Weekly Case Digests — Jan. 22-26, 2016

Listen to this article

WI COURT OF APPEALS DIGESTS 

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Leroy Rushing, Jr.

Case No.: 2015AP71-CR

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

Practice Area:  Pleas & Sentencing – Court Error

Leroy Rushing, Jr., appeals the judgment convicting him of first-degree reckless homicide as a party to the crime while armed with a dangerous weapon. See WIS. STAT. §§ 940.02(1), 939.05, 939.63(1)(b) (2013-14). He also appeals the order denying his postconviction motion for resentencing. Rushing argues that he is entitled to resentencing because the circuit court erroneously exercised its discretion at sentencing by attempting to coerce an admission of guilt from him and by improperly commenting on his religious beliefs. We disagree and affirm.

Full Text

WI Court of Appeals – District I

Case Name: Kenneth Drogotta v. Estate of Henry William Patrick Wittbrot, III

Case No.: 2015AP75

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

Practice Area: Trusts & Estates – Contested estate

Kenneth Dragotta, the Special Administrator for the Estate of Henry William Patrick Wittbrot, III, appeals from the circuit court’s order: (1) dismissing the Special Administration; (2) retitling to the Wittbrot heirs

property located in Dodge County and bank accounts previously titled to the W316 Children Trust; and (3) ordering Dragotta to personally pay $3515 to opposing counsel. Dragotta’s argument is twofold . . . We need not address issues raised for the first time on appeal. See Townsend v. Massey, 2011 WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155. As to Dragotta’s complaint regarding the circuit court’s order to retitle the Children Trust bank accounts, Dragotta fails to develop it. We need not develop his argument for him. See League of Women Voters v. Madison Cmty. Found., 2005 WI App 239, ¶19, 288 Wis. 2d 128, 707 N.W.2d 285. Accordingly, we conclude that the circuit court properly exercised its discretion in ordering the retitling of these assets as part of the dismissal sanction.

Full Text

WI Court of Appeals – District I

Case Name: Roderick N. Salfinger v. Fairax Media Limited

Case No.: 2015AP150

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

Practice Area: Personal Jurisdiction

Roderick N. Salfinger and Threshold Aeronautics, LLC (we refer to Roderick Salfinger individually as “Mr. Salfinger” and to the coappellants collectively as “Salfinger”) appeal from a final order dismissing Fairfax Media Limited, d/b/a the Sydney Morning Herald, Fairfax Media Publications Party Limited, and Fairfax Digital Australia and New Zealand Party Limited (collectively, “the Fairfax parties”) for lack of jurisdiction. On appeal, Salfinger asserts that the trial court erred in finding that, although jurisdiction was authorized under WIS. STAT. § 801.05(4)(b) (2013-14),  exercising that jurisdiction would offend due process. We agree with the trial court and affirm.

Recommended for publication

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Gregory Stevenson

Case No.: 2015AP299-CR

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

Practice Area: General Appeal – Sufficiency of Evidence

Gregory Stevenson and Sunshine Ketchum supplied heroin to Joshua Molnar. Molnar suffered a near-fatal overdose after Stevenson or Ketchum injected him. A jury found Stevenson guilty of first-degree

recklessly endangering safety, manufacture/delivery of heroin (less than 3 grams), both as party to a crime (PTAC), and of two counts of bail jumping as a repeater. We reject Stevenson’s appellate arguments and affirm the judgment and the order denying his motion for postconviction relief.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Marco M. Givens

Case No.: 2015AP478-CR

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

Practice Area: Discovery of New Evidence – New Trial

Marco Givens appeals a judgment, entered upon a jury’s verdict, convicting him of first-degree sexual assault of a child by sexual contact with a person under the age of thirteen. Givens also appeals the order denying his postconviction motion for a new trial. Givens argues he is entitled to a new trial on the basis of newly discovered evidence. We reject this argument and affirm both the judgment and order

Full Text

WI Court of Appeals – District III

Case Name: County of Eau Claire v. Susan M. Sandas

Case No.: 2015AP612; 2015AP613

Officials: STARK, P.J.

Practice Area: OWI 1^st – Sufficiency of Evidence

Susan Sandas appeals a judgment convicting her of first-offense operating while under the influence of an intoxicant or other drug contrary to WIS. STAT. § 346.63(1)(a) and operating left of the center line contrary to WIS. STAT. § 346.05(1).  Sandas argues the County failed to present sufficient evidence to support the jury’s verdicts. Sandas further argues the circuit court erred by failing to grant her pretrial motion to dismiss and posttrial motion for a judgment of acquittal notwithstanding the verdicts, and in allowing the witnesses, including Sandas, to testify regarding prescription medication that was not detected in Sandas’ system. We conclude credible evidence was presented to sustain the jury’s verdicts. We also conclude Sandas’ remaining arguments are undeveloped and therefore decline to consider them further. Accordingly, we affirm the judgment.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. M.E.-T.

Case No.: 2015AP625

Officials: KESSLER, J.

Practice Area: Juvenile Delinquency

M.E.-T. appeals from a dispositional order adjudicating him delinquent for first-degree sexual assault. M.E.-T. challenges that portion of the order requiring him to register as a sex offender. We affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Sherwood L. Hard

Case No.: 2015AP672

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

Practice Area: Extended Supervision – Petition to Modify Conditions

Sherwood L. Hard, pro se, appeals from a circuit court order denying his WIS. STAT. § 302.113(7m) (2013-14) petition to modify his conditions of extended supervision by removing the requirement that he register as a sex offender and “submit to an evaluation for sex offender treatment and participate in any treatment that is deemed necessary.” We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Jennifer Marie Rickard v. Patrick Schottler

Case No.: 2015AP769

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

Practice Area: Injunction – Request for De Novo Hearing

Patrick Schottler, pro se, appeals an order denying as untimely a request for a de novo hearing from a court commissioner decision granting a harassment injunction requested by Jennifer Rickard. We affirm.

Full Text

WI Court of Appeals – District III

Case Name: Sarah J. Steines v. Clayton J. Steines

Case No.: 2015AP828

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

Practice Area: Divorce Proceedings

In this divorce case, Clayton Steines appeals an order pertaining to child support, maintenance, and property division. Clayton argues the circuit court erred by calculating child support and maintenance based on his “earning capacity,” rather than his actual income. Clayton also argues the court erred by deviating from an equal division of property without addressing the factors listed in WIS. STAT. § 767.61(3). We reject these arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Mustafa Z. Abdel-Hamid

Case No.: 2015AP1517-CR

Officials: CURLEY, P.J.

Practice Area: Abuse of Discretion – Expungement

Mustafa Z. Abdel-Hamid appeals his convictions for two counts of misdemeanor criminal damage to property (less than $2500 damage) as a party to the crime, contrary to WIS. STAT. §§ 943.01(1), 939.51(3)(a), and 939.05 (2013-2014).  He also appeals the denial of his postconviction motion. He argues that both the trial court and the postconviction court erroneously exercised their discretion when they denied his request for the expunction of his criminal record pursuant to WIS. STAT. § 973.015(1m)(a)(1). This court concludes that the trial court, and later the postconviction court, properly exercised their discretion in refusing to expunge Abdel-Hamid’s criminal convictions.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. A.C.

Case No.: 2015AP1604

Officials: KESSLER, J.

Practice Area: Juvenile Delinquency – Lack of Probable Cause

The State of Wisconsin appeals an order of the circuit court dismissing a delinquency petition filed against A.C. The State contends that the circuit court erred in dismissing the petition for a lack of probable cause. We agree. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Willie C. Gibson

Case No.: 2014AP224-CR

Officials: Kloppenburg, P.J., Lundsten and Blanchard, JJ.

Practice Area: Motion to Suppress – Court Error – Ineffective Assistance of Counsel

Willie Gibson appeals a judgment, entered upon a jury’s verdict, convicting him of burglary as a party to a crime. Gibson also appeals the order denying his motion for postconviction relief. Gibson argues that the circuit court erred by denying his pretrial motion to suppress statements made to police officers and by admitting certain testimony regarding Gibson’s identification on surveillance video. Gibson also contends that he was denied the effective assistance of trial counsel. We reject these arguments, and affirm the judgment and order.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Heather L. Steinhardt

Case No.: 2015AP993-CR

Officials: Lundsten, Higginbotham and Sherman, JJ.

Practice Area: Double Jeopardy

Heather Steinhardt appeals the circuit court’s order denying her motion for postconviction relief. Steinhardt was convicted of first degree child sexual assault as party to a crime and failure to protect a child from sexual assault. She challenges her convictions as multiplicitous in violation of the Double Jeopardy Clause. We affirm.

Full Text

7^TH CIRCUIT COURT OF APPEALS DIGESTS 

7^TH Circuit Court of Appeals

Case Name: Keith Smith v. Sipi, LLC

Case No.: 15-1166

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

Practice Area: Bankruptcy Proceedings

Court addresses issue of whether debtor may set aside a sale and addresses compliance with Illinois tax sale procedures.

“We believe this argument misunderstands a key distinction between a debtor’s power acting in place of a trustee to avoid a transfer and the entitlement to and amount of a debtor’s recovery. It is true that the Smiths as debtors have the power to avoid the transfer just as their trustee would. See 11 U.S.C. § 522(h). As the bankruptcy court explained, where a transfer is avoidable under § 548 but the trustee does not attempt to avoid it (which the bankruptcy court found was the case here), the debtors themselves may avoid the transfer. But the power to avoid is only the power to unwind the transfer. No authority would allow the Smiths themselves to recover the full value of the property simply because they can avoid the tax sale. The homestead exemption provides a safe haven for some recovery for parties in the Smiths’ position. But any additional recovery would be for the benefit of the Smiths’ estate and therefore for their other creditors.”

Reversed in Part

Affirmed in Part

Full Text

7^TH Circuit Court of Appeals

Case Name: United States of America v. Julius Lawson

Case No.: 14-3276

Officials: BAUER, POSNER, and KANNE, Circuit Judges

Practice Area: Sufficiency of Evidence – Improper Jury Instuctions

Appellant argues insufficient evidence exists for jury to conclude that a firearm was used, among other arguments on appeal.

“Hunter had ample opportunity to view the gun up close while it was pointed directly at her stomach. Hunter testified that she was familiar with guns, that the gun looked like a Cobra .380, and that it was not a revolver. Additionally, the robber told her that he had a gun—implying that it was op‐erable and that he would be willing to use it if Hunter did not comply. Cf. Parker, 801 F.2d at 1384 (“The act of threatening others with a gun is tantamount to saying that the gun is loaded and that the gun wielder will shoot unless his commands are obeyed.” (quotation marks omitted)). Hunter’s testimony is sufficient for a rational juror to find beyond a reasonable doubt that the object used was in fact a firearm. The jury was free to discredit the portions of Hunter’s testimony where she admitted that it “could have been” a well‐made replica. In fact, we have rejected just such an argument. Buggs, 904 F.2d at 1074–75 (upholding firearms conviction where police officer and lay witness testified that they saw “what appeared to them to be a large pistol. It appeared to each of them to be a .357 magnum but neither was sure.” (quotation marks omitted)). “

Affirmed

Full Text

7^TH Circuit Court of Appeals

Case Name: Thomas Costello v. BeavEx, Inc.

Case No.: 15-1109; 15-1110

Officials: BAUER, KANNE, and ROVNER, Circuit Judges.

Practice Area: Classification of Employees – Wages – Class Certification

Company improperly classifies employees as independent contractors leading to improper deduction from wages, court order denying class certification vacated.

“Our opinion in S.C. Johnson and the decisions of our sister circuits confirm that there is a relevant distinction for purposes of FAAAA preemption between generally applicable state laws that affect the carrier’s relationship with its customers and those that affect the carrier’s relationship with its workforce. Laws that affect the way a carrier interacts with its customers fall squarely within the scope of FAAAA preemption. Laws that merely govern a carrier’s relationship with its workforce, however, are often too tenuously connected to the carrier’s relationship with its consumers to warrant preemption. The Supreme Court’s preemption decisions do not counsel a different conclusion. See e.g., Morales, 504 U.S. at 388 (preempting state-law claim because “it would give consumers a cause of action … for an airline’s failure to provide a particular advertised prices” (emphasis added and citation omitted)); Rowe, 552 U.S. at 372 (preempting a state law that determined “the services that motor carriers will provide” to their customers).

Affirmed in part

Vacated and Remanded in Part

Full Text

7^TH Circuit Court of Appeals

Case Name: United States of America v. Jermaine R. Speed & Rico J. Speed

Case No.: 15-1520; 15-1561

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

Practice Area: Pleas & Sentencing – Conditions of Supervised Release

Conditions of supervised release for appellant’s convicted on sale of narcotics and firearms justified.

“The Speeds do not cite any cases on how this condition violates the Constitution, however, and we do not find any grounding for their argument. On the contrary, prohibiting contact with felons is not an unusual federal condition of supervised release, particularly where probation officers can approve the requested contact. See, e.g., id.; United States v. Walker, 742 F.3d 614, 615 (5th Cir. 2014); United States v. Peebles, 624 F.3d 344, 346 (6th Cir. 2010); United States v. Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010); United States v. Charles, 531 F.3d 637, 639 (8th Cir. 2008); United States v. Smith, 436 F.3d 307, 309 (1st Cir. 2006). If Rico or Jermaine needs to in‐teract with a family member, friend, colleague, or any other individual with a felony conviction, he can speak with his probation officer, who knows the individual circumstances and can approve appropriate requests”

Affirmed

Full Text

7^TH Circuit Court of Appeals

Case Name: Cesar Flores-Ramirez v. Brian Foster

Case No.: 15-1594

Officials: FLAUM and RIPPLE, Circuit Judges.

Practice Area: Due Process Violations

Appellant fails to provide substantial showing of denial of constitutional right.

“Mr. Flores‐Ramirez has not argued, nor can he establish, that these claims meet the stringent requirements for entertaining successive petitions under 28 U.S.C. § 2244(b)(2)(B)(ii), namely that “the facts underlying the claim … would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” Because reasonable jurists could not disagree that Mr. Flores‐Ramirez’s first and second claims are successive and that they do not meet the requirements of § 2244(b)(2)(B)(ii), we decline to issue a certificate of appeal‐ ability with respect to either of those claims.”

Petitions Denied

Full Text

7^TH Circuit Court of Appeals

Case Name: United States of America v. Michael Segal

Case No.: 13-3847; 14-2214; 14-2215; 14-3533    

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

Practice Area: Settlement Arrangement

Appellant charged with numerous fraudulent charges has dispute over settlement negotiations requiring forfeiture of assets and capital to the government.

“He argues that the government withheld from him both information that he needed in order to determine the value of the policies that he was considering trying to buy and also cash that the government was obligated to return to him after he satisfied the forfeiture judgment. These arguments have no merit. The government helped Segal obtain information about the policies (namely their cash surrender values) prior to the option deadline by writing the insurance companies. Although one of the companies was slow to supply the information, that was not the government’s fault. In any event paragraph 9(e) required only that the government inform Segal of the cash surrender values of the policies after he had exercised his option to purchase them.”

Full Text

7^TH Circuit Court of Appeals

Case Name: VLM Food Trading International v. Illinois Trading company

Case No.: 14-2776

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges

Practice Area: Disputed Contract – International Trade

Dispute arises over attorney fees provision of supplier contract.

“Each Illinois Trading purchase order met all the Convention’s criteria for an offer; they included sufficiently definite terms, were directed to VLM specifically, and indicated that Illinois Trading intended to be bound by VLM’s acceptance. See Convention art. 14(1). Each of VLM’s confirmation e-mails was, in turn, an effective acceptance of Illinois Trading’s offer because each one confirmed and accepted the terms of the purchase order. Id. art. 18(1).2 As such, the contracts were formed when Illinois Trading received VLM’s confirmation e-mails. Id. art. 18(2). The attorney’s fees provision was not part of the agreement described in the purchase orders and the e-mail confirmations; that term first appeared in the trailing invoices that were mailed to Illinois Trading after VLM delivered the produce.”

Affirmed

Full Text

7^TH Circuit Court of Appeals

Case Name: United States v. Tyree Neal, Sr.

Case No.: 14-3473

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

Practice Area: Pleas & Sentencing – Conditions of Supervised Release

Appellant appeals conditions of supervised release and their legality.

“We are not persuaded, however, by the broader language interpreting § 3583(e)(2) as implicitly barring challenges to the legality of current conditions of supervised release. When confronted with a serious challenge to the legality of a currently binding condition—one that could be enforced by sending the defendant back to prison—we believe a court would need much more explicit statutory direction than we find in the text of § 3583(e) to refuse to consider the issue. The alternative view would require a person under supervision who sought to challenge an ambiguous or arguably il‐ legal restraint on his liberty to violate the condition and to risk a return to prison. Consistent with this concern, the advisory committee notes to Rule 32.1 explain that a person on probation (and now supervised release) should be able to obtain clarification or modification of an ambiguous condition without first having to violate it. Fed. R. Crim. P. 32.1, Advisory Committee notes (1979).”

Affirmed

Full Text

7^TH Circuit Court of Appeals

Case Name: Fidlar Technologies v. LPS Real Estate Data Solutions

Case No.: 15-1830

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

Practice Area: Violation of Computer Fraud and Abuse Act

Company download of county land records was not fraudulent

“None of the circumstantial evidence, including the testimony of LPS employees, the agreements governing LPS’s access to county records, and the Laredo technology itself, undermines LPS’s claim that it believed it could permissibly download records through its web-harvester without paying print fees. First, LPS presented testimony from its employees indicating that they believed that although printing a record resulted in a fee, downloading a record did not. For example, LPS’s former Senior Vice President Erick Marroquin stated that he believed that LPS was “entitled to download images from the Laredo program without incurring a print charge.” LPS also offered evidence that it did not use a webharvester to avoid print fees. The employee who oversaw development of the web-harvester, John McCabe, testified that in designing the web-harvester, “no part of [the process] was to avoid a print fee” and that the purpose was “[e]fficiency, speed.””

Affirmed

Full Text

7^TH Circuit Court of Appeals

Case Name: Larry Nelson v. City of Chicago

Case No.: 12-3401

Officials: BAUER, RIPPLE, and SYKES, Circuit Judges

Practice Area: Police Abuse – Violation of 4^th Amendment

Appellee improperly stopped by police officers and subsequent trial rife with court errors warranting a new trial.

“On the other side of the ledger, the risk of prejudice from this testimony was enormous. It’s doubtful that the jury drew the distinction between an arrest and a legal finding of wrongdoing; where there’s smoke, there’s fire. Even assuming the jury accounted for this distinction, evidence of prior arrests—here numerous prior arrests—generally impugns character. And in a false-arrest case, the prejudice is even greater because it invites the jury to draw a propensity inference, forbidden by Rule 404(b), that the plaintiff is a serial law breaker and general troublemaker and the police must have had probable cause to arrest him.4 See Barber, 725 F.3d at 714 (noting that that other-arrest evidence in a false-arrest suit “presents a substantial risk that the jury will render a defense verdict based not on the evidence but on emotions or other improper motives, such as a belief that bad people should not be permitted to recover from honorable police officers”). Even considering the special deference we give to the trial judge’s evidentiary rulings, the evidence of Nelson’s prior arrests should not have been admitted in light of the narrow scope of his claimed damages and the inherent risk of unfair prejudice”

Reversed and Remanded

Full Text

US SUPREME COURT DIGESTS 

US Supreme Court

Case Name: Kansas v. Carr

Case No.: 14-449

Practice Area: Capital Punishment – Jury Instructions

8^th Amendment does not require capital-sentencing courts to instruct jury that mitigating circumstances need not be proved beyond a reasonable doubt.

“A Kansas jury sentenced respondents Reginald and Jonathan Carr, brothers, to death after a joint sentencing proceeding. Respondents were convicted of various charges stemming from a notorious crime spree that culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. The Kansas Supreme Court vacated the death sentences in each case, holding that the sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings.”

Reversed and Remanded

Justice Sotomayor Dissenting

Full Text

US Supreme Court

Case Name: Montanile v. Board of Trustees of National Elevator Industry Health Benefit Plan

Case No.: 14-723

Plan fiduciary may not bring suit under Sec.502(a)(3) when ERISA participant wholly dissipates a third-party settlement on non-traceable items.

“[P]etitioner Montanile was seriously injured by a drunk driver, and his ERISA plan paid more than $120,000 for his medical expenses. Montanile later sued the drunk driver, obtaining a $500,000 settlement. Pursuant to the plan’s subrogation clause, respondent plan administrator (the Board of Trustees of the National Elevator Industry Health Benefit Plan, or Board), sought reimbursement from the settlement. Montanile’s attorney refused that request and subsequently informed the Board that the fund would be transferred from a client trust account to Montanile unless the Board objected. The Board did not respond, and Montanile received the settlement. Six months later, the Board sued Montanile in Federal District Court under §502(a)(3) of ERISA, which authorizes plan fiduciaries to file suit “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.” 29 U. S. C. §1132(a)(3). The Board sought an equitable lien on any settlement funds or property in Montanile’s possession and an order enjoining Montanile from dissipating any such funds. Montanile argued that because he had already spent almost all of the settlement, no identifiable fund existed against which to enforce the lien. The District Court rejected Montanile’s argument, and the Eleventh Circuit affirmed, holding that even if Montanile had completely dissipated the fund, the plan was entitled to re imbursement from Montanile’s general assets”

Reversed and Remanded

Justice Ginsburg Dissenting

Full Text

US Supreme Court

Case Name: Campbell-Ewald v. Gomez

Case No.: 14-857

Accepted settlement offer or offer of judgment does not moot plaintiff’s case, therefore jurisdiction to adjudicate complaint is retained by the District Court.

“The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had “opted in” to receipt of marketing solicitations on topics that included Navy service. Campbell’s subcontractor Mindmatics LLC generated a list of cellular phone numbers for consenting 18- to 24-year-old users and then transmitted the Navy’s message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages and, at age 40, was not in the Navy’s targeted age group. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA), 47 U. S. C. §227(b)(1)(A)(iii), which prohibits “using any automatic dialing system” to send a text message to a cellular telephone, absent the recipient’s prior express consent. He sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell’s involvement in unsolicited messaging. Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez’s individual claim by providing him with complete relief. Next, Campbell urged that Gomez’s failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well. The District Court denied the motion. After limited discovery, the District Court granted Campbell’s motion for summary judgment. Relying on Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, the court held that Campbell, as a contractor acting on the Navy’s behalf, acquired the Navy’s sovereign immunity from suit under the TCPA. The Ninth Circuit reversed. It agreed that Gomez’s case remained live but concluded that Campbell was not entitled to “derivative sovereign immunity” under Yearsley or on any other basis.”

Affirmed

Justice Thomas Concurring

Justice Roberts, Justice Scalia & Justice Alito Dissenting

Full Text