Weekly Case Digests – March 7, 2022 – March 11, 2022

Listen to this article

7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Andrea Santiago v. City of Chicago

Case No.: 20-3522

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

Focus: Class Action – Certification

Andrea Santiago, a severely disabled Chicago resident, would leave her van parked on the street in front of her home for extended periods of time. In 2018, pursuant to the Chicago Municipal Code, her van was towed, impounded, and disposed of. She sued the City of Chicago on her own behalf and on behalf of others similarly situated, challenging the constitutionality of various aspects of the City’s scheme, among other things. She moved the district court to certify her suit as a class action, and the district court granted her motion in part. However, because the class certification order does not fully demonstrate the “rigorous analysis” required by Rule 23, an approval, at this point, constituted an abuse of discretion. We therefore vacate and remand for further consideration.

Vacated and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: Romspen Mortgage Limited Partnership, v. BGC Holdings LLC – Arlington Place One, et al.,

Case No.: 20-3017

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

Focus: Breach of Forbearance Agreement

This case brings to us a contract dispute over a piece of commercial real property in Arlington Heights, Illinois. After BGC Holdings, LLC, et al., (“BGC”) defaulted on a loan secured by Romspen Mortgage Limited Partnership (“Romspen”), the parties negotiated an agreement to avoid foreclosure of the property (the “Arlington Property”) and to salvage the loan. As a result of these negotiations, they entered into a Forbearance and Loan Extension Agreement (the “Forbearance Agreement” or the “Agreement”). By the terms of this document, Romspen agreed to hold off on the judicial sale of the property; for its part, BGC agreed to make a $1.6 million payment on the loan. While the parties were negotiating the Forbearance Agreement, BGC learned that Romspen had filed a lien against another property (the “1907 Property”) in which one or more of the defendants had an ownership interest. This news created a problem for BGC because it had planned to refinance the 1907 Property so that it could make the payment on the Arlington property as required by the Forbearance Agreement. When BGC failed to provide proof of a refinancing plan for the Arlington Property, Romspen refused to remove the lien on the 1907 Property, and eventually BGC foreclosed on the Arlington Property.

After the foreclosure sale of the Arlington Property, BGC filed a motion for leave to file a counterclaim alleging that Romspen had breached the Forbearance Agreement. In response, Romspen filed a motion for an order confirming the judicial sale of the property. The district court denied BGC’s motion to file a counterclaim. It ruled that Romspen had not breached the Forbearance Agreement because it made “commercially reasonable efforts” to remove the lien on the 1907 Property. The district court also granted Romspen’s motion for confirmation and issued a separate order confirming the sale of the Arlington property and ordering the eviction of BGC.

BGC now appeals. For the reasons set forth in this opinion, we conclude that Romspen did not breach the Forbearance Agreement and that the district court’s decision to confirm the sale of the Arlington property was proper. We therefore affirm the district court’s judgment.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Michael Moss v. United Airlines, Inc., et al.,

Case No.: 20-3246

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

Focus: USERRA Violation – Seniority-based Benefits

Michael Moss brought this class action against United Airlines (“United”) under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). This statute requires employers to provide employees on military leave any seniority-based benefit the employee would have accrued but for the military leave. USERRA also requires employers to provide employees on military leave any nonseniority-based benefits that the employer provides to employees on a comparable leave of absence. This latter provision is not at issue in this appeal.

The district court granted summary judgment to United Airlines on Mr. Moss’s claim that the company had violated USERRA by denying sick-time accrual in excess of ninety days to military reservist employees. The district court held that sick-time accrual was not a seniority-based benefit within the meaning of the statute.

We now affirm the judgment of the district court. The district court correctly determined that United’s sick-time accrual is not a seniority-based benefit. For a benefit to be seniority-based, the benefit must be a reward for length of service. Sick leave is not such a reward.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Victoria Looper, et al., v. Cook Incorporated, et al.,

Case No.: 20-3103

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

Focus: Jurisdiction – Multidistrict Litigation

These two consolidated appeals raise issues about how the common practice of “direct filing” in multidistrict litigation may affect the choice of law in individual cases within the larger MDL. The Judicial Panel on Multidistrict Litigation asked Judge Richard L. Young of the Southern District of Indiana to oversee a multidistrict litigation docket to coordinate discovery and other pretrial proceedings in thousands of medical product-liability suits against Cook Incorporated and related entities alleging that Cook’s inferior vena cava (IVC) filters were defective. See 28 U.S.C. § 1407.

In these appeals, plaintiffs Victoria Looper and Sammie Lambert filed their lawsuits directly in the MDL court in Indiana rather than filing in the states where they lived and had the IVC filters implanted and then waiting for their cases to be “tagged” and transferred by the Judicial Panel on Multidistrict Litigation. Cook moved to dismiss both cases based on Indiana’s two-year statute of limitations for personal injury actions. Looper’s and Lambert’s home states (South Carolina and Mississippi) have three-year statutes. If the South Carolina and Mississippi statutes apply, their cases were timely. If the Indiana statute governs, as Cook argues and the district court held, Looper and Lambert filed their cases too late.

The appeals raise questions that have broad implications for MDL courts that endorse direct filing for the sake of efficiency. The dispute here shows the need for care and clarity up front in adopting direct filing. In these appeals, however, we do not need to reach sweeping conclusions on the subject. The unusual course of events in the district court—on this issue, first Cook and then the district court changed course 180 degrees in the midst of the MDL—showed that Cook implicitly consented to using choice-of-law rules for these plaintiffs as if they had filed in their home states. The district court might well have discretion to allow Cook to change positions prospectively, but it was not fair to allow Cook to change positions retroactively to dismiss these plaintiffs’ cases that had been timely filed under what the district court had accurately called the “law of the case.” We therefore reverse the judgments in favor of Cook in these two appeals and remand for further proceedings in the district court.

To explain our decision, we first lay out the governing legal principles for choice of law in diversity-jurisdiction cases that are transferred, and then the basics of multidistrict litigation and the practice of direct filing. We then turn to the unusual course of relevant events that persuades us that Cook consented to using home-state choice-of-law principles for these cases filed directly in the MDL venue.

Reversed and remanded

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Michael Perryman

Case No.: 20-1453

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

Focus: Sufficiency of Evidence

Law enforcement agents searched Michael Perryman’s home and found drugs, baggies, a digital scale, and a loaded AR-15 rifle. Perryman was then charged with drug and firearm offenses. At trial, he sought to impeach an officer’s truthfulness by introducing a fifteen-year-old reprimand regarding an unrelated case, which the district court precluded him from doing. A jury convicted him on all counts. On appeal, Perryman maintains that the evidence was insufficient to convict him on any count and that the district court’s exclusion of evidence reporting an incident unrelated to the case violated the Confrontation Clause. We reject both arguments and affirm the conviction.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Donald A. Miller, et al., v. Chicago Transit Authority, et al.,

Case No.: 20-3005

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

Focus: Title VII Violation – Retaliation Claim

After being fired from the Chicago Transit Authority (CTA), Donald A. Miller and John W. McGuire sued their former employer and one of its officers, Donald Bonds, alleging racial discrimination and retaliation in violation of federal and Illinois state law. Following discovery, the defendants moved for summary judgment. Despite receiving two extensions, however, Miller and McGuire failed to respond. Finding no persuasive excuse for this failure, the district court denied a third extension and took up the motion without a responsive pleading. The court concluded that the undisputed evidence did not support the claims and granted summary judgment in favor of CTA and Bonds. Miller and McGuire challenge the district court’s denial of their third extension request and its rejection of their retaliation claims. Because the district court did not abuse its discretion in denying an extension, and because evidence of basic elements of a retaliation claim was lacking, we affirm.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: United States of America v. Janhoi Cole

Case No.: 20-2105

Officials: SYKES, Chief Judge, and EASTERBROOK, KANNE, ROVNER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Unlawful-stop Claim – Reasonable Suspicion – Suppress of Evidence

An Illinois state trooper stopped Janhoi Cole for following too closely behind another car. At the time, Cole was traveling on an Illinois interstate with an Arizona driver’s license and a California registration. During the brief roadside detention that followed, the trooper questioned Cole about his license, registration, and travel plans. Cole’s answers struck the trooper as evasive, inconsistent, and improbable. Many of the trooper’s questions were follow-up questions to Cole’s answers and volunteered information. Combined with other factors, they led the trooper to suspect that Cole was trafficking drugs. To investigate his suspicions, the trooper called for a K-9 unit to meet him and Cole at a nearby gas station. The dog alerted, and officers found large quantities of methamphetamine and heroin in Cole’s car.

Facing federal charges, Cole moved to suppress the drugs as well as his statements during the stop. He argued that the trooper unlawfully initiated the stop and unreasonably prolonged it without reasonable suspicion of other criminal activity. The district court denied the motion, but a divided panel of this Court reversed on the basis that the trooper’s initial roadside questioning unreasonably prolonged the traffic stop. We reheard the case en banc to resolve an apparent conflict between the panel’s decision and United States v. Lewis, 920 F.3d 483 (7th Cir. 2019), as to whether travel-plan questions are part of the “mission” of a traffic stop under Rodriguez v. United States, 575 U.S. 348 (2015).

In keeping with Lewis and the consensus of other circuits, we hold that travel-plan questions ordinarily fall within the mission of a traffic stop. Travel-plan questions, however, like other police inquiries during a traffic stop, must be reasonable under the circumstances. And here they were. The trooper inquired about the basic details of Cole’s travel, and his follow-up questions were justified given Cole’s less-than-forthright answers. The stop itself was lawfully initiated, and the trooper developed reasonable suspicion of other criminal activity before moving the initial stop to the gas station for the dog sniff. We therefore affirm the district court’s denial of Cole’s motion to suppress.

Affirmed

Full Text

7^th Circuit Court of Appeals

Case Name: Kevin Clanton v. United States of America

Case No.: 20-2059

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

Focus: Damages – Comparative Negligence

This case is on appeal for the second time, from an action brought in the district court by Kevin Clanton under the Federal Tort Claims Act. Clanton alleged that nurse practitioner Denise Jordan, an employee of the U.S. Public Health Service, failed to educate him about his severe hypertension or to monitor its advancement, and as a result of that negligent care his hypertension developed into Stage V kidney disease. As a result, Clanton required dialysis and, at the age of 35, a kidney transplant, and is expected to endure further cycles of dialysis and another transplant in the future. Following a five-day bench trial, the district court found the United States liable, rejected the government’s comparative negligence argument as to Clanton, and awarded Clanton nearly $30 million in damages.

The United States appealed to this court, arguing that the district court erred in its comparative-negligence analysis and in its assessment of damages. We upheld the damages calculation, but remanded for the court to assess Clanton’s comparative negligence under Illinois’s reasonable-person standard. Clanton v. United States, 943 F.3d 319 (7th Cir. 2020) (“Clanton I”). On remand, the court again concluded that comparative negligence was inapplicable in this case, and the government has again appealed.

Affirmed

Full Text

WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: Conway Freight, Inc., v. Labor and Industry Review Commission, et al.,

Case No.: 2020AP1100

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

Focus: LIRC Review – Worker’s Compensation Benefits

Conway Freight, Inc./Conway Central Express (Conway Freight) appeals an order of the circuit court affirming a decision from the Labor and Industry Review Commission (LIRC) in which Timothy J. Rothe was awarded worker’s compensation benefits for an occupational injury that resulted in Rothe’s permanent total disability. On appeal, Conway Freight argues that LIRC’s decision must be reversed because the decision changed the causation standard applicable in evaluating occupational injury cases without the authority to do so, and improperly included a non-work related condition in the determination that Rothe was permanently totally disabled. Conway Freight additionally argues that the medical opinion that LIRC relied on in making its decision was speculative and without foundation. Upon review, we affirm.

Full Text

WI Court of Appeals – District III

Case Name: State of Wisconsin v. B.M.,

Case No.: 2021AP501-FT

Officials: GILL, J.

Focus: Court Error – Dispositional Order

Brandon appeals a dispositional order adjudicating him delinquent on one count of disorderly conduct. Brandon argues the circuit court erred by entering a dispositional order that delegated authority to the juvenile justice worker to order electronic monitoring. We conclude the dispositional order conflicts with the court’s oral pronouncement, and as such, we vacate the portion of the order which incorporates electronic monitoring and remand for entry of a corrected order consistent with the oral pronouncement.

Full Text

WI Court of Appeals – District II

Case Name: State of Wisconsin v. Robby R. Walentowski

Case No.: 2020AP865-CR

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

Focus: Unlawful Seizure – Suppression of Evidence

Robby R. Walentowski appeals a judgment of conviction, entered upon his guilty pleas, for five counts of possession of child pornography. He argues the circuit court erred by denying his motion to suppress evidence obtained from a search of his cellular telephone, under circumstances where the phone was confiscated during an unlawful seizure of his person under Bailey v. United States, 568 U.S. 186 (2013). Like the circuit court, we conclude the inevitable discovery doctrine applies because police had already obtained a search warrant that authorized police to confiscate any “cellular/digital telephones” and the State established by a preponderance of the evidence that, but for the illegal seizure a short distance from the home, Walentowski’s iPhone would have been discovered and seized when he arrived at the residence. Accordingly, we affirm.

Full Text

WI Court of Appeals – District II

Case Name: Ozaukee County v. J.D.A.,

Case No.: 2021AP1148

Officials: NEUBAUER, J.

Focus: Involuntary Commitment and Medication

Jane appeals from an order of the circuit court extending her WIS. STAT. ch. 51 involuntary commitment and from an order for involuntary medication and treatment. As set forth by our supreme court in Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, the circuit court must “make specific factual findings with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment is based.” Because the circuit court did not make specific factual findings as required to support its dangerousness determination, we reverse.

Full Text

WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Chadwick A. Johnson

Case No.: 2020AP1262-CR

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Postconviction Relief – Evidentiary Hearing

Chadwick Johnson appeals a judgment of conviction for substantial battery in violation of WIS. STAT. § 940.19(2) (2019-20)1 and an order denying his postconviction motion. We affirm.

The charge in this case was based on a physical fight between Johnson and another man that occurred at a construction site where the men were working on August 14, 2014. The victim sought medical attention, and he was eventually diagnosed with a rib fracture. Following a trial, the jury found Johnson guilty of substantial battery. Johnson filed a motion for postconviction relief, which the circuit court denied without holding a hearing. We present additional background about the evidence introduced at trial and the trial and postconviction proceedings as needed below.

On appeal, Johnson argues that the circuit court erred when it denied his motion for a directed verdict, when it admitted evidence of his membership in a motorcycle club at trial, when it empaneled an anonymous jury, and when it denied his claims of ineffective assistance of counsel without a hearing. We address Johnson’s arguments in turn.

Full Text

WI Court of Appeals – District IV

Case Name: James T. Murphy v. Nancy C. Holland

Case No.: 2020AP1802

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

Focus: Abuse of Discretion – Maintenance Termination

When James Murphy and Nancy Holland divorced in 2010, Holland was awarded indefinite spousal maintenance as a percentage of Murphy’s income. Holland appeals a subsequent judgment of the circuit court, entered in 2020, that granted Murphy’s motion to terminate maintenance. She argues that the court erred when it determined that there had been a substantial change in the parties’ financial circumstances and, further, that the court’s decision to terminate maintenance constituted an erroneous exercise of discretion. We conclude that the court did not erroneously terminate maintenance.

Murphy cross-appeals the provision of the circuit court’s 2020 judgment and a subsequent order requiring him to pay a portion of Holland’s attorney fees. We reject the majority of Murphy’s arguments. However, as explained below, we conclude that the court did not make one finding necessary to support a fee award under WIS. STAT. § 767.241(1)(a) (2019-20).

Accordingly, we reverse the portions of the 2020 judgment and the subsequent order pertaining to the attorney fee award, affirm all other aspects of the judgment and order, and remand to the circuit court for further consideration of the attorney fee issue and to make any findings necessary to support its decision.

Full Text

WI Court of Appeals – District IV

Case Name: Meteor Timber, LLC, v. Wisconsin Division of Hearings and Appeals, et al.,

Case No.: 2020AP1869

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

Focus: ALJ Error – Amended Permit

The Department of Natural Resources (Department) issued to Meteor Timber, LLC, a permit (the permit or the initial permit) and, some months later, an amended permit (the amended permit) allowing Meteor Timber to fill wetlands for purposes of constructing a facility for drying and storing industrial sand and an associated facility for loading the sand onto rail cars and shipping the sand by rail. After a contested case hearing, the Administrative Law Judge (ALJ) issued a decision and order reversing the decisions to issue the permit and amended permit based on his conclusions that the permit and amended permit decisions did not comply with the statutes governing wetland-fill permits. The Department adopted the ALJ’s decision without change as its own final decision. The circuit court, in a detailed and comprehensive oral ruling, affirmed. On appeal, Meteor Timber argues first that the ALJ’s decision is unsupported by the record and legally erroneous. Second, Meteor Timber argues that the circuit court erred in denying its motion to present additional evidence pertaining to a different wetland restoration project.

As stated, the ALJ’s decision reversing the Department’s decision to issue the permit based on to the Department’s failure to comply with these statutory requirements is based on findings of fact that are supported by substantial evidence in the record and on a correct reading of the law. Accordingly, we conclude that the Department’s decision to issue the permit was properly reversed. Because Meteor Timber fails to identify any law that authorizes the Department to issue an amended permit absent a valid initial permit, we conclude that the Department’s decision to issue the amended permit was also properly reversed.

As to the second issue on appeal, we conclude that the record establishes that the circuit court properly exercised its discretion in denying Meteor Timber’s motion to present additional evidence. Accordingly, we affirm the circuit court’s rulings.

Recommended for Publication

Full Text

WI Court of Appeals – District IV

Case Name: Eric D. Olmanson, et al., v. Brenda Weits

Case No.: 2021AP438

Officials: BLANCHARD, P.J.

Focus: Eviction – Landlord-tenant Relationship

In this small claims action, Andrea and Eric Olmanson appeal the circuit court’s dismissal of their only claims against Brenda Weits, one for eviction and one for trespass. Regarding the eviction claim, the court granted Weits’s motion to dismiss on the grounds that property-owner Olmanson and property-occupant Weits never had a landlord-tenant relationship and that such a relationship is a necessary precondition to an eviction action pursued under WIS. STAT. § 799.40. Following the agreed premise by both parties that Weits was never a tenant of Olmanson, and applying controlling case law, I conclude that the court correctly determined that Olmanson could not pursue the eviction action. The court did not explicitly address the trespass claim and I conclude that the court improperly dismissed this claim based on the state of the record at the time of dismissal. Accordingly, I affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Full Text

WI Court of Appeals – District IV

Case Name: Rock County v. P.P.,

Case No.: 2021AP678

Officials: BLANCHARD, P.J.

Focus: Involuntary Commitment and Medication

In April 2020, the circuit court ordered P.P. to be subject to an involuntary mental health commitment and an involuntary medication or treatment order pursuant to WIS. STAT. ch. 51. P.P. challenges only the involuntary medication or treatment order, arguing that the evidence was insufficient to meet Rock County’s burden of proof by clear and convincing evidence. I conclude that the only issue raised on appeal is moot and that no exception to the mootness doctrine applies. Accordingly, I affirm the circuit court without reaching the merits.

Full Text