In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1029

MELVIN KIMBRELL,

Plaintiff-Appellant,

v.

KARY BROWN and KOETTER WOODWORKING, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-cv-511-JPG—J. Phil Gilbert, Judge.

ARGUED NOVEMBER 5, 2010—DECIDED JULY 11, 2011

Before EVANS, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Melvin Kimbrell, a citizen of

Illinois, brought personal-injury claims against Kary

Brown and Brown’s employer, Koetter Woodworking,

Inc., citizens of Indiana. After Brown notified the

district court that he had filed for Chapter 13 bankruptcy, the district court stayed the case as to Brown, as

required by the Bankruptcy Code. The district court

then dismissed Kimbrell’s claims against Koetter Wood-
2 No. 10-1029

working with prejudice, finding that Kimbrell failed to

exercise reasonable diligence in serving process under

Illinois Supreme Court Rule 103(b).

Kimbrell appealed the district court’s dismissal of his

claims against Koetter Woodworking. We dismiss the

appeal for lack of jurisdiction. The dismissal of Kimbrell’s

claims against Koetter Woodworking was not a final

judgment because Kimbrell continues to seek adjudication of his claims against Brown. 

I. Background

In October 2006 on a road in St. Clair County, Illinois, a

tractor-trailer that Kary Brown was driving for Koetter

Woodworking collided with a car in which Melvin

Kimbrell was a passenger, causing physical injuries to

Kimbrell. In October 2008, shortly before the two-year

statute of limitations was to expire, see 735 ILL. COMP.

STAT. 5/13-202 (2011), Kimbrell filed personal-injury

claims in Illinois state court against Brown and Koetter

Woodworking. Kimbrell did not serve process on the

defendants until eight months later in June 2009. The

defendants removed the case to the Southern District of

Illinois based on diversity jurisdiction. Brown then informed the district court that he had filed for Chapter 13

bankruptcy in February 2008. The district court stayed

the case as to Brown pursuant to 11 U.S.C. § 362(a)(1),

the provision of the Bankruptcy Code that mandates a

stay of any proceeding against a bankruptcy petitioner

for claims arising out of prepetition events. Koetter

Woodworking, on the other hand, moved to dismiss
No. 10-1029 3

Kimbrell’s complaint for failure to exercise reasonable

diligence in serving process under Illinois Supreme

Court Rule 103(b). The district court noted that Illinois

law “does not carry bright lines or finite deadlines” for

serving process after filing a complaint. Kimbrell v.

Brown, No. 09-cv-511-JPG, 2009 U.S. Dist. LEXIS 118901,

at *11 (S.D. Ill. Dec. 17, 2009). Instead, it calls for plaintiffs to “exercise reasonable diligence” in serving process,

as measured by “the totality of the circumstances.” ILL.

S. CT. R. 103(b). After weighing the relevant circumstances, which we need not detail here, the district court

granted the motion to dismiss. The district court never

entered any judgment, however; the docket simply

shows the case as “terminated” with respect to Koetter

Woodworking, and no such entry appears for Brown.

Kimbrell appealed the district court’s dismissal of his

claims against Koetter Woodworking. We noted preliminarily that the district court’s order of dismissal might

not be a final appealable judgment and asked the

parties to file memoranda on appellate jurisdiction.

The parties did so, and we permitted the appeal to

proceed but ordered the parties to more fully address

appellate jurisdiction in their merits briefs.

II. Discussion

Kimbrell contends that we have jurisdiction over his

appeal because the district court’s dismissal of his

claims as to Koetter Woodworking was an appealable

final judgment under 28 U.S.C. § 1291. The final-judgment

rule holds that a decision is final where it “ends the
4 No. 10-1029

litigation on the merits and leaves nothing more for the

court to do but execute the judgment.” Wingerter v.

Chester Quarry Co., 185 F.3d 657, 661 (7th Cir. 1998) (quotation marks omitted). In other words, “[s]o long as the

matter remains open, unfinished or inconclusive” in the

district court, “there may be no intrusion by appeal.” Id.

The purpose of § 1291 and the final-judgment rule “is

to combine in one review all stages of the proceeding

that effectively may be reviewed and corrected if and

when final judgment results.” Id. at 662.

This case raises the question whether a district court’s

dismissal of claims against one defendant constitutes

a final judgment when in the same case, the plaintiff’s

claims against another defendant were automatically

stayed under 11 U.S.C. § 362(a)(1). Under this provision

of the Bankruptcy Code, a petition for bankruptcy 

operates as a stay, applicable to all entities, of the

commencement or continuation . . . of a judicial,

administrative, or other action or proceeding against

the debtor that was or could have been commenced

before the commencement of the case under this title,

or to recover a claim against the debtor that arose

before the commencement of the case under this title.

Id. The automatic stay “is designed to protect debtors

from all collection efforts while they attempt to regain

their financial footing.” In re Schwartz, 954 F.2d 569, 571

(9th Cir. 1992); see also Easley v. Pettibone Mich. Corp., 990

F.2d 905, 910 (6th Cir. 1993). By halting litigation

against the debtor, the stay “gives the debtor a breathing

spell from his creditors. It stops all collection efforts, all
No. 10-1029 5

harassment, and all foreclosure actions. It permits the

debtor to attempt a repayment or reorganization plan, or

simply to be relieved of the financial pressures that drove

him into bankruptcy.” H.R. REP. NO. 95-595, at 340 (1978),

reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97.

Kimbrell maintains that his lawsuit against Brown

was void ab initio because it was filed during the

pendency of Brown’s bankruptcy petition in violation of

the automatic-stay provision. Therefore, his argument

goes, the only “true” defendant in the case was Koetter

Woodworking, so the district court’s order dismissing

the claims against that defendant disposed of all claims

against all “true” parties and is therefore a final appealable

judgment. 

Kimbrell may or may not be correct that his lawsuit

against Brown was void ab initio. We have recognized

that there is a “debate among the circuits over whether

[actions filed in violation of the automatic stay] are void

or merely voidable.” Middle Tenn. News. Co., Inc. v.

Charnel of Cincinnati, Inc., 250 F.3d 1077, 1082 n.6 (7th Cir.

2001). We have had “no occasion to . . . forage into the

debate,” id., and this case doesn’t present an opportunity

to do so. Even assuming that Kimbrell’s suit as to

Brown was “void ab initio” in the sense that other

courts have used this term to describe actions filed in

violation of the automatic stay, the Bankruptcy Code

allows for later adjudication of such suits, which precludes finality under the circumstances presented here.

The Code gives the bankruptcy court broad authority

to grant relief from the automatic stay “such as by termi-
6 No. 10-1029

Section 108(c) provides: 1

[I]f applicable nonbankruptcy law . . . fixes a period for

commencing or continuing a civil action in a court other

than a bankruptcy court on a claim against the

debtor . . . and such period has not expired before the

date of the filing of the petition, then such period does

not expire until the later of (1) the end of such period,

including any suspension of such period occurring on

or after the commencement of the case; or (2) 30 days after

(continued...)

nating, annulling, modifying, or conditioning” the stay

in various enumerated circumstances. 11 U.S.C. § 362(d).

As an example of the operation of this rule, in Sikes v.

Global Marine, Inc., 881 F.2d 176, 177 (5th Cir. 1989), the

plaintiffs, like Kimbrell here, filed a complaint against a

defendant that had, unbeknownst to them, filed for

bankruptcy. Upon learning of the automatic stay, the

plaintiffs moved the bankruptcy court for relief, which

the bankruptcy court granted. Id. at 180. Therefore, the

claims were ordered to proceed to judgment in the

district court. Id. at 180-81; see also In re Schwartz, 954

F.2d 569, 572-73 (9th Cir. 1992) (recognizing that § 362(d)

“gives the bankruptcy court wide latitude in crafting

relief from the automatic stay”).

In addition, under 11 U.S.C. § 108(c), when a plaintiff

receives notice that a defendant’s automatic stay has

been terminated, he may pursue a claim against that

defendant within 30 days of receiving such notice, even

if the applicable statute of limitations expired during the

stay. See also Easley, 990 F.2d at 912. The automatic stay 1
No. 10-1029 7

(...continued) 1

notice of the termination or expiration of the stay

under section 362, 922, 1201, or 1301 of this title [11 U.S.C.

§§ 362, 922, 1201 or 1301], as the case may be, with respect

to such claim.

also tolls the statute of limitations under Illinois law,

providing another basis for plaintiffs to press claims

that would otherwise become time-barred during the

stay. See 735 ILL. COMP. STAT. 5/13-216 (2011).

Kimbrell appears to have used the bankruptcy stay to

engage in procedural maneuvering in contravention of

the final-judgment rule. He has taken contradictory

positions here and in the district court about whether

his claim against Brown remains alive. At oral argument

we pressed Kimbrell’s counsel about the inconsistency

of his positions, and he was unable to offer any explanation:

COUNSEL: We are treating the suit against Mr. Brown

as having been void ab initio . . . .

THE COURT: Apparently, that’s not been communicated

to the district court. . . . 

COUNSEL: I don’t think the trial court has been advised

that the claim against Mr. Kary [Brown] is void 

ab initio, . . . that there is no pending claim.

THE COURT: Don’t you think they might want to

know? 

COUNSEL: Probably. . . .
8 No. 10-1029

To be precise, there were actually two bankruptcy stays, 2

the second of which was lifted several weeks before the November 5, 2010 oral argument in this court. The bankruptcy

court lifted Brown’s first stay on or about June 10, 2010, and

dismissed his bankruptcy petition on August 19. Four days

later, Brown filed a second bankruptcy petition, which

invoked another stay. Kimbrell filed a motion for relief from

that stay. The bankruptcy court granted it and lifted the stay

on October 19. See Kimbrell v. Brown, No. 10-cv-1018-WDS,

2011 U.S. Dist. LEXIS 51830, at *3 (S.D. Ill. May 16, 2011).

THE COURT: You haven’t communicated this idea 

that the lawsuit is void? 

COUNSEL: I’ve raised various issues with trial 

[co]counsel, but there has been no communication 

with the district court advising them of this.

THE COURT: Well, what are we to make of that? Because

apparently . . . your cocounsel is keeping the case

alive, and you’re telling us it’s void. I don’t think you

can have it both ways.

COUNSEL: I think that’s a fair assessment, Your

Honor. . . . I don’t have a response other than

it has not been communicated.

Our own research has since revealed that, in fact,

Brown’s bankruptcy stay was lifted several weeks

before the oral argument in this court, and Kimbrell 2

filed a new complaint against Brown in Illinois state

court just two days before the argument. This second

case was removed to the Southern District of Illinois
No. 10-1029 9

and assigned to Judge Stiehl. See Kimbrell v. Brown, No. 10-

cv-1018-WDS (S.D. Ill. filed Dec. 15, 2010). Kimbrell

made no mention of the second suit to this court, nor

did he promptly apprise Judge Gilbert, to whom the first

case was assigned and before whom Kimbrell’s initial

claim against Brown remained, although in stayed

status. It was not until January 2011 that Kimbrell informed Judge Gilbert that Brown’s bankruptcy stay had

been lifted and that he had filed the second suit against

Brown because he believed the first suit was void ab initio.

Kimbrell v. Brown, No. 09-cv-511-JPG, 2011 U.S. Dist. LEXIS

2000, at *1 (S.D. Ill. Jan. 10, 2011). Judge Gilbert held that

he lacked “jurisdiction to act . . . until the Seventh

Circuit Court of Appeals decides the ongoing appeal.” Id.

at *2. Kimbrell continued to press his claims in the

second suit, and last month, Judge Stiehl issued a stay

pending Judge Gilbert’s resolution of the case in his

court. Kimbrell v. Brown, No. 10-cv-1018-WDS, 2011 U.S.

Dist. LEXIS 51830, at *7 (S.D. Ill. May 16, 2011).

This maneuvering brings to mind the equitable

principle of judicial estoppel, which precludes litigants

from “deliberately changing positions according to the

exigencies of the moment,” New Hampshire v. Maine, 532

U.S. 742, 749-50 (2001) (quotation marks omitted),

thereby “prevailing in one phase of a case on an argument and then relying on a contradictory argument to

prevail in another phase,” In re Airadigm Commc’ns, Inc.,

616 F.3d 642, 662 (7th Cir. 2010) (quotation marks omitted). Strictly speaking, Kimbrell’s case does not meet the

requirements for invoking judicial estoppel. See Pakovich

v. Broadspire Servs., 535 F.3d 601, 606 (7th Cir. 2008)
10 No. 10-1029

(“[O]ne of the requirements for judicial estoppel to

apply is that the party to be estopped must have

prevailed upon the first court to adopt the position.”

(emphasis added) (quotation marks omitted)). Even so,

this kind of gamesmanship—arguing to this court that

the dismissal of his claims against Koetter Woodworking

should be treated as a final judgment while continuing

to pursue his claims against Brown in the district

court—confirms why we cannot adjudicate this appeal

on the merits. When a case is pending in both the

district court and this court at the same time, posing

jurisdictional issues, we expect counsel on appeal and

in the district court to communicate with each other

and with the respective courts about material developments. It simply is not acceptable for appellate counsel

to remain ignorant—or to claim ignorance—of his

client’s activities in the district court and state courts.

In Arrow Gear Co. v. Downers Grove Sanitary District,

629 F.3d 633, 636-37 (7th Cir. 2010), we confronted an

appeal in an analogous procedural posture and explained why it was problematic. The plaintiff, Arrow

Gear, sued multiple defendants. As to all but two of the

defendants, the district court dismissed Arrow’s claims

as barred by res judicata. Id. at 636. With respect to those

two remaining defendants, Arrow took a voluntary

dismissal without prejudice and then attempted to

appeal the district court’s dismissal as to the other defendants. Id. Arrow’s voluntary dismissal of the two defendants left open the possibility for Arrow to later refile

its claims against them. We observed that “if after the

decision of this appeal the plaintiff filed new claims

against the dropped defendants, . . . it would be as if
No. 10-1029 11

interlocutory appeals were freely permissible.” Id. That

is, “Arrow’s maneuver, if allowed, would prevent the

entirety of the contested issues, involving all the

parties, from being resolved in a single appeal; it would

exemplify piecemeal appealing, which is disfavored in

the federal court system.” Id. We said Arrow had to

make a choice: either “stand [its] ground and [this

court would] dismiss the appeal,” or else “convert [its]

dismissal of the other two defendants to dismissal with

prejudice, which will bar . . . refiling [of] claims against

them.” Id. at 637. During oral argument, Arrow agreed

to the latter option, “committing not to refile the suit

against” the two defendants it had voluntarily dismissed.

Id. Here, in contrast, Kimbrell is obviously unwilling

to make a similar commitment.

The bottom line is that Kimbrell’s case remains “open,”

“unfinished,” and “inconclusive” in the district court,

so there was no final judgment. Wingerter, 185 F.3d at

661. He has tried to “start over” with his claims

against Brown and could later return to us with another

appeal after the resolution of those claims. See Arrow

Gear, 629 F.3d at 636-37. The final-judgment rule

requires “combin[ing] in one review all stages of [a]

proceeding.” Wingerter, 185 F.3d at 662.

We note that in Robison v. Canterbury Village, Inc., 848

F.2d 424 (3d Cir. 1988), a similar case involving two

defendants, one of whom filed for bankruptcy, the

district court issued a certification under Rule 54(b) of

the Federal Rules of Civil Procedure that its dismissal

of the claims against the noninsolvent defendant constituted a final judgment despite the pending stay against
12 No. 10-1029

Rule 54(b) provides: 3

Judgment on Multiple Claims or Involving Multiple

Parties. When an action presents more than one claim

for relief . . . or when multiple parties are involved, the

court may direct entry of a final judgment as to one or

more, but fewer than all, claims or parties only if the

court expressly determines that there is no just reason for

delay. Otherwise, any order or other decision, however

designated, that adjudicates fewer than all the claims or

the rights and liabilities of fewer than all the parties does

not end the action as to any of the claims or parties and

may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights

and liabilities.

the insolvent defendant. This enabled the plaintiff to 3

appeal the dismissal as to the noninsolvent defendant.

Id. at 426-27; see also Arrow Gear, 629 F.3d at 636 (“Arrow

could have asked the judge to enter a final judgment

under Rule 54(b) . . . , which permits a district judge,

upon finding no ‘just reason’ to delay an appeal, to enter

a final judgment—which is then appealable under

section 1291—with respect to one or more, but fewer

than all, claims or parties. But the judge was not asked

to enter a Rule 54(b) judgment and did not.”). Kimbrell

made no attempt to obtain a Rule 54(b) certification

from Judge Gilbert in this case.
No. 10-1029 13

For the foregoing reasons, we DISMISS Kimbrell’s

appeal for lack of jurisdiction.

7-11-11