Taking One's Lumps - While Winning the Appeal Anyway - Life in the 7th Circuit

Posted 8:49 AM by Michael Fox

When the opinion includes the line,

"Despite wasting our time with a bad argument, Northrop Grumman is entitled to prevail on this appeal,"

one might suspect one were in the 7th Circuit, where the Court feels free to not only pass on the merits of the case, but grade the papers of counsel (and sometimes lower courts) as well. Torry v. Northrop Gruman Corp. (3/4/05) [pdf].

Here, the court's ire was apparently raised by Northrop's insistence that the plaintiff had waived her racial discrimination claim by not including it in her complaint, even though it was clearly argued in the case. Northrop insisted plaintiff had a duty to amend her complaint to include the race claim. The trial court disagreed with that argument, but ruled for Northrop on the merits. When plaintiff appealed, Northrop again raised its argument that she was required to amend, which would mean the the appeals court need not address the merits of her claim.

That set Judge Posner off on a 3 1/2 page rant on the use of arguments labeled "constructive", including the one arguably relevant here, constructive amendment, which he found to be maybe the most "otiose"* of all "constructive" doctrines. Concluding all that was needed to resolve the case was to look at Rule 15(b), which, (quoting the Court again), "in language that could not be clearer" provides that '“when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

And then just to dispel any doubt, the opinion quotes the next sentence of the Rule:

Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” (emphasis added).

One final dig:

The words that we have italicized show that Northrop Grumman’s insistence that the plaintiff had to amend the complaint to add a charge of racial discrimination is frivolous.

But the merits of the plaintiff's claim --- dismissed in one paragraph.

*Otiose (yep, I had to look it up too) 1. Lazy; indolent; 2. Of no use; 3. Ineffective; futile.

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