Weekly Case Digests — June 20-24, 2016

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7^th Circuit Court of Appeals Digests

7^th Circuit Court of Appeals

Case Name: Cincinnati Insurance Company v. Estate of Toni Chee, et al

Case No.: 15-3243

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

Focus: Indemnification

Insurance company obligated to defend interest of estate against medical defendants.

“What we have said so far shows that the duty of indemnity, if any, depends on what happens in the underlying litigation. That makes it inappropriate to try to resolve that matter in an anticipatory action seeking a declaratory judgment, beyond stating the point that neither defense nor indemnity is appropriate in the estate’s suit against Sam. Trying to pin down what duties of indemnity Cincinnati might owe in the other suit under various possible outcomes would be premature. See Panfil v. Nautilus Insurance Co., 799 F.3d 716, 722 n.2 (7th Cir. 2015); Lear Corp. v. Johnson Electric Holdings Ltd., 353 F.3d 580, 583–85 (7th Cir. 2003); Grinnell Mutual Reinsurance Co. v. Reinke, 43 F.3d 1152 (7th Cir. 1995); Travelers Insurance Cos. v. Penda Corp., 974 F.2d 823, 833–34 (7th Cir. 1992).”

Affirmed in part

Reversed and remanded in part

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7^th Circuit Court of Appeals

Case Name: United States of America v. Ifeanyichukwu Ikegwuonu et al.

Case No.: 15-2407; 15-2408

Officials: FLAUM, MANION, and WILLIAMS, Circuit Judges

Focus: Sentencing

Precedent requires that a district judge must determine the appropriate sentence for the underlying crime independent of section 924(c)(1) add on. Appellants fail to provide compelling evidence to overturn precedent.

“At oral argument, defendants asserted for the first time that the Supreme Court’s decision in Pepper v. United States, 562 U.S. 476 (2011), compels us to overturn Roberson. This argument is not properly before us, which is reason enough to reject it. See United States v. Conley, 291 F.3d 464, 468 n.3 (7th Cir. 2002) (declining to consider an argument raised for the first time at oral argument). But waiver aside, the contention lacks merit. In Pepper, the Supreme Court pointed to the “wide discretion” of sentencing judges to consider under § 3661 “the fullest information possible concerning the defendant’s life and characteristics,” 562 U.S. at 488 (quoting Williams v. New York, 337 U.S. 241, 247 (1949)), and held that evidence of the defendant’s post‐sentencing rehabilitation could be considered at resentencing, id. at 493. But Pepper does not say that a sentencing court’s discretion is unlimited. See id. at 489 n.8 (noting that “sentencing courts’ discretion under § 3661 is subject to constitutional constraints”). Certain characteristics of a defendant—race, sex, and religion, for ex‐ ample—are well understood as inappropriate factors to con‐ sider at sentencing. See U.S.S.G. § 5H1.10; United States v. Tru‐ jillo‐Castillon, 692 F.3d 575, 579 (7th Cir. 2012). Moreover, a consecutive sentence under § 924(c) is irrelevant to § 3661, which concerns factual information about a defendant’s “background, character, and conduct ….” § 3661; cf. United States v. LaFleur, 971 F.2d 200, 212 n.14 (9th Cir. 1991) (noting that a statute mandating a life sentence was not a “‘limitation’ on the type of information” allowed by § 3661). And even if there were tension between the statutes, we al‐ ready concluded in Roberson that general sentencing provisions, such as § 3661, do not undermine the specific statutory minimum prescribed in § 924(c). See 474 F.3d at 436.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Lora J. Wheatley v. Factory Card and Party Outlet

Case No.: 15-2083

Officials: ROVNER and WILLIAMS, Circuit Judges and SHAH, District Judge.

Focus: Americans with Disabilities Act

Employer failure to accommodate injury of employee after being declared unfit to work did not violate ADA where work required climbing and other physical activity.

“That conclusion is consistent with the Aetna Attending Physician Statement by Dr. Fleischli in the record, in which he indicated that she had no ability to work and would need to be absent until August 15, 2009. Wheatley argues that the district court erred in considering that document because it is hearsay. In granting summary judgment, a district court may consider any evidence that would be admissible at trial. Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir. 2014). The evidence need not be admissible in form, but must be admissible in content, such that, for instance, affidavits may be considered if the substitution of oral testimony for the affidavit statements would make the evidence admissible at trial. Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Here, the court could properly determine that the Attending Physician Statement was admissible. We have upheld the admissibility ofa health care provider’s medical certification under the business records exception, Fed. R. Evid. 803(6), and the court could properly determine that Factory Card could provide the foundation for admission of such evidence at trial. See Hansen v. Fincantieri Marine Group, LLC, 763 F.3d 832, 840 (7th Cir. 2014). In fact, Wheatley raised no objection to that document when it was included in the defendant’s statement of undisputed facts.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Donald C. Ridley

Case No.: 15-1309

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.

Focus: Sufficiency of Evidence – Hearsay

Admission of FBI Testimony was not court error

“We have addressed similar problems in cases raising Confrontation Clause issues for the first time on appeal. For ex‐ ample, in United States v. Moon, 512 F.3d 359 (7th Cir. 2008), a defendant raised a Crawford challenge to a government wit‐ ness’s testimony relaying a colleague’s findings. See Crawford v. Washington, 541 U.S. 36 (2004). We found no plain error, ex‐ plaining that a proper objection against this witness’s testimony would have left the defendant worse off because the government then could easily have produced the better qualified colleague who could speak directly to technical aspects of the trial with greater authority. Moon, 512 F.3d at 361. And when the defense chooses not to seek the readily available fix for the arguable evidentiary problem, enabling the defense to cross‐examine the less credible witness, we are especially reluctant to find plain error when that strategy does not pay off. See United States v. Maxwell, 724 F.3d 724, 728 (7th Cir. 2013) (determining that there was no plain error if “it may be to defendants’ advantage to accept the hearsay version of evidence … . The lack of a demand for testimony by an available declarant leads to the conclusion that the appellate argument is strategic rather than sincere.”), quoting Moon, 512 F.3d at 361. See also Melendez‐Diaz v. Massachusetts, 557 U.S. 305, 328 (2009) (“It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.”). Allowing Agent Manns’ testimony was not a plain error.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Destry J. Marcotte

Case No.: 15-1266; 15-1271

Officials: WOOD, Chief Judge, ROVNER, Circuit Judge, and BLAKEY, District Judge.

Focus: Sentencing Guidelines

Sentence can be enhanced for a failure to appear under 18 U.S.C. §3147 through §3C1.3

“The Sentencing Guidelines, however, expressly permit cumulative guideline enhancements for the same misconduct. Under Application Note 4(B) to §1B1.1 of the Sentencing Guidelines, enhancements under Section 3 (and elsewhere) are applied “cumulatively” even when “triggered by the same conduct.” Consider a defendant who shoots a police officer during the commission of a robbery. Such conduct, according to Application Note 4(B), may warrant both an injury enhancement under §2B3.1(b)(3) and an official victim adjustment under §3A1.2 of the Sentencing Guidelines. Thus, cumulative application of enhancements is the “default rule … unless a specific guideline instructs otherwise.” United States v. Vizcarra, 668 F.3d 516, 520 (7th Cir. 2012).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Candice McCurdy v. David Fitts et al

Case No.: 15-1212

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

Focus: Sexual Discrimination

Appellant failure to be hired due to affiliations with criminal element and financial straits did not amount to sexual discrimination.

“In this suit under 42 U.S.C. §1983, McCurdy contends that the officers who made these decisions engaged in sex discrimination. She offers two theories: first, that she would have been promoted immediately had she been a man; second, that the Group gave her background and associates more scrutiny than it does for male applicants. She does not deny that the Group had legitimate reasons for thinking that someone else would be more suitable; instead she contends that the Group would not have discovered these matters had the applicant been male. The district court, however, granted summary judgment for the defendants, ruling that McCurdy was treated the same as a male applicant would have been. The district court’s conclusion is well founded with respect to the hiring decision, because Agent Braddy testified in discovery that she investigated McCurdy exactly the same way as she investigates other applicants, and that she always checks financial details and romantic entanglements. Indeed, Braddy had investigated Craft and recommended that he not be hired because she discovered that he had financial problems and associated with people engaged in shady activities. The Group overrode her recommendation about Craft, suffered the consequences, and was determined not to make that mistake again. This has nothing to do with sex. McCurdy points to Craft as a comparator treated more favorably, but employers are entitled to learn from their errors. Given Agent Braddy’s uncontested testimony that she investigated McCurdy exactly as she investigates men who apply to be inspectors, and McCurdy’s concession that Braddy’s findings constitute sex-neutral reasons for not hiring her, summary judgment was proper.”

Affirmed in Part

Vacated and Remanded in part

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7^th Circuit Court of Appeals

Case Name: In Re: Robert Sobczak-Slomczewski

Case No.: 15-1162

Officials: RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

Focus: Bankruptcy

District court did not err in dismissing appellant appeal for lack of jurisdiction where appellant failed to file notice of appeal within prescribed 14 day period as a required.

“The district court agreed with WDH that the appeal was untimely, granted the motion to dismiss, and concluded that Rule 8002(a)’s 14‐day deadline was jurisdictional. The court acknowledged that not all notice‐of‐appeal deadlines should be “unquestioningly accept[ed]” as jurisdictional, especially in light of recent Supreme Court cases that sought to distinguish genuinely jurisdictional deadlines from those that do not actually strip a court of jurisdiction, and rather are merely claim‐processing rules. See Bowles v. Russell, 551 U.S. 205, 208– 13 (2007); Kontrick v. Ryan, 540 U.S. 443, 452–53, 456 (2004). Observing that deadlines set by statute generally are jurisdictional and those set by court‐authored rules are not, the court accepted the analysis of three other circuits that recently characterized Rule 8002(a)’s 14‐day deadline as jurisdictional because it is rooted in a statute, 28 U.S.C. § 158(c)(2), see In re Berman‐Smith, 737 F.3d 997, 1002–03 (5th Cir. 2013); In re Caterbone, 640 F.3d 108, 111–12, 113 n.5 (3d Cir. 2011); In re Latture, 605 F.3d 830, 836–37 (10th Cir. 2010). In response to Sobsczak‐Slomczewski’s assertion that he did not receive notice of the bankruptcy court’s order until the day of the deadline, August 19, the court explained that there are no equitable exceptions to a mandatory jurisdictional rule, and the bankruptcy court had not granted any extension of the time to appeal.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tri-Corp Housing Incorporated v. Robert Bauman

Case No.: 14-1358

Officials: EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.

Focus: Intentional Interference with contracts – First Amendment

Alderman’s reserved right of free speech under first amendment for speeches and letters to regulatory and licensing boards expressing disdain for appellant practices, whether or not those speeches and expressions allegedly hurt the business of appellant.

“The First Amendment prevents both state and federal governments from controlling political speech. It would be most surprising to find in the Fair Housing Act an attempt to penalize political speech, and Tri-Corp does not contend that the statute has any language doing so. The most one could say is that after Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), which holds that two sections of the Fair Housing Act authorize a mild form of review for disparate impact, a litigant might contend that speech creating a disparate impact should be treated the same as action. But Inclusive Communities dealt with sections 804(a) and 805(a), 42 U.S.C. §§ 3604(a), 3605(a). Tri-Corp does not seek relief under either of these sections.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Cameron Patterson

Case No.: 15-3022

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

Focus: Miranda Warnings – Custody

Appellant not in custody for purposes of Miranda prior to being questioned.

“In determining whether a reasonable person in the suspect’s shoes would have felt free to leave, we consider “all of the circumstances surrounding the interrogation.” Howes v. Fields, – U.S. –, 132 S. Ct. 1181, 1189 (2012) (citation omitted, internal quotation marks omitted). Factors relevant to the totality of the circumstances analysis include: (1) the location of the interrogation; (2) the duration of the interrogation; (3) any statements made by the suspect during the interrogation; (4) any use of physical restraints during the interrogation; and (5) whether the suspect was released at the end of the interrogation. Howes, 132 S. Ct. at 1189 (cataloging cases; citations omitted). We have provided a non-exhaustive list of example factors, which includes: “whether the encounter occurred in a public place; whether the suspect consented to speak with the officers; whether the officers informed the individual that he was not under arrest and was free to leave; whether the individual was moved to another area; whether there was a threatening presence of several officers and a display of weapons or physical force; and whether the officers’ tone of voice was such that their requests were likely to be obeyed.” United States v. Littledale, 652 F.3d 698, 701 (7th Cir. 2011), citing United States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011). See also, United States v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999), citing United States v. Yusuff, 96 F.3d 982, 985–86 (7th Cir. 1996).”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ronald Oliva v. Blatt, Hasenmiller, Leibsker & Moore, LLC

Case No.: 15-2516

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

Focus: FDCPA

FDCPA protects debt collector from liability for engaging in conduct that was expressly permitted under controlling law in effect at the time, but was later prohibited after a retroactive change in law.

“This is not to say that Blatt did not exercise any independent judgment in deciding where to sue in Cook County. In deciding whether to file suit at the Daley Center, Blatt had to determine both that Oliva resided in Cook County, and that in light of that fact the Daley Center was an appropriate venue under Newsom. Neither of Blatt’s independent judgments in this regard, however, involved a legal interpretation of the FDCPA. Moreover, even if Blatt’s violation was the result of its own interpretation of the law, Jerman still would not apply, for Blatt’s interpretation was not mistaken when it was made. That is, assuming Blatt independently interpreted the control‐ ling law of Newsom before filing suit, its interpretation was undisputedly correct, since it relied on Newsom to file suit exactly where Newsom allowed. That Blatt’s conduct would later be deemed a violation under Suesz is not the result of Blatt’s mistaken interpretation of the FDCPA, but of a retroactive change of law that was entirely outside Blatt’s control.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: C.G. Schmidt, Inc. v. Permasteelisa North America

Case No.: 15-3617

Officials: WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.

Focus: Breach of Contract

Parties never entered into a binding contract and promissory estoppel claim fails as a matter of law.

“First, given both parties’ expectation of further negotiations, it is questionable whether we can construe PNA’s bid as a promise upon which CGS could reasonably rely. Soon after submitting its initial bid, PNA announced that it expected to review the prime contract and negotiate certain aspects of the subcontract prior to executing an agreement. Conditional promises of this kind are not a reasonable basis for reliance. Gruen Indus., 608 F.2d at 281. Once CGS selected PNA’s bid, the parties entered a negotiation that spanned over the next year. CGS was perhaps reasonable in expecting that the parties would ultimately form a binding agreement. But it was not reasonable for CGS to rely on any of PNA’s specific bids. CGS knew, or at least should have known, that the negotiations could fall apart before the parties entered into a binding agreement. Second, there is no injustice in permitting PNA to withdraw its bid. Applying promissory estoppel to this case would essentially give CGS an option contract on PNA’s bid that it did not bargain for. Correspondingly, it would put PNA at the mercy of CGS’s superior bargaining position. In other words, it would “transform these complex negotiations into a ‘no lose’ situation” for CGS. Id. at 282. In complex negotiations between sophisticated parties, it is preferable to leave the losses where they fall, rather than enforcing preliminary negotiation positions wrought with contingencies and uncertainty. Id.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Luis Gil-Lopez

Case No.: 15-2650

Officials: MANION and KANNE, Circuit Judges, and PEPPER, District Judge.

Focus: Immigration

Appellant failed to exhaust administrative remedies regarding immigration and removal, and therefore cannot challenge district court’s decision.

“The district court’s decision rested on its determination that Gil‐Lopez’s conviction under Idaho Code §18‐1501(1) was an aggravated felony. The district court found that the statute is divisible, so the court could look to the underlying charging instrument to decide whether Gil‐Lopez’s crime constituted a crime of violence. In his initial brief before this court, Gil‐Lopez focused primarily on the divisibility issue, though he conceded that if he “validly waived the right to appeal the deportation order” in his August 2004 Withdrawal of Reserve of Appeal letter, “then he is barred from challenging it here.” (Appellant’s Br. at 9.) The government had argued below, as it does in this appeal, that Gil‐Lopez’s waiver of appellate rights barred his challenge to the immigration court’s prior removal order, because he did not exhaust his administrative remedies following his conviction. In reply, Gil‐Lopez argued that he did not knowingly sign a waiver of his appellate rights, but he did not cite any evidence showing that he did not sign the withdrawal.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Derrick R. Clinton

Case No.: 15-1346

Officials: ROVNER and WILLIAMS, Circuit Judges, and SHAH, District Judge

Focus: Pleas & Sentencing

Court erred in failing to address health problems as a mitigating factor warranting a decreased sentence.

“The record thus provides little support for such an enhancement. We do not hold that the enhancement is inapplicable as a matter of law, but the fact findings in this record do not support the enhancement. The district court identified only the generalized need for protection by those engaged in drug offenses. But that would apply whenever a person who sold drugs also possessed a firearm in the residence. It would transform the “close proximity” test of Application Note 14 to a broad‐based rebuttable presumption that the enhancement applied whenever a firearm was possessed and a drug offense was also alleged regardless of the location of the firearm and its proximity to the drugs. The Sentencing Commission could have imposed an enhancement if any weapon was possessed without requiring that it be possessed in connection with the offense, but it chose not to do so. See United States v. Carillo‐Ayala, 713 F.3d 82, 89‐90 (11th Cir. 2013)(comparing the provision in § 2D1.1(b)(1) requiring only that a weapon was possessed with the requirement under § 5C1.2(a)(2) that the firearm was possessed in connection with the offense).Because the court’s findings are insufficient to support application of the four‐level enhancement, that determination is vacated and the case must be remanded for resentencing.”

Vacated and Remanded for Resentencing

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7^th Circuit Court of Appeals

Case Name: Edward E. Gillen Company et al v. The Insurance Company of the State of Pennsylvania

Case No.: 15-1323

Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.

Focus: Insurance

Dispute over who receives money paid to court registry

“The Bank maintains that the Excess Insurer’s payment wasn’t really insurance. Gillen and the Excess Insurer disputed how much (if anything) it owed; they settled for $1.2 million. The Bank wants us to treat this as damages for the bad‐faith denial of insurance coverage, rather than as insurance proceeds. Yet if an insurer wrongfully delays payment, and later makes everyone whole, why would the delay di‐ vert the money to a secured creditor rather than the person who should have received the cash in the first place? “Dam‐ ages” measured by the value of insurance wrongfully delayed are just insurance proceeds by another name. That is not inevitable, but the Bank does not contend that Wisconsin sees a difference. This part of its argument does not rely on any statute or decision from Wisconsin, or any other state for that matter. The federal court’s job in diversity litigation is to predict how the state’s highest court would resolve a legal contention. We are confident that the Supreme Court of Wisconsin would give the beneficiary of an insurance policy (here F&D as Meyne’s subrogee for $800,000) the same rights, whether the payment is called “insurance” or “damages for failure to indemnify on time”. Any amount exceeding the beneficiary’s rights (here the $400,000) is genuine damages subject to a security interest. That’s exactly how the district court apportioned this $1.2 million”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Paldo Sign and Display Company v. Wagener Equities, Inc. et al

Case No.: 15-1267

Officials: WOOD,Chief Judge, and POSNER and ROVNER, Circuit Judges

Focus: TCPA

Respondent not directly responsible to dissemination of unauthorized and unsolicited fax transmissions. Court did not abuse discretion in admitted evidence related to character of key witness.

“The plaintiff’s argument that the evidence somehow violated Rule 608(b) misses the mark. Rule 608(b) prohibits only the use of extrinsic evidence, not lines of questioning. United States v. Dvorkin, 799 F.3d 867, 883 (7th Cir. 2015). And the rule expressly affords the trial judge broad discretion to allow such questioning regarding prior instances of conduct if they are probative of the character for truthfulness or untruthfulness of the witness. Fed. R. Evid. 608(b); United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007). As the district court noted, no extrinsic evidence was allowed to prove specific instances of misconduct. For example, there was no testimony by a customer who purchased a diploma from Abraham’s business, or a company that was defrauded when it hired an employee on the basis of a fake diploma. The evidence was limited to Abraham’s own admission that she ran a “diploma mill,” a term that the district court acknowledged is not ambiguous. This evidence was not extrinsic and so Rule 608(b) does not bar it. See also United States v. Abair, 746 F.3d 260, 263-64 (7th Cir. 2014) (noting that Rule 608(b) bars extrinsic evidence of prior conduct to undermine a witness’s credibility but gives trial judges discretion to allow counsel to ask questions about that conduct on cross-examination, subject to Rule 403).Nor did the court abuse its discretion under Rule 403, which provides that the “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice.” The court carefully limited the testimony to one brief instance of Abraham’s prior conduct that the court found most probative of her character for untruthfulness, and concluded on balance that admission of this evidence was fair. Paldo Sign also misses the mark in complaining that the diploma mill testimony was used to undermine Wilson’s credibility. Wilson never testified and so his credibility was not at issue. In fact, it was Abraham who wrote the documents that were sent under Wilson’s name. Wilson’s only role was to engage in sale calls with Wagener, and Wagener was the only witness presented by Paldo Sign with personal knowledge of the content of those conversations. By relying so heavily on Abraham’s testimony regarding the deal between B2B and Wagener, Paldo Sign placed Abraham’s credibility, not Wilson’s, at the center of the case. The court did not abuse its discretion in admitting her own limited testimony that she previously ran a diploma mill, an admission that fairly called her credibility into question.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Berron v. Illinois Concealed Carry Licensing Review Board, et al; Ronald DeServi v. Jeremy Margolis; Seth Ghantous v. Illinois concealed Carry Licensing Review Board; Fotios Moustakas v. Edward A. Bobrick, et al;

Case No.: 15-2404; 15-2405; 15-2931; 16-1170;

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge

Focus: Concealed Carry Permit Denial

Plaintiffs properly denied concealed carry rights.

“Plaintiffs next maintain that, even if licenses may be required, they must be issued unless the state proves a disqualifying condition by clear and convincing evidence. Neither Heller nor McDonald is concerned with licensing, so this contention lacks support in the Supreme Court’s most applicable decisions. As a matter of administrative law, the proponent of a position bears the burden of showing entitlement by a preponderance of the evidence. See Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). Plaintiffs are the applicants for licenses, so they bear the burden of showing entitlement. To be more precise, a state may assign applicants that burden without transgressing the Constitution. Illinois is a little more generous, placing the burden on the state to show why an application should be denied. 430 ILCS 66/20(g). Section 66/20(g) uses a preponderance standard, which is the norm in civil litigation. See, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 387–90 (1983); Grogan v. Garner, 498 U.S. 279, 286 (1991); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1758 (2014); Halo Electronics, Inc. v. Pulse Electronics, Inc., No. 14–1513 (U.S. June 13, 2016), slip op. 12. We do not see why the Second Amendment would alter that standard, which applies to disputes about other kinds of property such as zoning and home ownership, occupational licenses such as law licenses, and other valuable licenses of all kinds, such as driver’s licenses.”

Affirmed

Judgment vacated as to Appeal No. 15-2931

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7^th Circuit Court of Appeals

Case Name: Trade Well International v. United Central Bank

Case No.: 15-3353

Officials: POSNER and FLAUM, Circuit Judges, and ALONSO, District Judge.*

Focus: Replevin – Contempt

Appellant motion to set aside default judgment fails.

“We cannot accept Trade Well’s contention that the district court lacked personal jurisdiction over it because Trade Well is a foreign corporation that did not have counsel at the time of the default judgments. By filing the original replevin action, Trade Well submitted itself to jurisdiction in Wisconsin for purposes of the replevin action and the counterclaim. In general, when a defendant interposes a permissive counterclaim, the plaintiff cannot object that the court lacks personal jurisdiction for purposes of adjudicating the claim. See Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451 (1932) (holding, in a patent case, that “[w]hen the [plaintiff] brought the suit in [federal district court], it submitted itself to the jurisdiction of the court with respect to all the issues embraced in the suit, including those pertaining to the counterclaim of the defendants”); 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1424 (3d ed. 2016). Moreover, a district court may exercise personal jurisdiction over any party that purposefully avails itself of the forum. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011). By filing suit in Wisconsin, Trade Well availed itself of the forum, whether by explicitly consenting to jurisdiction, waiving any challenge to jurisdiction, or simply receiving the privileges and benefits of the forum state. See id. at 880–81. Indeed, the purposeful availment inquiry is ultimately about whether the party should reasonably anticipate being haled into court in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). When a plaintiff files a claim in a particular state, he should reasonably expect to answer a counterclaim in that forum.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Clark Bickart and Jerlene Bickart

Case No.: 15-2890; 15-2946

Officials: BAUER, POSNER, and FLAUM, Circuit Judges

Focus: Sophisticated Means Sentence Enhancement

Third Party notification requirement as a condition of supervised release is inherently vague.

“Nonetheless, Jerlene argues that the revised condition re‐ mains vague under Thompson and Kappes. These cases found a similar condition that lacked a court‐approval requirement vague because there was “no indication of what is meant by ‘personal history’ and ‘characteristics’ or what ‘risks’ must be disclosed to which ‘third parties.’” Kappes, 782 F.3d at 849 (quoting Thompson, 777 F.3d at 379). The government argues that because, in this case, notification requires the court’s prior approval and gives defendants an opportunity to respond, the condition is permissible. Although the district court’s modification softens the con‐ sequences of the vagueness we identified in Thompson and Kappes, the underlying vagueness remains. We disapproved of the condition in Thompson and Kappes because we thought that “personal history,” “characteristics,” “risks,” and “third parties,” were impermissibly vague. The modified condition in this case still contains these vague terms and offers no additional guidance as to their meaning. We appreciate the district court’s effort to rescue this condition by adding a procedural mechanism, but we believe that it is appropriate to tackle vagueness head‐on by defining or removing vague terms. As we noted in Kappes, “[p]resumably, the meaning of these terms would change from defendant to defendant, which makes definitions particularly important with this condition.” 782 F.3d at 849. Therefore, the district court abused its discretion by imposing this condition, and we must remand for resentencing of Jerlene with respect to this condition”

Vacated and Remanded as to third party notification condition

Affirmed in every other respect

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7^th Circuit Court of Appeals

Case Name: David Rhein v. John Coffman

Case No.: 15-2867

Officials: EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge

Focus: License to Own Firearms

License to own firearms properly revoked for distressed individual threatening to shoot house of representative member. Respondent not guilty of any 2^nd amendment violations.

“Now a recommendation, even an emphatic one, is not a command. Rhein was free to ask the Director for an immediate hearing. Coffman’s letter did not block that path. But Rhein did not take it. Having repeatedly threatened a state legislator with violence, Rhein surely understood that he was not going to get his Card back just by promising to keep guns out of political disputes. Rhein told Coffman in February 2011 that his threats to kill DeLuca had been meant only “to get people’s attention.” 118 F. Supp. 3d at 1098. But neither the Second Amendment nor the Due Process Clause requires public officials to be credulous. Rhein does not deny that his statements were “true threats” within the meaning of Virginia v. Black, 538 U.S. 343, 359–60 (2003), and Watts v. United States, 394 U.S. 705, 707–08 (1969), so he could have been convicted for making them. A felony conviction would have established a long-term bar to gun ownership. See 18 U.S.C. §922(g)(1); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). Rhein had every right to a prompt hearing, but if he had exercised that right without first assembling the sort of evidence Coffman had recommended, he was doomed to lose. Giving sound advice cannot be a source of constitutional liability.”

Affirmed

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7^th Circuit Court of Appeals

Case Name: Richard N. Bell v. Charles Lantz

Case No.: 15-2341

Officials: EASTERBROOK, ROVNER, and SYKES, Circuit Judges.

Focus: Attorney Fees

Attorney fees for $410 per hour lacks support on the record.

“Lantz’s evidence of the $410 rate is minimal. In addition to the January 27th invoice, Lantz provided two declarations by Overhauser, as well as testimony by Overhauser about what Lantz agreed to pay. Bell objects to the consideration of Overhauser’s testimony as to what Lantz agreed to pay as hearsay, and in response Lantz has clarified that he is not relying on any testimony to establish a reasonable attorney’s fee, but rather is basing his claim solely on the two declarations of Overhauser. Those declarations, however, do not address the rate that Overhauser actually agreed to charge Lantz for his legal services in this case. The declarations merely set forth that Overhauser’s “present standard hourly rate for cases of this type” is $410 per hour, and states that he has billed other clients at that rate for the same type of work as in this case. That would tend to prove that Overhauser could charge that amount for cases such as this one, but the proper focus is on what this particular client agreed to pay. In Assessment Techs. of WI, LLC v. WIRE data, Inc., 361 F.3d 434, 438-39 (7th Cir. 2004), we held that in a copyright case “the best value of the lawyer’s services is what the client agrees to pay him,” and therefore agreed with the Third Circuit in Lieb v. Topstone Industries, 788 F.2d 151, 156 (3d Cir.1986), that the contract between a party and his lawyer places a ceiling on what a court can award the lawyer in such cases. Overhauser’s declarations do not address the fees that Lantz agreed to pay it, as opposed to fees charged to other clients for similar services, and are therefore unhelpful.”

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: City of Joliet, Illinois v. New West, L.P. et al  

Case No.: 15-2183

Officials: EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges

Focus: Condemnation – Writ of Mandamus

None of courts finding erroneous in condemnation action.

“We asked at oral argument why the district court did not empanel a jury and try the two suits together, with the condemnation issues resolved by the court and the Fair Housing Act issues by a jury. The jury also could have served an advisory role in the condemnation action. See Fed. R. Civ. P. 39(c). The answer is that no one suggested this to the district court, and the judge did not propose it on his own. It would have been fruitless to expect a jury to follow 100 days of trial spread over 18 months—but maybe the presence of a jury would have induced the judge to rein in counsel’s presentations and make the trial manageable. One of the issues the judge will have to consider in the Fair Housing Act case is whether New West surrendered its right to a jury by not proposing a joint trial, or at least an advisory jury in the condemnation action. Cf. Fed. R. Civ. P. 38(d). We do not express any view on that subject. We do hope, however, that what we have said in this opinion will lead the parties to think carefully about whether a trial of the Fair Housing Act suit is necessary”

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. John W. Bloch

Case No.: 15-1648

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

Focus: Court Error – Conditions of Supervised Release

Court did not err in setting conditions of supervised release – adequately explain and justified its terms.

“Finally, nothing about the district court’s questioning concerning Bloch’s supervised release conditions is vague or confusing. Bloch knew that “he could lodge an objection and purposefully declined to do so.” United States v. Murry, 395 F.3d 712, 717 (7th Cir. 2005) (applying waiver where district court twice asked defendant if he objected to jury instructions, and defendant responded that he did not). Before pronouncing its sentence, the district court asked “assuming [Bloch] continues to object to Supervised Release Condition 10, does the defense have any further objection to the proposed sentence?” Bloch responded that he did not “other than [the objection] previously stated.” Bloch undoubtedly understood that the district court’s question here applied not only to the proposed term of imprisonment but also to the proposed conditions of supervised release. And, the district court confirmed that Bloch had no further objections to the proposed sentence. All together, the district court asked Bloch three times if he had any concerns with the proposed conditions of supervised release. Other than objecting to the condition allowing for home visits, he said he did not have any.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Jose Herrera-Valdez

Case No.: 14-3534

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

Focus: Motion to Disqualify – Immigration

Court erred in failure to grant appellant motion to disqualify

“We do not question Judge Der-Yeghiayan’s impartiality in presiding over Herrera-Valdez’s illegal reentry case. But a judge’s actual bias is not dispositive of the question of his disqualification under § 455(a), and observers outside of the judicial process “are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” Id., (citing Mason, 916 F.2d at 386). We conclude that a reasonable, disinterested observer could assume bias from the fact that the judge presiding over the defendant’s prosecution for illegal reentry was the same person who ran the office that pursued, and succeeded in obtaining, the removal order that is the source of his current prosecution. “

Reversed and Reassigned to new judge

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: James Kroeger v. Bob Mott

Case No.: 2015AP556

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

Focus: Defamation

James Kroeger appeals an order granting Bob Mott’s motion for summary judgment in this defamation action. The parties agree the alleged defamatory statements, which were contained in an email from Mott directed to the Oneida County Planning and Development Committee, were

protected by a conditional privilege, such that Mott established a prima facie case for summary judgment. However, Kroeger argues he is entitled to a trial on his defamation claim either because Mott abused the privilege as a matter of law or because there are disputed factual issues regarding such abuse. We reject Kroeger’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Brian R. Corvino

Case No.: 2015AP584-CR

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

Focus: OWI 4^th – Plea Agreement

A criminal complaint charged Brian Corvino with fourth-offense operating while intoxicated (OWI) as a felony. The State subsequently filed an Information charging Corvino with fourth-offense OWI as a misdemeanor. The parties later reached a plea agreement, under which Corvino

agreed to plead guilty or no contest to the misdemeanor charge. However, the circuit court rejected the plea agreement, concluding that, under WIS. STAT. § 967.055(2)(a), the State was required to apply to the court before amending the OWI-fourth charge from a felony to a misdemeanor. The court further concluded such amendment would be inconsistent with the public’s interest in deterring intoxicated driving and was therefore impermissible under § 967.055(2)(a). The court ordered the State to file an Information charging Corvino with fourth-offense OWI as a felony. Corvino appeals from that order.

Recommended for publication

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Daniel Lawrence Hanson

Case No.: 2015AP740; 2015AP741

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

Focus: Petition for positive adjustment time

Daniel Hanson, pro se, appeals orders in these cases denying his petitions for positive adjustment time (PAT) pursuant to WIS. STAT. § 973.198 (2011-12). In Marinette County case No. 2004CF89, the Department of Corrections (DOC) sent the circuit court a letter stating it did not provide a time verification form because, although Hanson did serve prison time from October 1, 2009 through August 3, 2011, he had completed serving the sentence for that crime. The circuit court denied the petition. In Marinette County case No. 2008CF165, the circuit court denied the petition because Hanson failed to provide a verification form. Hanson argues: (1) because the sentences in case Nos. 2004CF89 and 2008CF165 run consecutively, he is entitled to PAT sentence reduction for both sentences if any part of the combined sentences was served during the applicable time periods set forth in § 973.198, from October 1, 2009 through August 3, 2011; (2) repeal of that statute in 2011 constitutes an ex post facto law; and (3) the DOC should be faulted for its failure to provide the time verification form in case No. 2008CF165. We affirm the orders.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Julie C. Phillips

Case No.: 2015AP927-CR

Officials: HRUZ, J.

Focus: Warrantless Entry

Julie Phillips appeals a judgment convicting her of one count of possession of tetrahydrocannabinols (THC) and one count of possession of drug paraphernalia, both counts as a party to a crime. Phillips argues the circuit court erred by denying her motion to suppress evidence seized following police officers’ warrantless entry into her residence. The circuit court concluded the warrantless entry was constitutionally permissible under the exigent circumstances exception to the warrant requirement. We conclude the evidence introduced at the suppression hearing was insufficient to establish exigent circumstances necessary to excuse the presumptively unconstitutional, warrantless entry into Phillips’ home. We therefore reverse.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Marcus Ricardo McGee

Case No.: 2015AP1087

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

Focus: Resentencing

Marcus Ricardo McGee appeals from a judgment of conviction, entered upon his guilty plea, for one count of third-degree sexual assault. McGee also appeals from an order denying his postconviction motion for resentencing on various grounds. We reject McGee’s arguments and affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Margarito J. Hernandez

Case No.: 2015AP1347-CR; 2015AP1348-CR

Officials: Kessler, Brennan and Brash, JJ.

Focus: Ineffective Assistance of Counsel

Margarito Juan Hernandez appeals two judgments of conviction, one entered upon his guilty plea to burglary while armed as a party to a crime, the other entered after a jury found him guilty of possessing an electric weapon. He also appeals orders denying him postconviction relief. He contends his trial counsel was ineffective at sentencing by failing to impeach the credibility of one of the burglary victims who spoke at the proceeding. He further contends the circuit court erroneously denied him an evidentiary hearing to air his claim. We reject his contentions and affirm.

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WI Court of Appeals – District III

Case Name: Andrew Heintz et al v. Paul Hanson et al

Case No.: 2015AP1790

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

Focus: Negligence

Andrew Heintz appeals a summary judgment dismissing his common law negligence claims against Paul Hanson, Roger Van Beek, Larry and Renee Peabody, and Rural Mutual Insurance Company. The circuit court determined Heintz’s claims were barred by WIS. STAT. § 893.89,1 the ten-year statute of repose for claims alleging injuries resulting from improvements to real property. We agree with the circuit court’s conclusion, and therefore affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Karl L. Quigley

Case No.: 2015AP681-CR; 2015AP682-CR

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

Focus: Motion to suppress – self incrimination

Karl L. Quigley appeals from a judgment entered after he pled no contest to two criminal complaints charging him with various sex offenses against P.R., a minor female. Quigley contends that statements he gave to a detective should have been suppressed because they were made while in custody without the benefit of Miranda warnings. Quigley also contends that his right against self-incrimination was violated when, after he was compelled to make a statement to his probation agent, the police re-interviewed P.R. We disagree with the former, but agree with the latter. The State concedes that this error, if we so find, requires that the entire plea to both criminal complaints be set aside. Therefore, we reverse the judgment.

Recommended for publication

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WI Court of Appeals – District II

Case Name: Winnebago County v. M.O.S.

Case No.: 2015AP2619

Officials: NEUBAUER, C.J.

Focus: Sufficiency of Evidence

M.O.S. appeals from an order for involuntary medication following a hearing. He contends that there was insufficient evidence to support the order. We disagree and affirm.

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WI Court of Appeals – District I

Case Name: Scott Smith et al. v. Greg Kleynerman, et al

Case No.: 2015AP207

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

Focus: Fiduciary Duty

Kleynerman appeals the order granting judgment as to the breach of fiduciary duty claim. Smith cross-appeals as to the intentional misrepresentation claim. For the reasons set forth below, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Reymundo A. Perez

Case No.: 2015AP601-CR

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

Focus: Sufficiency of Evidence

Reymundo Perez appeals a judgment of conviction for first-degree reckless homicide and child abuse—recklessly causing great harm. For the reasons discussed below, we reject the sufficiency of the evidence and suppression issues that Perez raises on appeal and affirm the judgment of conviction

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WI Court of Appeals – District IV

Case Name: Antonio Zaldivar v. Department of Workforce Development Labor and Industry Review Commission

Case No.: 2015AP1086

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

Focus: Workers Compensation

Antonio Zaldivar appeals a circuit court order that affirmed a worker’s compensation decision made by the Labor and Industry Review Commission (LIRC). For the reasons discussed below, we reverse and remand with directions.

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WI Court of Appeals – District IV

Case Name: James D Woodburn, Jr. v. Rock Solid Ventures, LLC

Case No.: 2015AP1870

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

Focus: Right of First Refusal – Foreclosure

This case involves a dispute over a right of first refusal that James Woodburn, Jr., and Scott Woodburn hold on property formerly owned by Robert Sutter. The dispute arose after the Sutter property went into foreclosure and was acquired upon foreclosure sale by Sutter’s nephew’s company, Rock Solid Ventures. The Woodburns argue that their right of first refusal applied to the foreclosure sale and that the circuit court should have granted them equitable relief in the form of requiring Sutter and Rock Solid to allow the Woodburns to acquire the property “on the same terms and conditions” under which Rock Solid acquired the property. Sutter and Rock Solid respond that the Woodburns’ right of first refusal did not apply to the foreclosure sale and that the Woodburns have not otherwise shown that they are entitled to the equitable relief they seek. We agree with Sutter and Rock Solid and, therefore, affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: State of Wisconsin v. Richard J. Sulla

Case No.: 2013AP2316-CR

Focus: Plea Withdrawal – Discretion of Court

Evidentiary hearing not required to determine whether pleas were made knowingly, intelligently and voluntarily.

“To be clear, a circuit court has the discretion to deny a defendant’s motion——even a properly pled motion——to withdraw his plea without holding an evidentiary hearing if the record conclusively demonstrates that the defendant is not entitled to relief. With this framework in mind, we move on to consider whether the postconviction court, here, was required to hold an evidentiary hearing on Sulla’s motion before it determined whether Sulla had entered his pleas in a knowing, intelligent, and voluntary fashion. To answer this question we must discuss (1) whether Sulla’s motion to withdraw his plea alleged facts which, if true, would entitle him to relief; (2) whether the record conclusively demonstrates that Sulla is not entitled to relief; and (3) whether the postconviction court erroneously exercised its discretion when it denied Sulla’s postconviction motion to withdraw his plea without holding an evidentiary hearing.”

Reversed

Concurring: BRADLEY, ABRAHAMSON

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Supreme Court Digests

US Supreme Court

Case Name: Halo Electronics, Inc. v. Pulse Electronics, Inc.

Case No.: 14-1513

Focus: Patent Infringement

The Seagate test is not consistent with 35 U.S.C. §284

“The pertinent language of §284 contains no explicit limit or condition on when enhanced damages are appropriate, and this Court has emphasized that the “word ‘may’ clearly connotes discretion.” Martin v. Franklin Capital Corp., 546 U. S. 132, 136. At the same time, however, “[d]iscretion is not whim.” Id., at 139. Although there is “no precise rule or formula” for awarding damages under §284, a district court’s “discretion should be exercised in light of the considerations” underlying the grant of that discretion. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U. S. ___, ___. Here, 180 years of enhanced damage awards under the Patent Act establish that they are not to be meted out in a typical infringement case, but are instead designed as a sanction for egregious infringement behavior

Vacated and Remanded

Dissenting:

Concurring: BREYER, KENNEDY, ALITO

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US Supreme Court

Case Name: Puerto Rico v. Franklin Cal. Tax-Free Trust

Case No.: 15-233

Focus: Bankruptcy

Section 903(1) of the Bankruptcy Cade pre-empts Puerto Rico’s Recovery Act

“Three federal municipal bankruptcy provisions are relevant here. First, the “gateway” provision, §109(c), requires a Chapter 9 debtor to be an insolvent municipality that is “specifically authorized” by a State “to be a debtor.” Second, the pre-emption provision, §903(1), expressly bars States from enacting municipal bankruptcy laws. Third, the definition of “State,” §101(52), as amended in 1984, “includes . . . Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9.””

Affirmed

Dissenting: SOTOMAYOR, GINSBURG, ALITO

Concurring:

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US Supreme Court

Case Name: United States v. Bryant

Case No.: 15-420

Focus: Constitutionality – ICRA

Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution.

“Nichols instructs that convictions valid when entered retain that status when invoked in a subsequent proceeding. Nichols reasoned that “[e]nhancement statutes . . . do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” 511 U. S., at 747. Bryant’s sentence for violating §117(a) punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. He was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribal- court convictions resulting in fines to satisfy §117(a)’s prior-crimes predicate. But there is no cause to distinguish for §117(a) purposes between fine-only tribal-court convictions and valid but uncounseled tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is not aided by Burgett. A defendant convicted in tribal court suffered no Sixth Amendment violation in the first instance, so he cannot “suffe[r] anew” from a prior deprivation in his federal prosecution”

Reversed and Remanded

Dissenting:

Concurring: THOMAS

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