In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-1470 & 02-1471

KIM SCHMITT, GERARD SMETANA,

CBC BRICKS, INC., and DENNIS TAHENY,

Plaintiffs-Appellants,

v.

SANDRA SCHMITT,

Defendant-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 4028—Marvin E. Aspen, Judge.

____________

ARGUED DECEMBER 3, 2002—DECIDED MARCH 25, 2003

____________

Before EASTERBROOK, MANION, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. This case arises out of the nasty

divorce of Kim Schmitt and his soon-to-be ex-wife, Sandra

Schmitt. Although the details of the marriage are neither

known to us nor relevant to our case, we can’t help but

wonder if this isn’t the first venomous and frivolous argument between the two.

The case comes to us after, as Judge Aspen in the district court accurately noted, a “tortured procedural history.” In February 2000, Mrs. Schmitt filed for divorce in
2 Nos. 02-1470 & 02-1471

Illinois state court. Unable personally to serve process upon her husband, Mrs. Schmitt moved under 735 Ill. Comp.

Stat. Ann. 5/2-202 for service of process by special order

of the court. After the motion was granted in July, Mrs.

Schmitt used a private detective to serve process upon

three parties approved by the court: an employee of Mr.

Schmitt’s company, CBC Bricks, Inc., and a law firm and

an attorney who had previously represented Mr. Schmitt

in an unrelated matter.

That August, Mr. Schmitt responded with a motion

contesting service of process, claiming a violation of his

due process rights. The court denied that motion and ordered Mr. Schmitt to pay his wife for maintenance, landscaping, travel, and attorneys’ fees. The court also enjoined Mr. Schmitt and some of his business entities,

including CBC Bricks, from disposing of assets without

notice to Mrs. Schmitt and her attorneys.

Mr. Schmitt then filed an interlocutory appeal to the

Illinois Appellate Court, claiming, again, that the trial

court’s orders were void because the method of service

of process violated his due process rights. In April 2001,

the appellate court ruled against Mr. Schmitt, then denied his petition for rehearing and refused his request

to stay the case in the trial court.

In May 2001, already 15 months after Mrs. Schmitt

filed for divorce, Mr. Schmitt filed a federal claim under

42 U.S.C. § 1983, arguing that the Illinois state courts

infringed upon his due process rights. The district court

granted Mrs. Schmitt’s motion to dismiss for lack of subject-matter jurisdiction, finding support for its decision

in both the substantiality doctrine and the Rooker-Feldman doctrine. The district court also ordered Mr. Schmitt,

CBC Bricks, and his attorneys to show cause why they

did not deserve to have Rule 11 sanctions imposed on them.

After denying their motion for reconsideration, the district
Nos. 02-1470 & 02-1471 3

court sanctioned Mr. Schmitt and his attorneys under

Rule 11. The court also ordered Mr. Schmitt and CBC to

pay Mrs. Schmitt’s attorneys’ fees and costs. Mr. Schmitt,

his attorneys, and CBC Bricks appeal, asking us to reverse

both the district court’s dismissal of their suit and the decision to impose sanctions.

Although the district court offered both the substantiality

doctrine and the Rooker-Feldman doctrine to support

the dismissal, we need choose only one on which to affirm. And since this case goes to the heart of the RookerFeldman doctrine, see Kamilewicz v. Bank of Boston

Corp., 92 F.3d 506, 509 (7th Cir. 1996) (“At its core, the

doctrine is a recognition of the principle that the inferior

federal courts generally do not have the power to exercise

appellate review over state court decisions.”), that’s the

route we’ll take. In Rooker v. Fidelity Trust Co, the Supreme Court held:

If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty

of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make

the judgment void, but merely left it open to reversal

or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. Under the legislation of Congress, no court of the

United States other than this court could entertain a

proceeding to reverse or modify the judgment for errors of that character. To do so would be an exercise

of appellate jurisdiction. The jurisdiction possessed

by the District Courts is strictly original.

263 U.S. 413, 415-16 (1923) (citations omitted). We have

interpreted Rooker-Feldman to ask “whether the federal

plaintiff seeks to set aside a state court judgment or
4 Nos. 02-1470 & 02-1471

whether he is, in fact, presenting an independent claim. Put

another way, if the injury which the federal plaintiff alleges resulted from the state court judgment itself, then

Rooker-Feldman controls, and the lower federal courts

lack jurisdiction over the claim. It does not matter that

the state court judgment might be erroneous or even

unconstitutional.” Kamilewicz, 92 F.3d at 510 (citations

omitted). Our cases reflect Rooker’s basic principle that

once a case is litigated in state court, a federal district

court does not have jurisdiction to review it. See Garry v.

Geils, 82 F.3d 1362, 1366 (7th Cir. 1996) (“Thus Rooker

and Feldman both proclaimed that if a federal plaintiff

claims injury at the hands of a state court, due to its

decision in a civil case, federal district courts have no

jurisdiction to hear the case; and the only appeal is to

the Supreme Court after a final judgment by the highest

state court.”); Ritter v. Ross, 992 F.2d 750, 754 (7th Cir.

1993) (Appellant “may not seek a reversal of a state court

judgment simply by casting his complaint in the form of

a civil rights action.” (quoting Hagerty v. Succession of

Clement, 749 F.2d 217, 220 (5th Cir. 1984), cert. denied, 474

U.S. 968 (1985))).

Mr. Schmitt argues that we have jurisdiction under

several exceptions to Rooker-Feldman. First, he claims

the doctrine does not apply when only state court interlocutory decisions are at stake. While some courts have

recognized limited interlocutory order exceptions, see, e.g.,

In re Meyerland Co., 960 F.2d 512, 516 (5th Cir. 1992),

we have twice decided to pass on the question. See Hoover

v. Wagner, 47 F.3d 845, 849 (7th Cir. 1995) (“The application of the doctrine to interlocutory decisions of state

courts . . . is an open question.”), and Owens-Corning

Fiberglass Corp. v. Moran, 959 F.2d 634, 635 (7th Cir.

1992) (“Whether the Rooker-Feldman doctrine applies to

interlocutory decisions is an interesting question.”).
Nos. 02-1470 & 02-1471 5

But a closer look at those cases shows why an exception

might have been appropriate. Several mitigating factors

existed in Owens-Corning:

Owens-Corning attempts to skirt the Rooker-Feldman

doctrine not only by observing that Judge Moran’s

decision [Judge Moran was the state court judge whose

decision was being attacked in the federal court proceeding] is interlocutory but also by trumpeting that

it began this case before he could impose any sanction—

thereby making it clear, Owens-Corning insists, that

its objection is to Rule 237(b) in the abstract, and not

its application to a particular case. Four Justices concluded in Pennzoil that such a maneuver avoids the

Rooker-Feldman doctrine.

Owens-Corning, 959 F.2d at 635. Similarly, in Hoover, the

plaintiffs were not parties in the accompanying state

court action, “so it is a little hard to describe what they

are doing as circumventing the prescribed mode of appellate review.” Hoover, 47 F.3d at 849.

Here, on the other hand, circumventing the prescribed

mode of appellate review is virtually the only way to

describe what Mr. Schmitt is doing. He had an opportunity to present his case in the state court (Mr. Schmitt

and CBC claim they were not parties to the original suit,

but Mr. Schmitt was named in the original divorce action, and CBC was served with process and given an opportunity to participate in the divorce proceedings), and a

state court is perfectly capable of answering questions

of jurisdiction and service of process. See Garry, 82 F.3d

at 1369 n.13 (“Under the principles of comity and federalism, we cannot and will not assume that the plaintiffs’

constitutional claims would be treated any differently

by the courts of Illinois than by a federal court.”). Having

been rebuffed by trial and appellate courts in Illinois, the

prescribed mode of appellate review was clear: Mr. Schmitt
6 Nos. 02-1470 & 02-1471

should have appealed to the state’s supreme court, after

which, if he lost, he would have been free to appeal to the

United States Supreme Court. See Young v. Murphy, 90

F.3d 1225, 1230 (7th Cir. 1996) (“[L]itigants who feel a

state proceeding has violated their constitutional rights

must appeal that decision through their state courts and

thence to the Supreme Court.”). Instead, filing suit with

the district court was the type of end run around an adverse state court ruling that we have explicitly rejected.

See Maple Lanes, Inc. v. Messer, 186 F.3d 823, 825 (7th

Cir. 1999).

Mr. Schmitt also argues that a rarely invoked “void

ab initio” exception to the Rooker-Feldman doctrine applies here. According to Mr. Schmitt, the faulty service of

process meant that the state courts never had jurisdiction over him. Federal courts exercising bankruptcy jurisdiction have occasionally reviewed state court judgments

where the state court lacked personal or subject matter

jurisdiction. See, e.g., In re James, 940 F.2d 46, 52 (3d Cir.

1991). But see In re Ferren, 203 F.3d 559, 560 (8th Cir.

2000) (declining to create exception). We have acknowledged the Third Circuit’s exception, but we have not endorsed it. 4901 Corp. v. Town of Cicero, 220 F.3d 522, 528

n.6 (7th Cir. 2000).

While a void ab initio Rooker-Feldman exception might

be appropriate in some bankruptcy cases (apparently

the only situation in which it has been applied) in order

to protect the dominant federal role in that specialized

area of the law, it has no place here. As we have said, the

Illinois state courts were competent to determine their

own jurisdictional boundaries, so there is no need for the

federal courts to intervene. If a state court had violated

constitutional jurisdictional limits, Mr. Schmitt could

have brought that up with the Supreme Court after exhausting his state court remedies.
Nos. 02-1470 & 02-1471 7

In sum, Mr. Schmitt has brought the precise sort of claim

Rooker-Feldman eliminates. And that is so clear that, in

addition to AFFIRMING the district court’s judgment, we

declare this appeal to be frivolous, and we direct the

plaintiffs to show cause within 14 days why they should

not be sanctioned under our Rule 38.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-25-03