Weekly Case Digests – April 27, 2020 – May 1, 2020

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Preston Bennett v. Thomas Dart

Case No.: 20-8005

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

Focus: Class Action – Certification

When Preston Bennett was locked up in the Cook County Jail, he was assigned to Division 10, which houses detainees who need canes, crutches, or walkers. He alleges in this suit under the Americans with Disabilities Act, 42 U.S.C. §§ 12131–34, and the Rehabilitation Act, 29 U.S.C. §794, that Division 10 lacks the grab bars and other fixtures needed for such persons to use showers and bathrooms safely. Bennett adds that he fell and was injured as a result of this deficiency.

Bennett wants to represent a class of detainees who need canes, crutches, or walkers. The district court denied his initial application, ruling that the appropriate accommodation of any detainee’s situation depends on personal characteristics, so common questions do not predominate. See Fed. R. Civ. P. 23(b)(3). Bennett proposed an alternative class that would avoid all person-specific questions by contending that Division 10, which was constructed in 1992, violates a regulation providing that “as of March 7, 1988 … construction[] or alteration of buildings” must comply with the Uniform Federal Accessibility Standards (UFAS or the Standards). 28 C.F.R. §42.522(b). The Standards require accessible toilets to have grab bars nearby, UFAS §4.17.6, and accessible showers to have mounted seats, UFAS §4.21.3. The district court rejected this proposal too, writing: for this Court to determine whether the ADA and Rehab Act’s Structural Standards control—thereby mooting the reasonable accommodation inquiry—it would need to rule on the merits of Plaintiff’s case.

The judge thought that such a decision would “run[] afoul of the rule against one-way intervention.” Bennett has asked for our leave to take an interlocutory appeal under Rule 23(f). That petition is granted, and we summarily reverse. (The papers proposing and opposing interlocutory review explore the legal questions in detail.) The judge was right to say that, to determine whether the Standards control, he would need to decide a big chunk of the merits. But that’s not necessary. Rule 23(a) and (b) provides a list of requirements for class certification, all of which must be met, see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), but surety of prevailing on the merits is not among them. Classes can lose as well as win. The district judge’s view that a class cannot be certified unless the plaintiff has already prevailed on the central legal issue is a formula for one-way intervention rather than a means to avoid it. Bennett, by contrast, proposes a class that will win if the Standards apply (and were violated, to detainees’ detriment) and otherwise will lose. That’s how class actions should proceed.

The district court’s class-certification decision is vacated, and the case is remanded for the certification of an appropriate class if all applicable standards of Rule 23(a) and (b) have been met.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Michael Edward Reinaas v. Andrew M. Saul

Case No.: 19-1985

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

Focus: ALJ Error – Disability Benefits

Michael Reinaas seeks Social Security disability benefits, asserting that he became disabled from neck and shoulder pain in January 2013 after undergoing right shoulder surgery. Relying on reports by two non‐examining state‐retained doctors over a treating physician’s opinion, the administrative law judge found that Reinaas’s subjective descriptions of his pain and functional limitations were not credible and determined that he was not disabled because he could still perform light work with some restrictions. The district court upheld that determination. But substantial evidence does not support the ALJ’s decision to discount the treating physician’s opinion, and the ALJ did not adequately evaluate his subjective complaints. We therefore vacate the judgment and remand for further proceedings.

Vacated and remanded

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7^th Circuit Court of Appeals

Case Name: Richard A. Hazelton, et al. v. The Board of Regents for the University of Wisconsin System, et al.

Case No.: 19-1405

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

Focus: Court Error – Bankruptcy – Sanctions

Richard and Kelly Hazelton asked a bankruptcy court to sanction the University of Wisconsin Stout for collecting an educational debt after their debts were discharged in Chapter 7 bankruptcy. The bankruptcy judge held that the debt was a non-dischargeable student loan, so UW-Stout did not violate the discharge injunction. The district court reversed, concluding that the debt was not a student loan and thus was not excluded from the bankruptcy discharge. The district judge remanded to the bankruptcy court for further proceedings on the question of sanctions.

UW-Stout asks us to review the district court’s order. We cannot do so. Our jurisdiction in bankruptcy cases under 28 U.S.C. § 158(d)(1) is limited to appeals from final district court orders that resolve “discrete disputes” within the bankruptcy case. Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1692 (2015). The dispute at issue here is whether UW-Stout should be sanctioned for violating the discharge injunction. The district court did not resolve that dispute. Rather, the judge decided a subsidiary legal issue and remanded to the bankruptcy court for resolution of the sanctions dispute. Accordingly, we lack jurisdiction and must dismiss the appeal.

Dismissed

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7^th Circuit Court of Appeals

Case Name: DePuy Synthes Sales, Inc., v. OrthoLA, Inc., et al.

Case No.: 19-2765

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

Focus: Abuse of Discretion – Arbitration

This lawsuit was sparked by a distributorship agreement that fell apart. DePuy Synthes Sales, Inc., manufactures medical implants and instruments, including joint-reconstruction products. It uses exclusive distributors to bring those products to its customers. For a time, its distributor for the Los Angeles area was OrthoLA, Inc., a company founded and run by Bruce Cavarno. (We refer to them collectively as OrthoLA unless the context requires otherwise.)

We summarize the underlying dispute in more detail below. For now, it is enough to know that when the parties’ distribution arrangements came to an end, OrthoLA turned to the Los Angeles Superior Court for help. DePuy responded with a motion to refer those claims to arbitration, but the state court denied it. DePuy then took two steps: it appealed the state court order to the California Court of Appeal, and on the same day it filed a demand for arbitration with the American Arbitration Association. Three days later, it filed the present suit in the federal district court in Indianapolis, seeking an order compelling arbitration and an injunction against the state court proceedings. Citing Colorado River Conservation Dist. v. United States, 424 U.S. 800 (1976), the district court elected to stay the case before it pending the resolution of the California action. DePuy has appealed from that stay order. We conclude, however, that the district court did not stray beyond the boundaries of its discretion, and so we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Monta Groce

Case No.: 19-1170

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

Focus: Sentencing – Supervised Release

Monta Groce challenges two conditions of supervised release that were imposed as part of his sentence for various sex trafficking crimes. In the district court, Groce did not object to either of the two conditions, even though he objected to four others and waived his right to have the district court read each condition and its justification. We have faced this situation in several recent decisions and have found that these circumstances normally amount to waiver. There is nothing unusual in Groce’s case that would call for a different result. We thus hold that he waived his appellate challenges to the two conditions, and we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Molly Joll v. Valparaiso Community Schools

Case No.: 18-3630

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

Focus: Title VII Violation – Discrimination

Plaintiff Molly Joll is an accomplished runner and an experienced running coach. She applied for a job as the assistant coach of a high school girls’ cross-country team. The high school hired a younger man for the job but invited Joll to apply for the same position on the boys’ team. So she did—and the high school hired a younger man again. She filed this suit for sex and age discrimination. After discovery, the district court granted summary judgment for the school district, concluding that Joll had not offered enough evidence of either form of discrimination to present to a jury.

We reverse the dismissal of Joll’s sex discrimination claim. The district court appears to have erred by doing what we have repeatedly said a court should not: “asking whether any particular piece of evidence proves the case by itself,” rather than aggregating the evidence “to find an overall likelihood of discrimination.” Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 763, 765 (7th Cir. 2016). Joll offered evidence that would allow a reasonable jury to find that the school district used hiring procedures tilted in favor of the male applicants, applied sex-role stereotypes during the interview process, and manipulated the criteria for hiring in ways that were inconsistent except that they always favored the male applicants. A reasonable jury might also find no sex discrimination, but on this record, the decision belongs to a jury.

We recognize, of course, that there are ways to tell the story of the school district’s hiring process and decision that are entirely innocent, involving no unlawful discrimination. The dissenting opinion illustrates several ways the defense could argue this case to a jury. But because there is at least one reasonable way to tell the story in favor of Joll’s claim of sex discrimination, a jury rather than appellate judges must choose among them. The grant of summary judgment for the defendant on Joll’s age discrimination claim is AFFIRMED. The grant of summary judgment on the sex discrimination claim is REVERSED and the case is REMANDED for trial on that claim.

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. Christopher Davis, et al.

Case No.: 18-2634; 18-3129

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

Focus: Sufficiency of Evidence

Christopher Davis and Maurice Greer were charged with robbing two different Walmarts in Indiana over a four-month period. A jury convicted both of them, and they now challenge the sufficiency of the evidence underlying their convictions. Because a rational jury could have found each one guilty beyond a reasonable doubt, we affirm.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Telly Bernardo Johnson

Case No.: 2018AP971

Officials: Brash, P.J., Blanchard and Donald, JJ.

Focus: Ineffective Assistance of Counsel

Telly Bernardo Johnson, pro se, appeals an order denying his WIS. STAT. § 974.06 (2017-18) motion for postconviction relief. Johnson asserts that his appellate counsel was ineffective regarding the claims that were raised in his direct appeal, arguing that appellate counsel should have instead raised claims of ineffective assistance of Johnson’s trial counsel regarding various alleged errors relating to evidentiary issues.

The postconviction court determined that Johnson’s new claims in his WIS. STAT. § 974.06 motion were not clearly stronger than the claims raised in his direct appeal, and denied Johnson’s motion without a hearing. We agree that Johnson failed to establish that his new claims were clearly stronger, and therefore conclude that they are procedurally barred. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Karl Brumfield, et al. v. Westlake Services, LLC,

Case No.: 2018AP1552

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

Focus: Wisconsin Consumer Act Violation – Sanctions

Karl and Yalonda Brumfield (Brumfield) appeal from orders (1) dismissing Brumfield’s claims against Westlake Services, LLC, for alleged violations of the Wisconsin Consumer Act; and (2) awarding sanctions to Westlake. For the reasons that follow, we affirm the orders.

Westfield moves for a determination that the appeal is entirely frivolous. WIS. STAT. RULE 809.25(3) (2017-18). We grant the motion. Accordingly, we remand this matter to the circuit court to determine the costs, fees, and reasonable attorney’s fees, if any, to be paid entirely by Brumfield’s counsel, and awarded to Westlake.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Ahmed Farah Hirsi

Case No.: 2018AP1696-CR

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

Focus: Due Process Violation

Ahmed Hirsi appeals a judgment, entered upon a jury’s verdict, convicting him of three counts of attempted first-degree intentional homicide, three counts of first-degree reckless injury, three counts of first-degree recklessly endangering safety, and one count of possession of a firearm by a felon.  He also appeals an order denying him postconviction relief. Hirsi contends that: (1) his due process rights were violated, for a number of reasons, by the circumstances surrounding the testimony of his co-defendant; (2) the circuit court improperly admitted certain other-acts evidence concerning a shooting in St. Paul, Minnesota, two days prior to the shooting for which Hirsi was tried in this case; (3) the court improperly admitted lay opinion testimony identifying Hirsi as the shooter in the St. Paul case; (4) the court’s admission of expert testimony concerning the tendency of Somali individuals to distrust law enforcement and to fabricate events in order to avoid retribution within their community constituted plain error;  and (5) a new trial is warranted in the interest of justice because the real controversy was not fully tried.

We agree with Hirsi that certain portions the expert testimony concerning Somali culture violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), and its progeny. Further, we conclude that because the error in admitting the testimony was obvious, substantial and fundamental, a new trial must be granted. Consequently, we reverse and remand for further proceedings consistent with this opinion.

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WI Court of Appeals – District III

Case Name: Paula Laddusire v. West Bend Mutual Insurance Company

Case No.: 2018AP1801

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

Focus: Insurance Claim – Attorney Fees

Paula Laddusire appeals the dismissal of a lawsuit brought against her homeowner’s insurer, West Bend Mutual Insurance Company (West Bend), seeking recovery of the value of various personal property items she claimed were stolen or damaged. Laddusire also challenges an award of attorney fees to West Bend. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Nicholas J. Packer

Case No.: 2018AP1964-CR

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

Focus: Plea Withdrawal

Nicholas Packer appeals a judgment convicting him of two counts of recklessly endangering safety by use of a dangerous weapon and one count of strangulation and suffocation as domestic abuse. Packer also appeals an order denying his postconviction motion for plea withdrawal. Packer contends the circuit court erred by denying him a hearing on his plea withdrawal motion. We conclude the court properly denied the motion without a hearing because the record conclusively demonstrates that Packer was not entitled to withdraw his pleas. We therefore affirm.

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WI Court of Appeals – District IV

Case Name: Dawn Livingston-Hickethier, et al. v. Janesville KIA

Case No.: 2018AP2276

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Breach of Contract – Misrepresentation

Dawn Livingston-Hickethier and Chris Hickethier appeal a circuit court order dismissing their claims against Janesville KIA relating to the purchase of a used vehicle. The Hickethiers alleged statutory claims for fraud and unconscionable practices under WIS. STAT. ch. 218 and a common law claim for intentional misrepresentation. We conclude that these claims were properly dismissed because the Hickethiers failed to sufficiently allege that Janesville KIA made a knowing misrepresentation relating to defects in the vehicle or engaged in unconscionable practices. We affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Theodis S. Euell

Case No.: 2019AP277-CR

Officials: Dugan, Fitzpatrick and Donald, JJ.

Focus: Court Error – Motion to Suppress Evidence Denied

Theodis S. Euell appeals the judgment convicting him of possession with intent to deliver cocaine (between five and fifteen grams). See WIS. STAT. § 961.41(1m)(cm)2. (2015-16). He contends that the circuit court erred when it denied his motion to suppress evidence obtained from a search. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Steven Lee Gauger

Case No.: 2019AP700-CR

Officials: Blanchard, Graham and Nashold, JJ.

Focus: Court Error – Motion to Suppress Evidence Denied

Steven Gauger appeals a judgment of conviction for possession with intent to deliver methamphetamine. Gauger argues that the circuit court erroneously denied his motion to suppress evidence obtained as the result of an encounter that police had with Gauger outside of a convenience store. We agree and reverse.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. John P. McGarth, III

Case No.: 2019AP705-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: Sentencing – Extended Supervision

John McGrath, III, appeals a judgment of conviction for felony child abuse and a postconviction order denying his request to modify the conditions of his extended supervision. McGrath challenges a condition that prohibits him from having contact with anyone under eighteen. He argues that the condition is unconstitutional on multiple grounds. We affirm.

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WI Court of Appeals – District I

Case Name: Central United Methodist Church v. City of Milwaukee

Case No.: 2019AP778

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

Focus: Court Error – Tax Refund

Central United Methodist Church (Central United) appeals a summary judgment denying its request for a tax refund from the City of Milwaukee. The circuit court concluded that Central United had not shown that it uses its property exclusively for benevolent purposes as required by the relevant exemption statute, WIS. STAT. § 70.11(4) (2017-18). Central United argues that the circuit court erred in its conclusion. Based on the facts of the record, we agree with Central United and reverse the circuit court.

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WI Court of Appeals – District I

Case Name: Mary Kasal v. Stryker Corporation, et al.

Case No.: 2019AP1017

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

Focus: Worker’s Compensation Claims – Attorney Fees

Sentry Insurance, a Mutual Company appeals an order of the trial court in favor of the plaintiff, Mary Kasal, in which the court declined to apportion, from the settlement proceeds, the attorney’s fees and costs incurred by Sentry pursuant to WIS. STAT. § 102.29 (2017-18), which regulates claims of third party liability in relation to worker’s compensation claims. The trial court found that Sentry’s worker’s compensation policy with Kasal’s employer—which did not provide for the recovery of the insurer’s attorney’s fees and costs—superseded the apportionment provisions of the statute. We affirm.

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WI Court of Appeals – District I

Case Name: Lincoln Park MHC WI, LLC, v.  Patrick Glynn

Case No.: 2019AP1718

Officials: DONALD, J.

Focus: Eviction – Castle Doctrine

Lincoln Park MHC WI, LLC, appeals an order of the circuit court in which the circuit court dismissed Lincoln Park’s eviction action against Patrick Glynn. Lincoln Park contends that the record does not support the circuit court’s application of the castle doctrine in rendering its decision. We agree. Accordingly, we reverse the order and remand the matter for an evidentiary hearing.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Mitchell L. Christen

Case No.: 2019AP1767-CR

Officials: BLANCHARD, J.

Focus: 2^nd Amendment Violation

Mitchell Christen was found guilty at a jury trial of charges that included operating or going armed with a firearm while under the influence of an intoxicant, in violation of WIS. STAT. § 941.20(1)(b). Christen argued in the circuit court that the § 941.20(1)(b) charge should be dismissed on the ground that it violates the Second Amendment in all cases in which it is applied to the conduct of any person who is inside his or her residence, as he was in this case. The circuit court declined to dismiss the charge. The court rejected Christen’s “broad constitutional argument that there’s no way that this could be consistent with the constitution in light of” the decision of the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).  Christen apparently intends to renew the same argument on appeal. I reject the argument as a misframed as-applied constitutional challenge and accordingly affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bradley J. Young

Case No.: 2018AP1945-CR

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

Focus: Sentencing Guidelines – Resentencing

Bradley Young appeals from a judgment convicting him of seven counts of burglary on his guilty plea in a multi-county crime spree of sixty-four burglaries (fifty-seven burglaries were dismissed and read in). He seeks resentencing because the circuit court was biased. The record does not support Young’s claims. We affirm.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Steven J. Piper, et al. v. Jones Dairy Farm

Case No.: 2020 WI 28

Focus: Statutory Interpretation – Collective Bargaining Agreement – Donning and Doffing

Current and former employees of Jones Dairy Farm (the employees) filed suit in December 2010 seeking unpaid wages for time spent at the start and end of their shifts “donning and doffing” personal protective equipment and walking to and from their workstations. Jones Dairy Farm (JDF) denied liability, alleging the employees bargained over their right to compensation for this time during collective bargaining negotiations. Alternatively, JDF asserted that the doctrine of de minimis non curat lex rendered this time non-compensable and that equitable defenses precluded the employees’ recovery of damages. The circuit court denied JDF’s motion for summary judgment, concluding that: (1) the donning and doffing time was compensable; (2) the employees could not modify or eliminate compensation for donning and doffing through collective bargaining; (3) the time was not rendered non-compensable by the de minimis doctrine; and (4) JDF’s four equitable defenses did not preclude the employees’ recovery of damages.

On bypass from the court of appeals, JDF presents one principal issue: under Wisconsin law can compensation for donning and doffing personal protective equipment be modified or eliminated through collective bargaining? In the alternative, JDF contends that the de minimis doctrine renders the donning and doffing time non-compensable and that the equitable defenses of promissory estoppel, waiver, laches, and unjust enrichment preclude the employees’ recovery of damages.

We conclude that under Wisconsin law, compensation for donning and doffing cannot be modified or eliminated through collective bargaining. We assume without deciding that the de minimis doctrine applies to claims arising under Wis. Admin. Code § DWD 272.12 (May 2019), and determine that the time the employees spent donning and doffing was not de minimis. Lastly, we conclude that the circuit court erroneously exercised its discretion when it summarily dismissed JDF’s equitable defenses on the basis of Wis. Stat. § 109.03(5) and we remand for full consideration of those defenses. We therefore affirm in part, reverse in part, and remand the case to the circuit court.

Affirmed in part, reversed in part, and cause remanded.

Concur:

Dissent: ZIEGLER, J., filed a dissenting opinion, in which ROGGENSACK, C.J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

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