Case: 19-1958 Document: 17 Filed: 08/01/2019 Pages: 3

SIDLEY AUSTIN LLP

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August 1, 2019

By CM/ECF

Gino J. Agnello
Clerk of the Court
United States Court of Appeals for the Seventh Circuit
Everett McKinley Dirksen United States Courthouse
219 S. Dearborn Street
Room 2722
Chicago, IL 60604

Re: Jeffrey Malkan v. American Bar Association, et al., No. 19-01958

Dear Mr. Agnello:

Pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, Appellees write to
identify cases pertinent to Appellant’s argument—made for the first time in his reply brief—that
the district court erred in dismissing the complaint “with prejudice.” Reply Br. 13.

First, the district court dismissed the complaint with prejudice because Appellant stated
on the record that he did not require further amendments to his complaint. Slip Op. 11. And
dismissal with prejudice was appropriate because the jurisdictional defect identified below is
inseparably tied to the merits. In Eike v. Allergan, Inc., 850 F.3d 315 (7th Cir. 2017), this Court
instructed the district court to dismiss the complaint with prejudice because plaintiffs failed to
allege an actionable injury, which both deprived plaintiffs of standing and doomed their claim on
the merits. Id. at 318. Here, the jurisdictional defect in Appellant’s complaint—that it alleges
“zero connection” between Appellees’ conduct and Appellant’s alleged injury—similarly
overlaps with the merits of his claims and warranted dismissal with prejudice. See Slip Op. 8-9.

Second, if the Court were to accept Appellant’s reply argument that dismissal should
have been without prejudice, it could nonetheless affirm the district court’s decision and modify
the judgment to be without prejudice. That is the approach this Court took in Lennon v. City of
Carmel, Indiana, 865 F.3d 503 (7th Cir. 2017). In that case, the district court dismissed certain
claims with prejudice because it lacked jurisdiction under the Rooker-Feldman doctrine. Id. at
506. On appeal, this Court agreed with the district court’s jurisdictional analysis, but modified
the dismissal to be without prejudice and affirmed. Id. at 509; see also Miller v. Fryzel, 499 F.
App’x 601, 603 (7th Cir. 2013) (modifying dismissal for lack of diversity jurisdiction to be
“without prejudice” and affirming without remand).
 Case: 19-1958 Document: 17 Filed: 08/01/2019 Pages: 3

Page 2

Very truly yours,

/s/Steven J. Horowitz

Steven J. Horowitz
Counsel for Appellees
 Case: 19-1958 Document: 17 Filed: 08/01/2019 Pages: 3

CERTIFICATE OF SERVICE

I, Steven J. Horowitz, a member of the Bar of this Court, hereby certify that on August 1,

2019, I electronically filed the foregoing with the Clerk of Court for the United States Court of

Appeals for the Seventh Circuit by using the appellate CM/ECF system. I certify that all

participants in the case are registered CM/ECF users and that service will be accomplished by the

appellate CM/ECF system.

August 1, 2019 /s/Steven J. Horowitz

Steven J. Horowitz
Counsel for Appellees
 Case: 19-1958 Document: 18 Filed: 08/02/2019 Pages: 2

August 2, 2019

Gino J. Agnello, Clerk of the Court

United States Court of Appeals for the Seventh Circuit
219 S. Dearborn Street
Chicago, IL 60604

By CM/ECF

Re: Malkan v. American Bar Association, et al., No. 19-01958

Dear Mr. Agnello,

Please accept this statement as my response to the ABA’s letter, dated August 1, 2019, regarding
the citation of additional authority in my reply brief.

The ABA acknowledges that a dismissal with prejudice is a disposition on the merits, which only
a court with jurisdiction may render. See Lennon v. City of Carmel, 865 F.3d 503, 509 (7th Cir.
2017); Mains v. Citibank, N.A., 852 F.3d 669, 678 (7th Cir. 2017); Frederiksen v. City of
Lockport, 384 F.3d 437, 438 (7th Cir. 2004). It argues, however, that the District Court’s
jurisdictional ruling should be treated as if it were a decision on the merits because the overlap
between the jurisdictional and the substantive issues makes them one and the same.

To the contrary, the District Court only addressed the issue of whether the damages alleged in
the complaint were fairly traceable to the accreditation fraud that it also alleged. The fairly
traceable standard has no overlap at all with the elements of common law fraud.

Even if this legal fiction is given effect, the District Court erred by failing to grant me the
requisite – and minimal – one opportunity to amend the complaint. See, e.g., Runnion v. Girl
Scouts of Greater Chicago, 786 F.3d 510, 518 (7th Cir. 2015); Alioto v. Town of Lisbon, 651
F.3d 715, 721 (7th Cir. 2011); Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010).

The ABA concludes by suggesting that the complaint may be dismissed without prejudice, but
also without a remand to the District Court, which would deprive me of any opportunity to
amend it. I respectfully reply that this motion has already consumed the better part of a year,
which has been to the ABA’s benefit and my detriment, and that the interests of justice would
better be served by reinstating the complaint with an order that the ABA’s answer be filed
without any further delay.
 Case: 19-1958 Document: 18 Filed: 08/02/2019 Pages: 2

Respectfully submitted,

/s/ Jeffrey Malkan

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W.
Saint James, New York 11780
(631) 862-6668

CERTIFICATE OF COMPLIANCE
WITH F.R.A.P. RULE 28(j)

The undersigned, Plaintiff-Appellant, pro se, Jeffrey Malkan, furnishes the following statement in
compliance with F.R.A.P Rule 28(j). I hereby certify that the foregoing document conforms to the rules
contained in F.R.A.P Rule 28(j). The body of the letter contains 315 words.
Dated: August 2, 2019

/s/ Jeffrey Malkan

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668

CERTIFICATE OF SERVICE

The undersigned certifies that he filed the foregoing document with the Clerk of the Court on
CM/ECF which will send electronic notification to the attorneys for the American Bar Association, all of
whom are registered for CM/ECF filing.

Dated: August 2, 2019

/s/ Jeffrey Malkan

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W
Saint James, New York 11780
(631) 862-6668