appeal, she failed to identify any state
law that had denied or inhibited her ability to enforce federal
racial-equality rights, as the statute requires. See Fenton,
761 F.3d at 773–74. Instead, œ‘Žȱ˜ěŽ›ŽȱŸŠžŽȱŠœœŽ›’˜—œȱŠ‹˜žȱ
the discriminatory application of general principles—
assertions do not come close to satisfying § 1443. Marissa’s
invocation of that provision was not just tardy and contrived;
it was frivolous.
None of Marissa’s arguments in response dissuades us
from imposing sanctions. For starters, she argues that because
the district judge declined to impose an award of ŠĴ˜›—Ž¢Ȃœȱ
fees under § 1447(c) for a frivolous removal, Jane’s request for
sanctions in this court necessitates a cross-appeal. Not so.
Although the judge concluded that Marissa’s improper
removal did not warrant awarding Jane her costs and
ŠĴ˜›—Ž¢Ȃœȱ ŽŽœǰȱ we retain authority to impose sanctions for
Marissa’s frivolous appeal. F ED. R. A PP . P. 38; Mac Naughton,

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No. 25-1854 7
76 F.4th at 543–44. Further, while Marissa insists that she is
proceeding in good faith, the record shows otherwise. After
removing a case that clearly belonged in state court, Marissa
prolonged the litigation by requiring Jane to defend a
frivolous appeal. Upchurch, 111 F.4th at 814. Under these
circumstances, Rule 38 sanctions are warranted.
Finally, the modest amount Jane seeks—‘Ž›ȱ ŠĴ˜›—Ž¢Ȃœȱ
fees and costs on appeal—is just and reasonable. We award
her damages in the amount of $2,808.75.
It is so O RDERED.

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