Court Error – Motion for Summary Affirmance

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7^th Circuit Court of Appeals

Case Name: Tim Jon Semmerling v. Cheryl T. Bormann, et al.,

Case No.: 19-3211

Officials: BRENNAN, Circuit Judge (in chambers).

Focus: Court Error – Motion for Summary Affirmance

Appellee the United States asks this court to summarily affirm the district court’s dismissal of appellant Tim Jon Semmerling’s complaint because his appellate brief does not assert any error in the district court’s decision.

Semmerling worked as a contractor for the U.S. Military Commissions Defense Organization as part of the legal team for a person charged as an al-Qaeda enemy combatant. Semmerling, who is gay, disclosed his sexuality to the lead attorney of that team, and Semmerling alleges that, despite promising secrecy, that attorney disclosed his sexuality to the client and told the client that Semmerling was infatuated with the client and was pursuing that interest.

Semmerling sued the lead attorney for state-law torts of defamation, negligence, and intentional infliction of emotional distress, and he sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2674, for negligence and intentional infliction of emotional distress. Both defendants moved to dismiss the complaint for failure to state a claim, FED.R. CIV. P. 12(b)(6), and the district court granted their motions. Semmerling has appealed and by counsel submitted a seven-page brief that is light on factual details and legal analysis. The United States moves for summary affirmance. It highlights the sparseness of Semmerling’s brief and asserts that summary affirmance is appropriate here because “[s]ummary affirmance may … be in order when the arguments in the opening brief are incomprehensible or completely insubstantial.” United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) (citing Lee v. Clinton, 209 F.3d 1025, 1025–27 (7th Cir. 2000), and Williams v. Chrans, 42 F.3d 1137, 1139 (7th Cir. 1994)). The co-appellee did not join the government’s motion. She has filed a responsive brief in which she argues that Semmerling has waived any argument against the district court’s order. She also defends the order on its merits.

The motion for summary affirmance is DENIED without prejudice to renewal of the arguments in the government’s brief. Semmerling may, within seven days from this opinion, seek leave to strike his opening brief and to file a brief that complies with Rule 28. If he chooses to do so, this court will reset a briefing schedule, and the appellees may submit, along with their briefs, a request for reasonable attorney’s fees— paid by Attorney Wigell—for the work required to produce the first, unnecessary response.

Denied

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.