                          NONPRECEDENTIAL DISPOSITION
                   To be cited only in accordance with Fed. R. App. P. 32.1



                  United
                   To be citedStates       Court
                               only in accordance      of R.Appeals
                                                  with Fed.  App. P.
                          32.1Not to be cited per Circuit Rule 53
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604
                                 Submitted June 4, 2007
                                 Decided June 25, 2007

                                          Before

                     Hon. FRANK H. EASTERBROOK, Chief Judge

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. DANIEL A. MANION, Circuit Judge


No. 07-1767

KATHI COOPER, BETH HARRINGTON and                          Appeal from the United
MATTHEW HILLESHEIM, individually and on                    States District Court for the
behalf of all those similarly situated,                    Southern District of Illinois.
      Plaintiffs-Appellees,
                                                           No. 99 C 829
             v.                                            G. Patrick Murphy,
                                                           Chief Judge.
IBM PERSONAL PENSION PLAN and IBM
CORPORATION,
     Defendants-Appellees..

APPEAL OF: REX CARR



                                           Order

        Plaintiffs’ lead counsel when this ERISA litigation began was Carr Korein
Tillery, LLC. Before the case ended, Rex Carr withdrew from the partnership,
which was renamed Korein Tillery, LLC. Carr and his former partners do not agree
on the allocation of fees that the firm has received or to which it is entitled.
Litigation in state court apparently resolved the dispute--at least the state’s court of
first instance thinks that everything has been settled--but Carr now spurns the
settlement, refuses to accept adverse judicial decisions on the subject, and has
initiated additional efforts to collect what he claims as his share.
No. 07-1767                                                                Page 2



       One such effort has occurred in this litigation. Some issues in the suit were
resolved by settlement, and the rest on an appeal last year. See Cooper v. IBM
Personal Pension Plan, 457 F.3d 636 (7th Cir. 2006). Carr attempted to enforce
what he styled an attorney’s lien on the fees due to Korein Tillery as a result of the
federal settlement. The district court concluded, however, that subject-matter
jurisdiction is lacking and denied Carr’s motion. Carr has appealed.

       One problem with the appeal is that Carr is not a party to the case. He did
not intervene. Nor was he a lawyer for any party or otherwise in the functional
position of a party for purposes of decisions such as Devlin v. Scardelletti, 536 U.S. 1
(2002). He is a stranger to this litigation: his dispute is with Korein Tillery, not with
any of the litigants. Because Carr is not a party, his purported appeal must be
dismissed. See Marino v. Ortiz, 484 U.S. 301 (1988).

       There is a second jurisdictional problem. As the district court concluded,
there is no subject-matter jurisdiction. The dispute between Carr and his ex-
partners arises under a contract. It is unrelated to the dispute between Cooper and
IBM, so it cannot be adjudicated under the supplemental jurisdiction. See 28 U.S.C.
§1367 (only claims that are part of a single case or controversy come within the
supplemental jurisdiction). See also, e.g., Kokkonen v. Guardian Life Insurance Co.
of America, 511 U.S. 375 (1994) (disputes arising from separate contracts require an
independent grant of jurisdiction). The exception for agreements incorporated into
the judgment does not apply here. See Baer v. First Options of Chicago, Inc., 72 F.3d
1294 (7th Cir. 1995), which holds that a controversy about the allocation of
attorneys’ fees may be resolved in federal court only if the original judgment covers
that subject. See also Bounougias v. Peters, 369 F.2d 247 (7th Cir. 1966).

       Carr is a citizen of Illinois. So are Korein and Tillery. The requirements of
the diversity jurisdiction therefore have not been satisfied, and the dispute must be
resolved in state court. (In saying this, we reserve judgment on Carr’s separate
attempt to bootstrap the dispute into federal court by filing an action under RICO.
That controversy is still pending in the district court.)

       Plaintiffs, defendants, and their lawyers--jointly forced to serve as appellees
here--moved to dismiss the appeal and sought sanctions under Fed. R. App. P. 38.
The motion observes (citing Marino) that nonparties cannot appeal; it adds that
diversity of citizenship is missing and that the requirements of the supplemental
jurisdiction under §1367 have not been met. We invited Carr to respond. His
response does not discuss either Marino or §1367 and therefore does not take even
the first step toward establishing that the appeal is within our jurisdiction.

       The response cites only one legal authority--West v. Radio-Keith-Orpheum
Corp., 70 F.2d 621 (2d Cir. 1934)--which is hardly an adequate reply to a decision
that the Supreme Court issued 54 years later. West holds that creditors in an
insolvency proceeding need not intervene in order to appeal from an order that
concludes their legal rights. That holding is of no use to Carr, none of whose rights
has been concluded by an order dismissing for lack of subject-matter jurisdiction,
and at all events has been superseded by Fed. R. App. P. 3(c) (adopted in 1968), the
No. 07-1767                                                               Page 3

Bankruptcy Code of 1978, and decisions such as Marino.

      Carr’s appeal is part of a fight unrelated to this litigation. There is no reason
why Cooper and the other plaintiffs, or the IBM pension plan, or the law firms that
have handled the ERISA litigation, should shoulder any of the cost of resolving this
dispute between Carr and his ex-partners.

       The motion for sanctions under Rule 38 is granted, because the appeal is
frivolous. (That makes it unnecessary to decide whether the appeal is also
vexatious.) The appellees are entitled to reimbursement for the attorneys’ fees
incurred in defending this appeal.

        The appeal is dismissed for want of jurisdiction. Appellees have 14 days to
file a statement of their costs plus the attorneys’ fees reasonably incurred in
handling Carr’s appeal. Carr will have 10 days to respond.
