author: SYKES, Circuit Judge.

text:
    William D. AVERY, Plaintiff-Appellant, v. CITY OF MILWAUKEE, et al., Defendants-Appellees.
    No. 15-3175
    United States Court of Appeals, Seventh Circuit.
    Argued February 23, 2016
    Decided January 30, 2017

      Janine L.. Hoft, John L. Stainthorp, Ben H. Elson, Attorneys, PEOPLE’S LAW OFFICE, Chicago, IL, for Plaintiff-Appellant.
    Jan A. Smokowicz, Attorney, MILWAUKEE CITY ATTORNEY’S OFFICE, Milwaukee, WI, for Defendants-Appellees.
    Steven Edwards Art, Heather Lewis Donnell, Samuel D. Heppell, Gayle Horn, Arthur Loevy, Jon C. Loevy, David B. Owens, Attorneys, Amicus Curiae for ILLINOIS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, CIVIL RIGHTS AND POLICE ACCOUNTABILITY PROJECT OF THE EDWIN F. MAN-DEL LEGAL AID CLINIC.
    Before WOOD, Chief Judge, SYKES and HAMILTON, Circuit Judges.
   SYKES, Circuit Judge.

In February 1998 Maryetta Griffin was raped and strangled to death and left in an abandoned garage on Milwaukee’s north side. In 2004 Milwaukee police arrested William Avery for the crime. He was convicted of first-degree homicide and spent six years in prison before DNA evidence proved that Walter Ellis, a serial killer linked to nine similar homicides, was responsible for the murder. In 2010 Avery was released from prison; this wrongful-conviction suit followed. Avery alleged that Milwaukee detectives concocted a fake confession and induced three jailhouse informants to falsely incriminate him — evidence that was ultimately used to convict him. He also claimed that the detectives failed to disclose, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), impeachment evidence about how they obtained the false statements from the informants. Finally, Avery added a claim against the City of Milwaukee under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The district judge rejected the Brady claims on summary judgment, reasoning that the detectives had no duty to disclose the impeachment evidence because Avery already knew the informants’ statements were false. The remaining claims were tried to a jury, which found two of the detectives liable for violating Avery’s due-process rights. The jury also found the City liable and’awarded $1 million in damages.

• Avery’s victory was short-lived. The judge invalidated the verdict against the detectives based on what he said were “mixed signals” coming from this court on whether an officer’s fabrication of evidence is actionable as a due-process violation. The judge also set aside the verdict against the City, holding that without a constitutional violation by the detectives, Monell liability was not possible.

We reverse. Avery’s due-process claims fall comfortably within our decision in Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), so the jury’s verdict was legally sound and must be reinstated in its entirety. The Brady claims, too, must be revived. That Avery knew the informants’ statements were false did not relieve the detectives of their duty to disclose impeachment evidence. Avery is entitled to resume litigation of these claims.

I. Background

Maryetta Griffin, known as “Mercedes,” was sexually assaulted and strangled to death in the early morning hours of February 17, 1998. Her body was found in an abandoned garage in a decrepit and crime-ridden neighborhood on Milwaukee’s north side. Griffin’s death was tragic; so was her life. She made her living as a prostitute and was addicted to crack cocaine.

William Avery knew Griffin. He ran a drug house in the neighborhood and occasionally exchanged drugs for sex with prostitutes in the area. Griffin, along with several other prostitutes, had been at Avery’s drug house the day before her death.

About a month after Griffin was killed, detectives from the Milwaukee Police Department asked Avery to come to the station to speak with them about the murder. Avery complied; he denied any involvement in her death. After two prolonged rounds of interrogation by four different detectives, he was sent to a holding cell for the night. The next day two detectives from the day before — Daniel Phillips and Gilbert Hernandez — resumed the interrogation. Avery again denied involvement in the crime. The detectives continued to badger him, accusing him of killing Griffin. They reminded him that Mercedes was last seen alive at his drug house and suggested that perhaps she had tried to steal from him and a struggle or chase ensued. Maybe she fell down the stairs and broke her neck during the struggle? Avery denied that this happened.

Ignoring his persistent denials, Detectives Phillips and Hernandez prepared reports falsely stating that Avery confessed to the murder and gave the following account of events: Mercedes was at his drug house on the night in question; he fell asleep and woke up to find her stealing cash from his pockets; he remembered fighting with her but couldn’t recall what happened next, though he did remember telling a third person that he “killed this bitch”; and finally, he admitted that he killed Mercedes but couldn’t remember how he did it.

Detectives Phillips and Hernandez gave their reports to Assistant District Attorney. Mark Williams, Milwaukee’s chief homicide prosecutor. Williams concluded that the evidence, was insufficient to support a homicide charge. Avery was instead charged with state narcotics offenses arising from his drug-house operation. He was convicted and began serving a short prison term.

While in prison Avery met fellow inmates Keith Randolph, Antron Kent, and Jeffrey Kimbrough. All three men eventually became prosecution witnesses at his trial for Griffin’s murder. Avery’s Brody claims are premised on the failure by Milwaukee detectives to disclose details about their interrogations of these jailhouse informants — evidence that could have been used to impeach the informants when they testified at trial. For present purposes, the defendants do not contest the factual basis for Avery’s Brady claims, so the following account is his version of events.

' Detectives Hernandez and Katherine Hein interviewed Randolph in prison in October 2003. The two detectives supplied him with details about the Griffin homicide, told him to point the finger at Avery, and promised in return to help him win a reduced sentence. Randolph eventually succumbed to the pressure; he told them that Avery had admitted that he killed Griffin. The detectives prepared reports to that effect but omitted facts about the interrogation that could have been used for impeachment purposes. Randolph was called as a prosecution witness at Avery’s murder trial but refused to perjure himself by repeating the statement he gave to the detectives. The prosecution was permitted to introduce the detectives’ reports into evidence, so the jury heard Randolph’s incriminating statement anyway — without the details about the interrogation that might have caused the jurors to doubt its reliability.

The story line on Kent is similar. Detectives coached and pressured him on multiple occasions over several years: in phone calls from Detective Kevin Armbruster; in an interview with Detectives Armbruster and Timothy Heier; in an interview with Detectives Hernandez and Hein; in another meeting with Detective Heier. The upshot is that like Randolph, Kent eventually gave in and said that Avery told him he strangled Griffin to death. Kent testified to that effect at Avery’s trial. Again, the circumstances of the interrogation — that the detectives coached and pressured Kent to implicate Avery — were not disclosed to the defense.

Detectives Armbruster and Heier were the first to question Kimbrough, and Detectives Hein and Hernandez conducted a follow-up interview. As with Randolph and Kent, the detectives fed Kimbrough details about the Griffin murder and pressured him to implicate Avery. They eventually got what they were looking for: Kim-brough told them that Avery admitted that he killed Griffin. Kimbrough later recanted this statement and tried to back out of testifying at Avery’s trial, but Detective Heier told him that he “had to” testify. Kimbrough did as he was told; he took the stand and testified that Avery told him he killed Griffin. Neither the recantation nor the facts about Kimbrough’s interrogation were disclosed to the defense.

Avery completed his narcotics sentence in June 2004 and was released from prison. Three months later he was arrested and charged with Griffin’s murder. Trial was held in March 2005. Detectives Phillips and Hernandez testified about Avery’s confession; their reports were also admitted. As we’ve noted, Kent and Kimbrough testified that Avery told them he strangled Griffin. And the prosecution introduced the police reports documenting the statements of all three jailhouse informants. The jury found Avery guilty. He was sentenced to 40 years in prison.

In 2009 the Wisconsin State Crime Laboratory informed the Milwaukee Police Department that evidence from the scenes of nine unrelated homicides contained DNA from the same person — suggesting, of course, that all nine murders were committed by a single person. The victims shared remarkable similarities: All were drug-addicted prostitutes, and many were strangled to death and later found in dilapidated areas on the north side of Milwaukee. Walter Ellis was identified as the likely perpetrator; his DNA was found on evidence recovered from all nine homicide scenes. Ellis was eventually convicted of seven of these murders; he died in prison of natural causes.

When news of the Ellis DNA match broke, Avery wrote to the Milwaukee District Attorney asking him to test DNA evidence found on Griffin’s body to see if it matched Ellis’s. It did. Avery’s conviction was vacated, and he was released from prison in May 2010.

He then filed this wrongful-conviction suit raising claims under 42 U.S.C. § 1983 for violation of his due-process rights. The first set of claims alleged Brady violations arising from the suppression of the impeachment evidence about the interrogations of the jailhouse informants Randolph, Kent, and Kimbrough. The second set alleged that Detectives Phillips and Hernandez violated his due-process rights by falsifying his confession, and that Detectives Hernandez, Heier, Hein, and Armbruster violated his due-process rights by fabricating the informants’ false statements. Finally, Avery included a Monell policy-or-practice claim against the City of Milwaukee.

The judge rejected the Brady claims on summary judgment, reasoning that because Avery “knew what he said (or didn’t say) to the jailhouse informants,” the Brady disclosure duty “drops out.” The other claims were tried to a jury, which found Detectives Phillips and Hernandez liable for fabricating Avery’s confession, found the City liable on the Monell claim, and awarded $1 million in damages.

The defendants filed a Rule 59(e) motion to set aside the verdict, arguing that the evidence-fabrication claims against the detectives were really eoerced-confession claims and that coercing a confession doesn’t violate due process. The judge didn’t buy it; instead, he granted the motion on two alternative grounds, neither of which was raised in the motion.

First, the judge said he detected “mixed signals” coming from this court on the subject of due-process claims based on evidence fabrication. He concluded that because an evidence-fabrication claim “sounds” in malicious prosecution and Wisconsin provides a remedy for this tort, Avery’s due-process claims were not viable. In the alternative, the judge held that Avery wasn’t really injured by the detectives’ fabrication of evidence at all; rather, it was their false testimony at trial that caused his injury, and giving testimony is protected by absolute immunity. Either way, the judge held, the verdict against the detectives could not stand. He also held that without an underlying constitutional violation by an individual defendant, the City couldn’t be liable under Monell. Final judgment for all defendants followed.

Avery appealed, challenging the judge’s decision on the Rule 59(e) motion and his refusal to allow the Brady claims to proceed to trial.

II. Analysis

A. Due-Process Claims for Evidence Fabrication

We begin with Avery’s challenge to the Rule 59(e) ruling. In their motion the detectives argued that the claims on which the jury found them liable were actually impermissible coerced-confession claims, not genuine evidence-fabrication claims. The judge rejected this argument, concluding instead that a due-process claim “sounds” in malicious prosecution and thereforé Avery’s claims were “knocked out” as a matter of law because Wisconsin law provides a remedy for that tort. He also held that the detectives’ testimony at trial — and not their act of fabricating evidence — caused Avery’s injury and that witnesses at a criminal trial are absolutely immune from suit for damages flowing from their testimony.

Rule 59(e) rulings are reviewed for abuse of discretion, but embedded legal questions are reviewed de novo. ACLU v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012). This appeal raises purely legal questions. Before we turn to them, however, we have a threshold question about which (if any) of the arguments in support of the judge’s ruling are properly before us.

Avery urges us to ignore all three arguments because the defendants did not properly preserve them. As he sees it, the Rule 59(e) motion was really a misnamed Rule 50(b) motion for judgment as a matter of law; he asks us to treat it as such. He then points to the familiar rule that a Rule 50(b) motion may only seek relief on grounds preserved in a Rule 50(a) motion at the close of the evidence. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). The defendants didn’t follow this procedure.

Avery is right that the caption on a motion “is not essential,” but he overlooks the fact that a Rule 59(e) motion can be used “to ask that a judgment be set aside in its entirety.” A.D. Weiss Lithograph Co. v. Ill. Adhesive Prods. Co., 705 F.2d 249, 250 (7th Cir. 1983). That was the relief sought here, and Rule 59(e) was not an improper vehicle. Avery counters that if the Rule 59(e) motion was indeed proper, the defendants are limited to the single argument raised in their moving papers and cannot now defend the judge’s actual reasons for setting aside the verdict.

It’s true that the judge reached beyond the sole argument raised in the Rule 59(e) motion, resting his decision on his own analysis of the legal viability of Avery’s due-process and Monell claims. But a district judge is permitted to “enlarge the issues to be considered in acting on a timely motion under Rule 59.” Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986). The question for us is whether the judge’s Rule 59(e) decision was legally sound. We conclude that it was not.

To defend their posttrial victory, the defendants begin by reprising their failed argument that Avery never asserted genuine evidence-fabrication claims in the first place. They insist that this case boils down to a claim about the use of coercion. We have indeed drawn a distinction between a “ ‘coercion’ case for which there is no cognizable due process claim ... [and] an ‘evidence fabrication’ case where there is a cognizable claim.” Petty v. Chicago, 754 F.3d 416, 422-23 (7th Cir. 2014). But the defendants’ argument is an exercise in misdirection: It’s clear that Avery’s due-process claims are factually grounded in acts of evidence fabrication by the detectives — evidence that was later used to convict and imprison him.

‘We have consistently held that a police officer who manufactures false evidence against a criminal defendant violates due process if that evidence is later used to deprive the defendant of [his] liberty in some way.” Whitlock, 682 F.3d at 580; see also Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (explaining that the use of perjured testimony “to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation”). On the other hand, a claim that an officer coerced a witness to give incriminating evidence does not, at least standing alone, violate the wrongly convicted person’s due-process rights.

As we explained in Petty, “coercively interrogating witnesses, paying witnesses for testimony, and witness-shopping may be deplorable, and these tactics may contribute to wrongful convictions, but ... unlike falsified evidence and perjured testimony, [coerced testimony] may turn out to be true.” 754 F.3d at 422 (internal brackets and quotation marks omitted). Because coerced testimony may in fact be true, the due-process right to a fair trial isn’t implicated absent a violation of the Brady duty to disclose facts about the coercive tactics used to obtain it See Fields v. Wharrie (Fields II), 740 F.3d 1107, 1123 (7th Cir. 2014) (Sykes, J„ concurring in part and dissenting in part) (“[I]f the police officers ... withhold exculpatory information about coerced or fabricated evidence, the aggrieved defendant will have a good § 1983 claim against the officers for violation of Brady.”). Armed with the Brady disclosure, the accused can impeach the coerced testimony by pointing to the tactics the officers used to extract it, and the jury has a fair opportunity to find the truth.

The same cannot be said for fabricated evidence. Falsified evidence will never help a jury perform its essential truth-seeking function. That is why convictions premised on deliberately falsified evidence will always violate the defendant’s right to due process. What’s relevant is not the label on the claim, but whether the officers “created evidence that they knew to be false.” Petty, 754 F.3d at 423 (emphasis added). The jury found that Detectives Phillips and Hernandez knew their reports of Avery’s confession were false when they wrote them; those reports — and the fake confession — were used at trial to convict him. The detectives can’t escape liability ■for this due-process violation by shifting the focus to the background facts about the tactics they used to interrogate him.

This brings us to the two grounds on which the judge actually rested his Rule 59(e) decision. First, and primarily, the judge held that an evidence-fabrication claim “sounds” in malicious prosecution and therefore Avery’s due-process claims were “knocked out” by Wisconsin’s common-law remedy for that tort. This reasoning traces to Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), which in turn relied on Justice Kennedy’s concurring opinion in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).

To properly understand Newsome, it’s important to recall the nature of the claim asserted in Albright. As we recently explained in Armstrong v. Daily,

[t]he claim in Albright was only that the plaintiff had been prosecuted without probable cause.... [Tjhere was no claim that a law enforcement official had acted in bad faith to undermine the reliability of a trial, such as by manufacturing false evidence, arranging for perjured testimony, or destroying exculpatory evidence'.

786 F.3d 529, 540 (7th Cir. 2015).

To be more specific, the plaintiff in Al-bright had been arrested and released on bail, but the charges against him were later dropped. He asked the Supreme Court to recognize a due-process right to be free from criminal prosecution except on probable cause. 510 U.S. at 271, 114 S.Ct. 807. A four-justice plurality held that there is no such right, at least not under the Fourteenth Amendment’s Due Process Clause. Id. at 274, 114 S.Ct. 807. Justice Kennedy, joined by Justice Thomas, concurred in the judgment, agreeing that there is no freestanding due-process right not to be prosecuted except on probable cause; the concurrence invoked the doctrine announced in Parratt v. Taylor that “[i]n the ordinary case where an injury has been caused ... by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under § 1983, at least in a suit based on ‘the Due Process Clause of the Fourteenth Amendment simpliciter.’ Id. at 285, 114 S.Ct. 807 (Kennedy, J., concurring in the judgment) (quoting Parratt v. Taylor, 451 U.S. 527, 536, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).

Newsome read Justice Kennedy’s opinion as the narrowest ground of decision in Albright. Newsome, 256 F.3d at 751 (citing Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). Applying the Parratt principle, Newsome construed Albright as rejecting a constitutional claim of malicious prosecution where state law provides a meaningful remedy for that tort. Id.

But Albright must be understood in the context of its facts. As we explained at length in Armstrong, Albright has nothing at all to say about a deprivation of the due-process right to a fair trial. 786 F.3d at 539-41. That is, Albright did not involve a plaintiff who claimed he was wrongfully convicted of a crime in a trial tainted by falsified evidence, known perjury, or the deliberate destruction of exculpatory evidence. Id. at 540. That kind of claim is “grounded in the due process guarantee of fundamental fairness in criminal prosecutions” and has long been recognized. Id. The Parratt doctrine, we explained in Armstrong, doesn’t apply in this context. Id. at 539-41. The availability of a state-law remedy for malicious prosecution doesn’t defeat a federal due-process claim against an officer who fabricates evidence that is later used to obtain a wrongful conviction. Id.

So it was a mistake for the judge to set aside the verdict on this ground. That Wisconsin provides a remedy for malicious prosecution is irrelevant to the viability of Avery’s § 1983 claims for deprivation of his right to a fair trial. The jury found that Detectives Phillips and Hernandez manufactured the confession that featured prominently in his trial and contributed to his wrongful conviction for Griffin’s murder.

The judge’s second reason for setting aside the verdict rested on the immunity rule that witnesses at a criminal trial cannot be sued for damages flowing from their testimony. See generally Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The judge thought the detectives’ perjured testimony — and not their falsification of the confession — actually caused Avery’s injury. So he concluded that the due-process claims were blocked by absolute immunity.

This rationale is flawed for two reasons. First, virtually any item of evidence introduced at trial must be authenticated by oral testimony. See Fed. R. Evid. 901. Here, the detectives testified about Avery’s “confession” and authenticated their false reports memorializing it; the reports were then introduced into the trial record. If an officer who fabricates evidence can immunize himself from liability by authenticating falsified documentary or physical evidence and then repeating the false “facts” in his trial testimony, wrongful-conviction claims premised on evidence fabrication would be a dead letter. That would squarely conflict with our caselaw— most notably Whitlock — and would put us at odds with every other circuit to consider the viability of due-process claims premised on fabricated evidence.

Second, and more fundamentally, the judge’s reasoning is utterly at odds with the Supreme Court’s decision in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). There the Court held that although a prosecutor is absolutely immune from liability for the actions he takes during the course of a prosecution, he remains subject to liability for misconduct committed in an investigative capacity “before he has probable cause to have anyone arrested.” Id. at 274, 113 S.Ct. 2606. We’ve read the Buckley exception to mean that a “prosecutor cannot retroactively immunize himself from conduct by perfecting his wrong-doing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity.” Fields II, 740 F.3d at 1114. Although this case involves evidence fabrication by detectives, not a prosecutor, the judge’s ruling gives the detectives’ testimony precisely that impermissible effect.

It’s true that the detectives’ testimony was a factual predicate for Avery’s claim: A § 1983 claim requires a constitutional violation, and the due-process violation wasn’t complete until the false confession was introduced at Avery’s trial, resulting in his conviction and imprisonment for a murder he did not commit. See Cairel v. Alderden, 821 F.3d 823, 831 (7th Cir. 2016) (explaining that the plaintiffs acquittal foreclosed his due-process evidence-fabrication claim); see also Whitlock, 682 F.3d at 582. After all, it was the admission of the false confession that made Avery’s trial unfair. As we explained in Fields II, however, under common-law causation principles, “[h]e who creates the defect is responsible for the injury that the defect foreseeably causes later.” 740 F.3d at 1111-12.

When the detectives falsified their reports of a nonexistent confession, it was entirely foreseeable that this fabricated “evidence” would be used to convict Avery at trial for Griffin’s murder. That was, of course, the whole point of concocting the confession. An unbroken causal chain connects the acts of evidence fabrication to Avery’s wrongful conviction and imprisonment. The detectives are liable under § 1983 for this due-process violation even though their trial testimony, standing alone, would not subject them to damages liability.

So the judge was wrong to set aside the verdict on this ground. The jury’s verdict — including the City’s liability on the Monell claim, which is not independently challenged — must be reinstated.

B. Summary Judgment on the Brady Claims

For present purposes, the defendants do not dispute the facts underlying Avery’s Brady claims: The detectives (the larger group) failed to disclose material impeachment evidence regarding their interrogations of the three jailhouse informants, and their suppression of this evidence prejudiced Avery’s defense. See Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

We’ve held, however, that evidence cannot be said to have been suppressed in violation of Brady if it was already known to the defendant. See Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003). Other circuits agree. See, e.g., Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002); West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996); Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.), opinion supplemented on denial of reh’g, 62 F.3d 342 (11th Cir. 1995); United States v. Dias, 922 F.2d 998, 1007 (2d Cir. 1990); Atkins v. County of Riverside, 151 Fed.Appx. 501, 505 n.4 (9th Cir. 2005) (citing Gauger, 349 F.3d 354); see also United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (stating that Brady applies to “information which had been known to the prosecution but unknown to the defense”).

We’ve applied the Gauger rule to preclude Brady claims against officers who failed to disclose the coercive circumstances surrounding the statements of prosecution witnesses when the criminal defendant already knew of those circumstances. Petty, 754 F.3d at 423-24; Sornberger v. City of Knoxville, 434 F.3d 1006, 1029 (7th Cir. 2006). We’ve also applied it in a case involving officers who falsely reported a relationship between the criminal defendant and a third party. Harris v. Kuba, 486 F.3d 1010, 1016-17 (7th Cir. 2007).

Here, the judge correctly stated the Gauger rule but misapplied it to this case. Recall that Avery’s Brady claims are premised on the detectives’ failure to disclose the details of the pressure and inducements they brought to bear to extract false statements from Randolph, Kent, and Kimbrough. The judge thought the Brady obligation “dropped out” because Avery already “knew what he said (or didn’t say) to the jailhouse informants.” But that’s beside the point; the material question is whether Avery was aware of the impeachment evidence.

In Gauger, Petty, and Somberger, the criminal defendants were already aware of the impeaching facts — namely, that the testimony in question was coerced. In Harris the criminal defendant was just complaining that the officer didn’t admit to falsifying his report. Here, in contrast, Avery knew that the informants’ statements were false, but he did not know about the pressure tactics and inducements the detectives used to obtain them. And he did not know that Kimbrough had in fact recanted his statement just before trial but was told that he “had to” testify. In other words, he did not have the evidence that could help him prove that the informants’ statements were false. The Gauger rule does not apply. Summary judgment on the Brady claims was improper.

III. Conclusion

Because the judge’s summary-judgment and Rule 59(e) rulings rested on legal errors, the jury’s verdict must be reinstated in its entirety and the Brady claims must be revived and allowed to move forward. We Reverse and Remand for further proceedings consistent with this opinion.

      . Katherine Hein is now Katherine Spano, her married name.

      . Using a coerced confession against the accused at trial may give rise to a claim for violation of the accused’s Fifth Amendment right not to be a witness against himself. See Chavez v. Martinez, 538 ,U.S. 760, 767, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Avery raised only due-process claims.

      . The plurality suggested that if the plaintiff had a claim at all, it would be for an unreasonable seizure in violation of the Fourth Amendment. Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). But three justices in the plurality "express[ed] no view as to whether [the plaintiff's] claim would succeed under the Fourth Amendment,” id. at 275, 114 S.Ct. 807; Justice Ginsburg concluded that the plaintiff had an actionable Fourth Amendment claim, id. at 276-81, 114 S.Ct. 807 (Ginsburg, J., concurring). The Fourth Amendment issue has returned to the Supreme Court in a case argued earlier this term. Manuel v. City of Joliet, No. 14-9496, 2016 WL 5852129 (oral argument held Oct. 5, 2016).

      . It bears noting that the claim in Newsome was materially different from the claim in Albright. As we’ve explained, the plaintiff in Albright was never convicted; the charges against him were dropped, so his claim rested on an assertion that he was prosecuted without probable cause. Albright, 510 U.S. at 271, 114 S.Ct. 807. In contrast Newsome was convicted, imprisoned for many years, exonerated and released, and later pardoned. Newsome v. McCabe, 256 F.3d 747, 748-49 (7th Cir. 2001). He sued five officers under § 1983 alleging Brady violations and claims for "malicious prosecution.” Id. at 749. Applying Justice Kennedy’s Albright concurrence, the panel rejected the malicious-prosecution theory but let the Brady claims stand, affirming the denial of qualified immunity. Id. at 751-52. The panel explained that although Newsome didn’t have a cognizable malicious-prosecution claim grounded in due process or the Fourth Amendment, he did "have a due process claim in the original sense of that phrase — he did not receive a fair trial if the prosecutors withheld material exculpatory details.” Id. at 752. Because Newsome involved a wrongful conviction, not merely a wrongful prosecution, its invocation of Albright was arguably misplaced, or at least not strictly necessary to the outcome; the due-process claims were allowed to move forward under the rubric of Brady.

      . See, e.g., Cole v. Carson, 802 F.3d 752, 773 (5th Cir. 2015), cert. granted, vacated and re

        mandad, - U.S. -, 137 S.Ct. 497, 196 L.Ed.2d 397 (2016) (for further consideration in light of Mullenix v. Luna, - U.S. -, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015)); Welland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1328 (11th Cir. 2015) (holding that an allegation that police officers fabricated evidence and lied in their police reports, and that these fabrications caused the plaintiff’s incarceration, is sufficient to state a § 1983 claim); Coggins v. Buonora, 776 F.3d 108 (2d Cir.), cert. denied, - U.S. -, 135 S.Ct. 2335, 191 L.Ed.2d 981 (2015) (holding that a police officer who falsified police reports, made false statements to a district attorney, and otherwise fabricated evidence is liable to a § 1983 suit); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014) (”[I]f a defendant has been convicted at a trial at which the prosecution has used fabricated evidence, the defendant has a stand-alone claim under section 1983 based on the Fourteenth Amendment if .there is a reasonable likelihood that, without the use of that evidence, the defendant would not have been convicted.”); Livers v. Schenck, 700 F.3d 340, 354 (8th Cir. 2012) ("[T]he Fourteenth Amendment’s guarantee of due process is violated by the manufacture of ... false evidence in order to falsely formulate a pretense of probable cause.”) (internal quotation marks omitted); Wilkins v. DeReyes, 528 F.3d 790, 805 (10th Cir. 2008) (holding that the plaintiff’s assertion that officers intentionally coerced false statements supported a § 1983 claim); Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005) (holding that “proof that [the officer] fabricated evidence and that the fabrication resulted in a deprivation of ... liberty” is sufficient to state a § 1983 claim); Limone v. Condon, 372 F.3d 39, 49 (1st Cir. 2004) (holding that an officer who coaches a witness whom he knows will commit perjury is liable to a § 1983 suit); Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc) ("[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.”); Stemler v. Florence, 126 F.3d 856, 872 (6th Cir. 1997) (holding that a police officer "violate[s] ... due process if he knowingly fabricated evidence against [a criminal defendant] and if there is a reasonable likelihood that the false evidence could have affected the judgment of the jury”).


source: Caselaw Access Project

license: Public Domain

text:
    IN RE: Margaret KEMPFF, Debtor-Appellee. Appeal of: Brian K. Farley.
    No. 15-3200
    United States Court of Appeals, Seventh Circuit.
    Argued February 23, 2016
    Decided January 30, 2017

      Edward J. Lesniak, Attorney, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL, for Debtor-Appellee.
    Jeffrey W. Finke, Attorney, Law Office of Jeffrey W. Finke, Chicago, IL, for Appellant.
    Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges.
   SYKES, Circuit Judge.

Margaret Kempff s ex-husband Bart embezzled more than $1 million from his employer while the two were still married. To evade detection, he attempted to replenish the stolen funds, borrowing $400,000 from his friend Brian Farley on the ruse that the money would be used for a real-estate development. As security for the loan, Bart gave Farley a third-priority hen on the couple’s home, forging Margaret’s signature on the note and mortgage.

Bart’s effort to cover his tracks did not succeed. His employer discovered the embezzlement and reported it to police; he was eventually convicted of felony theft. In the meantime, Margaret divorced him and the couple’s home went into foreclosure. Farley filed a cross-claim in the foreclosure action seeking to enforce his lien, but the sale of the home did not yield nearly enough to cover even the first mortgage. Margaret filed for bankruptcy while the foreclosure was pending, which stayed Farley’s claim.

Farley then filed an adversary complaint challenging Margaret’s eligibility for a Chapter 7 discharge. He claimed that she made a fraudulent transfer after filing her bankruptcy petition and made multiple false statements in her bankruptcy schedules. Margaret testified at trial that these were innocent mistakes. The bankruptcy judge credited her testimony and rejected each of Farley’s contentions, and the district court affirmed that decision. We do the same. Farley’s arguments for overturning the bankruptcy judge’s ruling are most charitably described as ill-considered. The decision rests on the judge’s acceptance of Margaret’s testimony as credible. Credibility determinations are almost never disturbed on appeal. Farley gives us no good reason to do so here.

I. Background

Bart Kempff, an attorney, was general counsel for a luxury home builder in suburban Chicago. Over time he embezzled approximately $1.2 million from his employer. In early August 2007, he launched a desperate scheme' to avoid detection by surreptitiously replenishing the stolen money. To that end he asked Brian Farley, also an attorney, to lend him $400,000, ostensibly for a real-estate development. In exchange Bart offered Farley a security Ínteres! on the real-estate project and a second mortgage on the home he and Margaret owned. Farley agreed.

On August 8 Bart signed a note and mortgage, and Farley wrote him a check for $400,000. Bart had concealed his fraudulent activity from his wife, so Margaret wasn’t present for this transaction. Bart assured Farley that she was willing to sign and promised to obtain her signature on the loan documents. He then used the money to partially restore the stolen funds. On August 21 Bart and Margaret closed on a bank loan secured by a second mortgage on their home. Two days later, Bart forged Margaret’s signature on the Farley loan documents and sent them back to Farley, clearing the way for him to record the mortgage. Farley did so, but by then it was third in order of priority.

While all this was unfolding, Bart’s employer learned of the embezzlement. On August 21 — the same day he and Margaret closed on the bank loan — Bart was fired. Things unraveled quickly after that. Several of Margaret’s relatives loaned the couple sizable sums in the hope that Bart could repay his employer and avoid prosecution. To no avail; the State’s Attorney charged him with felony theft, and he was eventually convicted and disbarred. Meanwhile, the lender holding the first mortgage on the couple’s home initiated foreclosure proceedings. Farley filed a cross-claim against Bart and Margaret in the foreclosure action, but the proceeds of the home sale were insufficient to cover even the first mortgage. The nonpriority lien-holders received nothing.

While the foreclosure action was pending, Margaret filed a petition for bankruptcy, which automatically stayed Farley’s claim against her. Farley turned to the bankruptcy court for relief, filing an adversary action challenging Margaret’s eligibility for a Chapter 7 discharge. He raised many grounds; only two remain relevant here. Farley accused Margaret of transferring property “with intent to hinder, delay, or defraud a creditor” after the date of her bankruptcy petition. 11 U.S.C. § 727(a)(2). He also alleged that she “knowingly and fraudulently” made false statements in her bankruptcy filings. Id. § 727(a)(4).

The bankruptcy judge held a three-day bench trial on Farley’s claims. Margaret testified that she did not authorize the postpetition transfer and that the inaccurate statements in her bankruptcy filings were innocent mistakes or misunderstandings. The judge credited her testimony, found that she lacked fraudulent intent, and rejected Farley’s claims. The district court upheld this ruling, and Farley has appealed.

II. Discussion

Discharge under Chapter 7 of the Bankruptcy Code “is reserved for the ‘honest but unfortunate debtor.’ ” Stamat v. Neary, 635 F.3d 974, 978 (7th Cir. 2011) (quoting Grogan v. Gamer, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). Section 727(a) enforces this reservation by “denying] the privilege of discharge to dishonest debtors.” Id. The statute lists 12 grounds for denying a discharge. 11 U.S.C. § 727(a)(1) — (12). The challenger must establish the debtor’s ineligibility by a preponderance of the evidence. Stamat, 635 F.3d at 978.

On appeal from a district court’s review of a bankruptcy judge’s ruling, “we apply the same standard as the district court, reviewing the bankruptcy court’s factual findings for clear error and the legal conclusions of both the bankruptcy court and the district court de novo.” In re Marcus-Rehtmeyer, 784 F.3d 430, 436 (7th Cir. 2015). A factual finding is clearly erroneous if “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Kovacs v. United States, 614 F.3d 666, 672 (7th Cir. 2010) (quotation marks omitted).

A. Fraudulent Transfer

A bankruptcy judge may deny a discharge if, after the date of the bankruptcy petition, the debtor transferred or permitted to be transferred any property of the bankruptcy estate “with intent to hinder, delay, or defraud a creditor.” § 727(a)(2). Farley alleged that Margaret fraudulently permitted her accountant to transfer funds to the Illinois Department of Revenue for unpaid taxes.

The tax payment concerned shares Margaret owned in Steel Investment Company, a closely held company controlled primarily by relatives on her mother’s side. Prior to her bankruptcy filing, the Illinois Department of Revenue issued a $7,288.22 levy for unpaid taxes on income from these shares. By the time of the levy, Margaret had pledged the shares to her uncle as security for a loan; she had also ceded control over any income generated by the shares to her father in return for the financial support her parents were providing to her and her children. After she filed her Chapter 7 petition, her bankruptcy attorney prepared a letter informing interested parties that the automatic stay prevented the Department of Revenue from enforcing the levy. The letter was sent to the Department and to Richard Schoon, Margaret’s accountant, who was also the accountant for Steel Investment Company. When Steel Investment later approved a distribution to stockholders, Schoon consulted with the company’s attorney and, despite the contrary instructions from Margaret’s attorney, transferred a $7,200 distribution on Margaret’s stock to the Illinois Department of Revenue.

The bankruptcy judge accepted Margaret’s testimony that this transfer occurred without her knowledge, input, or approval. Because § 727(a)(2) requires a knowing fraudulent transfer, the judge held that this payment did not disqualify Margaret from receiving a discharge.

Farley doesn’t challenge the judge’s factual findings; he argues instead that § 727(a)(2) contains no requirement that the complaining creditor actually suffer harm. In re Krehl, 86 F.3d 737, 744 n.4 (7th Cir. 1996) (A “discharge may be denied even if creditors did not suffer any harm.”). That’s true, but irrelevant. Discharge is not denied unless the complaining creditor “demonstrates by a preponderance of the evidence that the debtor actually intended to hinder, delay, or defraud a creditor, ... [and] intent 'to defraud must be actual and cannot be constructive.” Village of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir. 2002) (citations omitted). Farley has not argued that Margaret purposely kept herself in the dark while suspecting that her accountant would transfer assets to a favored creditor. Nor could he; the uncontested facts tell a different story. Margaret notified Schoon of the bankruptcy stay and informed him that the Department of Revenue could not enforce the levy. After she did so, she had no reason to think that he would transfer assets to pay the tax debt. Farley has given us no reason to upset the judge’s ruling.

B. Fraudulent Filings

Farley’s other challenges fall under the rubric of § 727(a)(4), which withdraws discharge eligibility if the debtor “knowingly and fraudulently” makes “a false oath or account” in connection with the bankruptcy proceeding. A party who opposes discharge under this provision must prove the following: “(1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with fraudulent intent; and (5) the statement related materially to the bankruptcy case.” Stamat, 635 F.3d at 978. Although Margaret’s bankruptcy filings contained several misstatements, the bankruptcy judge found that Margaret lacked fraudulent intent.

Fraudulent intent “includes intending to deceive, which need not connote intending to obtain a pecuniary benefit.” In re Katsman, 771 F.3d 1048, 1050 (7th Cir. 2014) (internal quotation marks and alteration omitted). Evidence of “reckless disregard for the truth is sufficient to prove fraudulent intent.” Stamat, 635 F.3d at 982. “Whether a debtor possessed the requisite intent to defraud is a question of fact, which is subject to the ‘clearly erroneous’ standard of review.” In re Marcus-Rehtmeyer, 784 F.3d at 436. And because an “intent determination often will depend upon a bankruptcy court’s assessment of the debtor’s credibility,” the reviewing court’s deference to the bankruptcy judge’s ruling is particularly strong in this context. In re Krehl, 86 F.3d at 743 (addressing a challenge to discharge under § 727(a)(2)).

Margaret testified that each misstatement in her bankruptcy filings was an innocent mistake. The judge found her testimony “very credible” and concluded that the errors resulted from either a misunderstanding or the “utter incompetence” of Margaret’s attorney, not any fraudulent intent on her part. Farley carries a heavy burden to convince us otherwise.

The first misstatement relates to the Kempffs’ divorce settlement. In her original Schedule B, which listed her personal property, Margaret checked “None” next to the space reserved for “[a]limony, maintenance, support, and property settlements to which the debtor is or may be entitled.” In an examination conducted under Rule 2004 of the Federal Rules of Bankruptcy Procedure, Margaret admitted that this statement was wrong: Bart technically owes her more than $300,000 under various provisions of their divorce settlement agreement. She filed an amended Schedule B about a week after this examination. Again she checked “None” in this box. But in the space reserved for “[o]ther contingent and unliquidated claims,” she explained that she had “[c]laims against ex-husband Bart Kempff, pursuant to Judgment of Marriage Dissolution” and estimated that these claims were worth “0.00.”

At trial Margaret testified that she did not include the divorce settlement in her original filing because Bart hadn’t paid her anything and she had no expectation that fye would ever do so. The judge credited this testimony, considering it eminently reasonable for Margaret to believe that the settlement agreement with her ex-husband — a disbarred, felonious fraudster who has yet to pay her “one cent” of the amount he owes — was essentially worthless. The judge concluded that although Margaret should have disclosed the settlement in her original filing, she did not omit this information with fraudulent intent.

The second misstatement was a line item in Margaret’s amended Schedule F listing her creditors. On this form she listed her parents as creditors in the amount of $1.4 million. Farley claims this statement was willfully false because Margaret knew that her parents didn’t have the legal authority to collect on this debt; it was at most a moral obligation, not a legal debt. The bankruptcy judge discerned no fraudulent intent on Margaret’s part, concluding instead that this line item was the result of “the inexplicable and I will say incompetent advice of [her bankruptcy attorney].”

The third misstatement relates to Margaret’s estimates of the value of her clothing and jewelry. In her original and amended Schedule B, she valued this property at $500. At trial Farley tried to prove — largely via Bart’s testimony — that Margaret’s clothing and jewelry were worth much more than $500. The bankruptcy judge rejected Bart’s testimony as self-serving, unreliable, and generally incredible; the rest of Farley’s evidence was unsubstantiated or irrelevant. With no credible evidence about the actual value of Margaret’s clothing and jewelry, the judge found that Farley had failed to prove that her estimate was false, much less intentionally and fraudulently so.

The fourth misstatement pertains to Margaret’s estimate of her current income in Schedule I. She originally reported $2,000 in monthly income in the form of gifts from her parents, who were supporting Margaret and her children during this period. The bankruptcy judge concluded that the actual amount was closer to $4,500 per month. But again the judge concluded that Margaret’s lower estimate was an innocent mistake. The difference ($2,500 per month) reflected charges Margaret made on her parents’ credit cards, and a reasonable layperson “would not necessarily think that charges made on somebody else’s charge card should be included as income.” The judge also noted that Margaret would have no motive to intentionally understate the gifts from her parents because the accurate $4,500-per-month figure “would not have put her anywhere close to the level at which ... there could be even a potential argument that she should not get a discharge.”

On this point Farley lodged a further objection: Margaret never filed an amended Schedule I correcting this misstatement. The judge attributed the omission to Margaret’s attorney, whose “failure to suggest the amendments ... reflected] a misunderstanding by him of what should be included ... or utter incompetence in not realizing that any errors in the schedules should be corrected.” Once again, the judge found that Margaret lacked fraudulent intent.

The fifth and final misstatement is an item in Margaret’s amended Statement of Financial Affairs reporting payments made to inside creditors in the year before the bankruptcy petition. Margaret reported a $275.35 payment to her parents; the correct figure was $8,275.35. The judge chalked this up to a simple typographical error, not a fraudulent falsification. The judge also noted that the payment was made more than a year before Margaret’s bankruptcy petition and thus did not need to be reported in the first place.

Farley challenges each of these rulings as clear error but offers nothing to contradict the judge’s findings. Instead he points to several cases in which we upheld the denial of discharge where the bankruptcy-judge made specific findings that the debt- or fraudulently falsified submissions to the bankruptcy court. See, e.g., Stamat, 635 F.3d 974; In re Chavin, 150 F.3d 726 (7th Cir. 1998); In re Krehl, 86 F.3d 737; In re Yonikus, 974 F.2d 901 (7th Cir. 1992). These decisions cannot possibly help his case; here the bankruptcy judge uniformly found that Margaret lacked fraudulent intent. Farley also relies on In re Katsman and In re Marcus-Rehtmeyer, but these eases are no more helpful to him; in both cases the bankruptcy judge committed legal not factual error.

Katsman involved a debtor who admitted that she deliberately omitted four creditors from her bankruptcy filings. 771 F.3d at 1049. The bankruptcy judge concluded that the debtor lacked fraudulent intent because she was not motivated by pecuniary interest. Id. at 1050. That was a legal mistake. Fraudulent intent in this context requires intent to deceive, but the particular reason for the deception is irrelevant. Id. The judge here did not make a similar legal mistake.

Marcus-Rehtmeyer is not merely irrelevant; it actually undercuts Farley’s position. In that case the bankruptcy judge accepted the debtor’s explanations for discrepancies in her filings. We expressed some doubt about this credibility finding but accorded it deference anyway. 784 F.3d at 436-37. In the end we reversed the bankruptcy court’s ruling, but not because we found clear error in the judge’s factual findings. Rather, we held that the judge misunderstood the debtor’s disclosure obligations under state law. Id. at 438.

Our willingness to give the benefit of the doubt to a questionable credibility determination in Marcus-Rehtmeyer underscores the fatal flaw in Farley’s arguments. Farley insists that Margaret’s misstatements taken together evince reckless disregard for the truth. But her misstatements can just as easily be attributed to simple negligence or innocent misunderstandings — by Margaret herself or by her attorney. So the bankruptcy judge held. Margaret’s explanations were not so self-evidently absurd or in tension with other evidence as to call that credibility finding into question.

C. “Advice of Counsel” Defense

Finally, Farley raises a single claim of legal error. He maintains that the bankruptcy judge should not have allowed Margaret to testify about the advice she received from her attorney. This argument rests on Rule 8(c) of the Federal Rules of Civil Procedure, which requires that a responsive pleading “affirmatively state any avoidance or affirmative defense.” Farley insists that Margaret’s testimony amounted to' an “advice of counsel” affirmative defense in violation of Rule 8(c).

There’s absolutely no support for this argument. Farley had the burden of proof. Margaret was permitted to offer evidence to rebut his claim that she made a fraudulent transfer and filed false schedules in the bankruptcy proceeding with intent to defraud a creditor. A debtor’s testimony about advice from her bankruptcy attorney is one kind of evidence that may tend to negate fraudulent intent. See In re Gotwald, 488 B.R. 854, 872 (Bankr. E.D. Pa. 2013). Margaret’s testimony about her attorney’s advice was not a disguised affirmative defense. Rule 8(c) does not apply.

AFFIRMED.

      . Farley obtained an $840,000 judgment against Bart for breach of contract and fraud.

      . The bankruptcy judge also concluded that some of the inaccuracies were immaterial. Farley challenges this ruling, but we do not need to address it.

      . The settlement also requires Bart to indemnify Margaret for marital debts, including debts to her parents.


author: FLAUM, Circuit Judge.

text:
    P.H. GLATFELTER CO., Plaintiff-Appellant/Cross-Appellee, v. WINDWARD PROSPECTS LTD., Defendant-Appellee/Cross-Appellant.
    Nos. 15-3847, 16-1197, & 16-1310
    United States Court of Appeals, Seventh Circuit.
    Argued January 19, 2017
    Decided January 31, 2017

      Francis A. Citera, Attorney, Greenberg Traurig, LLP, Chicago, IL, Brigid F. Cech Samóle, Elliot H. Scherker, Attorneys, Greenberg Traurig, LLP, Miami, FL, Caleb Jonathan Holmes, David G. Mandel-baum, Attorneys, Greenberg Traurig LLP, Philadelphia, PA, for Plaintiff-Appellant.
    Jeremy McGuire King, Attorney, Olshan Frome Wolosky LLP, New York, NY, for Defendant-Appellee.
    Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
   FLAUM, Circuit Judge.

These three appeals arise out of a discovery dispute between P.H. Glatfelter Co., a paper manufacturer, and Windward Prospects Ltd., an English company on which Glatfelter served a non-party subpoena. Two of the appeals are taken by Glatfelter from the district court’s orders denying both Glatfelter’s motion to compel responses to its subpoena and Glatfelter’s motion for reconsideration. The third appeal, which we treat as a cross-appeal, was taken by Windward to seek an award of fees and costs under Federal Rule of Civil Procedure 87. For the reasons that follow, we dismiss all three appeals for lack of jurisdiction.

I. Background

The present appeals are ancillary to an ongoing multiparty effort to clean up poly-chlorinated biphenyls (PCBs) in the bed of the Lower Fox River in northeastern Wisconsin. See generally United States v. P.H. Glatfelter Co., 768 F.3d 662, 665-67 (7th Cir. 2014); NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 686-89 (7th Cir. 2014); United States v. NCR Corp., 688 F.3d 833, 835-36 (7th Cir. 2012). From the mid-1950s through the 1970s, several paper mills and a coating plant discharged wastewater containing PCBs into the Lower Fox River. By 1979, when the EPA banned PCB use, approximately 250,000 pounds of PCBs had been released into the river bed. Beginning in the 1990s, the EPA and the Wisconsin Department of Natural Resources began investigating the contamination to develop a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act (CERC-LA). The EPA’s final plan, adopted in 2002, proposed a cleanup proceeding in stages through a combination of dredging and capping at various sites.

The remediation cost for the Lower Fox River is estimated to be approximately $700 million. See, e.g., P.H. Glatfelter Co., 768 F.3d at 667. Under CERCLA, the obligation to pay for the cleanup falls on the parties responsible for creating the hazard, and potentially responsible parties (PRPs) may be liable for the full costs of remediation. Paper manufacturers NCR Corporation and Appvion, Inc. were named by the EPA as PRPs and have funded the ongoing cleanup. Other companies with a potential role in the discharge of PCBs, including Glatfelter, also were named as PRPs and agreed to perform remedial work.

In late 2007, the EPA. issued a unilateral administrative order directing the PRPs to begin remedial work in the last four operable units of the Lower Fox River. NCR and Appvion undertook many of those remedial efforts. They then sued other PRPs, including Glatfelter, in the Eastern District of Wisconsin, seeking to recover the cleanup costs and to require other PRPs to pay for future remedial work. The district court initially ruled on summary judgment that NCR and Appvion were-not entitled to any equitable contribution from the other paper mills involved. In 2014, we reversed and remanded the cost recovery action back to the district court. See NCR Corp., 768 F.3d at 687, 689-90, 713. That action remains pending, with Appvion seeking recovery against Glatfelter and other PRPs for the Lower Fox River cleanup costs Appvion has incurred, in addition to subrogation and declaratory relief.

Windward is an English entity allegedly conducting Appvion’s defense of CERCLA claims and managing Appvion’s responsibility for the Lower Fox River cleanup operations. Windward ratified the commencement of the cost recovery action by Appvion and has stated that Windward will be bound by the result. To defend against Appvion in the cost recovery action, Glatfelter sought discovery relating to Appvion’s costs from both Appvion and Windward. Glatfelter contends that identifying those costs (and any potential offsets from insurance, settlements, or indemnification payments) depends on understanding how funds changed hands between Appvion and its insurers or indemnitors, including Windward.

Glatfelter first attempted to obtain discovery from Windward through Appvion, which refused to'accept service on Windward’s behalf. Glatfelter next sent a copy of its discovery request by certified mail to Windward’s counsel at his home office in New Hampshire. He returned the envelope unopened. Glatfelter then filed a motion to compel responses to its discovery requests in the Eastern District of Wisconsin. The district court denied the motion, ruling that Windward’s ratification of App-vion’s action did not, on its own, give Glat-felter an independent right to seek discovery from the former under Federal Rules of Civil Procedure 33 or 34, but that there are other ways to obtain discovery from non-parties.

Glatfelter next issued a subpoena to Windward at its attorney’s New Hampshire address. Windward’s counsel informed Glatfelter that Windward would not be making any production because it was not subject to the jurisdiction of the United States federal courts. Windward also objected to the subpoena to the extent that it sought' documents or information available from another more convenient, less burdensome, or less expensive source (ie., Appvion).

Glatfelter then instituted this ancillary-proceeding in the District of Massachusetts, seeking to compel Windward to respond to the subpoena. Glatfelter also simultaneously moved under Rule 45(f) to transfer the case to the Eastern District of Wisconsin, where the cost recovery action was pending before Judge Griesbach, who had presided over the case since it was first filed. Following a hearing, the magistrate judge in Massachusetts ordered a transfer to the Eastern District of Wisconsin, and the ancillary action was docketed before Judge Griesbach. After receiving additional arguments and evidence, he denied the motion to compel, concluding that the court lacked personal jurisdiction over Windward and that Glatfelter had not established which documents it sought that were not already subject to production by Appvion. Glatfelter filed a motion for reconsideration, which the district court also denied.

Glatfelter appealed the district court’s denial of its motions, and Windward filed a third appeal regarding. fees, which we treated as a cross-appeal. In our order dated July 25, 2016, we directed that Windward’s cross-appeal be taken with the other appeals, and instructed the parties to address all jurisdictional issues in their briefs.

On January 17, 2017, two days before oral argument was scheduled in this case, Glatfelter notified, this Court of a proposed consent decree among NCR, Appvion, the United States, and the state of Wisconsin that had been submitted to the district court. If approved and entered, the proposed decree would potentially resolve Appvion’s claims against Glatfelter in the cost recovery action that gave rise to these ancillary proceedings.

II. Discussion

“The initial inquiry in any appeal is whether the court to which the appeal has been taken has jurisdiction to entertain the appeal.” Sik Gaek, Inc. v. Harris, 789 F.3d 797, 799 (7th Cir. 2015) (citation omitted). The federal courts of appeal have jurisdiction over all final decisions of the federal district courts. See 28 U.S.C. § 1291. A final decision is one that “ends the litigation on the merits, leaving nothing for the [district] court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (citation omitted). The general rule is that pretrial discovery orders, such as those at issue here, are not final in terms of winding up the underlying lawsuit. See Sik Gaek, Inc., 789 F.3d at 799. An exception exists, however, under the collateral order doctrine, where an order “conclusively de-terminéis] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (citing Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. MacDonald, 435 U.S. 850, 855, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978)).

Glatfelter emphasizes that this ancillary discovery issue has been conclusively decided by the district court’s two orders and is collateral to the underlying cost recovery suit, and that this appeal is, for all practical purposes, Glatfelter’s only chance to obtain discovery from Windward, a non-party to the main action. See, e.g., Carter Prods., Inc. v. Eversharp, Inc., 360 F.2d 868, 870 (7th Cir. 1966) (finding jurisdiction over an appeal from the Illinois district court’s denial of a motion to compel deposition testimony of non-party to underlying California litigation, because, “[f]or all practical purposes[,] . . . this appeal [is appellants’] only opportunity for review of the district court’s order denying access to the information”). Thus, Glatfel-ter contends, the collateral order doctrine ought to apply.

The problem for Glatfelter is that this ancillary action was transferred from the District of Massachusetts to the Eastern District of Wisconsin prior to this appeal. In our Circuit, we have recognized the appealability of pretrial discovery orders only where they were issued by a district court in an ancillary proceeding and said district court was not within the jurisdiction of the circuit court having appellate, jurisdiction to review the final adjudication of the main action. See, e.g., Sik Gaek, Inc., 789 F.3d at 799 (“Here, the district court order denying sanctions was issued in a jurisdiction not that of the main proceeding. Consequently, appellants cannot obtain effective review of the order as part of an appeal of a final adjudication of the main action....”); see also id. (citing cases); Hernly v. United States, 832 F.2d 980, 981 n.1 (7th Cir. 1987) (“This court has previously decided that it has jurisdiction. The order appealed from was deemed final because it was entered in a different district court from where the main action is pending.”) (citation and internal quotation marks omitted). Because the ancillary action (this discovery dispute) is in the same district court where the main action (the cost recovery action) is currently pending, Glatfelter could obtain review of the denial of its motions to compel and for reconsideration on appeal from the final judgment in the main action.

We have not yet ruled .directly on whether one may appeal an order in an ancillary action entered in a district court located in the same circuit as the district court handling the main action. However, other circuits that have considered the issue have held such orders interlocutory and not immediately appealable. See, e.g., Barrick Grp., Inc. v. Mosse, 849 F.2d 70, 73 (2d Cir. 1988) (“Under these circumstances, a circuit court can consider any appeal on discovery issues at the same time as the appeal from the judgment in the underlying action. This approach avoids piecemeal proceedings, strengthens the rule of finality and provides ultimately for the effective review of all issues.”); Hooker v. Cont’l Life Ins. Co., 965 F.2d 903, 905 (10th Cir. 1992) (focusing on whether the appealing party “has any means, other than an immediate appeal, to obtain appellate review,” and concluding that “[b]ecause the same circuit court will have jurisdiction to review both the discovery order and the final adjudication ..., appellate review of the order denying discovery will not be foreclosed by delaying review until a final adjudication of the entire action”); In re Subpoena Served on Cal. Pub. Utils. Gomm’n, 813 F.2d 1473, 1475-80 (9th Cir. 1987) (dismissing, sua sponte, appeal of an order quashing a non-party subpoena for want of appellate jurisdiction because court could review the order with appeal from final adjudication of main action).

Glatfelter nonetheless points to decisions by the Eleventh and Federal Circuits that it claims support its position: that an order denying a motion to compel may still be appealable, even if entered by a district court located within the same circuit as the court presiding over the main action. See Ariel v. Jones, 693 F.2d 1058, 1059 (11th Cir. 1982) (per curiam) (concluding that appellate jurisdiction existed over Southern District of Florida order quashing subpoena issued in connection -with main action pending in Middle District of Florida); Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1020-22 (Fed. Cir. 1986) (holding that appellate jurisdiction existed with respect to Northern District of West Virginia order granting a motion to quash a non-party subpoena in connection with a main action pending in the Northern District of California). Glatfelter thus contends that there is a circuit split here that ought to be resolved in its favor.

To cut to the chase, however, even setting aside the apparent limitations of these two cases, there certainly is no circuit split or authority in favor of Glatfelter’s position on the issue of whether a discovery order in an ancillary proceeding is immediately appealable when entered by the very same district court that is presiding over the main action. Cf. In re Subpoena Served on Cal. Pub. Utils. Comm’n, 813 F.2d at 1474-75 (contrasting “a nonap-pealable interlocutory order issued by the district court having jurisdiction over the main action” with “an interlocutory order issued by a district court of a different circuit from the district court where the case was filed”). Indeed, the Federal Circuit in Hester specifically observed that “[i]f the district court granting Hester’s motion to quash were the same court in which the main action is being litigated, [appellant] could seek review, as an error of the court, when and if it appeals from the final judgment.” 785 F.2d at 1021.

Glatfelter protests that we should nonetheless find jurisdiction over its appeals because the only reason this ancillary action, which was commenced in a district court in another circuit, is now in the same court as the main action, is that Glatfelter moved for transfer under Rule 45(f). Rule 45(f), which Glatfelter emphasizes was only recently promulgated in 2013, provides:

When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.... To enforce its order, the issuing court may transfer the order to the court where the motion was made.

Fed. R. Civ. P. 45(f). Glatfelter emphasizes that the purpose of this rule is to efficiently consolidate motions before a single judge presiding over complex litigation. A holding that we lack appellate jurisdiction over its appeals would, according to Glatfelter, put parties in the position of either being forced to litigate a motion to compel before a district judge who has had no contact with the underlying case, or forfeiting appellate review if the motion were to be denied. Glatfelter relatedly claims that the Rules Advisory Committee could not have intended that litigants lose access to immediate appeal upon transfer into the circuit of the main action under Rule 45(f).

Glatfelter has it backwards. By allowing for transfers, Rule 45(f) allows for consolidation of motions in a single appropriate court, thereby avoiding piecemeal litigation in multiple fora as well as piecemeal appeals. See, e.g., United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (noting the “strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals”); Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940) (“Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purpos.es is a single controversy, set itself against enfeebling judicial administration.”). Glatfelter is correct that this discovery dispute is ancillary and does not require consideration with the underlying main action. However, as the Supreme Court explained in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), the collateral order doctrine “must never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Id. at 106, 130 S.Ct. 599 (citation and internal quotation marks omitted).

Glatfelter complains that “a final disposition of a discovery dispute would, at most, be unreviewable and, at best, would have to await a plenary appeal from a merits judgment.” Yet the availability of plenary appeal from a final judgment is precisely why discovery orders like these are interlocutory and not immediately ap-pealable. Our Circuit has consistently underscored that “what is critical is whether the party unsuccessfully seeking the subpoena has any other means of obtaining review.” Carter Prods., 360 F.2d at 872. It is only then that we should “extricate appellants from the cul-de-sac in which the district court’s order leaves them.” Id. Here, Glatfelter has a clear road forward. It may not be Glatfelter’s preferred route, but, “[t]hat a ruling may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment has never sufficed.” Mohawk Indus., 558 U.S. at 107, 130 S.Ct. 599 (citation, alteration, and internal quotation marks omitted). As the denials of Glatfel-ter’s motions would be reviewable on appeal from a final judgment, we dismiss these appeals for lack of jurisdiction.

Windward submitted in its briefs and at oral argument that it would voluntarily dismiss its cross-appeal if we found that we lack jurisdiction over Glatfelter’s appeals. Windward’s (likely premature) cross-appeal is thus also dismissed.

III. Conclusion

For the foregoing reasons, we dismiss this case in its entirety for lack of jurisdiction.

      . As we observed in NCR Corp., 768 F.3d at 692:
      Appvion finds itself in a materially different position from NCR when it comes to the choice between cost recovery and contribution. In fact, it appears to be in an unusual, possibly unique, position among parties incurring costs under CERCLA: it was initially identified as a PRP by the government and paid response costs in that capacity, but later it was held to fail outside of CERCLA’s statutory grounds for liability. It is now on the hook for response costs only as NCR's indemnitor pursuant to an agreement signed when the companies split up. It is seeking the costs of response it paid directly while it was regarded as a PRP.

      . Rule 45(d)(2)(B) provides that “the serving party may move the court for the district where compliance is required for an order compelling production” and "the order [to compel production] must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(i)-(ii).

      . For example, the circuit decisions on .which Ariel’ relied all involved situations where the two district courts at issue were in different circuits. See Nat’l Life Ins. Co. v. Hartford Accident & Indem. Co., 615 F.2d 595 (3d Cir. 1980) (finding appellate jurisdiction over denial of motion to compel discovery from non-party in Third Circuit where main action was pending in Fifth Circuit); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967) (same for denial of motion to compel discovery in Second Circuit where main action was pending in Seventh Circuit); Gladrow v. Weisz, 354 F.2d 464 (5th Cir. 1965) (same for appeal of order requiring discovery of non-party in Fifth Circuit where main action was pending before board of patent interferences of United States Patent Office); Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir. 1961) (same for order granting motion to quash subpoena in First Circuit where main action was pending in D.C. Circuit). Additionally, the treatise to which Ariel cited in support of its analysis has since been updated to include language reflecting that “[tjhis exception has itself now been limited to situations in which the two districts are in different circuits.” 8 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2006 (3d ed. 2016).
      As for the Federal Circuit case, in Hester, a patent owner sought discovery in the Northern District of West Virginia from a non-party who allegedly had infringed the patent at issue in a litigation pending before the Northern District of California. 785 F.2d at 1020-21. The Northern District of West Virginia quashed the subpoena, and the patent owner appealed to the Federal Circuit, which concluded that, because the California district court lacked jurisdiction over the non-party infringer, the patent owner could not challenge the West Virginia district court’s decision on appeal from the California district court’s final judgment, and the collateral order doctrine applied. The Federal Circuit then considered whether its result should have been different because it was the same appellate court that would have jurisdiction over an appeal on the merits from the California district court. See id. at 1021. The court of appeals observed that, prior to the creation of the Federal Circuit, the order by the West Virginia district court would have been ap-pealable to the Fourth Circuit, and because such an order would have been appealable as a final disposition of the only proceeding in the ancillary court:
      [W]e are satisfied that it does not matter that the Federal. Circuit is the same appellate court that would possess jurisdiction over an appeal from the California district court's final action on the merits. The California court has no jurisdiction over Hester, a nonparty to the main infringement action, and Heat & Control has no other means of effectively obtaining review than by appealing the West Virginia court’s order, necessarily to this court. Thus, the West Virginia court’s order is appealable, and this court possesses jurisdiction to hear it.

        Id. at 1021-22.

      . Windward pushes back on this characterization of Rule 45(f), noting that transfer is hardly a novel concept and was available long before 2013. See, e.g., 28 U.S.C. § 1404 (change-of-venue provision). Windward explains the Rule 45(f) transfer provision as one that was included because the new Rule 45 requires a motion to compel to be brought in the court of compliance, see Fed. R. Civ. P. 45(d)(2)(B), not in the issuing court (presiding over the main action). Thus, Glatfelter would previously have had the option of bringing its motion to compel in the Eastern District of Wisconsin, where no immediate appeal would be available; according to Windward, the "new” Rule 45(f) does not change that principle.

      . Windward opposed Glatfelter’s transfer motion, contending that even if jurisdiction existed over Windward, this matter lacks the "exceptional circumstances” required by Rule 45(f) as a predicate to transfer.

      . Because we lack jurisdiction in the first place, the potential effect of the proposed consent decree on this action is moot.