Failure to State Claim

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7^th Circuit Court of Appeals

Case Name: Len Boogaard, et al. National Hockey League, et al.

Case No.: 17-2355

Officials: EASTERBROOK and BARRETT, Circuit Judges, and STADTMUELLER, District Judge

Focus: Failure to State Claim

Len and Joanne Boogaard appeal the dismissal of the wrongful-death action they brought as the personal representatives of the estate of their son, Derek Boogaard. They devote their appeal almost entirely to arguments that would spark excitement—or fear—in the heart of a civil procedure student. There is a Hanna v. Plumer problem—whether Federal Rule of Civil Procedure 17(b)(3) controls the Boogaards’ ability to bring this suit. 380 U.S. 460 (1965). There is an Erie Railroad Co. v. Tompkins question— whether federal or state law applies if Rule 17(b)(3) does not control. 304 U.S. 64 (1938). There is a choice-of-law problem—whether Illinois, Minnesota, or New York law applies if this is a matter of state law. And there is even a relation back issue—whether, if Minnesota law applies, Federal Rule of Civil Procedure 17(a)(3)’s relation-back provision can save the Boogaards from an error that it is otherwise too late to correct.

At the end of the day, however, it is an argument to which the Boogaards give short shrift that disposes of their case: forfeiture. For the reasons that follow, we agree with the district court that by failing to respond to the National Hockey League’s argument that their complaint fails to state a claim, the Boogaards forfeited any argument that it does. Their suit thus fails regardless of whether they can run the procedural gantlet of showing that they are the proper parties to bring it.

Affirmed

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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.