                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3261

JOHN S MENTEK, et al., individually and on behalf
   of all others similarly situated,
                                        Plaintiffs-Appellees,
                              v.

T HOMAS J. D ART, Sheriff of Cook County, and
    C OOK C OUNTY, ILLINOIS,
                                    Defendants-Appellants.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 09 C 529—Joan Humphrey Lefkow, Judge.



      S UBMITTED A PRIL 23, 2012—D ECIDED JUNE 19, 2012




  Before P OSNER, W OOD , and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. John Smentek and others, former
inmates of Cook County Jail, are plaintiffs in this
class action suit under 42 U.S.C. § 1983 against the
County and its sheriff. The suit, filed in the federal
district court in Chicago, charges that the defendants’
failure to make more than a single dentist available to
2                                               No. 11-3261

the jail’s 10,000 inmates constitutes the imposition of
cruel and unusual punishment and thus violates both
the Eighth Amendment and the due process clause of
the Fourteenth Amendment.
  Most people held in jails as distinct from prisons, in-
cluding most members of the plaintiff class, are pretrial
detainees, and the cruel and unusual punishments clause
does not apply to persons who though incarcerated have
not been convicted and so are not being subjected to
“punishment.” But the due process clause has been
interpreted to provide equivalent protection. E.g.,
Zentmyer v. Kendall County, 220 F.3d 805, 810 (7th Cir.
2000). It is because some of the members of the class
are convicts housed in Cook County Jail that the suit
advances claims under both amendments.
   Vincent Smith, another former inmate of Cook
County Jail, had brought a nearly identical suit prior to
Smentek’s bringing this one. Smith had asked the
district court to certify a class consisting of “all persons
who, while confined at Cook County Jail on and after
June 29, 2005, requested but were not given timely treat-
ment for dental pain.” The district judge denied class
certification in May 2008. Nine months later a different
district judge in the same court denied class certification
in a materially identical class action suit by still another
former inmate of Cook County Jail, Lance Wrightsell.
Then came Smentek, the third materially identical suit,
filed in the same court in January 2009 and assigned to
still another district judge. We don’t understand why
all three cases were not assigned to the same judge.
No. 11-3261                                              3

Besides the usual advantages of consolidation, it would
have avoided the problem that has precipitated the
appeal in this case, because a single judge would not be
of different minds about three identical lawsuits.
  Initially the district judge assigned to this case denied
class certification on the ground that the denial in the
two preceding class action suits (Smith and Wrightsell)
barred, by operation of collateral estoppel, the grant
of certification in the third. But the judge reversed her
ruling and granted certification after the Supreme Court
held in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), that
“neither a proposed class action nor a rejected class
action may bind nonparties. What does have this effect
is a class action approved under Rule 23 [of the Federal
Rules of Civil Procedure].” Id. at 2380. “The definition
of the term ‘party’ can on no account be stretched so far
as to cover a person . . . whom the plaintiff in a lawsuit
was denied leave to represent.” Id. at 2379. We applied
the Court’s holding in Thorogood v. Sears, Roebuck & Co.,
No. 10-2407, 2012 WL 1508226 (7th Cir. May 1, 2012), a
case like the present one in which, after denial of class
certification (one denial, not two as in this case), an un-
named class member filed an identical class action suit,
though in a different court.
  The Court in Smith v. Bayer Corp. suggested other
means for limiting copycat class action litigation besides
preclusion, and the defendants in the present case, who
have petitioned us for leave to appeal under Fed. R. Civ.
P. 23(f) from the grant of class certification, have
fastened on one of them: “we would expect federal
4                                                  No. 11-3261

courts to apply principles of comity to each other’s class
certification decisions when addressing a common dis-
pute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Con-
struction Co., 529 U.S. 193, 198 (2000) (citing Landis v. North
American Co., 299 U.S. 248, 254 (1936)).” 131 S. Ct. at 2382.
   We have granted the Rule 23(f) petition, limited to the
question of when a district court, in deciding whether
to certify a class, should “defer, based on the principles
of comity, to a sister court’s ruling on a motion for cer-
tification of a similar class.”
  The Court’s reference to “comity” in Smith v. Bayer Corp.
was cryptic. Neither of the two cases that the Court
cited—Cortez and Landis—discusses comity; Cortez
doesn’t even mention the word. Both are cases
about whether to stay one of two pending parallel
suits, a question not presented by either this case or
Smith v. Bayer Corp. No more than the two cases that the
Court cited does Smith v. Bayer Corp. itself discuss the
concept. And the similar suits at issue in that case were
in different court systems—state and federal.
  A standard definition of “comity” is “the respect that
sovereign nations (or quasi-sovereigns such as the states
of the United States) owe each other.” Philips Medical
Systems Int’l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir. 1993);
see also Younger v. Harris, 401 U.S. 37, 44 (1971); Bank of
Augusta v. Earle, 38 U.S. 519, 589 (1839); United States v.
Kashamu, 656 F.3d 679, 683 (7th Cir. 2011); JP Morgan Chase
Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418,
423-24 (2d Cir. 2005). That was a consideration in Smith
v. Bayer Corp., because the first class action had been
No. 11-3261                                                5

filed in a state court and the copycat class action in a
federal court; it is not a factor here, where all three suits
were filed in federal court and based on federal law. But
as in such cases as Landis, the word “comity” is used in
a looser sense to caution judges against stepping on each
other’s toes when parallel suits are pending in different
courts. See Texas Independent Producers & Royalty Owners
Ass’n v. EPA, 410 F.3d 964, 980 (7th Cir. 2005); Certified
Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp.,
511 F.3d 535, 551-52 (6th Cir. 2007); Ulmet v. United States,
888 F.2d 1028, 1031 (4th Cir. 1989). This is not such a case
either, however, not only because only one court (though
more than one judge) is hosting the parallel suits but
also because the Smith and Wrightsell cases were over
when Judge Lefkow granted the motion for class certif-
ication in the present case.
  The version of comity announced in dictum in Smith v.
Bayer Corp. is novel. It does not involve the mutual
respect of sovereigns or quasi-sovereigns and it does not
appear to be limited to cases in which parallel suits
are pending in different courts (or before different judges)
of the same sovereign. If it were so limited, it would
have no application if the other parallel suits had been
resolved, which may be true here, since class certifica-
tion in the other Cook County Jail dental cases was
denied—or at least very little application, since those
cases may continue as individual suits by the former
class representatives. The Supreme Court’s opinion cites
no authority for the extension of the doctrine of comity
to mere disagreement between federal judges, and
despite the reference to expecting “federal courts to
6                                               No. 11-3261

apply principles of comity to each other’s class certifica-
tion decisions” (emphasis added), the Court seems really
to have been thinking about cases involving federal-
state comity, of which Smith v. Bayer Corp. was one.
  Whatever the scope of the Supreme Court’s current
concept of comity, the defendants’ argument that Smith
v. Bayer Corp. adopted a rule of comity in class action
suits that precludes granting class certification in a
copycat class action must be rejected; for if the Court
had adopted such a rule it would have affirmed the
injunction granted in the district court in that case (and
affirmed by the court of appeals) against the copycat
class action suit, instead of reversing, as it did. It would
have been adopting a rule of preclusion rather than
rejecting such a rule. True, the effect of the doctrine of
comity, when it is successfully invoked, is preclusive.
But unlike res judicata, it is a doctrine that does not
require but merely permits preclusion, except (as
we’re about to see) when it governs choice of forum. The
mandatory comity for which the defendants in our case
contend is just another name for collateral estoppel. The
defendants are wrong to think comity a synonym for
collateral estoppel, which if true would as we said have
required affirmance in Smith v. Bayer Corp.
  One can imagine the Supreme Court’s ruling that
comity between district judges in class certification cases
is a doctrine of preclusion, but there’s no suggestion of
that in Smith v. Bayer Corp. and it would be a surprising
rule. It would give comity greater force between two
judges of the same court than between two nations each
No. 11-3261                                                 7

jealous of its sovereign authority and demanding respect
from other nations. Not that there isn’t a serious problem
of judge shopping in the disordered realm of class action
litigation, a problem well illustrated by this case and
its two predecessors taken all together. Without a rule of
preclusion, class action lawyers can do what the lawyer
here (and the lawyer in Thorogood) did: keep bringing
identical class actions with new class representatives
until they draw a judge who is willing to certify the
class. We are troubled to learn that when the district
judge in this case certified the class there were twelve
Cook County Jail dental suits pending in the Northern
District of Illinois in addition to the two (Wrightsell and
Smith) in which certification had been rejected, though
we don’t know in how many of these cases class certif-
ication was sought.
   But what is the solution to the judge-shopping problem?
How are courts or legislatures to prevent class action
litigation from metastasizing? The rule urged by the
defendants in this case that the denial of class certifica-
tion bars the certification of the same or a similar class in
a suit by a member of the same class as the previous
suit might do the trick, but it would contradict the
holding of Smith v. Bayer Corp., which is that a class
member who did not become a party to the previous
parallel class action is not precluded from seeking class
certification in his class action. Cases such as Fair Assess-
ment in Real Estate Association, Inc. v. McNary, 454 U.S. 100,
103-05 (1981); Great Lakes Dredge & Dock Co. v. Huffman, 319
U.S. 293 (1943); Younger v. Harris, supra, 401 U.S. at 43-44,
and Hoover v. Wagner, 47 F.3d 845, 851 (7th Cir. 1995),
8                                               No. 11-3261

which in the name of comity bar a plaintiff from one
forum because another is deemed more appropriate, are
not in point; if Smentek and the other named plaintiffs
are barred from seeking class certification by virtue of
the previous denials, they cannot bring a class action
anywhere else. They could file a class action claim in an
Illinois state court, but the defendants’ concept of
comity would require the state court to dismiss it. Yet
theirs is the kind of case that as a practical matter
probably cannot be litigated other than as a class action
because most cases of delayed treatment of dental pain
do not hold out a prospect of significant damages.
  We are left with the weak notion of “comity” as requiring
a court to pay respectful attention to the decision of
another judge in a materially identical case, but no
more than that even if it is a judge of the same court or a
judge of a different court within the same judiciary. We
emphasize, however, the qualification in “materially
identical.” Even two class actions involving the same
class may differ materially, for example in the suitability
of the class representative or the adequacy of class coun-
sel, and where they do the judge in the second, or third,
or nth class action is on his own. This is not such a case;
nevertheless the district judge gave plausible reasons for
her disagreement with the judges in the two previous
Cook County dental cases. Can more be required? The
defendants’ claim that she was bound by the decisions
of the other judges just because those decisions preceded
and were contrary to her decision has no basis in law
and flouts the principle that a district court decision does
not have precedential effect. Camreta v. Greene, 131 S. Ct.
No. 11-3261                                                9

2020, 2033 n. 7 (2011); Wirtz v. City of South Bend, 669 F.3d
860, 862-63 (7th Cir. 2012). The defendants would
have such decisions treated not as mere precedents
but as super-precedents that no court lacking appellate
authority could question.
  The district judge’s grant of class certification is
therefore affirmed. But this is not to say that the judge’s
ruling was correct; maybe the other two judges were
correct. The appeal asks us to decide only whether
comity between federal district judges’ rulings on class
certification is preclusive. We have decided: it is not.




                           6-19-12
