09-3262 Hale v. Chu

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Civil Procedure
Waiver

Where plaintiffs argued in the district court that they were bringing a derivative action, they cannot argue on appeal that it was really a direct action.

“It is well-established that a party waives the right to argue an issue on appeal if he fails to raise that issue before the trial court. Moulton v. Vigo County, 150 F.3d 801, 803 (7th Cir. 1998); Stevens v. Umsted, 131 F.3d 697, 705 (7th Cir. 1997) (‘It is axiomatic that arguments not raised below are waived on appeal.’). The record contains no evidence that the plaintiffs ever alerted the district court that China Online was pursuing a direct claim against the defendants, despite having ample opportunity to do so. Failure to raise this argument before the district court is particularly egregious because the district court gave both parties the opportunity to address whether shareholders could bring a derivative lawsuit on behalf of a dissolved corporation. At no time did the plaintiffs move to amend their complaint to include a direct cause of action.”

Affirmed.

09-3262 Hale v. Chu

Appeal from the United States District Court for the Northern District of Illinois, Kendall, J., Bauer, J.

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