                            In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 09-1124, 09-1168

R EX C ARR,
                            Plaintiff-Appellant/Cross-Appellee,

                               v.

S TEPHEN M. T ILLERY et al.,

                       Defendants-Appellees/Cross-Appellants.



           Appeals from the United States District Court
                for the Southern District of Illinois.
          No. 07-CV-314—David R. Herndon, Chief Judge.



    A RGUED D ECEMBER 4, 2009—D ECIDED JANUARY 12, 2010




  Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
  P OSNER, Circuit Judge. Rex Carr, a successful class
action lawyer in southern Illinois, is locked in mortal
combat with his former law partners, the defendants in
a RICO case (with a supplemental state-law claim, 28
U.S.C. § 1367) that he brought in federal district court.
The dispute is over the division of legal fees in cases
2                                     Nos. 09-1124, 09-1168

handled by the law firm (Carr Korein Tillery, LLC)
before it broke up; Carr is seeking some $20 million in
compensatory damages alone. The district court dis-
missed the entire case, supplemental claim and all,
under Rule 12(b)(6) (failure to state a claim), on the
ground that Carr’s claims are precluded by judgments in
previous suits by him against the same defendants. Since
res judicata is an affirmative defense, the defendant should
raise it and then move for judgment on the pleadings
under Rule 12(c). Forty One News, Inc. v. County of Lake, 491
F.3d 662, 664 (7th Cir. 2007); McCready v. eBay, Inc., 453
F.3d 882, 892 n. 2 (7th Cir. 2006). The judge thus jumped
the gun in dismissing the case under Rule 12(b)(6). But the
error is of no consequence. He had before him all he
needed in order to be able to rule on the defense, and
anyway the plaintiff does not complain about the error.
  Carr appeals. The defendants cross-appeal from the
denial of their motion for sanctions for what they
contend are his abusive litigating tactics. This is Carr’s
eighth suit against the defendants complaining about the
division of fees; a ninth is pending in Missouri; and in at
least four other cases that were handled by the law firm
before the break up he has filed liens in an attempt to
get a bigger share of the fees than the defendants had
allotted to him. One of these suits, as we’ll see, led
this court to sanction Carr for misconduct.
   The partners had several agreements concerning al-
location of fees; these continued in force when the firm
ceased to engage in the practice of law in 2003, though
it continued a twilight existence to administer the alloca-
Nos. 09-1124, 09-1168                                 3

tion of fees earned but not yet paid by clients in cases
pending when the firm ceased practice. A further agree-
ment was also adopted then. Disputes over the allocation
of fees erupted the following year and led to a flurry
of suits in an Illinois state court. The disputes
were resolved—or so it seemed—by a “Memorandum of
Understanding” drafted by Carr and agreed to in
April 2004 by the other former partners. The Memoran-
dum specified (in part by adoption of the terms in the
previous agreements) how all fees—past, present, and
future—would be allocated among the former partners. It
provided that when fees came in to the partner
who had handled a case, he would pay over the entire
amount to the law firm (the shell) for determination of
how much each of the other partners was entitled to.
The Memorandum also required that the suits be dis-
missed.
  One of the suits was a declaratory judgment action
brought by the other partners (the defendants in this
case) against Carr. He had filed a counterclaim; and in
May 2004, before the suit was dismissed as required by
the Memorandum, he amended the counterclaim to add
a claim that he had been fraudulently induced to sign
the Memorandum of Understanding. More than two
years later, in September 2006, the Illinois court in
which Carr’s suits were pending rejected the counter-
claim and entered final judgment, pursuant to the Memo-
randum, dismissing with prejudice all the pending suits.
The judgment was affirmed by the Illinois Appellate
Court in December 2007 and Carr did not seek review by
the Supreme Court of Illinois.
4                                       Nos. 09-1124, 09-1168

  The complaint in his present suit repeats many of the
charges in the 2004 suits, including the charge that he
was fraudulently induced to sign the Memorandum of
Understanding and that the defendants had violated
the previous fee-allocation agreements, which the Memo-
randum had superseded. All those charges are barred
by the dismissal with prejudice of the 2004 suits. The
fact that the present suit redescribes the wrongful acts
alleged in the earlier ones as predicate acts in support of
the RICO claim is irrelevant. You cannot maintain a
suit, arising from the same transaction or events under-
lying a previous suit, simply by a change of legal theory.
That is called “claim splitting,” and is barred by the
doctrine of res judicata. Nowak v. St. Rita High School, 757
N.E.2d 471, 478-79 (Ill. 2001); River Park, Inc. v. City of
Highland Park, 703 N.E.2d 883, 893 (Ill. 1998); Curtis v.
Lofy, 914 N.E.2d 248, 258-59 (Ill. App. 2009); Brzostowski v.
Laidlaw Waste Systems, Inc., 49 F.3d 337, 338-39 (7th Cir.
1995) (Illinois law).
   As if this were not enough, those charges (and more, as
we’ll see) are also barred by Illinois’s “one refiling,” or, as
it is sometimes called, “single refiling,” rule. In March and
April 2007, while the dismissal of Carr’s counterclaim in
the earlier litigation was pending on appeal, he filed
four lawsuits against the defendants in Illinois state
courts. He filed the present suit three weeks after the
filing of the fourth state-law suit, and within days of
doing so voluntarily dismissed all four suits; the dis-
missal orders state that the dismissals are without preju-
dice. Illinois law provides that a plaintiff who voluntarily
dismisses a suit “may commence a new action within
Nos. 09-1124, 09-1168                                          5

one year or within the remaining period of limitation,
whichever is greater.” 735 ILCS 5/13-217. The Illinois
courts interpret this to mean that a plaintiff who volun-
tarily dismisses a suit may commence only one new action.
Timberlake v. Illini Hospital, 676 N.E.2d 634, 636-37
(Ill. 1997); Flesner v. Youngs Development Co., 582 N.E.2d
720, 721 (Ill. 1991); Gendek v. Jehangir, 518 N.E.2d 1051, 1053
(Ill. 1988); Schrager v. Grossman, 752 N.E.2d 1, 4 (Ill. App.
2000); D’Last Corp. v. Ugent, 681 N.E.2d 12, 15-16 (Ill. App.
1997); Ko v. Eljer Industries, Inc., 678 N.E.2d 641, 647-48 (Ill.
App. 1997); Eskridge v. Cook County, 577 F.3d 806, 808
(7th Cir. 2009) (Illinois law). It is true that Fanaro v. First
National Bank, 513 N.E.2d 1041 (Ill. App. 1987), held the
contrary, but it was explicitly rejected by the Supreme
Court of Illinois in the Timberlake case.
   Carr concedes that the one-refiling rule is applicable
to the refiling in a federal court of a suit originally filed in
an Illinois state court, because it is a rule of preclusion,
like res judicata; and a federal court is required to
give “full faith and credit” to records of (including judg-
ments in) state judicial proceedings. 28 U.S.C. § 1738;
Kremer v. Chemical Construction Corp., 456 U.S. 461, 466-67
(1982); Allen v. McCurry, 449 U.S. 90, 96 (1980). So if
Illinois courts would invoke the one-refiling rule to bar
the plaintiff from bringing the present suit in an Illinois
state court (as he could have done, because state
courts have concurrent jurisdiction with federal courts to
enforce RICO), we must do likewise. Cf. McKnight v.
Dean, 270 F.3d 513, 518-19 (7th Cir. 2001).
  There are two ways of thinking about the application of
the rule to this case. One, which is much the less plausible,
6                                        Nos. 09-1124, 09-1168

requires treating the four 2007 suits, insofar as they
repeated charges in the 2004 suits, as a first refiling, so
that the present suit, which Carr acknowledges arises from
the same facts as the state-court suits that he filed and
promptly dismissed in 2007, is a second refiling. He argues
that the Illinois rule applies only when the first refiled suit
is dismissed before the second one is filed; otherwise the
second refiled suit isn’t really “new.” That is not correct, as
the Illinois Appellate Court held in Schrager v. Grossman,
supra, 752 N.E.2d at 5, and as we noted in Eskridge v.
Cook County, supra, 577 F.3d at 807-08. See also Rockford
Mutual Ins. Co. v. Blaase, 615 N.E.2d 1333, 1335-36 (Ill. App.
1993). The new action is the action filed later; the date
on which the previous action was dismissed is irrelevant.
The RICO suit was a new action because it was filed
after the state-court suits. Failing without excuse to make
up his mind whether he wanted to be in state or federal
court, Carr filed five lawsuits in place of a single suit
that would have included all the claims in the five
separate suits.
   But if the four state-court suits filed in 2007 are treated as
the first refiling of the 2004 litigation, the Illinois rule bars
relitigation in this suit only of claims arising from acts
prior to Carr’s filing of the counterclaim in May 2004; for
the basis on which the Illinois courts decide whether a suit
is a refiling is whether, had its predecessor been dismissed
with prejudice, it would be barred by principles of res
judicata. D’Last Corp. v. Ugent, supra, 681 N.E.2d at 16. (The
one-refiling rule is thus the extension of the doctrine of
res judicata to a class of cases in which the decision
deemed to be res judicata is a dismissal without prejudice.)
Nos. 09-1124, 09-1168                                           7

The complaint in this present case is not (quite) just a
rehash of the 2004 litigation, for it also charges—as do the
four state-court suits that the plaintiff filed in 2007—that
even if the Memorandum of Understanding is valid and
enforceable, as the Illinois state courts have held, the
defendants have violated it by not giving the plaintiff
the fees to which it entitles him.
   The second way of applying the one-refiling rule to this
case, and we think the right way in light of both the Illinois
case law and the practicalities of the situation, is to treat
the first of the four suits filed in 2007 as the first in a series
of identical case filed, the second such suit as the first
refiling, and the third and fourth suits—and, critically, the
present suit—as further refilings, thus barred by the rule.
Indeed, this is the only approach in which the one-refiling
rule does any work. For if the first filing was the 2004
litigation, the first refiling the four 2007 state-court suits
treated as one, and the third (and thus barred) refiling the
present suit, the fact that the four 2007 state-court suits
were voluntarily dismissed would have no significance;
they are just the first refiling of a suit (the 2004 litigation)
dismissed with prejudice in September 2006. The one-
refiling rule adds nothing to res judicata when the judg-
ment in the first case was with prejudice; indeed, it doesn’t
apply, because the rule is about using a voluntary dis-
missal to preclude relitigation of a claim, and the dismissal
of Carr’s counterclaim was involuntary. And we’re about
to see that a plaintiff is not allowed to maintain duplicative
suits; that creates just the kind of confusion and imposes
just the kind of judicial burdens that inform the policy
behind the one-refiling rule.
8                                     Nos. 09-1124, 09-1168

  Each of the four 2007 state-court suits presented a theory
or ground of liability that was different from the theory or
ground in the other three suits, or sought different relief.
The four were a suit for an accounting, a suit seeking a
declaratory judgment on the allocation of fees, a suit for
breach of contract, and a suit charging a conspiracy.
All four arose from the same events or transactions,
including—and this was the only new claim, the only one
not barred by res judicata—the alleged nonpayment of
fees due after the Memorandum of Understanding was
adopted and after Carr’s counterclaim was filed a month
later. His multiplication of suits all arising from the
same dispute was classic claim splitting, which the doc-
trine of res judicata bars, Rein v. David A. Noyes & Co., 665
N.E.2d 1199, 1206-07 (Ill. 1996); see also 735 ILCS 5/2-619,
as we noted in connection with his recasting his state-
law claims as a RICO claim.
  Carr argues that despite cases like Rein and the other
cases we cited (Nowak, River Park, etc.), his claim splitting
is permitted by Illinois law. He cites Kellerman v. MCI
Telecommunications Corp., 493 N.E.2d 1045, 1053-54 (Ill.
1986). The issue was whether an Illinois court should have
stayed a case before it because a suit between the same
parties arising from the same facts was pending in a
federal court. Because the claims were different, and there
wasn’t much evidentiary overlap, the court held that the
denial of the stay was proper. This, rather than strict
application of the bar against claim splitting, is a common
approach when parallel proceedings are pending in
different jurisdictions, especially when each suit was
initiated by a different one of the adversaries. The parallel
Nos. 09-1124, 09-1168                                            9

cases can proceed, but the judgment in the first case in
which a final judgment on the merits is entered will be
res judicata in the other suit if the other requirements for
res judicata (same transaction or occurrence, same parties
or their privies, etc.) are satisfied. Pfaff v. Chrysler Corp., 610
N.E.2d 51, 73-74 (Ill. 1992); U.S.O. Corp. v. Mizuho Holding
Co., 547 F.3d 749, 750 (7th Cir. 2008) (Illinois law). Allowing
both suits to proceed until one goes to judgment may
be more economical than staying or dismissing one, which
might require the parties to port issues or evidence from
that case to the other case. A. E. Staley Mfg. Co. v. Swift &
Co., 419 N.E.2d 23, 27 (Ill. 1980); Combined Ins. Co. v. Certain
Underwriters at Lloyd’s London, 826 N.E.2d 1089, 1097 (Ill.
App. 2005); compare Skipper Marine Electronics, Inc. v.
Cybernet Marine Products, 558 N.E.2d 324, 327 (Ill. App.
1990).
  This case might seem similar because three of the four
2007 cases were filed in the Illinois trial court of one county
and one in the trial court of another Illinois county. But are
different counties of the same state (and neighboring
counties—Madison County and St. Clair County, both
part of the St. Louis metropolitan area) different “juris-
dictions” for purposes of deciding whether the plaintiff
has split his claim between the two courts? The answer is
“no.” A. E. Staley Mfg. Co. v. Swift & Co., supra, 419 N.E.2d
at 28; Tumminaro v. Tumminaro, 556 N.E.2d 293, 297 (Ill.
App. 1990). And even if the courts in the different Illinois
counties were considered different jurisdictions, this
would leave us with three of the four state-court suits filed
by Carr in 2007 in one jurisdiction. The second of those
suits was a first refiling, so the third case—and this case,
10                                      Nos. 09-1124, 09-1168

the fourth—are barred by the one-refiling rule. The fact
that the fourth case was filed before the previous ones
were dismissed is, as we said earlier, irrelevant.
  So the district court was right to dismiss the entire case
after all, though on the basis of the one-refiling rule
rather than res judicata, which as we explained would not
bar a claim that the defendants had violated the Memoran-
dum of Understanding.
  The defendants also defend the dismissal of the present
suit on the alternative ground that the RICO claim has no
merit. And they are right—so right that it creates doubt
whether the federal courts have subject-matter jurisdic-
tion of this lawsuit; if not, the entire case must be dis-
missed without prejudice. This would not permit the
plaintiff to refile the RICO claim; a jurisdictional ruling
on an issue that has been fully and fairly adjudicated is
barred from subsequent challenge by the doctrine of
collateral estoppel. E.g., Hill v. Potter, 352 F.3d 1142, 1146-
47 (7th Cir. 2003); Okoro v. Bohman, 164 F.3d 1059, 1062-63
(7th Cir. 1999); Coors Brewing Co. v. Méndez-Torres, 562
F.3d 3, 8-9 (1st Cir. 2009); Bromwell v. Michigan Mutual Ins.
Co., 115 F.3d 208, 212-13 (3d Cir. 1997); Deutsch v. Flannery,
823 F.2d 1361, 1364 (9th Cir. 1987). This illustrates the
pertinent point that a dismissal can be without prejudice
yet have preclusive effect; another example, of course, is
the one-refiling rule.
  But let’s not forget the supplemental state-law claim; as
the parties are not of diverse jurisdiction, there is no
basis on which that claim can be retained in the district
court if there is no jurisdiction over the federal claim. Even
Nos. 09-1124, 09-1168                                      11

so, if Carr tried to refile the supplemental claim in state
court he would be barred by the one-refiling rule under
any view of the application of that rule to this case. He
filed the claim first in one of the four state-court suits
that were dismissed; at best (for him) the refiling of the
claim in this suit (insofar as the claim is based just on the
alleged violations of the Memorandum of Understanding,
the only claim not barred by res judicata) is his first
refiling; Illinois law does not permit a second one.
  So probably it makes no practical difference whether the
dismissal of the RICO claim should be based on lack of
jurisdiction or on lack of merit. But we do need to decide
which it should be, as a simple affirmance would be
error if the district court lacked jurisdiction.
   A suit that is utterly frivolous does not engage the
jurisdiction of the federal courts. Hagans v. Lavine, 415 U.S.
528, 536-38 (1974); Johnson v. Orr, 551 F.3d 564, 570-71 (7th
Cir. 2008); Jogi v. Voges, 480 F.3d 822, 825-26 (7th Cir.
2007). What that means as a practical matter is that if it is
clear beyond any reasonable doubt that a case doesn’t
belong in federal court, the parties cannot by agreeing to
litigate it there authorize the federal courts to decide it.
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702 (1982); EEOC v. Chicago Club,
86 F.3d 1423, 1428 (7th Cir. 1996). We once gave the
example of a hypothetical dispute over bananas
described by the parties as “securities” so that they could
litigate their dispute in the federal courts under federal
securities law. Crowley Cutlery Co. v. United States, 849 F.2d
273, 277 (7th Cir. 1988). Congress would not have
12                                     Nos. 09-1124, 09-1168

wanted the federal courts to waste their time with such
a case, and the courts therefore have an independent
duty to refuse to entertain it.
  The presumption, however, is that the dismissal of even
a very weak case should be on the merits rather than
because it was too weak even to engage federal jurisdic-
tion. Travelers Casualty & Surety Co. of America, Inc. v.
Northwestern Mutual Life Ins. Co., 480 F.3d 499, 501 (7th Cir.
2007); Johnson v. Wattenbarger, 361 F.3d 991, 993-94 (7th Cir.
2004); Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.
1991). (Hence our use of the term “utterly frivolous.”)
Otherwise courts would spend too much time distin-
guishing degrees of weakness. And there is a certain
perversity in a jurisdictional dismissal; it permits the
plaintiff to refile his case, albeit (as we noted) not on
the ground on which the dismissal was based.
  The RICO claim in this case is weak, indeed feeble. The
complaint contains fraud allegations that would create a
prima facie RICO case, but they are barred by res judicata
because they relate to conduct that preceded the alleged
violations of the Memorandum of Understanding and
arose from the same events that gave rise to Carr’s four
2007 state-court suits. What is not barred by res judicata
(though barred by the one-refiling rule) are the allegations
of violations of the Memorandum. But those allegations
amount merely to a breach of contract claim, which
cannot be transmogrified into a RICO claim by the facile
device of charging that the breach was fraudulent, indeed
criminal. RICO is not a proper vehicle for levering a
breach of contract suit between citizens of the same state
Nos. 09-1124, 09-1168                                       13

into federal court, and under a statute that entitles a
successful plaintiff to treble damages and attorneys’ fees.
Jennings v. Auto Meter Products, Inc., 495 F.3d 466, 472-73
(7th Cir. 2007); Uniroyal Goodrich Tire Co. v. Mutual Trading
Corp., 63 F.3d 516, 522 (7th Cir. 1995); Midwest Grinding Co.
v. Spitz, 976 F.2d 1016, 1025-26 (7th Cir. 1992) (“civil RICO
plaintiffs persist in trying to fit a square peg in[to] a round
hole by squeezing garden-variety business disputes into
civil RICO actions . . . . RICO has not federalized every
state common-law cause of action available to remedy
business deals gone sour”); Western Associates LP v.
Market Square Associates, 235 F.3d 629, 636-37 (D.C. Cir.
2001).
  For the most part the complaint simply renames breach
of contract fraud or crime in an effort to satisfy the require-
ment of establishing “predicate acts” required for a RICO
claim. The defendants did not pay Carr the fees to which
he contends he was entitled by the Memorandum of
Understanding: the complaint calls this extortion, finan-
cial exploitation of an elderly person, theft in interstate
commerce, mail fraud, wire fraud, and so on almost ad
infinitum. If such renaming satisfies civil RICO, we shall
see a wholesale migration of breach of contract suits
into the federal courts, given the procedural advantages
of so proceeding that we noted earlier.
  One of the “predicate acts” allegations that seems
especially desperate is that the defendants had committed
fraud by misrepresenting to their bookkeeper what Carr
was owed, in consequence of which she mailed him a
smaller check than he claims to have been entitled to. The
14                                    Nos. 09-1124, 09-1168

agreement terminating the law firm’s practice provided
that the law firm (in its post-break-up shell form) would
pay Carr his share of fees as they came in. The complaint
just says that the defendants told the firm’s bookkeeper
what to pay Carr and didn’t tell her that it was less than
the Memorandum entitled him to. This omission
could not have harmed him any more than if the defen-
dants had cut and mailed the check themselves. See Corley
v. Rosewood Care Center, Inc., 388 F.3d 990, 1011 (7th Cir.
2004); Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118,
132 (1st Cir. 2006); Grantham & Mann, Inc. v. American
Safety Products, Inc., 831 F.2d 596, 606 (6th Cir. 1987).
   With this observation, the other allegations on which the
RICO claim is based dissolve. Remember that the only
RICO claim not barred by res judicata is a claim that the
defendants engaged in a pattern of racketeering activity
(the frauds, extortion, etc.) to avoid honoring their obliga-
tions to Carr under the Memorandum of Understanding.
It has never been explained how any of those acts could
have prevented him from collecting the fees due him
under the Memorandum. He had only to compare his
receipts with the text of the Memorandum, and with the
spreadsheets that he received showing the amount of fees
that the defendants had received, to realize that he had a
claim; and he does not allege that the amount of the fees
that the defendants had received was misrepresented to
him.
 He might argue that the defendants’ misconduct had
made his efforts to obtain damages for breach of contract
more costly. But as far as we can tell from the prolix
Nos. 09-1124, 09-1168                                    15

complaint, that isn’t the nature of his damages claim: he
wants damages for breach of the Memorandum of Under-
standing.
   The RICO claim is a complete nonstarter. But this is true
mainly because the only plausible allegations of predicate
acts are barred by res judicata and all the allegations are
barred by the one-refiling rule. Res judicata and its cousin
the one-refiling rule are not, in general, appropriate
grounds on which to base a conclusion that a suit is so
frivolous as not to engage the jurisdiction of the federal
courts. Both are affirmative defenses and when clearly
meritorious form the basis of a motion on the pleadings
under Rule 12(c), which is a motion for dismissal on the
merits. Of course if a plaintiff keeps filing the same suit
over and over again, a point will be reached at which his
litigating is so frivolous that his suits will be dismissed
on jurisdictional grounds. Carr has not quite reached
that point in this case. Thus the suit was properly dis-
missed with prejudice.
  Turning now to the cross-appeal, we think the defen-
dants’ motion for sanctions should not have been denied.
The plaintiffs’ lawyers may secretly agree, for they
make no attempt to counter the arguments for sanctions
made in the defendants’ brief even though the district
judge denied the motion without explanation. They
follow suit by merely asking us, without explanation, to
affirm the denial.
  The motion complained that Carr is harassing the
defendants with repetitive litigation, including a suit—this
suit—that borders on the frivolous, even though he is
16                                     Nos. 09-1124, 09-1168

an immensely successful lawyer represented on appeal by
one of the nation’s premier law firms, Kirkland and Ellis,
as well as by his son Bruce Carr of the Rex Carr Law Firm,
which the plaintiff formed after the break-up of his old
firm.
  Section 1927 of the Judicial Code, on which the motion
was based, provides that a lawyer “who so multiplies the
proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.” The statute is ap-
plicable not only to lawyers who represent clients but
also to a lawyer who represents himself, as Carr did in the
district court. Sassower v. Field, 973 F.2d 75, 80 (2d Cir.
1992). (Whether a pro se litigant who is not a lawyer can
be sanctioned under section 1927 is an open question in
this circuit. Alexander v. United States, 121 F.3d 312, 315-16
(7th Cir. 1997).)
   But we have held that section 1927 is inapplicable to
“misconduct that occurs before the case appears on the
federal court’s docket,” or in other words to “improper
conduct in the run up to litigation.” Bender v. Freed, 436
F.3d 747, 751 (7th Cir. 2006); see also In re Case, 937 F.2d
1014, 1023 (5th Cir. 1991). This interpretation does not
leave victims of unreasonable and vexatious litigation
remediless, and should not: a litigant can’t be allowed to
file repeated meritless suits with impunity just so long as
he does not protract any one of them unreasonably. A court
has inherent power, which is to say a common law power,
to punish by an award of reasonable attorneys’ fees or
Nos. 09-1124, 09-1168                                      17

other monetary sanction, or to prevent for the future by an
injunction, misconduct by lawyers appearing before it.
Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); Mach
v. Will County Sheriff, 580 F.3d 495, 502 (7th Cir. 2009);
Alexander v. United States, supra, 121 F.3d at 316. The
limitations of section 1927 do not apply to the exercise
of that power.
  The defendants didn’t invoke this common law power
in the district court. But neither has the plaintiff argued in
this court for the limited interpretation of section 1927
adopted in the Bender case. The defendants have treated
the issue of sanctions as turning not on the statute’s
scope but on the egregiousness of the plaintiff’s conduct,
which they set out at length in their briefs and to which
his lawyers have made no reply. We see no obstacle
therefore to invoking the common law ground for sanc-
tions for misconduct in litigation, especially since the
common law principle, like its statutory counterpart, is
as much concerned with protecting the courts from
being overwhelmed by baseless litigation as with pro-
tecting litigants from harassment.
  Although the suit is not frivolous, or at least not utterly
so, it is so lacking in merit (most clearly because of res
judicata and the one-refiling rule) that its pursuit by the
plaintiff indicates a motive to harass. The indication is
made conclusive by the vitriolic tone of the complaint,
which was drafted by Carr himself, and by the character
of his lawyers’ briefs and oral argument in this court. We
note the failure of his lawyers in this court to cite the
Schrager case in their opening brief, the disingenuous
18                                     Nos. 09-1124, 09-1168

efforts at distinguishing Schrager and Eskridge in the
reply brief, the false statement in the opening brief that
“Carr does not seek to relitigate issues from the 2004
litigation,” and the improper attempt to raise issues in
the reply brief that had not been mentioned in the
opening brief. The failure to even attempt to rebut the
cross-appeal on sanctions is also telling.
   Two years ago we sanctioned Carr under Rule 38 for
filing a frivolous appeal—in a suit in which he was not a
party but into which he had tried to inject himself by
filing a lien on fees that the district court had ruled were
due to his former partners. The district court correctly
dismissed the filing for lack of subject-matter jurisdiction
and this court dismissed Carr’s appeal as improper,
noting his “refus[al] to accept adverse judicial decisions.”
Cooper v. IBM Personal Pension Plan, 240 Fed. App’x 133, 135
(7th Cir. 2007) (per curiam). The complaint in the present
case asserts wildly that we sanctioned Carr because we
had been taken in by the defendants’ lies.
  The filing of four lawsuits in the Illinois state courts and
their abandonment upon the filing of a fifth lawsuit that
sought to circumvent the absence of diversity jurisdiction
by recharacterizing a breach of contract action (the only
thing not barred by res judicata—yet even it was barred
by the one-refiling rule) as a violation of RICO was an
abuse of the patience of the courts.
  This litigation is groundless. The plaintiff is out of
control and his lawyers are neglecting their duties as
officers of the state and federal courts by failing to rein
him in. The district court is directed to assess a proper
Nos. 09-1124, 09-1168                                    19

monetary sanction. (The defendants have not asked us to
impose sanctions for misconduct in the proceedings in
this court.)
  The district court should also consider whether to
enjoin Carr from conducting further litigation arising
from actions by the defendants of which he has com-
plained in his voluminous filings to date. Such injunc-
tions, which complement the award of monetary
sanctions for vexatious litigation, are standard remedies
for misconduct in litigation. In re Anderson, 511 U.S. 364,
365-66 (1994) (per curiam); In re City of Chicago, 500 F.3d
582, 583 (7th Cir. 2007); Montgomery v. Davis, 362 F.3d 956
(7th Cir. 2004) (per curiam); Alexander v. United States,
supra, 121 F.3d at 315; Andrews v. Heaton, 483 F.3d 1070,
1077-78 (10th Cir. 2007); Riccard v. Prudential Ins.
Co., 307 F.3d 1277, 1298-99 (11th Cir. 2002). The unlikeli-
hood, in view of the history of Carr’s litigation with the
defendants, that he will accept defeat gracefully
suggests that the remedy may be needed in this case.
  Such injunctions permit the person enjoined to ask the
court’s permission to lift the injunction for good cause.
E.g., In re Davis, 878 F.2d 211, 212-13 (7th Cir. 1989) (per
curiam). We mention this because some of the fees to
which Carr may be entitled under the Memorandum of
Understanding have not yet been paid. Should the defen-
dants refuse to pay him his share on a ground not placed
in issue in this case or any of the previous litigation
between Carr and the defendants, he will be entitled to
bring a new suit.
20                                  Nos. 09-1124, 09-1168

  The judgment in favor of the defendants is affirmed, but
the order denying their motion for sanctions is vacated
and the case is remanded for reconsideration of that
motion.




                          1-12-10
