Motion to Dismiss – Failure to Respond

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Civil

7^th Circuit Court of Appeals

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges

Motion to Dismiss – Failure to Respond

No. 14-3668 Dr. Robert L. Meinders, D.C. v. United Healthcare, Inc.

District court dismissal of case without oral argument or hearing improper where appellant did not have “full and fair opportunity to respond”

“We are hard pressed to find the “new issue” that Meinders raised in his opposition brief on which the district court premised its “exceptional circumstances” determination. The only issues that Meinders’ opposition brief raised were that United was not a signatory to the Provider Agreement and that United’s ownership theory did not authorize it, as a nonsignatory, to enforce the agreement’s arbitration provision. At any rate, once the district court permitted United to file its reply brief, the court should have granted Meinders leave to file a sur-reply responding to United’s novel assumption theory and Van Ham’s declaration. Due process, we have cautioned, requires that a plaintiff be given an opportunity to respond to an argument or evidence raised as a basis to dismiss his or her claims. See, e.g., Smith v. Bray, 681 F.3d 888, 903 (7th Cir. 2012) (“[D]istrict courts need to ensure that they do not base their decisions on issues raised in such a manner that the losing party never had a real chance to respond.”); English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993) (“The opportunity to respond is deeply imbedded in our concept of fair play and substantial justice.”). When strict adherence to local rules, such as S.D. Ill. L.R. 7.1(c)’s proscription on sur-reply briefs, threatens to deprive a litigant of the opportunity to respond, the local rules must give way to considerations of due process and fundamental fairness. Accordingly, we hold that the district court deprived Meinders due process by entering judgment against him on law and facts to which he did not have a full and fair opportunity to respond”

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.