In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2487

SANDRA REMER,

Plaintiff-Appellant,

v.

BURLINGTON AREA SCHOOL DISTRICT,
LARRY ANDERSON, WILLIAM C. CAMPBELL,
et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 209--J.P. Stadtmueller, Chief Judge.


Argued November 1, 1999--Decided March 6, 2000



      Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit
Judges.

      RIPPLE, Circuit Judge. Sandra Remer appeals the
dismissal of her sec. 1983 lawsuit against the
Burlington Area School District (the "School
District" or the "District") and the individual
members of the District’s school board. The
district court dismissed Ms. Remer’s lawsuit on
the ground that the Rooker-Feldman doctrine
precluded federal jurisdiction over the case.
After the court entered its judgment, Ms. Remer
filed with this court a petition for an
interlocutory appeal, see 28 U.S.C. sec. 1292; a
panel of this court denied her petition. Ms.
Remer then filed a notice of appeal that
indicated that she was appealing the same
district court ruling as a final order. See 28
U.S.C. sec. 1291. This second filing, however,
came over a month and a half after the date for
filing a timely notice of appeal.

      We first must resolve two jurisdictional
questions. Given the irregularities in Ms.
Remer’s notice of appeal, we must address whether
we have appellate jurisdiction over this case. We
also must decide whether the district court was
correct in holding that the Rooker-Feldman
doctrine blocks federal jurisdiction over Ms.
Remer’s lawsuit. The School District urges, in
the alternative, that we affirm the district
court’s dismissal on the ground that Ms. Remer’s
federal action is barred by the doctrine of claim
preclusion.

      As we explain more fully in the following
opinion, we conclude that we do have jurisdiction
over this appeal and that, on this record, the
Rooker-Feldman doctrine is not an appropriate
basis for dismissal. Moreover, we hold that claim
preclusion does not apply to Ms. Remer’s federal
claims.

I

BACKGROUND

A.   Facts

      In November 1998, Sandra Remer’s tenth-grade
son, M.R., and four other Burlington High School
students hatched a plot to bring several guns to
school and then to shoot certain administrators
and students. Acting on information from a
confidential informant, Burlington police
officers were able to foil the plot two days
before the planned siege. The day after the
informant revealed the plot, police officers
briefed Burlington High’s principal and assistant
principal, and, based on the information provided
by the police, the school administrators decided
to suspend M.R. from school for five days for his
role in the planned attack.

      In the days after word of the plot surfaced, the
five students were the subjects of both police
and school investigations. Ms. Remer hired
attorney Terrence Rose to represent M.R. through
these investigations. After Ms. Remer retained
Rose, Burlington High’s assistant principal
contacted Ms. Remer by letter to inform her that
M.R.’s suspension would be extended pending the
outcome of an expulsion hearing before the
District’s school board. Responsibility for
arranging the expulsion hearing later passed to
the District’s superintendent, Ron Jandura. On
November 24, Superintendent Jandura sent a letter
to Ms. Remer informing her that the expulsion
hearing had been scheduled for December 1.

      Meanwhile, as Burlington High’s administration
set the expulsion process in motion, the School
District’s attorneys filed a civil complaint
against M.R. in the Circuit Court of Racine
County. In its complaint, the District sought to
obtain a declaratory judgment as well as a
temporary restraining order and an injunction
that would prevent M.R. from contacting the
School District or coming within 200 yards of any
District property "for as long as [M.R. is]
suspended and for the length of any future
expulsion." R.8, Ex.I. The circuit court granted
the temporary restraining order, and the hearing
date for the injunction request was set for
November 30. When it later became impossible for
the court to hold the hearing on November 30,
M.R., through attorney Rose, agreed to extend the
temporary restraining order until the circuit
court could conduct the injunction hearing.

      On December 1, the District’s school board,
which consisted of the named individual
defendants/1 in the present lawsuit, held the
expulsion hearing for M.R. The Remers and Rose
did not attend the hearing. The school board
voted to expel M.R. until 2003, the year M.R.
will turn 21 years old; the practical effect of
expelling M.R. until age 21 is that M.R. can
never again be a student at Burlington High. The
Remers learned of the school board’s decision by
letter. According to the expulsion order, M.R.
was expelled from the District’s schools until
April 2003 and was ordered not to enter District
property during the period of his expulsion.

      In January 1999, Ms. Remer retained another
attorney, Willie J. Nunnery, to represent her and
her son. Mr. Nunnery sent a letter to
Superintendent Jandura that requested the school
board reconsider its decision to expel M.R. The
school board denied Mr. Nunnery’s request. Then,
in February, M.R. and his mother, acting through
their first attorney, Terrence Rose, stipulated
to an injunction in the state circuit court. (The
circuit court had not yet held a hearing on the
School District’s injunction request.) The terms
of this stipulated injunction were as follows:
"[M.R.] shall be enjoined from calling the
Burlington Area School District or any of its
facilities, until [M.R.] attains the age of 21,"
and "[M.R.] shall be enjoined from going on the
property of any Burlington Area School District
facility, including Burlington High School . . .
until [M.R.] attains the age of 21." R.8, Ex.R.

      Ms. Remer subsequently filed the present sec.
1983 lawsuit in the district court. In her
complaint, Ms. Remer alleged that the District
and the individual members of the school board
had deprived M.R. of due process of law in their
handling of M.R.’s expulsion. Ms. Remer’s
complaint sought compensatory and punitive
damages, injunctive and declaratory relief, and
M.R.’s reinstatement into Burlington High School.


B.   Decision of the District Court

      Shortly after Ms. Remer filed this lawsuit, the
district court held a hearing on Ms. Remer’s
request for a temporary restraining order. During
this hearing, the court raised, sua sponte, the
possibility that the Rooker-Feldman doctrine
precluded federal jurisdiction over the case.
After the parties had an opportunity to address
the court’s concerns, the district court
dismissed the lawsuit in a written order.

      The district court’s order held that the
stipulated injunction entered by the state
circuit court amounted to a "de facto" expulsion
of M.R. The court reasoned that a ruling on the
merits of Ms. Remer’s federal lawsuit would be a
judgment on the validity of the stipulated
injunction. Thus, the district court dismissed
the action on the ground that it lacked subject
matter jurisdiction. The district court also
appeared to dismiss the action on the ground of
claim preclusion.

C.   Post-Judgment Proceedings

      The district court entered its order dismissing
the case on March 30, 1999. On April 12, Ms.
Remer, citing 28 U.S.C. sec. 1292, filed with
this court a petition for an interlocutory
appeal. A panel of this court denied Ms. Remer’s
petition on May 27, 1999. The panel’s one-page
order stated that, if she was inclined to do so,
Ms. Remer could "appeal as of right from the
district court’s final order." R.30, Ex.A. On
June 7, Ms. Remer filed in the district court a
notice of appeal that indicated she was appealing
the district court’s order dated March 30, 1999.

II
DISCUSSION

A.   Notice of Appeal

1.

      Compliance with the notice of appeal
requirements of Rule 3 of the Federal Rules of
Appellate Procedure is a prerequisite to
appellate review. See Smith v. Barry, 502 U.S.
244, 248 (1992); AlliedSignal, Inc. v. B.F.
Goodrich Co., 183 F.3d 568, 571 (7th Cir. 1999);
Badger Pharmacal, Inc. v. Colgate-Palmolive Co.,
1 F.3d 621, 624 (7th Cir. 1993). Rule 3 states
that "[a]n appeal permitted by law as of right
from a district court to a court of appeals may
be taken only by filing a notice of appeal with
the district clerk within the time allowed by
Rule 4." Fed. R. App. P. 3(a)(1). The rule allows
appellants some leeway in that, other than the
timeliness of the filing, an appellant’s failure
to comply strictly with the rule’s provisions
will not automatically doom an appeal. See Fed.
R. App. P. 3(a)(2). In contrast, however, the
timely filing of a notice of appeal is both
"mandatory and jurisdictional," and a notice
filed too late will preclude appellate
jurisdiction. Browder v. Director, Dep’t of
Corrections, 434 U.S. 257, 264 (1978).

      Ms. Remer had 30 days from the date the district
court entered its judgment to file a timely
notice of appeal. See Fed. R. Civ. P. 4(a)(1)(A)
& (B). Although Ms. Remer has indicated her
desire to appeal the district court’s order dated
March 30, 1999, she filed her "notice of appeal"
in the district court on June 7, 1999,
unquestionably after the 30 days allowed by the
federal rules. Even so, Ms. Remer filed her
petition for an interlocutory appeal under sec.
1292 on April 12, 1999, which was well within 30
days of the district court’s March 30 order.
Thus, we must decide whether Ms. Remer’s petition
to this court for an interlocutory appeal under
sec. 1292 suffices as a notice of appeal under
Rule 3.

      According to Rule 3, a proper notice of appeal
(1) specifies the party or parties taking the
appeal, (2) designates the judgment, order or
part thereof appealed from, and (3) names the
court to which the appeal is taken. See Fed. R.
App. P. 3(c)(1). The Supreme Court has instructed
that Rule 3’s requirements should be construed
"liberally." Smith, 502 U.S. at 248. "Thus, when
papers are ’technically at variance with the
letter of Rule 3, a court may nonetheless find
that the litigant has complied with the rule if
the litigant’s action is the functional
equivalent of what the rule requires.’" Id.
(quoting Torres v. Oakland Scavenger Co., 487
U.S. 312, 316-17 (1988)). The Court also has
cautioned that noncompliance with Rule 3 is
"fatal to an appeal." Id.

2.

      We believe that Ms. Remer’s petition for an
interlocutory appeal was the "functional
equivalent" of what Rule 3 requires for a proper
notice of appeal. We find support for our
conclusion in decisions of our sister circuits,
in which those courts have construed similarly
erroneous filings to be notices of appeal. See,
e.g., In re Bertoli, 812 F.2d 136, 138 (3d Cir.
1987) (holding that a "Notice of Motion for the
Certification of An Interlocutory Appeal Pursuant
to 28 U.S.C. sec. 1292(b)" complied with Rule
3(c) and was, therefore, effective as a notice of
appeal); San Diego Comm. Against Registration and
the Draft (CARD) v. Governing Bd. of Grossmont
Union High Sch. Dist., 790 F.2d 1471, 1474 (9th
Cir. 1986) (construing a motion for permission to
take an interlocutory appeal under Fed. R. App.
P. 5 as a notice of appeal), abrogated on other
grounds by Planned Parenthood of S. Nevada, Inc.
v. Clark County Sch. Dist., 887 F.2d 935 (9th
Cir. 1989); Cobb v. Lewis, 488 F.2d 41, 45-46
(5th Cir. 1974) (treating a "Petition for leave
to appeal under 28 U.S.C. sec. 1292(b)" as a
notice of appeal because the document essentially
met Rule 3’s standards), overruled on other
grounds by Kotam Elecs., Inc. v. JBL Consumer
Prods., Inc., 93 F.3d 724 (11th Cir. 1996) (en
banc). In these cases, the courts construed the
appellant’s mistaken filing as a notice of appeal
and then proceeded to consider the merits of the
appeal. See Bertoli, 812 F.2d at 138; San Diego
Comm., 790 F.2d at 1474; Cobb, 488 F.2d at 46.

      We are faced with a slightly different situation
in our case because a panel of this court denied
Ms. Remer’s petition for an interlocutory appeal
instead of construing her filing as a notice of
appeal and then proceeding to the merits of the
appeal. We do not think this is a material
difference, however, and we can discern no
principled reason for us to treat Ms. Remer’s
April 12 filing as anything other than a timely
notice of appeal. Ms. Remer’s petition for an
interlocutory appeal contained all of the
essential elements of a proper notice of appeal:
She identified herself as the party seeking an
appeal to the Court of Appeals for the Seventh
Circuit, and she identified the March 30 order
from the district court as the judgment from
which she was appealing. No one, including the
School District, could have been left wondering
who was appealing, what she was appealing, or to
which court she was appealing. Furthermore, Ms.
Remer’s petition was filed 13 days after the
district court entered its final judgment--well
within Rule 4’s 30-day requirement. "If a
document filed within the time specified by Rule
4 gives the notice required by Rule 3, it is
effective as a notice of appeal." Smith, 502 U.S.
at 248-49. Finally, although Ms. Remer filed her
petition for an interlocutory appeal with the
clerk of this court, and not the clerk of the
district court, Rule 4(d) states that a notice of
appeal filed with a clerk of the court of appeals
shall be transmitted to the district court and
"considered filed" in that court on the date it
was filed with the clerk of the court of appeals.
Fed. R. App. P. 4(d). Thus, we hold that Ms.
Remer’s petition for an interlocutory appeal was
sufficient to be a notice of appeal in this case,
and we therefore have jurisdiction.

B.   Rooker-Feldman Doctrine

1.

       The district court concluded that the Rooker-
Feldman doctrine deprived it of subject matter
jurisdiction over this case. Our review of the
district court’s dismissal is de novo. See Long
v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th
Cir. 1999). When a court dismisses an action for
lack of subject matter jurisdiction, that court
must accept as true all well-pleaded factual
allegations and must draw all reasonable
inferences in favor of the plaintiff. See id. at
554. At the same time, when "evidence pertinent
to subject matter jurisdiction has been
submitted, . . . the [ ] court may properly look
beyond the jurisdictional allegations of the
complaint . . . to determine whether in fact
subject matter jurisdiction exists." Sapperstein
v. Hager, 188 F.3d 852, 855 (7th Cir. 1999)
(quoting United Transp. Union v. Gateway W. Ry.
Co., 78 F.3d 1208, 1210 (7th Cir. 1996) (internal
citations and quotation marks omitted)); see also
Long, 182 F.3d at 554; Commodity Trend Serv.,
Inc. v. Commodity Futures Trading Comm’n, 149
F.3d 679, 685 (7th Cir. 1998).

2.

      The Rooker-Feldman doctrine derives its name
from two decisions of the Supreme Court, Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). This doctrine essentially
precludes lower federal court jurisdiction over
claims seeking review of state court judgments or
over claims "inextricably intertwined" with state
court determinations. E.g., Long, 182 F.3d at 554
(citing Rooker, 263 U.S. at 415-16, and Feldman,
460 U.S. at 482 n.16).

      In its most straight-forward presentment, the
Rooker-Feldman doctrine bars federal jurisdiction
when the federal plaintiff alleges that her
injury was caused by a state court judgment. See,
e.g., Long, 182 F.3d at 554; Centres, Inc. v.
Town of Brookfield, 148 F.3d 699, 702 (7th Cir.
1998); Garry v. Geils, 82 F.3d 1362, 1365-66 (7th
Cir. 1996). The Rooker-Feldman doctrine precludes
federal jurisdiction over these claims because,
no matter how erroneous or unconstitutional the
state court judgment may be, the Supreme Court of
the United States is the only federal court that
could have jurisdiction to review a state court
judgment. See Rooker, 263 U.S. at 415-16; Long,
182 F.3d at 554; Centres, Inc., 148 F.3d at 702.

      The Rooker-Feldman doctrine, however, is not
limited to just those claims alleging that the
state court judgment itself caused the federal
plaintiff’s injury; the doctrine also precludes
federal jurisdiction over claims "inextricably
intertwined" with a state court determination.
E.g., Feldman, 460 U.S. at 483-84 n.16; Long, 182
F.3d at 554; Centres, Inc., 148 F.3d at 702. The
doctrine precludes jurisdiction over
"inextricably intertwined" claims even when those
claims were never argued in the state court. See
Levin v. Attorney Registration & Disciplinary
Comm’n, 74 F.3d 763, 766 (7th Cir.), cert.
denied, 518 U.S. 1020 (1996); Ritter v. Ross, 992
F.2d 750, 753 (7th Cir. 1993), cert. denied, 510
U.S. 1046 (1994). As we have noted in previous
cases, it can be difficult to discern which
claims are and which claims are not "inextricably
intertwined" with a state judgment. See Centres,
Inc., 148 F.3d at 702; Ritter, 992 F.2d at 754.
Ultimately, we must remember that "the crucial
point is whether ’the district court is in
essence being called upon to review the state-
court decision.’" Ritter, 992 F.2d at 754
(quoting Feldman, 460 U.S. at 483-84 n.16). "The
pivotal inquiry is ’whether the federal plaintiff
seeks to set aside a state court judgment or
whether he is, in fact, presenting an independent
claim.’" Long, 182 F.3d at 555 (quoting
Kamilewicz v. Bank of Boston Corp., 92 F.3d 506,
510 (7th Cir. 1996), cert. denied, 520 U.S. 1204
(1997)).

3.

      In her complaint, Ms. Remer does not attack
directly the stipulated injunction entered by the
state circuit court; indeed, the complaint does
not even mention the injunction. Rather, Ms.
Remer has brought this sec. 1983 lawsuit against
the School District and its school board members,
and she alleges that the defendants violated her
son’s due process rights in their handling of
M.R.’s expulsion. Our inquiry cannot end here,
however. "A plaintiff may not circumvent the
effect of the Rooker-Feldman doctrine simply by
casting [her] complaint in the form of a federal
civil rights action." Maple Lanes, Inc. v.
Messer, 186 F.3d 823, 825 (7th Cir. 1999), cert.
denied, 120 S. Ct. 939 (2000); see also Ritter,
992 F.2d at 754. Thus, we must look beyond the
four corners of Ms. Remer’s complaint to discover
whether the Rooker-Feldman doctrine applies in
this case.

      The School District argues that Ms. Remer’s sec.
1983 lawsuit is barred by the Rooker-Feldman
doctrine because her claim is "inextricably
intertwined" with the state court injunction.
According to the School District, Ms. Remer’s
lawsuit is "inextricably intertwined" because, in
the face of a valid state court injunction
barring M.R.’s presence on School District
property, Ms. Remer seeks to have her son
reinstated at Burlington High School. Likewise,
the district court viewed Ms. Remer’s sec. 1983
claim as an attack on the state court injunction
because, according to the court, the injunction
operates as a "de facto" expulsion.

      We cannot accept these characterizations of Ms.
Remer’s federal lawsuit. The state court
injunction and the expulsion are not two sides of
the same coin. In Wisconsin, a student expelled
from a public school must endure significant
collateral consequences that simply are not at
issue in the state court injunction. Ms. Remer’s
federal claim based on the expulsion is wholly
independent of the state injunction, which
imposes a different, and significantly less
onerous, burden upon her son. Finally, should Ms.
Remer prevail in her federal lawsuit, the
district court need not grant relief that would
effectively reverse the state court injunction.
In the following paragraphs, we shall discuss
these considerations at greater length.

      We cannot conclude, on this record, that M.R.’s
expulsion and the state court injunction are
effectively one and the same. The injunction
merely prevents M.R. from calling the School
District or from stepping foot on any District
property. By contrast, the expulsion more
strongly impacts M.R.’s educational future.
Although the expulsion order prevents entry on
District property, it imposes other more severe
penalties on M.R. Indeed, in the record before
us,/2 the School District emphasizes that, in
Wisconsin, public school districts are not
obligated to provide an alternative schooling
method (e.g., homebound schooling) for an
expelled student. Other public school districts
also are not obligated to accept students who
have been expelled. See Wis. Stat. sec. 120.13(f)
("No school board is required to enroll a pupil
during the term of his or her expulsion from
another school district."). Essentially, under
Wisconsin law, an expulsion eliminates the school
district’s obligation to provide an education to
the expelled student. On the other hand, a
student on whom that sanction has not been
imposed may be entitled to request, and a school
district may provide, "curriculum modifications,"
including homebound study or enrollment in
another school district. See Wis. Stat.
118.15(d). These options are not available to
students who have been expelled.

      Ms. Remer’s sec. 1983 action, therefore, is
qualitatively different from those claims we
previously have held were precluded by the
Rooker-Feldman doctrine. Unlike the claims in
other cases in which, but for the state court
determinations, the federal plaintiffs would have
had no complaint, see, e.g., Kamilewicz, 92 F.3d
at 511; Garry, 82 F.3d at 1368; GASH Associates
v. Village of Rosemont, 995 F.2d 726, 728-29 (7th
Cir. 1993); Ritter, 992 F.2d at 754, Ms. Remer’s
federal claims against the School District and
its school board focus on actions very different
from the matter at issue in the stipulated
injunction in state court. The injunction cannot
be characterized as somehow confirming or
endorsing the expulsion decision. Nor would the
relief sought in the federal court, if granted,
effectively reverse the state court judgment. See
Maple Lanes, 186 F.3d at 826. Ms. Remer’s
lawsuit, therefore, is significantly different
from our cases holding that the relief sought by
the plaintiff would really go to the heart of the
state court judgment./3 Although Ms. Remer has
requested that her son be readmitted to
Burlington High School, the district court, if it
deemed the expulsion to be contrary to federal
law, would be free to fashion relief that would
not contradict the state circuit court’s
injunction that bars M.R. from District property.
The district court could relieve M.R. of the
consequences of an expulsion from a public
school. The School District then would have the
responsibility to provide M.R. with an education,
albeit somewhere other than on District property.

      Although Ms. Remer’s sec. 1983 action is based
on the same situation that gave rise to the state
court injunction, it does not call into question
the validity of or impair the enforceability of
the state court injunction. Therefore, on this
record, we hold that the Rooker-Feldman doctrine
does not preclude federal subject matter
jurisdiction.

C.   Claim Preclusion

1.

      The School District also has urged us to affirm
the district court’s judgment on the basis of
claim preclusion. Our review of a dismissal on
claim preclusion grounds is de novo. See Andersen
v. Chrysler Corp., 99 F.3d 846, 852 (7th Cir.
1996); Humphrey v. Tharaldson Enters., Inc., 95
F.3d 624, 626 (7th Cir. 1996).

2.

      The "Full Faith and Credit" statute, 28 U.S.C.
sec. 1738, requires federal courts in a sec. 1983
action to give state court judgments the same
preclusive effect those judgments would have in
the rendering state’s courts. See Migra v. Warren
City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-81
(1984); Allen v. McCurry, 449 U.S. 90, 104
(1980). According to the School District, the
state court injunction precludes Ms. Remer’s sec.
1983 claims under the doctrine of claim
preclusion. To decide whether the School District
is correct, we must look to Wisconsin law to
determine whether Ms. Remer’s sec. 1983 claims
would be precluded by the state court injunction.

      In Wisconsin, the doctrine of claim preclusion,
or res judicata,/4 provides that a "final
judgment on the merits bars parties from
relitigating any claim that arises out of the
same relevant facts, transactions or
occurrences." Sopha v. Owens-Corning Fiberglas
Corp., 601 N.W.2d 627, 636 (Wis. 1999); see also
Northern States Power Co. v. Bugher, 525 N.W.2d
723, 727 (Wis. 1995). "Ordinarily a final
judgment is conclusive in all subsequent actions
as to all matters ’which were litigated or which
might have been litigated in the former proceedings.’"
Sopha, 601 N.W.2d at 637 (quoting DePratt v. West
Bend Mut. Ins. Co., 334 N.W.2d 883, 885 (Wis.
1983)). For claim preclusion to apply,
Wisconsin’s courts require the presence of three
factors: (1) an "identity between the parties or
their privies in the prior and present suits";
(2) the "prior litigation resulted in a final
judgment on the merits by a court with
jurisdiction"; and (3) an "identity of the causes
of action in the two suits." Sopha, 601 N.W.2d at
637 (footnotes omitted); see also Northern
States, 525 N.W.2d at 728.

      It is important to remember that, in the state
court proceeding, the School District filed its
complaint against M.R., which made M.R. the
defendant in that action. As a general rule in
Wisconsin, "where a defendant may interpose a
counterclaim but fails to do so, he is not
precluded from maintaining a subsequent action on
that claim." A.B.C.G. Enters., Inc. v. First Bank
Southeast, N.A., 515 N.W.2d 904, 908 (Wis. 1994)
(citing Restatement (Second) of Judgments sec.
22(1) (1982)); see also Wis. Stat. sec. 802.07(1)
("A defendant may counterclaim any claim which
the defendant has against the plaintiff . . .
."). Assuming for the moment that there is
privity between M.R. and his mother (indeed,
assuming that all three claim preclusion factors
are otherwise present here), the question for us
to resolve is whether, under Wisconsin law, the
Remers’ federal claims needed to be brought as
counterclaims against the School District as part
of the state court litigation. Under the general
permissive counterclaim rule, Ms. Remer’s federal
claims would not be precluded by the state court
litigation. The general rule in Wisconsin,
however, is subject to an exception. In A.B.C.G.
Enterprises, the Supreme Court of Wisconsin
recognized a "narrowly defined class" of "common-
law compulsory claims" that, when not raised by a
defendant in the initial action, bars related
claims brought in a subsequent action. 515 N.W.2d
at 908 (citing Restatement (Second) of Judgments
sec. 22(2)(b) (1982)). According to the Supreme
Court of Wisconsin, "the rule applies only if a
favorable judgment in the second action would
nullify the judgment in the original action or
impair rights established in the initial action."
A.B.C.G. Enters., 515 N.W.2d at 515; see also
Estate of Burgess v. Peterson, 571 N.W.2d 432,
437 (Wis. Ct. App. 1997), review denied, 580
N.W.2d 688 (1998); Marten Transp., Ltd. v. Rural
Mut. Ins. Co., 543 N.W.2d 541, 542 (Wis. Ct. App.
1995). To illustrate the contours of this
exception, the Supreme Court of Wisconsin quoted
extensively from the Restatement (Second):

Normally, in the absence of a compulsory
counterclaim statute or rule of court, the
defendant has a choice as to whether or not he
will pursue his counterclaim in the action
brought against him by the plaintiff. There are
occasions, however, when allowance of a
subsequent action would so plainly operate to
undermine the initial judgment that the principle
of finality requires preclusion of such an
action. . . . For such an occasion to arise, it
is not sufficient that the counterclaim grow out
of the same transaction or occurrence as the
plaintiff’s claim, nor is it sufficient that the
facts constituting a defense also form the basis
of the counterclaim. The counterclaim must be
such that its successful prosecution in a
subsequent action would nullify the judgment, for
example, by allowing the defendant to enjoin
enforcement of the judgment, or to recover on a
restitution theory the amount paid pursuant to
the judgment or by depriving the plaintiff in the
first action of property rights vested in him
under the first judgment.

A.B.C.G. Enters., 515 N.W.2d at 908 (quoting
Restatement (Second) of Judgments sec. 22 cmt.
f).

3.

      We do not believe that Ms. Remer’s federal
claims fall into the category of compulsory
counterclaims recognized by the Supreme Court of
Wisconsin. As we have explained in our discussion
of the applicability of the Rooker-Feldman
doctrine, success for Ms. Remer in her sec. 1983
action would not "nullify" or call into question
the validity of the state court injunction. It
bears repeating here that, in her federal
complaint, Ms. Remer has limited her attack to
the manner in which the School District expelled
her son. In order for the compulsory counterclaim
rule to bar Ms. Remer’s federal claims, it is not
enough for those claims to have arisen out of the
same transaction or nucleus of facts that
precipitated the original state court proceeding.
See A.B.C.G. Enters., 515 N.W.2d at 908. Rather,
the purported counterclaims must threaten to
undermine the first judgment if they are to be
considered compulsory. See id.

      Although Ms. Remer may prefer to have her son
return to Burlington High, that is not the sole
relief she has sought in federal court, and if
Ms. Remer prevails on her federal claims, the
district court can fashion relief that would
redress the alleged due process violations
committed by the School District while also
honoring the terms of the state court injunction.
Under the terms of the injunction, the School
District has the right to exclude M.R. from the
premises of its schools. Ms. Remer’s federal
lawsuit can be resolved in her favor without
compromising this right or by making it
meaningless. See id. at 910-11. Should the
district court order the School District to
reinstate M.R. as a student, the School District
can utilize alternative ways to provide an
education to M.R. that would not require the
District to violate the terms of the injunction.
Thus, we hold that, under Wisconsin’s claim
preclusion doctrine, Ms. Remer’s sec. 1983 claims
are not precluded by the state court injunction
because her federal claims do not fall within the
narrow category of compulsory counterclaims./5

Conclusion

       For the foregoing reasons, we reverse the
judgment of the district court and remand the
case for further proceedings consistent with this
opinion. Ms. Remer may recover her costs in this
court.


REVERSED and REMANDED


/1 The school board members named in Ms. Remer’s
complaint are Larry Anderson, William C.
Campbell, Scott Barrett, Patricia Snyder, David
Steighner, Paul Mantey and Jeremy Fitch.

/2 In one of its submissions to the district court,
the School District explained that "once a
student has been expelled from a school, that
district no longer has the responsibility to
provide educational services to the student." R.7
at 6. Moreover, the School District included in
the record two decisions from the State
Superintendent of Public Instruction, Susan Marie
H. v. Kenosha Unified School District, Decision
and Order No. 157 (June 28, 1988), and Ricardo S.
v. School District of Wisconsin Rapids, Decision
and Order No. 145 (Sept. 5, 1986); these
decisions confirm the District’s position. See
R.8, Ex.T at 157-9 to 157-10; R.8, Ex.U at 145-6
to 145-7.

/3 For example, in Maple Lanes, the plaintiff sought
to undo the effect of the revocation of its
liquor license by filing a civil rights action in
federal court against the sheriff who enforced
the license revocation. We observed that "[i]f a
federal court were to award the relief [the
plaintiff] seeks in the form of monetary damages
equal to the value of the liquor license, this
result would effectively reverse the state court
judgment upholding the revocation of the liquor
license." 186 F.3d at 826.

/4 Wisconsin has adopted the term "claim preclusion"
as a replacement for the traditional "res
judicata." See Northern States Power Co. v.
Bugher, 525 N.W.2d 723, 727 (Wis. 1995). Because
we are applying Wisconsin law, we shall use the
terminology adopted by the Wisconsin courts.

/5 The School District has argued that the analysis
in Plough v. West Des Moines Community Sch.
Dist., 70 F.3d 512 (8th Cir. 1995), controls the
outcome in our case. Plough, however, offers us
little guidance. Our inquiry is limited to the
preclusive effect the injunction may or may not
have under Wisconsin law. The issue in Plough was
the extent to which Iowa law gave preclusive
effect to state school board hearings. See
Plough, 70 F.3d at 516, 517. Any help that Plough
might provide us in our inquiry here would
necessarily be limited by the similarities of
Wisconsin and Iowa preclusion law.

More importantly, Plough is easily
distinguishable on its facts. Plough
involved a school board’s decision to expel a
student, but the parallel with Ms. Remer’s case
ends there. In Plough, the student and parent
challenged the school district’s expulsion
decision to the state school board. Before the
state school board, the student argued that the
district had violated his due process rights when
it expelled him. The state school board, after
conducting an adversarial proceeding, made
factual findings and concluded that the student’s
due process rights had not been violated. Then
the student brought an action in federal court in
which he asserted the same due process claims
raised before. The court in Plough held that the
student’s federal lawsuit was precluded, under
Iowa law, because his due process claims had
already been adjudicated and rejected by the
state school board. In stark contrast, Ms. Remer
and M.R. have never raised their due process
claims with respect to the expulsion. Nor, under
Wisconsin law, did they have an obligation to do
so.
