Weekly Case Digests — May 29-June 2, 2017

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Alexis Veljkovic et al v. Carlson Hotels, Inc., et al

Case No.: 16-3723

Officials: POSNER, ROVNER, and WILLIAMS, Circuit Judges

Focus: Deceptive Trade Practices Act

In or around 2011, the plaintiffs allege, Carlson began planning with Prigan Holding to retrofit the Old Mill property for a hotel. As a result of the retrofitting, the Old Mill became the site of a four‐star, multi‐million‐dollar Radisson Blu Hotel complex that adds many modern elements to the Old Mill’s industrial frame. See Graft, “Old Mill Hotel Bel‐ grade,” http://graftlab.com/portfolio_page/old‐mill‐hotel‐bel grade/ (visited May 12, 2017). Carlson doesn’t own the hotel or the property it sits on—Prigan Holding does—but Carl‐ son is the licensor of the Radisson Blu brand, and a subsidi‐ ary of Carlson participates in the management of the hotel.   Since about 2000—ten years before the construction of the new hotel—the plaintiffs’ families have been frantically endeavoring to recover their rights over the Old Mill. In 2009 the family secured a major victory when a Serbian court an‐ nulled the declaration of the Veljkovic family to have been enemies of the state, ruling that the convictions of the family members had been the result of “staged trials” designed to deprive them of their property. (We don’t know whether members of the Dimic family, the co‐plaintiff, have been similarly rehabilitated.) The plaintiffs claim to be entitled not only to rights over the Old Mill but also to damages for the use of the property by Carlson and Prigan. The plaintiffs sued Carlson in federal district court in Illinois (basing jurisdiction on diversity of citizenship), charging Carlson with trespass, conversion, conspiracy, unjust enrichment, constructive trust, and viola‐ tion of the Minnesota Deceptive Trade Practices Act, Minn. Stat. Ann. § 325D.44.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ricardo Sanchez v. Jefferson B. Sessions III

Case No.: 17-1673

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

Focus: Removal Proceedings

Before us is a petition for review of the refusal of the Board of Immigration Appeals to reopen its order removing (i.e., deporting) the petitioner, Ricardo Sanchez, and a motion by the petitioner to stay his removal pending a definitive ruling on his petition, and finally a statement by the Department of Justice opposing both the petition and the motion.

Order of Removal Stayed

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7^th Circuit Court of Appeals

Case Name: Nicholas Webb, et al v. Michael Frawley

Case No.: 16-3336

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

Focus: Arbitration

Jefferies LLC, a securities and investment-banking firm, in 2012 hired Michael Frawley to be the firm’s vice chairman and global head of metals and listed products. Nicholas Webb, a sales executive in the global metals group headed by Frawley of a firm they had previously worked for, and Thad Beversdorf, a director of that group, were hired by Jefferies on the same day that Frawley was hired. Webb and Beversdorf signed employment contracts with Jefferies in which they “consent[ed] that any arbitration proceeding brought with respect to matters related to your employment or this Agreement shall be brought before FINRA … or if the parties are permitted to bring such action in a state or federal court, then you hereby consent to the personal jurisdiction of the state and federal courts … [in New York City] with respect to matters related to your employment or this Agreement.”

Affirmed in part, reversed in part

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7^th Circuit Court of Appeals

Case Name: R. Sherwin Parungao v. Community Health Systems, Inc., et al

Case No.: 16-3021

Officials: WOOD, Chief Judge, and RIPPLE and SYKES, Circuit Judges.

Focus: Res Judicata

This is the fourth lawsuit that Dr. R. Sherwin Parungao, a surgeon, has brought against affiliates of Galesburg Cottage Hospital. The district court ruled that Dr. Parungao’s complaint was barred by res judicata and Illinois’s closely related single-refiling rule. Because we agree that this

suit violates the doctrine of res judicata, we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: The Conway Family Trust v. Commodity Futures Trading Commission

Case No.: 16-3289

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

Focus: Statute of Limitations

During October 2008 the Conway Family Trust lost some $3.6 million trading futures contracts. Contending that errors by Dorman Trading, LLC, a futures commission merchant, caused some of these losses, the Trust asked the Commodity Futures Trading Commission to order Dorman Trading to make reparation. A statute authorizes the CFTC to provide relief for losses caused by regulated persons’ violations of the Commodity Exchange Act, but only if a claim is filed within two years of its accrual. 7 U.S.C. §18(a)(1). The Trust did not present a claim until October 2011, almost three years after it had closed its ac‐ count with Dorman Trading. The Commission dismissed the claim as untimely. Within two years of its losses the Trust did make a claim for compensation—not with the Commission but with the National Futures Association, which referred it to arbitration. The panel of arbitrators awarded the Trust some $500,000 against several respondents but ruled in favor of Dorman Trading because the Trust’s contract with that entity set a one‐year time limit for financial claims. Having lost against Dorman Trading in one forum, the Trust sought a better result from the Commission and contended that the time devoted to pursuing relief through the Association should be subtracted from the two years allowed to seek relief from the Commission. The Trust labeled this request one for equitable tolling, and the Commission rejected it, observing that nothing had prevented the Trust from starting a reparations proceeding earlier.

Petition for review denied

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7^th Circuit Court of Appeals

Case Name: Tonya Davis v. Ernest B. Fenton, et al

Case No.: 16-2121; 16-2165

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

Focus: Retaliation

In 2013 Tonya Davis sued Ernest Fenton (as well as Fenton’s law firms) in federal district court asserting state malpractice and breach of contract claims, as well as federal Fair Housing Act and Civil Rights Act claims, all arising out of Fenton’s representation of Davis in a mortgage foreclosure action in which Davis had lost her home. Davis alleged that Fenton’s representation of her had been deficient, and that he had targeted her for deficient representation because of her race.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Ashton Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al

Case No.: 16-3522

Officials: WOOD, Chief Judge, and ROVNER and WILLIAMS, Cir‐ cuit Judges

Focus:

Ashton (“Ash”) Whitaker is a 17 year‐old high school senior who has what would seem like a simple request: to use the boys’ restroom while at school. However, the Defendants, the Kenosha Unified School District and its superintendent, Sue Savaglio, (the “School District”) believe that the request is not so simple because Ash1 is a transgender boy. The School District did not permit Ash to enter the boys’ restroom because, it believed, that his mere presence would invade the privacy rights of his male class‐ mates. Ash brought suit, alleging that the School District’s un‐ written bathroom policy2 violates Title IX of the Education Amendments Act of 1972 and the Fourteenth Amendment’s Equal Protection Clause. In addition to filing suit, Ash, beginning his senior year, moved for preliminary injunctive relief, seeking an order granting him access to the boys’ restrooms. He asserted that the denial of access to the boys’ bathroom was causing him harm, as his attempts to avoid using the bathroom exacerbated his vasovagal syncope, a condition that renders Ash susceptible to fainting and/or seizures if dehydrated. He also contended that the denial caused him educational and emotional harm, including suicidal ideations. The School District vigorously objected and moved to dismiss Ash’s claims, arguing that Ash could neither state a claim under Title IX nor the Equal Protection Clause. The district court denied the motion to dismiss and granted Ash’s preliminary injunction motion.   On appeal, the School District argues that we should exercise pendent appellate jurisdiction to review the district court’s decision to deny the motion to dismiss. However, we decline this invitation, as the two orders were not inextricably intertwined and we can review the grant of the preliminary injunction without reviewing the denial of the motion to dismiss

Motion to assert pendant appellant jurisdiction denied

Affirmed

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WI Court of Appeals

WI Court of Appeals – District III

Case Name: Benjamin Paul Meeuwsen v. Darci Lynn Meeuwsen

Case No.: 2015AP2578

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

Focus: Divorce

Darci Meeuwsen, pro se, appeals an order amending a judgment dissolving her marriage to Benjamin Meeuwsen. To the extent Darci raises arguments challenging the original divorce judgment, we lack jurisdiction to review those matters. With respect to the post-judgment issues preserved for this appeal, we reject Darci’s arguments and affirm the order. For the reasons outlined below, we also deny Benjamin’s motion for costs and attorney fees associated with this appeal.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Kevin G. Ecker

Case No.: 2016AP1018-CR

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

Focus: Plea Withdrawal

Kevin Ecker appeals from a judgment convicting him of theft in a business setting on his no contest plea and from a circuit court order denying his postconviction motion challenging the circuit court’s denial of his eve-of-trial motion for new counsel and his presentencing motion to withdraw his plea. We affirm because the circuit court properly exercised its discretion in both respects.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Christopher D. Jacob

Case No.: 2016AP1020-CR

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

Focus: Plea Withdrawl

Christopher D. Jacob appeals from two judgments entered upon his pleas of no contest to bail jumping, repeated sexual assault of a child, and second-degree sexual assault. Jacob further appeals from two orders denying his motion and supplemental motion to vacate his pleas. He argues that the circuit court should have permitted him to withdraw his pleas because his counsel was ineffective by failing to show him recordings and summaries of forensic interviews of the children who alleged he had sexually assaulted them, and he discovered new evidence in the form of a letter from the mother of one of the children offering to influence the children into recanting their original allegations in exchange for payment. We conclude that the circuit court properly denied Jacob’s motions and, thus, we affirm the judgments and orders.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. William A. Wisth

Case No.: 2016AP1484-CR

Officials: Neubauer, C.J.

Focus: Contempt of Court

William A. Wisth appeals from a judgment of conviction entered after a jury found him guilty of contempt of court and from an order denying his motion for postconviction relief. Wisth complains that the criminal complaint and information were defective, the jury instructions erroneous, and the jury’s verdict unsupported by legally sufficient evidence. We reject each of these contentions and affirm the judgment and order.

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WI Court of Appeals – District II

Case Name: Team Property Management LLC v. Brian Reiss, et al

Case No.: 2016AP2163

Officials: Reilly, P.J.

Focus: Small Claims – De Novo Review

This appeal addresses time limits for requesting de novo review of a money judgment in a WIS. STAT. ch. 799 smalls claims action. Team Property Management LLC (Team) was initially granted a money judgment in the amount of $6879.50 against Brian and Holly Reiss (Reiss) by a circuit court commissioner. Reiss requested de novo review fourteen days later. Team moved the court to deny de novo review on the grounds that a request must be made within ten days of a court commissioner’s oral grant of the judgment under WIS. STAT. § 799.207(2)(b). Reiss argued their request was timely under WIS. STAT. § 801.15(1)(b) which excludes all Saturdays, Sundays and holidays from the time computation. The circuit court granted de novo review, found for Team, and awarded $5250.50. As we conclude that § 801.15 does not apply in a ch. 799 proceeding, Reiss’s appeal for de novo review was not timely, and we reverse and remand for the circuit court to affirm the judgment issued by the circuit court commissioner.

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WI Court of Appeals – District III

Case Name: Luann Breslin v. Wisconsin Health Care Liability Insurance Plan

Case No.: 2015AP1051

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

Focus: Special Verdict – Court Error

Luann Breslin’s son, Cody Reindahl, committed suicide while in the care of Trempealeau County Health Care Center (TCHCC) under a voluntary WIS. STAT. ch. 51 (2015-16) 1 commitment. Breslin sued TCHCC and its insurer, Wisconsin Health Care Liability Insurance Plan, alleging that TCHCC was negligent in caring for Reindahl, resulting in Reindahl’s suicide. As an affirmative defense, TCHCC alleged that Reindahl was contributorily negligent for failing to avoid committing suicide although Reindahl appreciated the risk of doing so. The case was tried to a jury, and the jury returned a verdict finding TCHCC 20% negligent in caring for Reindahl and Reindahl 80% contributorily negligent. This appeal involves two questions included in the special verdict. The sole issue on appeal is whether the court erroneously exercised its discretion by including the two questions on the special verdict relating to Reindahl’s ability to appreciate the risk of harm from committing suicide and the duty to avoid taking his own life, and whether he was negligent with respect to his safety. Breslin argues that we should expunge these questions as a matter of law, which would result in TCHCC being the only negligent party in Reindahl’s death. We conclude that under controlling law the court properly exercised its discretion in including those questions on the special verdict, and therefore, we affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ross R. Thill

Case No.: 2015P2629-CR

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

Focus: Ineffective Assistance of Counsel

Ross Thill appeals a judgment of conviction entered after a jury found him guilty of one count of sexual contact with a child, and the circuit court’s order denying his motion for postconviction relief. Thill argues that his trial counsel provided ineffective assistance for failing to: (1) ask follow-up questions of a potential juror who stated that she knew a person with the same name as a defense witness; and (2) object to the prosecutor’s questions and comments about Thill’s right to remain silent. Thill also argues that the circuit court erred by allowing the victim to testify via closed circuit television without making the requisite findings, in violation of his right to confrontation. Finally, Thill argues that he is entitled to a new trial in the interest of justice. As we explain, we reject Thill’s arguments and, therefore, affirm

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WI Court of Appeals – District IV

Case Name: Dave William Reynolds v. Kari Ann Reynolds

Case No.: 2016AP550

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

Focus: Divorce

Dave Reynolds appeals a divorce judgment and an order clarifying the judgment. We affirm.

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WI Court of Appeals – District IV

Case Name: Town of Ixonia v. Timothy Knopps

Case No.: 2016AP766

Officials: Sherman, J

Focus: Municipal Ordinance Violation

The Town of Ixonia appeals from a judgment of the circuit court in this municipal ordinance violation case. The Town asserts that the circuit court erred when it failed to impose a forfeiture against Timothy Knopps that totals the minimum forfeiture for two separate violations under the ordinances Knopps violated for the each of the 773 days Knopps was in violation of those ordinances. The circuit court concluded that imposing a forfeiture in the full amount would, under the facts of this case, result in an unconstitutionally excessive fine under the Eighth Amendment to the United States Constitution and article I, section 6 of the Wisconsin Constitution. Timothy Knopps cross-appeals, challenging the imposition of any forfeiture. I affirm on both the appeal and cross-appeal.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Shaun R. Ezrow

Case No.: 2016AP1611-CR

Officials: Sherman, J.

Focus: Sufficency of Evidence

Shaun Ezrow appeals a judgment of conviction for misdemeanor theft, contrary to WIS. STAT. § 943.20(1)(b), and an order of the circuit court denying his postconviction motion to modify an order of restitution. Ezrow contends that the record is insufficient to support part of the court’s restitution order. For the reasons discussed below, I affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Scot Alan Krueger

Case No.: 20162438-CR

Officials: Lundsten, J.

Focus: Waiver of Right To Counsel

Scot Krueger appeals a judgment convicting him of operating a motor vehicle while under the influence of an intoxicant as a third offense. Krueger seeks to collaterally attack one of the alleged underlying prior offenses, a 1993 conviction. The issue is whether Krueger made a prima facie showing, under State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, that he did not validly waive the right to counsel in the 1993 proceedings. I agree with Krueger that he made this showing, thus shifting the burden to the State to prove that Krueger validly waived the right to counsel.

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WI Supreme Court

WI Supreme Court

Case Name: Impression Products, Inc. v. Lexmark International, Inc.

Case No.: 15-1189

Focus: Exhaustion of Patent Rights

Lexmark exhausted its patent rights in the Return Program cartridges that it sold in the United States. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.

“The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser. Bloomer v. McQuewan, 14 How. 539, 549–550. If the patentee negotiates a contract restricting the purchaser’s right to use or resell the item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit. The exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act promotes innovation by allowing inventors to secure the financial rewards for their inventions. Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product. Allowing further restrictions would run afoul of the “common law’s refusal to permit restraints on the alienation of chattels.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 538. As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628). Congress enacted and has repeatedly revised the Patent Act against the backdrop of this hostility toward restraints on alienation, which is reflected in the exhaustion doctrine. This Court accordingly has long held that, even when a patentee sells an item under an express, otherwise lawful restriction, the patentee does not retain patent rights in that product. See, e.g., Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617. And that wellsettled line of precedent allows for only one answer in this case: Lexmark cannot bring a patent infringement suit against Impression Products with respect to the Return Program cartridges sold in the United States because, once Lexmark sold those cartridges, it exhausted its right to control them through the patent laws”

Reversed and remanded

Concur: Ginsburg

Dissent: Ginsburg

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WI Supreme Court

Case Name: Esquivel-Quintana v. Sessions, Attorney General

Case No.: 16-54

Focus: Statutory Interpretation

In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16

“Under the categorical approach employed to determine whether an alien’s conviction qualifies as an aggravated felony, the Court asks whether “ ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U. S. 184, 190. Petitioner’s state conviction is thus an “aggravated felony” only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor. Johnson v. United States, 559 U. S. 133, 137.”

Reversed

Concur:

Dissent:

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WI Supreme Court

Case Name: BNSF Railway Co v. Tyrrell

Case No.: 16-405

Focus: Personal Jurisdiction

Section 56 does not address personal jurisdiction over railroads

“Section 56’s first relevant sentence provides that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” This Court has comprehended that sentence as a venue prescription, not as one governing personal jurisdiction. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44, 52. Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper, see, e.g., 28 U. S. C. §1391(b), while it typically provides for the exercise of personal jurisdiction by authorizing service of process, see, e.g., 15 U. S. C. §22. Nelson and Tyrrell contend that the 1888 Judiciary Act provision that prompted §56’s enactment concerned both personal jurisdiction and venue, but this Court has long read that Judiciary Act provision to concern venue only, see, e.g., Green v. Chicago, B. & Q. R. Co., 205 U. S. 530, 532–533.”

Reversed and remanded

Concur: Sotomayor

Dissent: Sotomayor

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WI Supreme Court

Case Name: County of Los Angeles v. Mendez

Case No.: 16-369

Focus: Provocation Rule – Search and Seizure

The Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule.”

“The provocation rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. See Graham, supra, at 395. The operative question in such cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Tennessee v. Garner, 471 U. S. 1, 8–9. When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The provocation rule, however, instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims. The proper framework is set out in Graham. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately. The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. 815 F. 3d 1178, 1193. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham. In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. See, e.g., Heck v. Humphrey, 512 U. S. 477, 483. Here, if respondents cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. Pp. 5–10. (b) The Ninth Circuit’s proximate-cause holding is similarly tainted. Its analysis appears to focus solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity— rather than the warrantless entry. On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for their injuries based on the deputies’ failure to secure a warrant at the outset.

Vacated and remanded

Concur:

Dissent:

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