Articles Posted in Civil Procedure

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The Seventh Circuit denied a “Request for Judicial Notice,” publishing an “explanation in the hope of forestalling other, similar applications, which recently have increased in frequency.” Federal Rule of Evidence 201(b) permits a court to take judicial notice of an adjudicative fact that is “not subject to reasonable dispute” because it is generally known within the trial court’s territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. The “Request” asked the court to take judicial notice of four documents. Two are orders entered by a Wisconsin state court, which are public records and appropriate subjects of judicial notice. The third is a power of attorney filed in state court. The fact that a document is in a court’s record does not make it an appropriate subject of notice; its provenance may be disputed. The fourth document is a motion filed in the same state case, which is not evidence of an adjudicative fact. The court further noted that the right place to propose judicial notice, in a court of appeals, is in a brief. When evidence is “not subject to reasonable dispute” there is no need to multiply the paperwork by filing “Requests.” If a brief proposes judicial notice, any objection can be presented in a responsive brief. View "In re: Lisse" on Justia Law

Posted in: Civil Procedure

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The Affordable Care Act’s three premium‐stabilization programs were designed to redistribute money among insurance companies and mitigate each company’s exposure to market risks, 42 U.S.C. 18061–18063. The Department of Health and Human Service (HHS) intended to implement these programs in a budget‐neutral way paying out only the funds that each program had taken in from other insurance companies. Land of Lincoln participated in these premium‐stabilization programs and incurred a debt of roughly $32 million but HHS owed Land of Lincoln over $70 million. HHS was not able to pay what it owed because it was taking in far less money than expected, and it refused to dip into its discretionary funds. Like other insurance companies, Land of Lincoln sought the overdue payments in an unsuccessful suit. Land of Lincoln became insolvent and began liquidation. Despite an Illinois court order, HHS began to offset its overdue payments against Land of Lincoln’s debt, as its own regulations permitted. The Director of the Illinois Department of Insurance, Land of Lincoln’s appointed liquidator, asked the state court for a declaration that HHS violated the order, but HHS removed the motion to federal district court arguing that the federal government was not subject to state court jurisdiction. The district court remanded the case back to state court relying on a narrow reading of 28 U.S.C. 1442, and principles of abstention. The Seventh Circuit reversed on both grounds and remanded to the district court. View "Hammer v. United States Department of Health and Human Services" on Justia Law

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In 2008, Standard sued, on behalf of itself and “all others similarly situated," alleging that was injured when it “purchased several items of steel tubing [at an inflated price] indirectly … for end use," claiming that eight U.S. steel producers colluded to slash output to drive up the price of steel so that plaintiffs overpaid for steel sheets, rods, and tubing. Eight years later, the plaintiffs amended their complaint, asserting that they overpaid for end-use consumer goods, including vehicles, washing machines, and refrigerators, that were manufactured by third parties using steel. The district court dismissed the suit as time-barred because it redefines “steel products” to give rise to an entirely different, and exponentially larger, universe of plaintiffs, and, in the alternative, for not plausibly pleading a causal connection between the alleged antitrust conspiracy and plaintiffs’ own injuries. The Seventh Circuit affirmed. No reasonable defendant, reading the original complaint, would have imagined that plaintiffs were actually suing over the thousands of end-use household and commercial goods manufactured by third parties—a reading so broad that it would make nearly every person in the country a potential class member. The court further noted that it was unclear how to trace the effect of an alleged overcharge on steel through the complex supply and production chains that gave rise to consumer products. View "Supreme Auto Transport, LLC v. Arcelor Mittal USA, Inc." on Justia Law

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Allied offered Robertson a job, but ran a background check before she reported to work. Under the Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681a(d)(1), Robertson claims that Allied violated a requirement to notify her “clear[ly] and conspicuous[ly],” in writing, unadorned by additional information, of its intent to obtain the report and to secure her consent (notice claim). Non‐conviction information appeared in Robertson’s background check. Allied revoked its offer. An employer that relies on a background check for an adverse employment decision must provide the applicant with a copy of the report and a written description of her rights under FCRA before acting. Allied provided neither (adverse action claim). After mediation, the parties reached a tentative settlement. Months later, the Supreme Court held that federal jurisdiction exists only if the plaintiff has alleged an injury that is concrete and particular. Months later, Robertson moved under Federal Rule of Civil Procedure 23(e) for preliminary approval of the settlement and for certification of two settlement classes. The court rejected, as “simply wrong,” Robertson’s assertion that it could approve the settlement without jurisdiction over the underlying case and dismissed the case for lack of standing. The Seventh Circuit reversed as to the adverse action claim. Allied’s alleged violations of the Act caused Robertson concrete injury. Dismissal of the notice claim was proper because authority to adjudicate must exist before a court can resolve the case, even if that resolution is only a Rule 23(e) fairness hearing, followed by approval of a settlement. View "Robertson v. Allied Solutions, LLC" on Justia Law

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Unbeknownst to Burton, her license was suspended. Zion Officer Meyers spotted her driving, verified that there was an active warrant for her arrest, and activated his emergency lights. Burton saw his lights but claims she was afraid to pull over because, in 2008, Officer Richardt pulled Burton over, and, while she was handcuffed, used a taser on her. The Department sustained Burton's allegations of unnecessary force. Burton sued, obtaining a settlement. Instead of stopping, Burton drove toward her home, following all traffic laws, wanting friendly witnesses. The officers knew that Burton was heading home. Richardt, the officer involved in the 2008 incident, joined the pursuit. Burton stopped near her friend, with his pit bull. Meyers approached Burton’s driver’s side door. Burton exited through the passenger door because, she alleged, the other door was not functioning. Richardt ran and brought Burton to the ground by incorrectly executing a “straight-arm take-down.” The dog bit Richardt's leg but immediately released without causing damage. Sergeant Arrington placed his knee on Burton’s back as he handcuffed her then dragged her away. Burton sued under 42 U.S.C. 1983,. The court excluded evidence regarding the 2008 incident. The jury found in favor of the defendants. The Seventh Circuit reversed. The fact that Burton had been previously subjected to excessive force was not propensity evidence and could not be excluded under Federal Rule of Evidence 404. The court must weigh the probative value against the potential prejudice, considering ways in which prejudice can be mitigated. Excessive force amounts to whether the officers’ force, given the facts and circumstances known to them at the time, was reasonable. View "Burton v. City of Zion" on Justia Law

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Holcomb did not pay her credit-card bill. The creditor hired the Freedman law firm, which sued Holcomb on the creditor’s behalf in state court. Holcomb initially appeared pro se but later retained Attorney Finko. When Freedman moved for default judgment, Finko had not yet filed a written appearance. Freedman served the motion on both Holcomb and Finko. Holcomb alleges that Freedman violated the Fair Debt Collection Practices Act, which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” from “a court of competent jurisdiction,” 15 U.S.C. 1692c(a)(2). Freedman argued that it had “express permission” because Illinois Supreme Court Rule 11 requires service of court papers on a party’s “attorney of record,” if there is one, but “[o]therwise service shall be made upon the party.” Freedman argued that Finko was not yet Holcomb’s “attorney of record” for purposes of Rule 11, requiring service on Holcomb directly. The district judge rejected this argument as “hyper-technical.” The Seventh Circuit reversed. An attorney becomes a party’s “attorney of record” for Rule 11 purposes only by filing a written appearance or another pleading with the court. Finko had done neither, so Rule 11 required Freedman to serve the default motion on Holcomb directly. View "Holcomb v. Freedman Anselmo Lindberg, LLC" on Justia Law

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Wexford provides medical care to Illinois inmates. Beard experienced chronic ankle pain. In 2010 he consulted with his prison’s doctors, wanting surgery. The doctors ordered conservative treatment. When Beard’s pain persisted, the doctors considered referring Beard for surgical evaluation, which required Wexford’s approval. Wexford rejected requests for surgical evaluation but authorized Beard to see a podiatrist in 2012 and an orthopedist in 2015. Beard sued Wexford in 2011, claiming deliberate indifference to his serious medical need. A jury awarded Beard $10,000 in compensatory damages and $500,000 in punitive damages. The judge concluded that the punitive-damages award violated the Fourteenth Amendment’s prohibition on excessive or arbitrary punishment and reduced the award to $50,000. The Seventh Circuit vacated. While the Supreme Court has cautioned that “few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process,” the district court had nine single digits from which to choose and decided that the Seventh Amendment did not require it to offer Beard the option of a new trial before it entered judgment on the reduced award. The decision was arbitrary and constituted a procedural misstep. The court remanded to give Beard the choice between a reduced punitive-damages award and a new trial limited to damages. View "Beard v. Wexford Health Sources, Inc." on Justia Law

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In 2009 Blanchard, a Chicago law firm, provided legal services to an Indian pharmaceutical company, Lupin India, and its American subsidiary, Lupin USA, concerning the patentability of a generic birth‐control drug that Lupin India planned to launch in the U.S. through Lupin USA. When the Lupin companies initially sought Blanchard’s advice, the firm sent an engagement letter outlining its hourly fees and other terms. Neither Lupin India nor Lupin USA signed the letter, but Blanchard provided the requested legal services and the companies, at first, paid the firm for its work. In October 2009 Blanchard sent its two final invoices, which went unpaid. Seven years later Blanchard sued the Lupin companies for breach of contract and unjust enrichment. A district judge dismissed both claims as untimely. The Seventh Circuit affirmed in part. The unjust enrichment claim is untimely, having accrued in 2009 when Blanchard furnished the services and the Lupin companies did not pay. The five‐year statute of limitations expired long before suit was commenced. The contract claim is timely, however. Though the engagement letter is unsigned, it counts as a written contract under Illinois limitations law, and the claim for breach is therefore governed by a ten‐year statute of limitations. View "Blanchard & Associates v. Lupin Pharmaceuticals, Inc." on Justia Law

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Fuery, her friends Sciortino and Tomaskovic, and Chicago police officer Szura were involved in an altercation on the side of the road. The three women were arrested for battery of a police officer; each was acquitted. The women sued the City and Officer Szura under 42 U.S.C. 1983 and 1985. At trial, the defendants objected to various testimony as violating the court’s rulings on motions in limine, moved for a mistrial, and requested dismissal of all claims and attorneys’ fees as a sanction. The judge stated, “[t]here are plenty of options once the trial is concluded to deal with the misconduct … I am not letting it go.” The jury awarded Tomaskovic $260,000 against Szura on her excessive force claim, finding that Szura was acting within the scope of his employment, but found in favor of the defendants on all other claims. The court entered judgment in favor of the City and Szura on all claims but denied the claims for attorneys’ fees. The court found misconduct by plaintiffs’ attorney and that “plaintiffs actively participated.” The Seventh Circuit affirmed, stating that it was apparent, “even from the two-dimensional record, the judge’s patience being tried.” District courts “possess certain inherent powers, not conferred by rule or statute, to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. That authority includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” View "Fuery v. City of Chicago" on Justia Law

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The warrant application was supported by statements from “Doe,” that for the previous six months she regularly bought heroin from T (Doe only knew him by sight and street name) in a house, which she identified while driving with the police. A judge questioned Doe under oath and issued the warrant. Executing the warrant, officers found Walker in a house that looked like a drug house. Walker stated that she had a gun but could not remember where it was. The search took 90-120 minutes. Officers left without drugs or evidence of T’s whereabouts. Walker sued under 42 U.S.C. 1983. The district court granted defendants summary judgment; more than 16 months passed before the judge released her opinion. Walker appealed that day. The Seventh Circuit affirmed, first noting that under Fed.R.App.P. 4(a)(7)(A)(ii), a judgment is deemed to be entered on the earlier of the Rule 58 judgment or 150 days after a dispositive order is entered. “Deferring the opinion until after the time allowed by Rule. 4(a)(7)(A)(ii) is never appropriate, as it can spell disaster for a litigant not versed in the appellate rules.” Addressing the merits, the court stated that Walker’s goal was to have a jury decide whether the state judge should have issued the warrant but with the benefit of “great deference” the state judge’s probable-cause evaluation must prevail. Nothing was concealed from the judge and, under the circumstances, a two-hour search was not unreasonable. View "Walker v. Weatherspoon" on Justia Law