Please ensure Javascript is enabled for purposes of website accessibility

Weekly Case Digests – February 11, 2019 – February 15, 2019

By: Rick Benedict//February 15, 2019//

Weekly Case Digests – February 11, 2019 – February 15, 2019

By: Rick Benedict//February 15, 2019//

Listen to this article

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Orgone Capital, III, LLC, et al. v. Keith Daubenspeck, et al.

Case No.: 18-1815

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

Focus: Statutory Interpretation – Securities – Statute of Limitations

Hype and reality can be at odds. This contrast arises often in postmortems on once-fashionable, now-failed investment securities. Hype can raise investors’ hopes and, in turn, capital contributions. But when hype accelerates an investment’s market value beyond its actual worth, a financial bubble is formed.

Fisker Automotive, Inc. was such a bubble, bursting in 2013. Plaintiffs, all purchasers of Fisker securities between 2009 and 2012, assert various claims against defendants, each of whom played roles in Fisker’s early-stage financing, for allegedly misleading investors regarding Fisker’s intrinsic value and imminent collapse. Illinois law provides remedies when securities are sold by means of deceptive and fraudulent practices. But like any civil action, such claims must be timely filed. Our review does not explore the cause of or the defendants’ alleged roles in Fisker’s failure. Rather, we decide whether plaintiffs’ claims fall within the Illinois securities laws, and if so whether their claims are time-barred by Illinois’s three-year statute of limitations for securities-based claims.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Johnnie Lee Savory v. William Cannon, Sr.

Case No.: 17-3543

Officials: ROVNER, HAMILTON, and BARRETT, Circuit Judges

Focus: 14th Amendment Violations

Johnnie Lee Savory spent thirty years in prison for a 1977 double murder that he insists he did not commit. Even after his release from prison, he continued to assert his innocence. Thirty-eight years after his conviction, the governor of Illinois pardoned Savory. Nearly two years after the pardon, Savory filed a civil rights suit against the City of Peoria (“City”) and a number of Peoria police officers alleging that they framed him. The district court dismissed the suit as untimely. We reverse and remand for further proceedings.

Reversed and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Marco Proano

Case No.: 17-3466

Officials: KANNE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Sufficiency of Evidence and Jury Instructions

On‐duty officer Marco Proano fired sixteen shots at a moving sedan filled with teenagers until the car idled against a light pole. He hit two passengers. The government charged Proano with two counts of willful deprivation of constitutional rights, one for each injured passenger, and a jury convicted on both counts. 18 U.S.C. § 242. Proano appeals, claiming both pretrial and trial errors. We affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: David Lee, et al. v. Northeast Illinois Regional Commuter Railroad

Case No.: 18-1930

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

Focus: Employment – Discrimination

Current and former employees filed a complaint in federal court against Northeast Regional Commuter Railroad Corporation (“Metra”) and several of its employees alleging various forms of discrimination. The plaintiffs eventually filed an amended complaint, which was met with a motion to dismiss, a second amended complaint, and an amended second amended complaint. The defendants responded to the amended second amended complaint by filing a motion to dismiss. The motion argued, just as the motion to dismiss the amended complaint did, that the complaint had several substantive deficiencies and failed to provide defendants with sufficient notice. The district court held that the plaintiffs’ repeated failure to remedy these deficiencies warranted denial of the plaintiffs’ motion for leave to file a third amended complaint. The district court then granted the defendants’ motion to dismiss holding the plaintiffs’ failure to respond to defendants’ arguments, or otherwise defend its pleadings, resulted in waiver. The plaintiffs-appellants now invite this Court to reverse both holdings. For the reasons set forth herein, we decline the invitation and affirm the district court.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: BankDirect Capital Finance, LLC, et al. v. Capital Premium Financing, Inc.

Case No.: 18-1054

Officials: LAUM, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: Breach of Contract – Damages

BankDirect Capital Finance and Capital Premium Financing both participate in the market for loans to finance insurance premiums. Insurers want to be paid up front for the full policy period, but many businesses prefer to pay by the month. A premium‐financing loan makes both things possible. The client makes a down payment toward the annual premium and borrows the rest. It repays the loan monthly.

Our initial question is whether we have appellate jurisdiction. In addition to holding that statements in an opinion are not an injunction, Gunn concludes that the absence of an injunction satisfying Rule 65(d) prevents a direct appeal from a three‐judge district court to the Supreme Court under 28 U.S.C. §1253 (1970 ed.). If that’s how §1253 works, maybe the same is true about §1292(a)(1), which BankDirect invokes. We requested and have received supplemental memoranda about that subject.

The injunction is vacated, and the case is remanded with instructions to award BankDirect damages for time the in‐ junction has extended past June 1, 2018, and to determine whether either side owes damages to the other for breach of contract. The mandate will issue today, so that the injunction terminates immediately.

Vacated and Remanded

Full Text

7th Circuit Court of Appeals

Case Name: United States of America v. Arturo Bustos

Case No.: 18-1388

Officials: BAUER, ROVNER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines

Arturo Bustos conspired with his codefendants to deliver 995 grams of heroin to an undercover officer. Bustos pleaded guilty to one count of conspiracy to distribute a controlled substance and was sentenced to 100-months imprisonment. Bustos now appeals his 100-month sentence. For the reasons that follow, we affirm.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Donald Maier v. Judy P. Smith

Case No.: 18-2151

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

Focus: Habeas Corpus

Donald Maier appeals the district court’s denial of his petition for habeas corpus relief from his conviction under Wisconsin’s stalking statute. Five years after a jury convicted Maier of threatening two Wisconsin state court judges, Maier sent two sets of letters to the former jurors—ostensibly seeking their help in his effort to obtain a governor’s pardon. Several of the jurors found the letters threatening or disturbing. Maier was charged and convicted under Wisconsin’s stalking statute. After appealing his conviction in the Wisconsin state courts, Maier brought this petition. Because the Wisconsin Court of Appeals’ decision was not objectively unreasonable, we affirm the district court’s denial of Maier’s petition.

Affirmed

Full Text

7th Circuit Court of Appeals

Case Name: Michael N. Thomas v. Raymond Anderson, et al.

Case No.: 15-2830

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

Focus: Retaliation Claim – Abuse of Discretion – Evidentiary Ruling

Michael Thomas, an Illinois prisoner formerly confined at Hill Correctional Center, alleged that prison guards attacked him with excessive force and that the beating and subsequent disciplinary proceedings were in retaliation for lawsuits and grievances he filed. He sued the guards and other prison officials seeking damages under 42 U.S.C. § 1983. In the course of pretrial proceedings, the district judge required the parties to stipulate to the events preceding the attack and ruled that certain inmate witnesses must appear, if at all, by video conference. The judge also declined Thomas’s request for recruited counsel, determining that he was competent to litigate the suit pro se. At trial the judge entered judgment as a matter of law for the defendants on all claims except those asserting excessive force by two officers. The jury decided those claims against Thomas.

On appeal Thomas contests the judge’s evidentiary rulings, the decision not to recruit counsel, and the partial judgment for the defendants as a matter of law. Because Thomas’s trial testimony allowed for a permissible inference of retaliation, the judge should not have taken the retaliation claims from the jury. We reverse the judgment on those claims. In all other respects, we affirm.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Devon Maurice Bowser

Case No.: 2018AP313-CR

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

Focus: Plea Withdrawal

Devon Bowser entered guilty pleas to three charges in two separate cases, pursuant to a negotiated plea agreement. Before sentencing, Bowser moved to withdraw his pleas. The circuit court concluded Bowser had established a fair and just reason to withdraw his guilty plea to one of the charges, and it therefore granted his plea withdrawal motion as to that charge. However, the court denied Bowser’s motion as to the other two charges, concluding Bowser had failed to establish a fair and just reason to withdraw his guilty pleas to those counts. Bowser now appeals, arguing the court should have allowed him to withdraw his guilty pleas to the two additional charges.

We agree with Bowser that the circuit court erroneously exercised its discretion by permitting him to withdraw only one of his guilty pleas. In assessing Bowser’s request to withdraw his other two pleas, the court was required to consider the totality of the circumstances and to weigh the parties’ respective interests. The court failed to do so. Applying the proper analysis, we conclude the court should have permitted Bowser to withdraw all three of his guilty pleas. We therefore reverse Bowser’s judgment of conviction and remand with directions that the court allow Bowser to withdraw the two pleas at issue in this case.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Victor Yancey, Jr.

Case No.: 2018AP802-CR

Officials: DUGAN, J.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Victor Yancey, Jr. appeals the judgment of conviction for one count of misdemeanor battery as a party to a crime to which he pled guilty. He also appeals the orders partially denying his motion for postconviction relief seeking to withdraw his guilty plea based on a claim of ineffective assistance of trial counsel. We reverse the orders.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. James Earl Norwood

Case No.: 2018AP869-CR

Officials: Brennan, Brash and Dugan, JJ.

Focus: Abuse of Discretion – Other Acts Evidence

James Norwood appeals from a judgment, entered upon a jury’s verdict, for one count of second-degree sexual assault with use of force. See WIS. STAT. § 940.225(2)(a) (2015-16). Norwood argues that the trial court erroneously exercised its discretion when it denied Norwood’s pretrial motion to admit other acts evidence concerning the victim, P.J. We reject his arguments and affirm.

Full Text

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Dionte J. Nowels

Case No.: 2018AP1171-CR

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

Focus: Voluntary Plea – Court Error

Dionte J. Nowels appeals a judgment of conviction entered on his guilty plea to three felony charges. The charges related to Nowels’ involvement in a series of crimes on April 28, 2015, that started with a carjacking and ended with Nowels driving off during a traffic stop of the stolen car, running a stop sign, hitting a car broadside and killing its driver immediately, and fleeing on foot from the scene. He also appeals the order denying his postconviction Bangert motion to withdraw his guilty plea. He had sought to withdraw the plea on the grounds that in the plea colloquy the trial court omitted two of the elements the State had to prove on the hit and run charge. He alleged that he did not, in fact, understand that the State had to prove that Nowels “knew, before leaving the scene, that the accident involved an attended vehicle” and that Nowels was physically capable of complying with the hit and run statute’s requirements. See WIS JI—CRIMINAL 2670.

At the evidentiary hearing, Nowels and his trial counsel testified about what they had discussed prior to the plea hearing. The postconviction court concluded that the State had met its burden of showing that Nowels understood all the elements of the hit and run charge and that his plea was therefore knowing and voluntary even though the trial court had not properly summarized the elements of the charge in the colloquy. Nowels now appeals, arguing that the postconviction court based that conclusion on factual findings that are clearly erroneous.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Roy A. Whitelow

Case No.: 2017AP144-CR

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

Focus: Ineffective Assistance of Counsel – Court Error – DNA Testing

Roy A. Whitelow appeals from a judgment of conviction entered after a jury found him guilty of first-degree reckless homicide and from an order denying his postconviction motion for a new trial. Whitelow maintains that he is entitled to a new trial based on trial counsel’s ineffective assistance and because the circuit court erred in denying his motion for a mistrial. He further asserts that the circuit court improperly denied his WIS. STAT. § 974.07 (2015-16)1 request for postconviction DNA testing at public expense. For the reasons that follow, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: Danielle M. Jackson v. Diane K. Burczyk, et al.

Case No.: 2018AP65

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

Focus: Governmental Immunity

Danielle Jackson, a former inmate at the Robert E. Ellsworth Correctional Center, a state correctional facility, was working as a cook in the kitchen of the facility on March 4, 2014, when Kettle Number One tipped, spilling boiling water on her and causing her significant burn injuries.

Jackson sued the respondents, all of whom were state employees employed by the facility, alleging her injuries were the result of their negligence in failing to repair Kettle Number One, remove it from use, or warn kitchen staff with regard to its use. The respondents moved for summary judgment based upon governmental immunity. Rejecting Jackson’s contention that the respondents breached ministerial, not discretionary, duties and/or that the known, present, and compelling danger exception to immunity applied, the circuit court granted the respondents’ motion. Jackson appeals. We affirm.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Samantha H. Savage-Filo

Case No.: 2018AP996-CR

Officials: NEUBAUER, C.J.

Focus: Plea Withdrawal – Ineffective Assistance of Counsel

Samantha H. Savage-Filo appeals from a judgment of conviction for misdemeanor theft and from an order denying her postconviction motion, which sought to withdraw her plea as not knowing, intelligent, and voluntary due to her trial counsel’s ineffective assistance. We affirm, as the factual assertions upon which her argument rests are without any support in the record.

Full Text

WI Court of Appeals – District IV

Case Name: S.M.G. v. C.H.B.

Case No.: 2018AP1641; 2018AP1642; 2018AP1643

Officials: BLANCHARD, J.

Focus: Termination of Parental Rights

C.H.B. appeals the circuit court’s orders terminating his parental rights to his three children pursuant to WIS. STAT. § 48.415(4) on the petition of S.M.G., C.H.B.’s ex-spouse and the children’s mother. C.H.B. makes a single argument, which is a facial challenge to the constitutionality of § 48.415(4). Section 48.415(4) allows the termination of parental rights based on the continuing denial of physical placement or visitation. C.H.B. argues that this provision on its face violates the equal protection clause of the United States and Wisconsin Constitutions because it requires petitioners to prove, as to one class of respondent parents, that such parents were previously provided with warnings of the potential for termination of their parent rights, but does not require petitioners to prove this when seeking to terminate the rights of another class of respondent parents who C.H.B. contends are similarly situated to the first set of parents.

Based on the arguments presented, I conclude that C.H.B. has not met his burden to show beyond a reasonable doubt that WIS. STAT. § 48.415(4) is facially unconstitutional. At a minimum, he fails to adequately address differences between the two classes of respondent parents, which raises doubt about his constitutional challenge. Accordingly, I affirm.

Full Text

Supreme Court Digests

United States Supreme Court

Case Name: City of Escondido, California, et al. v. Marty Emmons

Case No.: 17-1660

Focus: Qualified Immunity

The question in this qualified immunity case is whether two police officers violated clearly established law when they forcibly apprehended a man at the scene of a reported domestic violence incident. The Court of Appeals failed to properly analyze whether clearly established law barred Officer Craig from stopping and taking down Marty Emmons in this manner as Emmons exited the apartment. Therefore, we remand the case for the Court of Appeals to conduct the analysis required by our precedents with respect to whether Officer Craig is entitled to qualified immunity.

The petition for certiorari is granted, the judgment of the Court of Appeals is reversed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

Reversed in part. Vacated in part.

Dissenting:

Concurring:

Full Text

United States Supreme Court

Case Name: Tim Shoop, Warden v. Danny Hill

Case No.: 18-56

Focus: Habeas Corpus

The United States Court of Appeals for the Sixth Circuit held that respondent Danny Hill, who has been sentenced to death in Ohio, is entitled to habeas relief under 28 U. S. C. §2254(d)(1) because the decisions of the Ohio courts concluding that he is not intellectually disabled were contrary to Supreme Court precedent that was clearly established at the time in question. In reaching this decision, the Court of Appeals relied repeatedly and extensively on our decision in Moore v. Texas, 581 U. S. ___ (2017), which was not handed down until long after the state-court decisions.

The Court of Appeals’ reliance on Moore was plainly improper under §2254(d)(1), and we therefore vacate that decision and remand so that Hill’s claim regarding intellectual disability can be evaluated based solely on holdings of this Court that were clearly established at the relevant time.

Vacated and Remanded

Dissenting:

Concurring:

Full Text

United States Supreme Court

Case Name: Culbertson v. Berryhill, Acting Commissioner of Social Security, et al.

Case No.: 17-773

Focus: Statutory Interpretation – Social Security Benefit Fees

Federal law regulates the fees that attorneys may charge Social Security claimants for representation before the Social Security Administration and a reviewing court. See 42 U. S. C. §§406(a)–(b). The question in this case is whether the statutory scheme limits the aggregate amount of fees for both stages of representation to 25% of the claimant’s past-due benefits. Because §406(b) by its terms imposes a 25% cap on fees only for representation before a court, and §406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees.

Because the 25% cap in §406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded under §§406(a) and (b), the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and Remanded

Dissenting:

Concurring:

Full Text

United States Supreme Court

Case Name: Henry Schein, Inc., et al. v. Archer & White Sales, Inc.

Case No.: 17-1272

Focus: Statutory Interpretation – Federal Arbitration Act

Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68−70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943−944 (1995).

Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals.

Dissenting:

Concurring: KAVANAUGH, J., delivered the opinion for a unanimous Court.

Full Text

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests