Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests — March 4-11, 2016

By: WISCONSIN LAW JOURNAL STAFF//March 11, 2016//

Weekly Case Digests — March 4-11, 2016

By: WISCONSIN LAW JOURNAL STAFF//March 11, 2016//

Listen to this article

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Corey R.  Kucharski

Case No.: 2013AP557-CR

Officials: BRENNAN, J.

Focus: Court Application of Statute – Ineffective Assistance of Counsel

This case comes to us on remand from the Wisconsin Supreme Court, which reversed our split decision granting Corey Kucharski a discretionary reversal. In its remand instructions the supreme court directed us to address Kucharski’s three remaining unaddressed issues: (1) whether the trial court misapplied the elements of WIS. STAT. § 971.15 (2013- 14) ; (2) whether the trial court’s conclusions regarding mental responsibility lacked support in the record; and (3) whether Kucharski was entitled to a new trial due to ineffective assistance of counsel. See State v. Kucharski, 2015 WI 64, ¶12 n.19, 363 Wis. 2d 658, 866 N.W.2d 697.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Miguel Muniz-Munoz

Case No.: 2014AP702-CR

Officials: Curley, P.J., Kessler and Brennan, JJ

Focus: Court Error – Jury

We are satisfied that the trial court properly exercised its discretion when it denied the motions for the following reasons: (1) the requested voir dire of the “sleeping” jurors was properly denied because the trial court found the jurors were not sleeping, and this finding is not clearly erroneous; (2) the trial court did not violate Muniz-Munoz’s confrontation rights because the doctor testified to his own independent opinion regarding the cause of death; (3) the trial court determined that the request for a special jury instruction did not reflect Wisconsin law, and the trial court read the jury the standard jury instruction but without the paragraph dealing with unrecorded interrogations as the law did not require recorded interrogations at the time of Muniz-Munoz’s interrogation; and (4) the trial court properly denied the discovery motion because even if Muniz- Munoz’s allegations were true, it would not lead to the dismissal of his charges. Consequently, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: Paul M. Murphy, et al v. Oconto County Drainage Board

Case No.: 2014AP2206; 2015AP738

Officials: Stark, P.J., Hruz and Seidl, JJ

Focus: Maintenance Petition – Performance of Duties

In these consolidated appeals, Paul Murphy and Rosalie Murphy1 (the Murphys) appeal circuit court orders affirming the Oconto County Drainage Board’s (the Board) decisions to (1) deny the Murphys’ maintenance petitions requesting that the Board perform certain drainage activities, and (2) grant suspension petitions filed on behalf of other landowners requesting that the Stiles/Lena Drainage District (the District) conduct no further proceedings and incur no further expenses. The Murphys raise numerous challenges to the Board’s decisions on both sets of petitions, claiming, among other things, that they have a “vested right” to drainage and the Board was biased against them. Under certiorari review, we conclude the Board acted appropriately: contrary to the Murphys’ assertions, the Board’s decisions were not contrary to law or arbitrary or unreasonable, and its decision on the maintenance petition was supported by substantial evidence. Accordingly, we affirm the circuit court’s orders.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joevone Martell Jordan

Case No.: 2014AP2883-CR

Officials: Curley, P.J., Kessler and Brash, JJ.

Focus: Motion to Exclude Evidence

Joevone Martell Jordan appeals the judgment entered after a jury found him guilty of first-degree intentional homicide and attempted armed robbery with use of force. See WIS. STAT. §§ 940.01(1)(a), 943.32(2), & 939.32 (2009-10). Jordan argues the circuit court erred when it denied his motion to exclude evidence at trial related to a fake gun he had in his waistband at the time of his arrest and a jailhouse telephone conversation he had with his mother. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Gavin S. Hill

Case No.: 2015AP374-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Domestic Abuse Repeater Enhancer

Gavin Hill appeals a judgment convicting him of disorderly conduct—domestic abuse, as a repeater and a domestic abuse repeater, and an order denying his motion for postconviction relief. Hill raises two arguments on appeal. First, he argues the record in this case does not support the application of the domestic abuse repeater enhancer. Second, he argues that, as applied to him, the mandatory imposition of a $250 DNA surcharge, pursuant to WIS. STAT. § 973.046(1r)(a), violates the ex post facto clauses of the United States and Wisconsin Constitutions. We reject these arguments and affirm.

Recommended for publication

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brett P. Christianson

Case No.: 2015AP714

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Paternity

Brett Christianson appeals an order denying his motion under WIS. STAT. § 806.07 (2013-14) for relief from January 19, 2000 stipulations and judgments finding he is the father of Shellie Talley’s twin sons. The circuit court denied the motion, concluding the motion was not filed within a reasonable time and the need for finality trumped Christianson’s claim that the stipulations were the product of Talley’s fraud. We affirm the order.

Full Text

WI Court of Appeals – District III

Case Name: Anchor Bank, FSB v. Fred Kleinheinz, et al

Case No.: 2015AP970

Officials: Stark, P.J., Hruz and Seidl, JJ

Focus: Summary Judgment

Fred and Michael Kleinheinz appeal a summary judgment of foreclosure granted in favor of AnchorBank, fsb. The Kleinheinzes argue summary judgment was inappropriate because there are genuine issues of material fact with respect to whether: (1) AnchorBank breached the terms of the parties’ contract; (2) AnchorBank breached the implied duty of good faith and fair dealing; (3) AnchorBank converted funds belonging to the Kleinheinzes; and (4) the Kleinheinzes are entitled to punitive damages. We reject these arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Tduardo Jacques Head

Case No.: 2015AP1020-CR

Officials: Curley, P.J., Kessler and Brennan, JJ.

Focus: Motion for New Trial – Ineffective Assistance of Counsel

Tduardo Jacques Head appeals a judgment convicting him of three counts of delivering cocaine, one count of possession of cocaine with intent to deliver, one count of possession of heroin with intent to deliver, and one count of keeping a drug house. He also appeals the circuit court’s order denying his motion for a new trial. Head argues that he received ineffective assistance of trial counsel because his lawyer did not object to portions of Special Agent Raymond Taylor’s testimony. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony R. Owens

Case No.: 2015AP1118-CR

Officials: Curley, P.J., Kessler and Brash, JJ.

Focus: Admission of Evidence – Sufficiency of Evidence

Anthony R. Owens appeals a judgment convicting him of first-degree reckless homicide as a party to a crime with the use of a dangerous weapon as a repeater, and possession of a firearm by a felon as a repeater. He also appeals an order denying his postconviction motion. Owens makes the following arguments on appeal: (1) the circuit court erred when it admitted Jamal Pinkard’s statements about who shot him as dying declarations; (2) the evidence against Owens was insufficient to support his convictions; and (3) Owens’s sentences were unduly harsh. We disagree and affirm.

Recommended for publication

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Paul Geffery Lagalbo

Case No.: 2015AP1276-CR

Officials: Stark, P.J., Hruz and Seidl, JJ

Focus: Sufficiency of Evidence – Sentencing

Paul Lagalbo appeals a judgment convicting him of multiple offenses, including fleeing or eluding a traffic officer. He also appeals an order denying postconviction relief. Lagalbo argues the evidence presented at trial was insufficient to support the fleeing/eluding conviction. He also argues he is entitled to resentencing because the sentencing court relied on inaccurate information. We reject these arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. D.T.

Case No.: 2015AP1476

Officials: CURLEY, P.J.

Focus: Stayed Sentence

D.T., a juvenile previously found delinquent, appeals the trial court’s order lifting the stay of his five-year sentence to the Serious Juvenile Offender Program. He argues that because the State’s motion seeking to lift the stay of his earlier five-year sentence only referenced the fact that he had been recently charged with two new felony counts, and included nothing regarding the extensive procedural history of the case, the trial court erroneously exercised its discretion and violated D.T.’s due process right. This allegedly occurred when the trial court usurped the role of the prosecutor by taking judicial notice of its file sua sponte and calling a witness. Ultimately, the trial court determined that by a preponderance of the evidence, D.T. had violated a condition of his additional dispositional order.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jason D. Henderson

Case No.: 2015AP1740-CR

Officials: BRENNAN, J.

Focus: Ineffective Assistance of Counsel

Jason D. Henderson appeals from the circuit court’s order denying his postconviction motion to withdraw his plea on the grounds of ineffective assistance of counsel. Henderson claims that both of his trial counsel were ineffective for failing to properly advise him as to the correct bifurcation initial confinement (“IC”) maximum on each of his two charges. He claims he would not have pled guilty to battery if he had known the correct bifurcation IC maximum and that he is therefore entitled to withdraw his plea on manifest injustice grounds. he State responds that neither of Henderson’s trial counsel were ineffective because it is undisputed that they correctly advised him as to the maximum possible term of imprisonment. See State v. Sutton, 2006 WI App 118, ¶1, 294 Wis. 2d 330, 718 N.W.2d 146. As to incorrectly stating the bifurcation IC maximum, the State argues counsel were not deficient because the law at the time of his plea was unsettled. See State v. Lasanske, 2014 WI App 26, ¶10, 353 Wis. 2d 280, 844 N.W.2d 417. Additionally, the State argues that any mistaken information did not prejudice Henderson because Henderson failed to credibly show that he would not have pled guilty to the State’s offer of reduced charges if he had known the correct bifurcated IC maximum. We agree with the State and affirm.

Full Text

WI Court of Appeals – District III

Case Name: Shane Kurtz et al. v. Gary L. Marek, et al

Case No.: 2015AP2313

Officials: SEIDL, J.

Focus: Damages – Liability

Shane Kurtz and Karrol Thomas (collectively, Kurtz), pro se, appeal an order dismissing a small claims complaint against Gary Marek and his insurer, Rural Mutual Insurance Company (collectively, Marek).2 Kurtz argues the circuit court erroneously determined Marek was not statutorily liable for damages Kurtz’s truck sustained when it collided with Marek’s cattle in a roadway. We reject Kurtz’s argument and affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Joanna M. Anderson

Case No.: 2015AP190-CR

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Sufficiency of Evidence

Joanne M. Anderson appeals from a judgment of conviction entered after a jury found her guilty of receiving stolen property with a value greater than $10,000, contrary to WIS. STAT. § 943.34(1)(c) (2013-14). Anderson argues that the evidence presented at trial was insufficient to support the jury’s guilty verdict. We disagree and affirm.

Full Text

WI Court of Appeals – District II

Case Name: Reginaldo B. Flores et al v. City of Waukesha, et al

Case No.: 2015AP1185

Officials: Neubauer, C.J., Hagedorn and Blanchard, JJ

Focus: Property Repairs – Statutory Interpretation

Reginaldo and Maria Flores paid for repairs to a sewer lateral (lateral) to a property they own on South Grand Avenue in the City of Waukesha, despite believing the obligation ultimately was the City’s. Under controlling statutes and city ordinances, we conclude the circuit court properly granted summary judgment to the City.

Full Text

WI Court of Appeals – District II

Case Name: Trista Lee Recore  v. County of Green Lake, et al

Case No.: 2015AP1301

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Governmental Immunity

This case addresses governmental immunity. The County of Green Lake, the County of Green Lake Social Services, and Wisconsin County Mutual Insurance Company (collectively, the County), along with the City of Berlin and the City of Berlin Police Department (collectively, the Police Department) appeal the trial court’s denial of their motions for summary judgment, which sought immunity for any negligence on their part. D.B., by his mother, brought suit against the County and the Police Department alleging that they were both negligent in their investigation of sexual assault allegations in 2011, which resulted in the continued sexual assault of D.B. D.B.’s mother claims that her half brother was a danger to D.B. and asserts that the County and the Police Department should have known he was a danger based on the allegations D.B. made, although D.B.’s mother admits that no one actually knew in 2011 that her half brother was a danger. The trial court determined that the “known danger” exception precluded granting immunity to the County and the Police Department. We disagree for two reasons: (1) the scope and breadth of an investigation into allegations of child abuse is a discretionary act rather than a ministerial act and (2) D.B. admits that no one actually knew D.B.’s uncle was dangerous in 2011 and therefore no “known danger” was present as an exception to immunity. We reverse and remand for a grant of judgment to the defendants on all of plaintiff’s claims.

Recommended for publication

Full Text

WI Court of Appeals – District IV

Case Name: Karen Stransky et al. v Evantson Insurance Company, et al

Case No.: 2014AP2555

Officials: Higginbotham, Sherman and Blanchard, JJ.

Focus: Damage Liability – Negligent Inspection

Rockweiler Services, LLC, and its insurer, Evanston Insurance Company, cross-appeal a money judgment in favor of Karen and Robert Stransky. The circuit court found that Rockweiler was negligent in its inspection of the electrical wiring of the Stranskys’ home during the home’s construction and that Rockweiler was liable for a portion of the Stranskys’ damages resulting from the improperly installed wiring, which included the cost to entirely rewire the Stranskys’ home. For the reasons discussed below, we affirm.

Full Text

WI Court of Appeals – District IV

Case Name: Ikaria, Inc v. Frederick J. Montgomery, et al

Case No.: 2015AP568

Officials: Lundsten, Higginbotham, and Blanchard, JJ.

Focus: Breach of Duty & Loyalty – Court Error

Ikaria, Inc. identifies itself as a “biotherapeutics company.” Ikaria sued four of its former employees and one individual Ikaria never employed, as well as NitricGen, Inc., a company that Ikaria alleges is its competitor. The suit claimed various causes of actions against the defendants and subsets of the defendants, including one cause of action alleging that all defendants conspired to “establish NitricGen for the purpose of using and exploiting confidential, non-trade secret information belonging to Ikaria.” Following a four-day bench trial, the circuit court dismissed all of Ikaria’s claims in a written decision. The court’s view was that Ikaria’s claims “involved much smoke but little demonstrated fire.” While all claims were dismissed, Ikaria appeals dismissal of only some, namely, the claims against: three former employees (Frederick Montgomery, Duncan Bathe, and Cory Casper), for breach of the implied duty of good faith and fair dealing and for breach of a non-compete clause; Bathe, for breach of a duty of loyalty; and the individual never employed by Ikaria (Tye Gribb), for aiding and abetting Bathe’s breach of the duty of loyalty. Ikaria argues that the court clearly erred in finding facts and erred in applying legal principles. For the following reasons, we affirm the judgment.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin ex rel, Torrence Harris v. Brian Hayes

Case No.: 2015AP907

Officials: Lundsten, Higginbotham and Sherman, JJ.

Focus: Revocation – Order to Reopen

The Wisconsin Division of Hearings and Appeals and its administrator Brian Hayes (collectively, the Division) appeal from a circuit court order that reversed, on certiorari review, the Division’s decision not to reopen an administrative proceeding in which it had revoked the extended supervision of Torrence Harris. The Division determined that Harris had failed to demonstrate by clear and convincing evidence that there was newly discovered evidence that would have led to a different result at Harris’s revocation proceeding.

Full Text

WI Court of Appeals – District IV

Case Name: Estate of Clarance Collis v. Hazel Green Rescue Squad, Inc., et al

Case No.: 2015AP1018

Officials: Kloppenburg, P.J., Higginbotham and Sherman, JJ.

Focus: Wrongful Death – Statutory Notice – Summary Judgment

Audrey Collis, Dustin Pickard and the Estate of Clarence Collis appeal a summary judgment order dismissing their wrongful death action against the Hazel Green Rescue Squad, Inc., Ryan Fields and Tri Cor, Inc. The Estate contends that the circuit court erred by granting summary judgment to Hazel Green based on the Estate’s failure to provide timely statutory notice of its claim. It argues that it was not required to provide notice of its claim because, it asserts, the Hazel Green Rescue Squad is not a political corporation or governmental subdivision or agency. For the reasons set forth below, we disagree. We affirm.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John D. Arthur Griffin

Case No.: 2015AP1271-CR

Officials: KLOPPENBURG, P.J.

Focus: Motion to Suppress

John Griffin appeals a judgment of conviction for carrying a concealed weapon in violation of WIS. STAT. § 941.23(2) (2011-12). Griffin argues that the circuit court erred in denying his motion to suppress evidence obtained as a result of an investigatory stop because the arresting officer did not have the requisite reasonable suspicion: (1) to conduct the initial investigatory stop, and (2) to extend his detention after dispatch informed the officer that the suspect vehicle had a different state license place. For the reasons set forth below, I reject Griffin’s arguments and affirm.

Full Text

WI SUPREME COURT DIGESTS

WI Supreme Court

Case Name: United Food v. Hormel Foods Corporation

Case No: 2014AP1880

Focus:  Wages

Hormel required to compensate employees for time spent taking off and putting on uniforms and equipment for work.

Wisconsin Admin. Code § DWD 272.12 requires Hormel to compensate its employees for the 5.7 minutes per day spent donning and doffing the clothing and equipment at the beginning and end of the day. Relying on the Tyson Foods case, Weissman v. Tyson Prepared Foods, Inc., 2013 WI App 109, 350 Wis. 2d 380, 838 N.W.2d 502, as did the circuit court, we conclude, as did the circuit court, that the employees’ donning and doffing clothing and equipment at the beginning and end of the day brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees’ principal work activities, namely food production

Affirmed

ROGGENSACK, C.J., PROSSER, J., concur and dissent. (Opinion Filed)

Gableman, Ziegler, J.J., dissent. (Opinion Filed)

R.G. Bradley, J., did not participate.

Full Text

WI Supreme Court

Case Name: Wisconsin Pharmacal Company, LLC v. Nebraska Cultures of California, Inc., et al

Case No: 2013AP613; 2013AP687

Focus: Scope of Coverage – Insurance

The incorporation of a defective ingredient into supplement tablets not considered property damage because did not result in loss of use of property – therefore such a defective action is not covered.

“Similarly, applying an integrated system analysis to the instant case, we conclude that combining a defective ingredient with other ingredients and incorporating them into supplement tablets, formed an integrated system. Pharmacal could not separate out the LA from the other ingredients or the other ingredients from each other. No damage resulted to property other than ingredients of the integrated system and the completed product, the tablets. Stated otherwise, upon blending LA, rather than LRA, with other ingredients, all of the ingredients were integrated into one product, the tablets. Therefore, similar to the effect of cement being incorporated with other components into the paving blocks in Wausau Tile, the effect of LA being incorporated with the other ingredients into tablets cannot be said to constitute damage to other property. Accordingly, we conclude that the complained of injury was sustained by the integrated system itself, i.e. the tablets, such that no other property was injured.”

Reversed and Remanded

ABRAHAMSON, A.W. BRADLEY, J.J., dissent. (Opinion Filed)

ZIELGER, R.G. BRADLEY, J.J., did not participate.

Full Text

7TH CIRCUIT DIGESTS

7th Circuit Court of Appeals

Case Name: Cause of Action v. CTA

Case No.: 15-1143

Officials: FLAUM, RIPPLE, and SYKES, Circuit Judges.

Focus: Qui Tam

Court does not have subject matter jurisdiction of qui tam claim due to allegations being made public when action commenced.

“Since Bank of Farmington, we have embraced the proposition that because “the purpose of a public disclosure is to alert the responsible authority that fraud may be afoot,” the Government’s possession of the information exposing a fraud is alone sufficient to trigger the public-disclosure bar. Glaser, 570 F.3d at 914 (quoting Feingold, 324 F.3d at 496). Building on this rationale, we held in Feingold that administrative reports containing the critical elements of fraud, when generated by the responsible authority itself, “are publicly disclosed because, by their very nature, they establish the relevant agency’s awareness of the information in those reports.” 324 F.3d at 496. Six years after Feingold, we invoked Bank of Farmington again, this time in the context of an administrative investigation. Glaser, 570 F.3d at 913–14. In Glaser v. Wound Care Consultants, Inc., 570 F.3d 907 (7th Cir. 2009), the qui tam relator alleged that the defendant, a wound-care services provider, had been allowing its nurse practitioner to bill Medicare at a higher rate by representing that the practitioner’s services were “incident to” the services of a physician when, in reality, they were provided without supervision. Id. at 911. Prior to the filing of the complaint, however, the Centers for Medicare & Medicaid Services (“CMS”) had discovered the defendant’s billing irregularities during a routine audit and begun “periodically sen[ding] letters asking [the defendant] to repay funds it received at the higher doctor’s rate.” Id. Based on the CMS’s letters to the defendant, we determined that the responsible authorities possessed more than “mere…awareness of wrongdoing,” which alone would have been insufficient to establish a public disclosure. Id. at 913–14 (citing Bank of Farmington, 166 F.3d at 860 n.5). Rather, the communications indicated that CMS “had knowledge of possible improprieties…and was actively investigating those allegations and recovering funds.” Id. at 914. We held therefore that “the critical elements exposing the transaction as fraudulent [had been] placed in the public domain, and therefore the allegations at the heart of [the relator’s] lawsuit were publicly disclosed by the time her complaint was filed.” Id. (first alteration in original) (citation omitted) (internal quotation marks omitted).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: James G. Hugunin v. Land O’ Lakes, Inc.

Case No.: 15-2815

Officials: POSNER, EASTERBROOK, and KANNE, Circuit Judges.

Focus: Trademark Dilution & Infringement

Suit rightly dismissed where two companies, unlikely to prevail on trademark infringement and dilution claims, sued eachother.

“It’s difficult to fit the present case into either species of dilution. Everyone recognizes “Tiffany” as the name of a luxury jewelry store on Fifth Avenue in New York (with stores in other major cities), and seeing the name on a hotdog stand a passerby might think of the jewelry store and of the incongruity of a hot-dog stand’s having the same name; he might think the jewelry store’s cachet impaired by the coincidence and switch his patronage to Cartier or Harry Winston. Many consumers would recognize the name “LAND O LAKES” as referring to the dairy company, but we can’t see how the company could be hurt by the use of the same name by a seller just of fishing tackle. The products of the two companies are too different, and the sale of fishing tackle is not so humble a business as the sale of hot dogs by street vendors. And so it is beyond unlikely that someone dissatisfied with LAND O LAKES fishing tackle would take revenge on the dairy company by not buying any of its products, or that a customer would have difficulty identifying Land O’ Lakes’ dairy products because he had seen the LAND O LAKES mark used on Hugunin’s fishing tackle. Land O’ Lakes products are advertised on their labels as dairy or other food products (such as instant cappuccino mixes), never as products relating to fishing.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Mitchell Alicea v. Aubrey Thomas, et al

Case No.: 15-1255

Officials: BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

Focus: 4th Amendment Violations – Excessive Force

Material dispute exists as to whether officers’ actions violated 4th amendment and if force used was excessive.

“Applying the Graham factors to Alicea’s account, we do not find that Alicea, standing in broad daylight with his hands up at gunpoint and enclosed by a five-foot pool, posed a sufficient threat to Thomas to justify ordering Leo to attack and hold him. The district court erred in holding it was reasonable to command a dog to attack a suspect who had ceased flight, was effectively trapped, and who immediately complied with police orders.”

Reversed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: Mark Gekas v. Peter Vasiliades, et al.

Case No.: 15-1226

Officials: BAUER, FLAUM, and SYKES, Circuit Judges.

Focus: Retaliatory Termination – 1st Amendment

Appellants fail to provide facts sufficient to form prima facie case for first amendment retaliation.

““As we have said before, summary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation and citation omitted). GivenGekas’ complete inability to connect the events that happened to him in 2004 to the conversations he had in 1988, his First Amendment retaliation claims cannot withstand summary judgment.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Staffing Network Holdings, LLC v. NLRB

Case No.: 15-1354, 15-1582

Officials: FLAUM, MANION, and ROVNER, Circuit Judges.

Focus: Petition for Enforcement

Staffing Network ordered to reinstatement employees and make whole after threatening employee with discharge after employee engaged in protected activity.

“Staffing Network’s remaining arguments are all founded on a version of the facts that was thoroughly rejected by the ALJ. Under the company’s version of events, Vega did not fire Barrera; he simply sent her home for the day after she had been insubordinate and abusive towards him. When Vega sent Juan home at the request of ReaderLink’s management, Barrera refused to go back to work, called Vega “a nobody,” threatened to report him to immigration authorities, and told him he was just Amaya’s “secretary,” according to Staffing Network. Vega denied yelling at Barrera or pointing at her, and claimed that he sent her home not because she was complaining about “injustice” but because she had been abusive and insubordinate, causing him embarrassment in front of other employees. Under Staffing Network’s version, no one ever told Barrera she could not return to work, and in fact Amaya told her to return the next day. The company also asserted that Barrera’s adult son repeatedly called Vega’s cell phone and left threatening and harassing voice mails. Staffing Network asserts that it repeatedly attempted to meet with Barrera but that she rebuffed all attempts to communicate. Staffing Network also claims that ReaderLink alone made the decision to place Barrera on “do not return” status.”

Order Enforced

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Perry Harrington

Case No.: 14-3010; 14-3028

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges.

Focus: Waiver of Right to Counsel

Appellant that requested that court discharged court appointed counsel twice unsuccessfully argues he was deprived of his right to counsel.

“Harrington was already well aware of the charges and their severity. He had already gone through trial with coun‐sel and been convicted of the charges. He had reviewed the PSR with attorney Loeffel, so he was aware of the penalties he was facing and the factors relevant to sentencing. Besides, the judge did warn Harrington that proceeding alone was “as bad an idea as you may have ever had” and would not serve Harrington well. See United States v. Hoskins, 243 F.3d 407, 409 (7th Cir. 2001) (upholding waiver of counsel after trial where district court advised defendant that he “would be far better off being defended by a trained lawyer” and it would be “unwise” to defend himself given complexity of the case).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Christopher H. McCoy v. United States of America

Case No.: 14-2741

Officials: WOOD, Chief Judge, EASTERBROOK, Circuit Judge, and BRUCE, District Judge.*

Focus: Exceeded Authority

Appellant fails to raise issue of judge exceeding his authority in earlier proceedings and fails to provide reason for failure to present issue. Section 2255 motion dismissed.

“By not presenting his argument based on Harden to the district court, McCoy procedurally defaulted such an argument in this court. See Pierce, 976 F.2d at 371. Having found that the Harden decision was available to McCoy during the pendency of his §2255 motion, McCoy cannot show cause for his procedural default. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). Therefore, the decision of the district court dismissing his §2255 motion is affirmed.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Citizens For Appropriate Rural v. Anthony Fox

Case No.: 15-1554

Officials: KANNE, Circuit Judge, ROVNER, Circuit Judge, and BRUCE, District Judge.

Focus: Challenge to Extension of Interstate Highway

Plaintiff-appellants fail for comply with discovery deadlines and other court deadlines.

“A party who fails to comply with deadlines related to discovery or otherwise forestalls prosecution of their own case is not entitled to seek additional discovery when the opposing side moves for summary judgment. See Convertino, 684 F.3d at 99. The record shows that Plaintiffs had every opportunity to seek discovery prior to the summary judgment stage. Plaintiffs failure to comply with court deadlines and seek discovery prior to summary judgment was their own choice and they must now live with the consequences. Based upon a thorough review of the record, it was not an abuse of discretion for the district court to conclude that Plaintiffs were not entitled to additional discovery.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Carla Boston v. U.S. Steel Corporation

Case No.: 15-2795

Officials: BAUER, FLAUM, and SYKES, Circuit Judges.

Focus: Retaliation – Title VII

Employee unsuccessfully claims to have not been awarded clerical positions after making EEOC discrimination complaint.

“Even after drawing all reasonable inferences in Boston’s favor, Boston does not demonstrate a causal connection between her protected action of filing an EEOC charge in 2010 and her disqualification by Fields. It is plausible that Fields relied on Graham’s reports describing Boston’s performance as mediocre; yet, Boston does not present any evidence that suggests Fields knew about the 2010 EEOC charge. The evidence therefore points to unfair treatment by Graham, rather than retaliatory termination.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Abduwali Abdukhadir Muse v. Charles A. Daniels

Case No.: 15-2646

Officials: EASTERBROOK, KANNE, and SYKES, Circuit Judges

Focus: Plea Withdrawal

Appellant attempts to withdraw plea after entering into plea deal that explicitly prevented him from doing so.

“Muse initially told federal agents that he was 16 at the time of his capture, which created a potential for prosecution under the special rules applicable to juveniles. See 18 U.S.C. §§ 5031–42. The day before a hearing set to determine his age, Muse told an FBI agent that he was between 18 and 19. At the hearing Muse refused to testify. Magistrate Judge Peck, of the Southern District of New York, concluded that Muse was at least 18 when the crime occurred, which led to his prosecution as an adult. He pleaded guilty and was sentenced to 405 months’ imprisonment. The plea agreement contains a clause promising “not to seek to withdraw his guilty plea or file a direct appeal or any kind of collateral attack challenging his guilty plea or conviction based on his age either at the time of the charged conduct or at the time of the guilty plea.””

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: United Central Bank v. Davenport Estate, LLC, et al

Case No.: 15-2406

Officials: BAUER, FLAUM, and HAMILTON, Circuit Judges.

Focus: Breach of Contract

Bank & group of investors fail to enter into escrow agreement, therefore claim by investors for receipt of money in escrow is dismissed.

“Even if we consider the merits of the investors’ conversion argument, the argument is insufficiently developed to succeed. To establish conversion of money, a plaintiff must show that the money “at all times belonged to the plaintiff and that the defendant converted it to his own use.” Horbach v. Kaczmarek, 288 F.3d 969, 978 (7th Cir. 2002). An asserted right to money will rarely support a conversion claim. See id. The plaintiff must show that the money at issue can be described as “a specific fund or specific money in coin or bills.” Id. (citation and internal quotation marks omitted).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Peggy Zahn v. North American Power & Gas, LLC

Case No.: 15-2332

Officials: KANNE and SYKES, Circuit Judges, and GILBERT, District Judge.

Focus: Question of Law

Question of law posed to the Illinois Supreme Court for response.

“Based on the foregoing, we respectfully request the Illinois Supreme Court to answer the following controlling question of law: Does the ICC have exclusive jurisdiction over a reparation claim, as defined by the Illinois Supreme Court in Sheffler v. Commonwealth Edison Company, 955 N.E.2d 1110 (Ill. 2011), brought by a residential consumer against an Alternative Retail Electric Supplier, as defined by 220 ILCS 5/16-102?”

Question Certified

Full Text

7th Circuit Court of Appeals

Case Name: Schaumburg Bank & Trust Co., N.A. v. R. Scott Alsterda

Case No.: 15-1894

Officials: WOOD, Chief Judge, EASTERBROOK, Circuit Judge, and BRUCE, District Judge. *

Focus: Bankruptcy

Final judgment not entered by bankruptcy court, therefore negating appellate jurisdiction to review district court decision.

“Even were the court to accept the Bank’s argument that the issue addressed by the bankruptcy court’s October 30, 2014, order constituted its own “discrete dispute,” we find that the bankruptcy court’s order was not “final” for purposes of appellate jurisdiction. The Bank argues the order determined the Bank’s security interest in the transferred checks. This is not correct. The order approved the settlement, but was silent as to the security interest. The Bank argues we must look to the reasons stated on the record at the October 28, 2014, hearing, referenced in the October 30, 2014, order, to get a full understanding of the bankruptcy court’s order. The bankruptcy court stated, on the record, that it was continuing the matter for a status on November 18, 2014, for the parties “to come back and tell [the court] how you want to proceed at that point[.]” The notice of appeal to the district court was filed by the Bank on November 13, 2014, five days before the status conference to discuss how the parties wished to proceed on the matter of tracing the proceeds of the transferred checks. The bankruptcy court’s ruling foreclosed one manner in which the Bank could pursue the transferred checks, but did not resolve the ultimate question of the Bank’s claims to Debtor’s assets, or even the particular accounts receivables assets at issue. There is a fundamental difference as to what is said by a judge on the record versus what the judge actually decides. No matter what occurred in this litigation with regard to statements made by the bankruptcy court on the record, the only matter decided by the bankruptcy court was that the settlement was approved, the Bank’s objection was overruled, and the court was going to hold a separate hearing at a later date on what the Bank would receive. Before that hearing was held, the Bank filed this appeal. Therefore, even if this court were to find that the narrow matters addressed in the October 30, 2014, order constituted a stand-alone “discrete dispute,” the order entered by the bankruptcy court was by no means final.”

Appeal Dismissed

Full Text

7th Circuit Court of Appeals

Case Name: EEOC v. Aerotek, Inc.

Case No.: 15-1690

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges

Focus: Employment Discrimination

Staffing agency fails to fully comply with EEOC issued subpoena and is forced to do so.

“In sum, the inquiry is within the authority of the EEOC and the information sought is clearly relevant to the agency’s investigation of age-related discrimination. Aerotek makes no claim that the request is too indefinite. That leaves only the question of whether the production of this information would impose an unreasonable or undue burden on Aerotek. Dow Chemical, 672 F.2d at 1267. To establish that the EEOC’s subpoena is excessively burdensome, Aerotek must show that compliance would threaten the normal operation of its business. Quad/Graphics, 63 F.3d at 648. The actual process of producing the data imposes little burden on Aerotek because the company maintains a database containing all of the requested information. In fact, Aerotek increased the burden on itself by creating a coding system to mask the identity of individuals and clients in its earlier non-compliant productions to the EEOC. Moreover, Aerotek has now produced the information and makes no claim that the process of producing the information was unusually difficult or costly. The company’s only objection appears to be that production of this information will harm its business relationships with its clients. But it provides no basis for this fear and speculation is inadequate to establish undue burden.”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Essex Insurance Company v. Galilee Medical Center, S.C.

Case No.: 14-1791, 14-1801

Officials: BAUER, FLAUM, and SYKES, Circuit Judges.

Focus: Declaratory judgment – Insurance Policy

Company made material misrepresentations in insurance policy warranting recission of policy.

“The fact that Angarita made his recommendation at his Galilee office, and then administered the treatment in his home office, does not change this analysis. Angarita admits that he recommended mesotherapy to Ravelo, a Galilee patient, while working at Galilee, and that he followed up on his recommendation by administering the treatment. Perhaps this would be a different case if Angarita had referred Ravelo to another provider for treatment, or made a recommendation that Ravelo ignored. But here, a reasonable person would not find a meaningful distinction between the recommendation and the treatment. There is no evidence that Angarita informed Ravelo that he was administering mesotherapy in his individual capacity, and Ravelo likely relied on Angarita’s employment at Galilee, a reputable medical center, when she took him up on his offer. It is also irrelevant that Galilee may have been unaware that Angarita was recommending and administering mesotherapy to his patients—under § 154, “a misrepresentation, even if innocently made, can serve as the basis to void a policy.” Golden Rule Ins. Co. v. Schwartz, 786 N.E.2d 1010, 1015 (Ill. 2003).”

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: David Conrad v. United States of America

Case No.: 14-3216

Officials: BAUER, POSNER, and HAMILTON, Circuit Judges.

Focus: Motion to Vacate – Sentencing

Appellant not resentenced despite sentencing guidelines that were in place when the crime was actually committed.

“In the first case in which the Supreme Court considered the scope of the ex post facto clause, Calder v. Bull, 3 Dall. (3 U.S.) 386 (1798), Justice Samuel Chase explained that the following retrospective applications of law are prohibited by it: “1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Id. at 390. What the Sentencing Commission did when it increased the guidelines range for the defendant’s crime in this case could be thought encompassed by Justice Chase’s second and third points, but that is not an inevitable conclusion. The principal objection to ex post facto laws—the first in Justice Chase’s list—is that they punish the defendant, without warning, for conduct that he rightly considered lawful when he engaged in it. The objection to increasing retroactively the punishment for conduct clearly criminal when the defendant engaged in it is different—it is that the decision whether to comply with a criminal law is normally based on a comparison of the gains and losses of violating the law, and the losses depend on the expected sentence if the criminal is caught. Imposing an unforeseen heavier punishment retroactively distorts the ability of a potential criminal to make a rational choice. He could complain: “if only you had warned me of the consequences, I would not have committed the crime.” One could imagine the defendant in this case saying that, though he hasn’t done so.”

Affirmed

Full Text

US SUPREME COURT DIGESTS

US Supreme Court

Case Name: Gobeille v. Liberty Mut. Ins. Co

Case No.: 14-181

Focus: Preemption

ERISA preempts State laws insofar as they relate to employee benefit plans.

“ERISA expressly pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). As relevant here, the clause pre-empts a state law that has an impermissible “connection with” ERISA plans, i.e., a law that governs, or interferes with the uniformity of, plan administration. Egelhoff v. Egelhoff, 532 U. S. 141, 148.”

Affirmed

Thomas concurring

Ginsburg, Breyer  Dissenting

Full Text

US Supreme Court

Case Name: Lockhart v. United States

Case No.: 14-8358

Focus: Statutory Interpretation – Sentencing

Mandatory minimum enhancement applies for appellant in sexual abuse case.

“A natural reading of the text supports that conclusion. The “rule of the last antecedent,” a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U. S. 20, 26, clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” ibid., but §2252(b)(2)’s context reinforces its application in this case. . . Section 2252(b)(2)’s enhancement can also be triggered by, inter alia, a prior federal sexual abuse offense enumerated in Chapter 109A of the Federal Criminal Code. Interpreting §2252(b)(2) using the “rule of the last antecedent,” the headings in Chapter 109A mirror precisely the order, precisely the divisions, and nearly precisely the words used to describe the state sexual-abuse predicates. Applying the modifier “involving a minor or ward” to all three items in §2252(b)(2)’s list, by contrast, would require this Court to interpret the state predicates in a way that departs from the federal template. If Congress had intended that result, it is doubtful that Congress would have followed so closely the structure and language of Chapter 109A.”

Affirmed

Kagan, Breyer dissenting

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests