In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2601

CHRISTOPHER L. WIESMUELLER,

Plaintiff-Appellant,

v.

JOHN KOSOBUCKI, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07-C-211-S—John C. Shabaz, Judge.

____________

SUBMITTED DECEMBER 4, 2007—DECIDED JANUARY 29, 2008

____________

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

POSNER, Circuit Judge. Wisconsin allows graduates of

the two law schools in the state to be admitted to the

practice of law without having to take the Wisconsin bar

exam. The plaintiff, a graduate of an out-of-state law

school, brought this suit against the members of the

Wisconsin Board of Bar Examiners and the Supreme Court

of Wisconsin, charging a violation of the commerce

clause of Article I of the Constitution and seeking injunctive relief. The plaintiff moved for summary judgment; the

defendants moved to dismiss. After the judge denied the

plaintiff’s motion but while the defendants’ motion to

dismiss was pending, the plaintiff moved to certify a
2 No. 07-2601

class consisting of other graduates of out-of-state law

schools who want to practice law in Wisconsin. The district judge granted the motion to dismiss the plaintiff’s

claim and having done so denied as moot the plaintiff’s

motion to certify the class.

The plaintiff has appealed. But shortly after filing his

notice of appeal, he took the Wisconsin bar exam, and now

he has learned that he passed it. The defendants ask us to

dismiss his appeal as moot. Moot it is as far as his claim

for relief on his own behalf is concerned, for the object

of his suit, now attained, was to satisfy a prerequisite to

being licensed to practice law in Wisconsin. The question

is whether his appeal from the denial of class certification is moot.

If, on the one hand, the class in a class-action suit is

certified before the named plaintiff’s claim becomes moot,

the mooting of his claim does not doom the suit. For the

suit is not moot unless the claims of all the unnamed class

members have also become moot; if not, they have a live

claim against the defendant. United States Parole Commission

v. Geraghty, 445 U.S. 388, 404 (1980); Franks v. Bowman

Transportation Co., 424 U.S. 747, 755-56 (1976). Were the

rule otherwise “the defendant could delay the action

indefinitely by paying off each class representative in

succession,” Primax Recoveries, Inc. v. Sevilla, 324 F.3d

544, 547 (7th Cir. 2003); see Deposit Guaranty National

Bank v. Roper, 445 U.S. 326, 332-33, 339 (1980), though

that is not what happened in this case.

Since the named plaintiff is the representative of the

unnamed class members, the evaporation of his claim no

more bars him from continuing in that capacity (provided a class has been certified), Sosna v. Iowa, 419 U.S.

393, 402 (1975), than a lawyer is barred from representing

a litigant just because the lawyer himself has no dispute
No. 07-2601 3

with the defendant. The named plaintiff who no longer

has a stake may not be a suitable class representative,

but that is not a matter of jurisdiction and would not

disqualify him from continuing as class representative

until a more suitable member of the class was found to

replace him. Robinson v. Sheriff of Cook County, 167 F.3d

1155, 1157-58 (7th Cir. 1999); Walters v. Edgar, 163 F.3d 430,

433 (7th Cir. 1998). Here, as in the Geraghty case, see 445

U.S. at 396, an unnamed class member (the plaintiff’s

wife, in fact, who has a law degree from an out-of-state

school and has not taken the Wisconsin bar exam), has

expressed interest in substituting for the plaintiff as

class representative.

If, on the other hand, the named plaintiff’s claim becomes

moot before the class is certified, the suit must be dismissed because no one besides the plaintiff has a legally

protected interest in the litigation. Board of School Commissioners v. Jacobs, 420 U.S. 128 (1975) (per curiam); Bertrand

ex rel. Bertrand v. Maram, 495 F.3d 452, 456 (7th Cir. 2007).

But coming to our case, what if the district court denies

the plaintiff’s motion to certify a class, the plaintiff appeals from that denial, and his appeal is pending when

his substantive claim evaporates? In that case, the appeal is not moot, Deposit Guaranty National Bank v. Roper,

supra, 445 U.S. at 335-37; United States Parole Commission v.

Geraghty, supra, 445 U.S. at 404, because unless and until

the appellate court affirms the denial of the motion to

certify a class, there may be people other than the plaintiff

with a legally protected interest in the suit—namely the

unnamed members of the class.

The district judge seems to have thought that once he

rejected the plaintiff’s claim on the merits, there was no

point in considering whether to certify a class, because the

suit, whether on the plaintiff’s behalf or on behalf of any
4 No. 07-2601

other graduate of an out-of-state law school who wants

to practice in Wisconsin without taking the Wisconsin

bar exam, wasn’t going anywhere. But a district judge

does not have the last word on the merits of a plaintiff’s

claim. The fact that he thinks it unsound doesn’t mean that

a class action by the plaintiff is doomed to failure. Moreover, the fact that a suit lacks merit does not “moot” the

question of class certification, as pointed out in Bertrand

ex rel. Bertrand v. Maram, supra, 495 F.3d at 455, since if a

class is certified, its members (unless they opt out of the

class), and not just the named plaintiff, are bound by the

judgment.

Which is not to say that the district judge may never

dismiss a case on summary judgment without first ruling

on the plaintiff’s motion to certify a class. As we explained in Cowen v. Bank United of Texas, FSB, 70 F.3d 937,

941-42 (7th Cir. 1995) (citations omitted), “It is true that

Rule 23(c)(1) of the civil rules requires certification as

soon as practicable, which will usually be before the case

is ripe for summary judgment. But ‘usually’ is not ‘always,’

and ‘practicable’ allows for wiggle room. Class actions

are expensive to defend. One way to try to knock one off

at low cost is to seek summary judgment before the suit

is certified as a class action. A decision that the claim of

the named plaintiffs lacks merit ordinarily, though not

invariably, . . . disqualifies the named plaintiffs as proper

class representatives. The effect is to moot the question

whether to certify the suit as a class action unless the

lawyers for the class manage to find another representative.

They could not here because the ground on which

the district court threw out the plaintiff’s claims would

apply equally to any other member of the class. After

granting the defendant’s motion for summary judgment,

therefore, and since (as was predictable, given the district
No. 07-2601 5

judge’s ground) no one stepped forward to pick up the

spear dropped by the named plaintiffs, the judge denied

the motion for class certification. When the procedure

that we have just described is followed, the defendant

loses the preclusive effect on subsequent suits against

him of class certification but saves the added expense of

defending a class action and may be content to oppose

the members of the class one by one, as it were, by moving for summary judgment, every time he is sued, before

the judge presiding over the suit decides whether to

certify it as a class action. If we reverse, the plaintiffs

will be able to renew their motion for class certification;

that is no doubt why they appealed the adverse judgment

in this ostensibly trivial case.”

It is true that in this case the plaintiff, as well as the

district judge, put the cart before the horse, by moving

for class certification after moving for summary judgment. But when the motion for class certification was

filed, the judge had not yet ruled on the defendants’ motion

to dismiss, and he could have decided the motion for class

certification, applying the criteria in Fed. R. Civ. P. 23,

before deciding the case on the merits. This case is unlike

Banks v. National Collegiate Athletic Association, 977 F.2d

1081, 1085-86 (7th Cir. 1992), where the parties agreed to

defer the issue of certification until after the judge ruled on

the merits, or Toms v. Allied Bond & Collection Agency, Inc.,

179 F.3d 103, 104 (4th Cir. 1999), and Dugas v. Trans Union

Corp., 99 F.3d 724, 728 (5th Cir. 1996), cases in which the

plaintiff settled his claim and the court ruled that part of

the settlement was the plaintiff’s agreeing to give up his

right to press for class certification. Conceivably this may

be the exceptional case, like Cowen, in which deciding the

merits of the case first and the motion for class certification
6 No. 07-2601

second is proper. But the district judge never ruled on the

merits of the motion, because he thought that his ruling on

the merits of the suit had made the motion moot. It had

not.

The denial of class certification is therefore reversed

and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-29-08