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Weekly Case Digests – September 9, 2019 – September 13, 2019

By: WISCONSIN LAW JOURNAL STAFF//September 13, 2019//

Weekly Case Digests – September 9, 2019 – September 13, 2019

By: WISCONSIN LAW JOURNAL STAFF//September 13, 2019//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Tapanga Hardeman, et al. v. Sheriff Mark Curran, et al.

Case No.: 18-2672

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

Focus: Due Process Violation

Water is vital for both health and sanitation. Dehydration affects practically every life function, including temperature regulation, digestion, brain function, toxin elimination, and oxygen distribution. See Jon Johnson, “Effects of having no water,” MEDICAL NEWS TODAY, https://www.medicalnewstoday.com/articles/325174.php (last visited July 19, 2019). After a few days, total deprivation of water can be fatal. Id. Basic sanitation is also essential.

The plaintiffs in this case, all pretrial detainees at the Lake County Adult Correctional Facility, allege that they were forced to learn this lesson the hard way. For approximately three days in 2017, the jail officials shut off all water in their jail without any warning. With no running water, the plaintiffs had only limited water that the defendants provided for their personal and sanitation uses. As a result, they became ill and feces built up and festered in the jails’ toilets, attracting insects. When plaintiffs asked for more water, they were locked down in their cells as punishment. The pretrial detainees responded with this putative class action, in which they alleged that the defendants violated their Fourteenth Amendment due process rights. Defendants moved to dismiss on the ground of qualified immunity. The district court denied their motion, and this interlocutory appeal followed. We agree with the district court’s decision and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Landmark American Insurance Company v. Deerfield Construction, Inc., et al.

Case No.: 18-2205

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

Focus: Insurance Claim – Coverage

The question in this case is a simple one: who must cover certain costs arising from an automobile accident involving an employee of Deerfield Construction, Inc.: Deerfield, or its excess insurer, Landmark American Insurance Company? Deerfield’s primary insurer was on the hook for the first $1 million, and in principle, Landmark would cover any costs above that, up to $10 million. But Landmark’s policy unsurprisingly made coverage contingent on proper notice of the accident. Deerfield did not tell Landmark anything about either the accident or the resulting lawsuit until seven years later, on the eve of trial. When the jury returned a $2 million verdict in favor of the accident victim, Landmark refused to cover the excess amount because it received such late notice. Deerfield now asserts that its notice, despite the timing, satisfied the policy. The district court found that the undisputed facts entitled Landmark to summary judgment; it dismissed all other parties. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sherard Martin v. Davis Marinez, et al.

Case No.: 17-2667

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

Focus: Damages

Sherard Martin appeals the district court’s grant of partial summary judgment, Fed. R. Civ. P. 56, on his suit under 42 U.S.C. § 1983 against the City of Chicago and several of its police officers for false arrest and unlawful search. Martin’s suit proceeded to trial, where a jury awarded him $1.00 in damages after finding that two of the defendants lacked reasonable suspicion or probable cause to detain him. The jury found against Martin and in favor of the officers on the remainder of his claims. Martin appeals, challenging only the district court’s pretrial grant of partial summary judgment to the defendants, which limited the damages Martin could seek at trial. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ivan Brazier; et al.

Case No.: 16-4258; 17-1060; 17-1412; 17-2268; 17-2269

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

Focus: Abuse of Discretion – Sentencing

In the early hours of September 8, 2015, in South Bend, Indiana, appellants Ivan Brazier, Derek Fields, and Lindani Mzembe kidnapped, shot, and ruthlessly beat Adrian Harris as he left his home. Charged with federal kidnapping and firearms crimes, the three defendants were tried and sentenced separately, but their appeals have been consolidated. The defendants do not challenge their convictions for the underlying crimes of kidnapping or holding Harris for ransom, and the two defendants convicted of being felons in possession of firearms do not challenge those convictions. Defendants Fields and Mzembe were also convicted and sentenced under 18 U.S.C. § 924(c) for using and discharging firearms during a crime of violence. The district court complied with circuit law applicable at the time of its decisions. Later decisions by the Supreme Court and this court, however, require us to reverse Fields’ and Mzembe’s convictions and sentences under § 924(c). We also conclude both of their cases should be remanded for resentencing. Those defendants have raised other challenges to their sentences that either are moot in light of our decision on the § 924(c) charges or fail to show any error or abuse of discretion by the district court. We also affirm Brazier’s sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Sheilar Smith, et al. v. OSF HealthCare System, et al.

Case No.: 18-3325

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

Focus: Court Error – Abuse of Discretion

The decisive issue in this appeal is whether the district court abused its discretion in granting summary judgment for defendants despite plaintiff’s motion under Federal Rule of Civil Procedure 56(d) to postpone a summary judgment decision so that she could complete further discovery. District courts have considerable discretion in such case-management decisions, but that discretion is not unlimited. The record here shows, unfortunately, that the court’s denial of plaintiff’s Rule 56(d) motion was an abuse of that discretion. The summary judgment motion was filed long before discovery was to close; plaintiff was pursuing discovery in a diligent, sensible, and sequenced manner; and the pending discovery was material to the summary judgment issues. The district court’s explanation for denying a postponement overlooked the court’s earlier case-management and scheduling decisions and took an unduly narrow view of facts relevant to the case.

We therefore vacate the grant of summary judgment and remand for further proceedings consistent with this opinion. We explain in Part I the role and definition of the ERISA exemption for “church plans.” In Part II, we summarize the limited facts available to us about these parties and the merits of their dispute. In Part III, we address the standards for Rule 56(d) motions and potential reasons for denying them. We do not decide the merits of the parties’ dispute, though we must discuss the merits along the way to provide context for the Rule 56(d) issue.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Kenneth J. Bauwens, et al. v. Revcon Technology Group, Inc., et al.

Case No.: 18-3306

Officials: MANION, SYKES, and BRENNAN, Circuit Judges.

Focus: ERISA Claim – Time-barred

Two companies set up a pension plan for their employees, then withdrew from it. This triggered federal requirements that the companies contribute to the plan. This withdrawal liability became the subject of a dance between the companies and the pension plan’s trustees: defaults and lawsuits, followed by partial payments and dismissals of the lawsuits.

The most recent lawsuit was dismissed as time-barred. On appeal the trustees ask us to create a federal common law mechanism which would allow them to decelerate the withdrawal liability they previously accelerated. This would, in turn, preserve the timeliness of their claim. We say “create” because the statute makes no mention of such a deceleration mechanism. We decline to do so, and agree the plan trustees’ claim is time-barred.

Affirmed

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7th Circuit Court of Appeals

Case Name: Jacqueline M. Sterling v. Southlake Nautilus Health

Case No.: 18-2773

Officials: WOOD, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Debtors’ prisons are viewed as relics of the past, long out of use and out of favor. Yet here we face a case of a jailed debtor that calls to mind the days when people were imprisoned for failing to pay their debts. Jacqueline Sterling owed outstanding fees to Southlake Nautilus Health & Racquet Club, Inc., and Southlake had its counsel, Austgen, Kuiper & Associates, P.C. (“Austgen”), institute a state-court collection action in Lake County, Indiana. A federal bankruptcy court later discharged Sterling’s debt to Southlake. Although Sterling notified Southlake of the discharge, it appears that no one notified Austgen or the state court in which the collection action was pending. Sterling failed to appear in the state-court proceedings, and the court issued a warrant for her arrest. A year later, Sterling was arrested and jailed. She was ultimately released, and Southlake and Austgen dropped pursuit of the debt.

Sterling instituted adversary proceedings in bankruptcy court against Southlake, Austgen, and David Austgen (the head of the Austgen firm). She sought to have the defendants held in contempt for continuing to collect a debt that the bankruptcy court had ordered discharged. Both the bankruptcy court and the district court ruled against Sterling. She now appeals to us, and we affirm in part and reverse in part. We conclude that Austgen’s lack of knowledge of the discharge order prevents it from being held in contempt. But as to Southlake, we conclude that it must be held liable for the actions taken by counsel on its behalf.

Affirmed in part. Reversed in part.

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7th Circuit Court of Appeals

Case Name: United States of America v. Mauricio Marchan

Case No.: 18-2758

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

Focus: 6th Amendment Violation

Following a jury trial, Mauricio Marchan was convicted of one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1). Marchan appeals his conviction arguing that the trial proceedings were replete with errors and, as a result, he was denied a fundamentally fair trial. After considering the events at trial, we believe that the district court judge diligently presided over the trial, but to the extent any errors were made, they were harmless. Accordingly, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: John Doe v. Columbia College Chicago

Case No.: 18-1869

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

Focus: Title IX Violation

This case arises out of a sexual assault investigation and disciplinary hearing conducted by Columbia College of Chicago (“Columbia”). Jane Roe accused John Doe of sexual assault after the two engaged in what she says were non-consensual sexual relations. Doe was given multiple opportunities to submit exculpatory evidence to Columbia, and after the investigation was complete, Doe was given multiple opportunities to review the investigative materials and the evidence submitted by Roe. After a formal disciplinary hearing a panel weighed the evidence, found that some of Roe’s allegations were proven by a preponderance of the evidence, and that some were not. Doe was then suspended from Columbia for an academic year.

Doe filed a complaint in federal court alleging Roe and Columbia violated 20 U.S.C. § 1681 (“Title IX”), breach of contract, promissory estoppel, negligent infliction of emotional distress, intentional infliction of emotional distress, and negligence. The district court ruled that each claim was defective and granted the defendants’ motion to dismiss. Because we agree with the well-reasoned and thorough opinion of the district court, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Hyung Seok Koh, et al. v. John Ustich, et al.

Case No.: 18-1809; 18-1821

Officials: RIPPLE, MANION, and BRENNAN, Circuit Judges.

Focus: Qualified Immunity

Hyung Seok and Eunsook Koh, husband and wife, brought a § 1983 suit arising out of the investigation of and the Kohs’ arrests in connection with their son’s death. They sued the Northbrook Police Department, various Northbrook officers, the Wheeling Police Department, and a Wheeling officer asserting state and federal claims. The district court granted in part and denied in part the defendants’ motions for summary judgment. Northbrook Detectives John Ustich and Mark Graf and Wheeling Officer Sung Phil Kim have filed interlocutory appeals on the issue of qualified immunity concerning Mr. Koh’s Fifth Amendment coerced confession claim. Because appellants’ arguments are inseparable from the questions of fact identified by the district court, we dismiss these appeals for lack of jurisdiction.

Dismissed

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7th Circuit Court of Appeals

Case Name: Fabian Greyer, et al. v. Illinois Department of Corrections, et al.

Case No.: 18-1290; 18-1458

Officials: WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Focus: Statutory Interpretation – PLRA – Three Strikes Rule

One of Congress’s expressed goals when it passed the Prison Litigation Reform Act (“PLRA”) was to rein in the flood of prisoner litigation—all too often frivolous or vexatious, it thought—clogging the courts. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1633–34 & nn. 269–70 (2003) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002); and 141 CONG. REC. 514, 627 (daily ed. Sept. 29, 1995) (statement of Sen. Hatch)). Of the many tools the law introduced to serve that purpose, one of the most potent is the so‐called “three strikes” provision. See 28 U.S.C. § 1915(g). The statute specifies that a prisoner may not proceed in forma pauperis if she “has, on [three] or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted ….” Id.

So far, so good. But no legislation spells out everything, and the PLRA is no exception. Our concern here is with the way in which courts administer the three‐strikes rule. Many have created elaborate forms requiring prisoner‐litigants to list their entire litigation histories. NORTHERN DISTRICT OF ILLINOIS, Complaint Under the Civil Rights Act, Title 42, Section 1983 U.S. Code, or Complaint Under the Constitution (“Bivens” Action), Title 28 Section 1331 U.S. Code (federal defendants), https://www.ilnd.uscourts. gov/_assets/_documents/_forms/_online/1983EDForm092007 .pdf. By collecting this information, a district court reviewing an indigent prisoner’s complaint can ensure itself that the prisoner plaintiff has not “struck out.”

But this solution has created at least two new problems: first, prisoners may not be the most reliable narrators of their litigation history; and second, there is a serious question whether the district court has created a “local rule imposing a requirement of form” that cannot be “enforced in a way that causes a party to lose any right because of a non willful failure to comply.” See FED. R. CIV. P. 83(a)(2). We focus on the first of these, as the parties have not briefed the second. Even prisoners with no incentive to lie often do not have ready access to their litigation documents and may not remember all of the details of their cases. The form, however, appears to be oblivious to these practical problems. The Northern District of Illinois sternly warns prisoners that “REGARDLESS OF HOW MANY CASES YOU HAVE PREVIOUSLY FILED, YOU WILL NOT BE EXCUSED FROM FILLING OUT THIS SECTION COMPLETELY, AND FAILURE TO DO SO MAY RESULT IN DISMISSAL OF YOUR CASE.” Id. (capitalization in original). The two cases now before us, which we have consolidated for disposition, are about the enforceability of that threat.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Dustin John Higgs v. United States Park Police

Case No.: 18-2826; 18-2937

Officials: WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.

Focus: FOIA Request

More than two decades ago, Dustin Higgs kidnapped and murdered three women. Because the murders took place in the Patuxent National Wildlife Refuge, a federal property in Maryland, he was tried in federal court for these crimes. He was convicted and sentenced to death. See United States v. Higgs, 353 F.3d 281 (4th Cir. 2003). Higgs, now housed on the federal death row within the U.S. Penitentiary at Terre Haute, Indiana, has insisted for years that the government failed to turn over certain exculpatory evidence to which he is entitled under Brady v. Maryland, 373 U.S. 83 (1963). Along the way, in 2012, an investigator from the Federal Community Defender Office for the Eastern District of Pennsylvania filed a request under the Freedom of Information Act (FOIA) with the U.S. Park Police, seeking a complete copy of everything pertaining to the homicide convictions. The Park Police produced some information and then referred the request to the Federal Bureau of Investigation (among other agencies).

This case arises out of that FOIA request. Dissatisfied with the government’s response, Higgs filed a complaint in the Southern District of Indiana, where USP Terre Haute is located, seeking information that the FBI had refused to turn over. Some aspects of Higgs’s demands have since been resolved, but he primarily has contended in his lawsuit that the FBI’s decisions to redact or withhold information under FOIA Exemptions 6, 7(C), and 7(D), 5 U.S.C. § 552(b)(6), (b)(7)(C), and (b)(7)(D), were not warranted. Exemptions (6) and 7(C) cover materials that would invade personal privacy, while Exemption 7(D) covers information that “could reasonably be expected to disclose the identity of a confidential source, … and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation … information furnished by a confidential source … .”

Upon the parties’ cross-motions for summary judgment, the district court split the difference. It concluded that the FBI had properly withheld certain documents under Exemption 7(D), but that the FBI did not justify the invocation of Exemption 7(C). The court accordingly held that the FBI had to release all of the personal information at issue, including names of still-living people, contact information, reports of interviews, fingerprints, and rap sheets for third parties. It gave little weight to the privacy interests of the people concerned, in part because the murders took place 22 years earlier and in part because it thought that the FBI had not met its burden of proof on that point. That failure of proof meant, the court decided, that Higgs was entitled to the documents.

The government has appealed from the district court’s judgment insofar as it ordered disclosure under Exemptions 6 and 7(C); Higgs has cross-appealed from the court’s refusal to order disclosure of the materials under Exemption 7(D). We conclude that the district court erred when it found that the public interest prevailed over the privacy interests of the persons involved, and thus it should have refused disclosure of those documents pursuant to Exemptions 6 and 7(C). With respect to Exemption 7(D) materials, we agree with the district court’s result (though not necessarily all of its reasoning) and affirm. The net effect is that this case is over: the government is not obliged to turn over any of these additional materials under FOIA.

Reversed in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: Effex Capital, LLC, et al. v. National Futures Association, et al.

Case No.: 18-1914

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

Focus: Failure to Exhaust Administrative Remedies

Effex Capital, LLC (“Effex”), brought this action alleging that the National Futures Association (the “NFA”) had defamed it in documents related to a settlement between the NFA and one of its members, Forex Capital Markets, LLC (“FXCM”). It sought injunctive relief and damages. The district court dismissed the action, holding that Effex had failed to exhaust its administrative remedies. Effex timely appealed the district court’s dismissal.

For the reasons set forth more fully in the following opinion, we now affirm the judgment of the district court. In the Commodity Exchange Act, 7 U.S.C. § 1 et seq., Congress has regulated comprehensively all matters relating to NFA discipline. As such, a federal Bivens remedy is unavailable. Further, the Commodity Exchange Act preempts Effex’s state law claims. Any remedy available to Effex must be based on the provisions of that statute.

Affirmed

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7th Circuit Court of Appeals

Case Name: Patricia O’Donnell v. Caine Weiner Company, LLC,

Case No.: 18-1826

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

Focus: Jury Instructions

Patricia O’Donnell filed suit against her former employer, Caine Weiner Company, LLC, alleging unequal pay due to gender discrimination and retaliation. She lost on all counts at a jury trial. She filed a motion for a new trial on numerous grounds, including that the allegedly erroneous jury instructions and verdict forms prejudiced her case, but the district court denied her motion. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Elisa J. Yochim v. Benjamin S. Carson, Sr.,

Case No.: 18-3670

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

Focus: Rehabilitation Act Violation

Elisa Yochim worked in the legal department of the United States Department of Housing and Urban Development for 26 years. Throughout her tenure, she took full advantage of HUD’s flexible and progressive policy permitting employees to work from home several days per week. After undergoing hand surgery, Yochim requested time off and permission to work from home. HUD agreed and allowed her time to recover and to telework several days a week for many months as she received physical therapy. HUD later restructured its law department and this development had the effect of requiring employees like Yochim to spend more time in the office. In time this restructuring, combined with Yochim’s performance deficiencies, led HUD to revoke her telework privileges and offer alternative accommodations. For her part, Yochim responded with this lawsuit, alleging violations of the Rehabilitation Act for failure to accommodate her ongoing rehabilitation needs. The district court entered summary judgment for HUD, and we affirm. No rational jury could conclude that the Department failed to offer reasonable accommodations.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jon Giles

Case No.: 18-3126

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

Focus: 5th Amendment Violation

After Jon Giles’s DNA was found at the scene of the robbery of North Community Bank, FBI agents interrogated him at the Pontiac Correctional Center where he was serving a prison term for two other bank robberies. Giles confessed to the robbery. Giles argues the district court erred in denying his motion to suppress the confession, because his prolonged solitary confinement prior to the interview rendered him incapable of exercising a voluntary and knowing waiver of his Fifth Amendment rights. Giles also argues that the district court failed to properly address his mitigating arguments at sentencing. We reject these arguments and affirm the orders of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Michael Clark

Case No.: 18-2604

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

Focus: Sentencing Guidelines

Defendant-appellant Michael Clark was convicted of possessing a mixture containing fentanyl in violation of 21 U.S.C. § 841(a)(1). Clark had been found in a hotel room with more than 80 grams of a mixture of heroin and fentanyl, a digital scale, and cellophane bags. He does not appeal any aspect of his jury trial, but he challenges the denial of his motion for a Franks hearing challenging the issuance of the search warrant for the hotel room. He also challenges the denial of his motion to suppress without an evidentiary hearing. And he challenges two aspects of his sentence: the guideline treatment of his conviction for drug distribution that occurred in Illinois seven months after his Wisconsin arrest and one condition of supervised release. We vacate Clark’s conviction and remand for an evidentiary hearing on his Franks challenge. We affirm on the denial of his motion to suppress without a hearing. We also affirm on the guideline issue and determine that the supervised release challenge was waived. We address in Part I the need for a Franks hearing and in Part II the need for an evidentiary hearing on the motion to suppress. We address the sentencing issues in Part III.

Vacated and remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: MAO-MSO Recovery II, LLC, et al. v. State Farm Mutual Automobile Insurance Company

Case No.: 18-2377; 18-2463

Officials: WOOD, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Court Error – Article III Standing

When all the dust is cleared away, this case is relatively straightforward: we must review a dismissal for lack of Article III standing and the imposition of sanctions under Rule 11. Only the factual backdrop is complex, as it deals with one aspect of the federal Medicare program. The Plaintiffs assert that they are assignees of certain private insurers called Medicare Advantage Organizations, which provide Medicare benefits. They brought a putative class action against State Farm Mutual Automobile Insurance Company in an effort to recover payments State Farm allegedly should have made to them as reimbursement for certain medical costs. The district court dismissed the action with prejudice, although the basis for the dismissal was lack of standing. In addition, the court imposed sanctions under Rule 11 of the Federal Rules of Civil Procedure against one of the plaintiffs, MSP Recovery Claims, Series LLC, and its attorneys.

Plaintiffs, MAO-MSO Recovery II, LLC; MSP Recovery, LLC; MSPA Claims 1, LLC; and MSP Recovery Claims, Series LLC MSP (“Recovery Claims”), appealed. They argue that the court erred in its standing analysis, and that in any event it should not have dismissed the case with prejudice. Recovery Claims and the attorneys (Christopher Coffin, David Hundley, and Courtney Stidham) appealed the sanctions order. Finally, State Farm cross-appealed in order to preserve its alternative argument in favor of affirmance—that the case should be dismissed on the merits because plaintiffs failed to state a claim upon which relief can be granted. See Matushkina v. Nielsen, 877 F.3d 289, 297 (7th Cir. 2017) (noting that “[a]s a general rule, where a defendant has won dismissal for lack of standing or some other jurisdictional ground, modifying the judgment to dismissal on the merits” requires a cross-appeal).

We conclude that the district court erred insofar as it dismissed plaintiffs’ case with prejudice, when the problem was a fundamental lack of Article III standing. But this victory gets the plaintiffs only so far. The court acted well within its discretion when it denied plaintiffs a third opportunity to cure the defects in their pleadings. The court’s order, in substance, was a jurisdictional dismissal with denial of leave to amend. So understood, we affirm the judgment and correct the record to reflect that the dismissal is without prejudice. We also dismiss State Farm’s cross-appeal. Finally, we find that the district court exceeded the bounds of its discretion when it imposed Rule 11 sanctions on Recovery Claims and its attorneys.

Affirmed in part. Reversed and dismissed in part.

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Chad A. Renier

Case No.: 2018AP99-CR

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

Focus: Due Process Violation

Chad Renier, pro se, appeals from a judgment of conviction for two counts of second-degree sexual assault of a child and one count of child enticement. Renier next argues he is entitled to a new trial and a sanctions hearing to determine whether the charges should be dismissed on the grounds that his due process rights were violated by the State’s alleged failure to preserve text messages. Renier further claims the State “disclosed, twisted, and removed the remaining messages from context to improperly sway the verdict.” Renier also challenges an order denying his motion for postconviction relief. We affirm.

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WI Court of Appeals – District I

Case Name: Quick Charge Kiosk LLC, et al. v. Brad Schimel

Case No.: 2018AP947

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

Focus: Statutory Interpretation – Chance Promotion Exception – Gambling Machines

Quick Charge Kiosk LLC and Jeremy Hahn (collectively Quick Charge) appeal the trial court’s order granting the Attorney General’s motion for summary judgment declaring that Quick Charge’s “cell phone charging machines” (Machines), also referred to as cell phone charging kiosks, constituted illegal gambling machines. Quick Charge argues that its Machines are lotteries, not gambling machines, under WIS. STAT. § 945.01(5) (the lottery subsection) and WIS. STAT. § 100.16(2). It asserts that the Machines do not involve consideration under the lottery subsection because its machines use in-pack chance promotions, which the lottery subsection exempts from its definition of consideration. It further argues that, because exempted lotteries do not constitute gambling, the Machines cannot be deemed to be gambling machines. The Attorney General argues that because the lottery definition in WIS. STAT. § 945.01(5) explicitly references the in-pack chance promotion of WIS. STAT. § 100.16(2), the chance promotion exception only applies to lotteries. He further argues that the in-pack chance promotion exception does not apply to the definition of consideration in § 945.01(3) because the gambling machine subsection does not include any reference to § 100.16(2). He argues that because the Machines are gambling machines they are illegal. We agree with the trial court’s determination and, therefore, affirm.

Recommended for Publication

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Thomas Treadway

Case No.: 2018AP1204

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

Focus: Sufficiency of Evidence

Thomas Treadway appeals a circuit court order permitting the State to medicate him without his consent. He claims that the State presented insufficient evidence to support the order. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antwon Laurel Jones

Case No.: 2018AP1650-CR

Officials: Kessler, Brennan and Kloppenburg, JJ.         

Focus: Ineffective Assistance of Counsel

Antwon Jones appeals his convictions, entered on a jury’s verdict, of two counts of felony murder and one count of felon in possession of a firearm. Jones argues that trial counsel was ineffective in advising him regarding a plea offer he rejected because counsel failed to inform him that the State could pursue lesser included offenses at trial. In addition, Jones argues that counsel was ineffective in several respects at trial. Jones also argues that the evidence was insufficient to support his conviction on the felon in possession of a firearm charge. We reject all of Jones’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Yunus E. Turkmen

Case No.: 2018AP1673-CR

Officials: STARK, P.J.

Focus: OWI – Motion to Suppress Evidence Denied

Yunus Turkmen appeals a judgment of conviction, entered upon his guilty plea, to second-offense operating a motor vehicle while intoxicated (OWI). He claims the circuit court erred by denying his motion to suppress evidence. We disagree and affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Antonio L. Whatley

Case No.: 2018AP1547 – CR

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

Focus: Ineffective Assistance of Counsel

Antonio L. Whatley appeals a judgment convicting him of first-degree sexual assault of a child under the age of thirteen and an order denying his motions seeking to withdraw his no contest plea alleging ineffective assistance of counsel and to strike a portion of the postconviction hearing transcript. We affirm.

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WI Court of Appeals – District II

Case Name: Powerbrace Corporation v. Grede Holdings LLC,

Case No.: 2018AP1548

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

Focus: Breach of Contract

This case involves the breach of a commercial contract. The trial court found that Grede Holdings, LLC, supplied defective materials to Powerbrace Corporation, Powerbrace gave Grede proper notice of the defects, Grede did not avail itself of inspection opportunities, and Powerbrace therefore is entitled to recover its contractual damages. The court’s findings are amply supported by the record. We affirm the judgment.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Justin W. Paull

Case No.: 2017AP1210-CR

Officials: KLOPPENBURG, J.

Focus: 4th Amendment Violation – Unreasonable Search and Seizure

Justin Paull pled guilty to and was convicted of operating a motor vehicle while intoxicated, third offense. On appeal, Paull challenges the circuit court’s denial of his motion to suppress the results of a warrantless blood draw taken from Paull following a traffic accident. Specifically, Paull argues that: (1) the blood draw violated the Fourth Amendment’s protection against unreasonable searches and seizures because the statute on which the officer relied to obtain it is unconstitutional; and (2) the court erroneously ruled that, assuming that the statute is unconstitutional, suppression of the evidence of Paull’s blood test result was not appropriate because the evidence was seized “as a result of good faith reliance on existing law.”

Like the circuit court, I assume, without deciding, that the statute sections challenged by Paull, WIS. STAT. §§ 343.305(3)(ar) and 343.305(3)(b)2 , are unconstitutional. However, I also conclude that the circuit court properly denied Paull’s suppression motion based on the good faith exception to the exclusionary rule. Therefore, I affirm.

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