In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 16-2121, -2165

TONYA DAVIS,

Plaintiff-Appellee and Cross-Appellant,

v.

ERNEST B. FENTON, et al.,

Defendants-Appellants and Cross-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 3224 — Ruben Castillo, Chief Judge.

____________________

ARGUED APRIL 7, 2017 — DECIDED MAY 26, 2017

____________________

Before POSNER, RIPPLE, and SYKES, Circuit Judges.

POSNER, Circuit Judge. In 2013 Tonya Davis sued Ernest

Fenton (as well as Fenton’s law firms) in federal district 

court asserting state malpractice and breach of contract 

claims, as well as federal Fair Housing Act and Civil Rights 

Act claims, all arising out of Fenton’s representation of Davis 

in a mortgage foreclosure action in which Davis had lost her 

home. Davis alleged that Fenton’s representation of her had 
2 Nos. 16-2121, -2165

been deficient, and that he had targeted her for deficient representation because of her race.

Fenton asked the district court to stay the lawsuit pending arbitration, because his contract with Davis to represent 

her in the foreclosure action had required the parties to arbitrate any disputes arising from the representation; and the 

Federal Arbitration Act, 9 U.S.C. § 3, provides that when the 

parties to a dispute litigable in federal court have a written 

agreement to arbitrate their dispute, either of the parties is 

entitled to stay the trial of the action until the arbitration is 

complete, provided that the applicant for the stay is not in 

default of its obligations in the arbitration.

Agreeing that Fenton’s request for a stay was proper, the 

district judge ordered the suit “stayed pending arbitration”;

the docket reflects that the lawsuit was “administratively 

dismissed without prejudice subject to full reinstatement 

upon the completion of the required arbitration,” which

awarded Davis $82,528.10 in damages for malpractice but 

denied her other claims. Fenton then sued Davis in an Illinois state court to have the arbitration award vacated or at 

least reduced. Davis responded by moving the federal district court to reinstate her suit because the arbitration had 

been concluded, to confirm the arbitration award pursuant 

to 9 U.S.C. § 9, and to permit her to file a new Fair Housing 

Act claim against Fenton, accusing him of retaliating against 

her for having filed her original Fair Housing Act claim.

When Fenton failed to appear at the hearing in the district court on Davis’s motion, the judge entered a default 

judgment granting the motion, reinstating the case, and confirming the arbitration award. He also permitted Davis to 

file her new Fair Housing Act claim. Fenton moved the court 
Nos. 16-2121, -2165 3

to vacate the default judgment and remand the case to state 

court, on the ground that the district court lacked jurisdiction because he (Fenton) had filed his state lawsuit challenging the arbitration award prior to Davis’s having moved the 

district court to re-open the case. The district judge refused,

reminding the parties that “I was the one that enforced the 

defendants’ request for arbitration and I sent the case for arbitration. So it would seem to me, because I retained jurisdiction, that any request to vacate the arbitration award that the 

plaintiff won should have come to this Court and not to 

some [state court] judge.” Fenton also moved the district 

court to dismiss Davis’s retaliation claim; the court granted 

the motion.

On appeal Fenton has renewed his challenge to the district judge’s jurisdiction to confirm the arbitration award. 

But the challenge is meritless—the judge had jurisdiction 

over the case at the time it was filed, as it raised questions of 

federal law, and the judge’s order staying the case (or, 

equivalently, administratively dismissing it subject to reinstatement at the conclusion of arbitration) retained jurisdiction to confirm or vacate an arbitral award. Baltimore & Ohio 

Chicago Terminal Railroad Co. v. Wisconsin Central Ltd., 154 

F.3d 404, 407 (7th Cir. 1998).

This is true notwithstanding Magruder v. Fidelity Brokerage Services LLC, 818 F.3d 285 (7th Cir. 2016), a case in which 

an aggrieved customer of Fidelity had arbitrated his dispute 

with the company, lost, filed a federal lawsuit asking the 

court to overturn the arbitrator’s decision, and argued that 

the court had jurisdiction to vacate the award because the 

arbitrator had resolved a question of federal law. But we 

ruled that “a federal issue resolved by the arbitrator does not
4 Nos. 16-2121, -2165

supply subject-matter jurisdiction for review or enforcement 

of the award.” Id. at 288 (emphasis in original). Because there 

was no other basis for subject-matter jurisdiction, the suit 

should have been dismissed. Davis’s federal suit, in contrast, 

preceded the arbitration and was stayed pending it; upon 

completion of the arbitration she returned to the federal 

court seeking confirmation of the award. Because her suit 

had been stayed, not dismissed, the court, by virtue of having jurisdiction over the original lawsuit, retained jurisdiction not only over her request to confirm the award but also 

over her federal-law claims.

One other issue needs to be resolved—Davis’s appeal of 

the dismissal of her retaliation claim. In her original lawsuit 

against Fenton she’d been represented by two lawyers, 

whom after the lawsuit was filed Fenton sued in state court, 

accusing them of having improperly acquired confidential 

information, and spread false information, about his business. See Fenton v. Dudley, 761 F.3d 770 (7th Cir. 2014). Fenton asked the state court for an injunction against the lawyers prohibiting them from speaking to Davis about her lawsuit against him, and the state court granted the injunction

(although it was eventually lifted). Davis now argues that 

Fenton’s lawsuit was in retaliation against her for having 

filed her original Fair Housing Act claim against him, and

was therefore a further violation of the Fair Housing Act. 

The Act does prohibit retaliation against a person for exercising his or her rights under the Act; see 42 U.S.C. § 3617, also 

Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir. 2009). But filing 

a lawsuit, or asking for an injunction, can’t be considered retaliation, except perhaps in extraordinary circumstances not

present in this case.

AFFIRMED.