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Weekly Case Digests – October 25, 2021 – October 29, 2021

By: Rick Benedict//October 29, 2021//

Weekly Case Digests – October 25, 2021 – October 29, 2021

By: Rick Benedict//October 29, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Continental Casualty Company v. Certain Underwriters at Lloyds of London,

Case No.: 20-2892

Officials: WOOD, HAMILTON, and KIRSCH, Circuit Judges.

Focus: Arbitration Award

It would be difficult to overstate the strength of the Supreme Court’s support for arbitration when the parties have elected to resolve their disputes using that mechanism. The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., embodies a “national policy favoring [arbitration] and plac[ing] arbitration agreements on equal footing with all other contracts.” Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 581 (2008) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006)).

Arbitration and adjudication in court differ in a number of meaningful ways. One central distinction relates to the exceedingly narrow scope for judicial review of a final arbitral award. Whereas a decision by a court of first instance is usually subject to de novo review for questions of law, and more deferential, yet still meaningful, review for questions of fact, arbitration awards are largely immune from such scrutiny in court. The FAA spells out a narrow set of reasons that may support a court’s confirmation, vacatur, or modification of an award, see 9 U.S.C. §§ 10–11, and the Supreme Court held that these “provide exclusive regimes” for review. Hall Street Assocs., 552 U.S. at 590.

Recognizing this unfavorable terrain, Continental Casualty Co. and Continental Insurance Co. (collectively, “Continental”) nevertheless seek in this appeal to set aside an arbitral award. The award arose out of a dispute between Continental and Certain Underwriters at Lloyds of London (“Underwriters”) over the way in which reinsurance furnished by Underwriters should be calculated and billed. As required by contract, Underwriters submitted this matter for arbitration, and the arbitral panel (“the Panel”) ruled in their favor. At Continental’s request, the Panel later issued a supplemental award, called here Interim Order No. 3, in which it clarified how its primary award applied to certain future billings. Convinced that the arbitrators had strayed beyond the scope of the agreement, Continental brought this suit to set aside Interim Order No. 3, as well as a Post-Final Award Order in which the Panel denied Continental’s motion for reconsideration of the interim order.

If our job were to assess the merits of Continental’s position in the same way that we approach ordinary appeals, it is possible that we might come to a different conclusion. But we are constrained by the FAA, as interpreted by the Supreme Court. We therefore affirm the district court’s order confirming the primary arbitral award, Interim Order No. 3, and the Post-Final Award Order denying Continental’s motion to reconsider.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Todd Stands Alone

Case No.: 20-2018

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

Focus: Statutory Interpretation – Assault

Todd Stands Alone, while imprisoned at a federal correctional facility in Wisconsin, injured a correctional officer. After a bench trial, the district court convicted him for inflicting bodily injury to a federal officer, in violation of 18 U.S.C. § 111. Stands Alone now appeals his conviction and challenges the district court’s interpretation of § 111. We affirm his conviction.

Affirmed

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7th Circuit Court of Appeals

Case Name: Patricia A. Stark v. Johnson & Johnson, et al.,

Case No.: 20-1837

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

Focus: Statute of Limitations – Product Liability

This appeal turns on the Illinois discovery rule for applying the statute of limitations to product liability claims. Plaintiff Patricia Stark had surgery in 2007 to implant a pelvic mesh device. The surgery was not successful, and she had follow-up surgeries that also were not successful. In 2018, she learned for the first time that her problems with the pelvic mesh device might have resulted from a defect in the product itself. She consulted a lawyer and later that year filed this suit against the manufacturer. The district court concluded that Ms. Stark should have realized much earlier that the product might have been defective. The court granted summary judgment based on the two-year statute of limitations. We reverse.

The statute of limitations began to run only when Ms. Stark should have realized that her mesh-related complications might have been wrongfully caused by another person. As a general rule, the failure of a medical procedure or product to cure a patient does not necessarily signal that anyone acted wrongfully, particularly when the patient experiences known complications that do not necessarily result from tortious actions. In addition here, plaintiff’s medical history included Ehlers-Danlos syndrome, which two of her doctors told her could explain her continued problems. The combination of that general principle and plaintiff’s specific circumstances could allow a reasonable jury to decide that this suit was timely.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Schneider National Leasing, Inc., v. United States of America

Case No.: 20-3354

Officials: SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges.

Focus: Statutory Interpretation – Safe Harbor

This appeal presents two questions of first impression concerning a federal excise tax on heavy trucks and the scope of a statutory safe harbor. The answer affects whether Schneider National Leasing, a large trucking company, can take advantage of the safe harbor for repairs and modifications, codified in 26 U.S.C. § 4052(f)(1), to avoid paying a 12% excise tax on 976 tractors it overhauled from 2011 to 2013. The district court held a bench trial, determined that the degree of refurbishing in question constituted the manufacture of new trucks rather than repairs or modifications, and therefore concluded the safe harbor did not apply. We see the application of the statutory language differently and reverse.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Jose Andrade v. City of Hammond, Indiana, et al.,

Case No.: 20-1541

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

Focus: Subject-matter Jurisdiction  

Appellate review of state-court judgments is reserved exclusively to the United States Supreme Court. The Rooker-Feldman doctrine provides the jurisdictional bar that prevents lower federal courts from improperly exercising such review. Federal cases involving claims that are “independent” from a state-court judgment, however, obviously fall outside of Rooker-Feldman’s purview.

In this case, Plaintiff Jose Andrade sued the City of Hammond, the Hammond Board of Public Works and Safety, and several Hammond employees for violating his due process rights when making an administrative determination regarding his rental property. Although the administrative determination was later affirmed by Indiana courts, Andrade’s claims concern Defendants’ actions separate from any state-court judgment. Thus, Rooker-Feldman does not bar federal-court jurisdiction. We accordingly reverse the contrary decision of the district court and remand this case for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Rex A. Hopper

Case No.: 20-1162

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

Focus: Plain Error – Sentencing

In February 2018, Rex A. Hopper was convicted of conspiracy to distribute fifty or more grams of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a), 846, and 841(b)(1)(B). The district court initially sentenced Mr. Hopper to 235 months’ imprisonment. On the previous appeal, we concluded that the district court had committed plain error in the calculation of the drug quantity for which Mr. Hopper was responsible and remanded the case to the district court. See United States v. Hopper (Hopper I), 934 F.3d 740 (7th Cir. 2019).

The district court ordered a revised presentence report. That report reduced to 1.17 kilograms the amount of “ice” methamphetamine for which Mr. Hopper was responsible. The new presentence report also assessed an additional criminal history point for a state burglary conviction; the plea for that crime was entered after the original federal sentence had been imposed but before our remand. After re‐ viewing the revised presentence report, Mr. Hopper submit‐ ted a pro se objection to its relevant‐conduct assessment. Specifically, he submitted that a jury, not the court, should have made the determination that the drugs at issue qualified as “ice” for purposes of the Sentencing Guidelines. Notably, Mr. Hopper did not object to the additional criminal history point for the state burglary conviction.

The district court rejected Mr. Hopper’s pro se challenge to his relevant conduct. The court concluded that the issue of drug type, as opposed to drug quantity, already had been decided in the first appeal and was not within the scope of our remand. The court therefore declined to revisit the mat‐ ter. The district court then proceeded to craft a sentence that, in accord with our opinion, held Mr. Hopper responsible for 1.17 kilograms of “ice” methamphetamine and that also took into account his new state conviction for burglary. The district court reimposed a sentence of 235 months’ imprisonment.

Mr. Hopper now maintains that the district court committed plain error in both the determination of the drug type and in the assessment of the additional criminal history point for the state burglary conviction. We conclude that the district court correctly determined that our earlier remand order did not permit it to reconsider Mr. Hopper’s argument about the drug type and therefore properly rejected Mr. Hopper’s pro se objection. We further hold that the district court did not commit plain error in assessing Mr. Hop‐ per an additional criminal history point for his state burglary conviction. We therefore affirm the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Kelly D. Ebmeyer v. Adam Brock, et al.,

Case No.: 19-2065

Officials: FLAUM, ROVNER, and BRENNAN, Circuit Judges.

Focus: Sanctions

Kelly D. Ebmeyer sued several prison officials under 42 U.S.C. § 1983, alleging violations of the Eighth Amendment. The district court ultimately dismissed the suit with prejudice as a sanction for Ebmeyer’s litigation conduct related to his attempts to identify one of the prison employee defendants. Because the court failed to make the necessary findings to support this sanction, we vacate and remand for further proceedings. We also affirm the court’s grant of summary judgment to other defendants.

Vacated and remanded in part. Affirmed in part.

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7th Circuit Court of Appeals

Case Name: FKFJ, Inc., et al., v. Village of Worth, et al.,

Case No.: 20-2396

Officials: MANION, SCUDDER, and KIRSCH, Circuit Judges.

Focus: Summary Judgment – Issue of Material Fact

Isam Samara and Muwafak Rizek formed FKFJ, Inc. to operate Saraya Restaurant & Banquet and Zaman Café in Worth, Illinois. Mary Werner was Village President at the time, and she decided to run for reelection the year Saraya opened. FKFJ supported Werner’s political opponent in the election.

Around the same time, FKFJ had various disputes with the Village of Worth. Based on these clashes, FKFJ filed this § 1983 action alleging First Amendment, equal protection, and due process violations. The district court granted summary judgment for the defendants. On appeal, FKFJ argues the court erred by ignoring genuine disputes of material fact and by making credibility determinations. While our review of the record reveals various factual disputes, none are genuine and material. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Kyle S. Matthews

Case No.: 20-2686

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

Focus: Suppression of Evidence – Good Faith Exception

The Clinton County, Illinois, Sheriff’s Office executed a search warrant on a property where Kyle Matthews lived in a camper trailer. The warrant authorized the police to search every structure on the premises in the belief that Mr. Matthews lived on and had access to the whole property. The Sheriff’s Office, however, had not offered the issuing judge much information to substantiate this belief.

The evidence found during the search led to a federal indictment, and Mr. Matthews moved to exclude the fruits of the search. The district court held that the warrant was not supported by probable cause to believe that any of the suspected crimes were linked to the property. The district court nevertheless concluded that the good-faith exception to the exclusionary rule applied and therefore denied the motion to suppress. Mr. Matthews pleaded guilty to possessing an unregistered short-barreled rifle that had been found at his home, but he conditioned his plea on an appeal of the denial of the motion to suppress the evidence.

We affirm the judgment of the district court. An objectively reasonable officer, having consulted with the State’s Attorney in the preparation of the complaint and affidavit accompanying the application for the warrant, could have relied in good faith on the search warrant that he obtained from a judge. The warrant here, although incomplete, was not so utterly lacking in indicia of probable cause that suppression is justified.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. Hector Lozornio

Case No.: 2019AP1075-CR

Officials: Brash, C.J., Dugan and White, JJ.

Focus: Admission of Evidence – Other-acts Evidence

Hector Lozornio appeals the judgment of conviction for three counts of sexual assault of a child and the trial court’s denial of his postconviction motion for a new trial. Lozornio argues that the trial court erred when it admitted other-acts evidence of domestic violence. We conclude that the other-acts evidence was properly admitted, that he is not entitled to a new trial in the interest of justice, and that the evidence was sufficient to support his convictions. We further conclude that Lozornio’s remaining arguments were forfeited. Accordingly, we affirm the trial court.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jeremy J. Deen

Case No.: 2020AP1399-CR

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

Focus: Warrantless Search & Seizure – Exigent Circumstances 

Jeremy Deen appeals a judgment convicting him, upon his no-contest plea, of one count of possession of child pornography. Deen argues the circuit court erred by denying his motion to suppress evidence discovered during a search of his cell phone. Although the search was conducted pursuant to a search warrant, the phone was initially seized without a warrant, and Deen contends that the warrantless seizure violated his Fourth Amendment rights. Like the circuit court, however, we conclude that the warrantless seizure was permissible under the exigent circumstances exception to the warrant requirement because, under the facts known at the time, a law enforcement officer would have reasonably believed that the delay required to procure a search warrant would risk the destruction of evidence. We therefore affirm.

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WI Court of Appeals – District III

Case Name: Ludmyla Carlborg, et al., v. Mount View Care Center

Case No.: 2020AP1898

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

Focus: Court Error – Notice of Claim  

Ludmyla Carlborg and her husband, Kenneth, pro se, appeal an order that dismissed with prejudice their claims against Mount View Care Center. We conclude the circuit court properly dismissed the Carlborgs’ claims based on their undisputed failure to comply with the notice of claim statute, WIS. STAT. § 893.80(1d) (2019-20). We reject the Carlborgs’ assertion that, under § 893.80(1m), they were exempt from compliance with the requirements set forth in the notice of claim statute because their complaint sought to recover damages for medical malpractice.

We conclude, however, that aside from the Carlborgs’ claim for punitive damages, which was properly dismissed with prejudice, the Carlborgs’ remaining claims should have been dismissed without prejudice. We therefore modify the order dismissing the Carlborgs’ claims to reflect that their claim for punitive damages is dismissed with prejudice, but their remaining claims are dismissed without prejudice. We affirm the order as modified.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Caleb James Watson

Case No.: 2021AP355-CR

Officials: GUNDRUM, P.J.

Focus: 4th Amendment Violation – Search & Seizure

Caleb James Watson appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI), third offense, contending the circuit court erred in denying his motion to suppress evidence. He argues that he was seized in violation of the Fourth Amendment because it was unreasonable for the arresting officer to move him from the site of the initial seizure to the site where field sobriety tests were performed. Because we agree with the circuit court that the officer acted reasonably in moving Watson as he did, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Derek V. Schroth

Case No.: 2021AP733

Officials: NEUBAUER, J.

Focus: OWI – Probable Cause – Blood Test  

Derek V. Schroth appeals from a judgment convicting him of refusal to submit to a chemical test in violation of WIS. STAT. § 343.305. Schroth contends that the circuit court erred in concluding that the arresting officer had probable cause to arrest him for operating a motor vehicle while under the influence of intoxicants (OWI) and in finding that Schroth refused to submit to chemical testing. We reject Schroth’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: Lake Arrowhead Association v. Estate of Opal Straub; Gary Harrop,

Case No.: 2020AP1860

Officials: KLOPPENBURG, J.

Focus: Standing to Sue

Lake Arrowhead Association, a homeowners’ association, commenced this small claims action seeking a money judgment for unpaid assessments and associated charges allegedly owed by Opal Straub on property in the Association. After hearing argument from the parties, the circuit court dismissed Preston Straub as a defendant, amended the case caption to name “The Estate of Opal Straub, the People’s Community Bank, by Gary Harrop, Special Administrator” as the sole defendant, and entered judgment in favor of the Association and against the Estate. Preston appeals. The Association argues that Preston lacks standing to appeal because he has no protectable interest affected by the judgment in that he was dismissed with no judgment entered against him and he neither owns the property nor has authority to act on behalf of the Estate. I agree and, therefore, this appeal is dismissed.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James A. Carrol., Jr.,

Case No.: 2021AP375-CR

Officials: FITZPATRICK, J.

Focus: Ineffective Assistance of Counsel

James Carroll appeals a judgment of conviction and an order of the circuit court for Jefferson County denying his motions for postconviction relief. Carroll pled no contest to one count of fourth-degree sexual assault, and the sentence imposed included requiring Carroll to register as a sex offender. Carroll filed a postconviction motion to withdraw his plea of no contest based on the alleged ineffective assistance of his trial counsel. In the alternative, Carroll moved postconviction to modify the court’s requirement that he register as a sex offender. The court denied the motions and Carroll appeals. I affirm.

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