Articles Posted in Civil Procedure

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Debtors sought sanctions against Kreisler, alleging that the law firm violated the automatic stay arising from their bankruptcy petition by filing a lien against Lorraine’s home. The couple had voluntarily dismissed a prior bankruptcy petition just a few months earlier, so the bankruptcy judge denied their motion based on 11 U.S.C. 362(c)(3), which lifts the automatic stay after 30 days in the case of a successive petition. Bankruptcy courts are divided over the proper interpretation of section 362(c)(3), so the judge certified her order for direct appeal but the Debtors never filed a petition for permission to appeal as required by Rule 8006(g) of the Federal Rules of Bankruptcy Procedure. The Seventh Circuit dismissed the appeal. Rule 8006(g) is a mandatory claim-processing rule, and if properly invoked, it must be enforced. Because Kreisler properly objected, the appeal must be dismissed. View "Wade v. Kreisler Law, P.C." on Justia Law

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The district court dismissed Nestorovic’s discrimination claims against her employer and the deadline to appeal expired without Nestorovic appealing. The district court granted her motion without making any finding as to whether Nestorovic had made the required showing under 28 U.S.C. 2107(c) that excusable neglect or good cause justified missing the original deadline. The Seventh Circuit dismissed her appeal. Section 2107(c) is an act of Congress, so showing excusable neglect or good cause serves as a prerequisite to appellate jurisdiction. The record below contained no evidence of excusable neglect or good cause for Nestorovic’s tardiness Nestorovic explained only that she was “actively searching for attorneys willing to take the case on contingency” and had been “advised very recently that [prospective] counsel could not file an appeal before reviewing filings to date, which would take several weeks.” View "Nestorovic v. Metropolitan Water Reclamation District of Greater Chicago" on Justia Law

Posted in: Civil Procedure

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The U.S. Patent and Trademark Office has, on a few occasions, found that “capsule” was “merely descriptive” of cellphone cases, a finding that precludes registration on the Principal Register. The Office has also found otherwise and allowed Uncommon to register “capsule.” Rival case manufacturers still use the term. Uncommon sued Spigen for trademark infringement and unfair competition, 15 U.S.C. 1114, 1125(a). Spigen sought cancellation of the mark. In discovery, Spigen produced a survey to prove that consumers did not associate “capsule” with Uncommon’s cases, and disclosed the person who conducted the survey as a “non-testifying expert,” but without foundational expert testimony to explain the survey’s methodology, it was inadmissible, FRCP 26(a). The district court excused Spigen’s error and granted Spigen summary judgment on the merits. The Seventh Circuit affirmed. Spigen’s disclosure was inaccurate but harmless. Spigen carried its burden to defeat Uncommon’s presumption of inherent distinctiveness. Spigen demonstrated that there is no issue of material fact regarding the descriptiveness of the “capsule” mark. With the survey, there was no genuine issue of material fact as to the mark’s invalid registration. Nor was there an issue of fact regarding the unlikelihood of consumer confusion. View "Uncommon, LLC v. Spigen, Inc." on Justia Law

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From 2007-2016, Trujillo worked as a manager of several Ashley Furniture HomeStores in the Chicago area. These stores were owned and operated by Rockledge Furniture LLC, a Wisconsin limited liability company associated with Ashley Furniture Industries, Inc., a Wisconsin corporation. Trujillo was fired and then filed a charge with the Equal Employment Opportunity Commission alleging age discrimination and retaliation. In the charge, he listed the name of the Illinois store where he had worked— Ashley Furniture HomeStore, with the address and telephone number of the store. The correct legal name of Trujillo’s employer, however, was Rockledge Furniture LLC. The district court dismissed Trujillo’s claims for failure to exhaust administrative remedies because he did not name his employer sufficiently and because the EEOC never managed to notify the correct employer of Trujillo’s charge. The Seventh Circuit reversed. Trujillo named his employer sufficiently in his original EEOC charge, and when his lawyer later sent his pay stub with Rockledge’s name and address, he removed any doubt about the employer’s identity. The EEOC’s error in processing his charge does not bar Trujillo from suing his employer. View "Trujillo v. Rockledge Furniture" on Justia Law

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Casillas allegedly owed a debt to Harvester. Madison sent Casillas a letter demanding payment. The Fair Debt Collection Practices Act requires a debt collector to give consumers written notice, 15 U.S.C. 1692g(a), including a description of two mechanisms that the debtor can use to verify her debt. A consumer can notify the debt collector “in writing” that she disputes all or part of the debt, which obligates the debt collector to obtain verification and mail a copy to the debtor or a consumer can make a “written request” that the debt collector provide her with the name and address of the original creditor. Madison’s notice neglected to specify that Casillas’s notification or request under those provisions must be in writing. Casillas filed a class action. She did not allege that she planned to dispute the debt or verify that Harvester was actually her creditor. The Act renders a debt collector liable for “fail[ing] to comply with any provision.” She sought to recover a $1000 statutory penalty for herself and a $5000 statutory penalty for unnamed class members, plus attorneys’ fees and costs. The Seventh Circuit affirmed the dismissal of the suit. A plaintiff cannot satisfy the injury‐in‐fact element of Article III standing simply by alleging that the defendant violated a disclosure provision of a consumer‐protection statute. Absent an allegation that Madison’s violation had caused harm or put Casillas at an appreciable risk of harm, Casillas lacked standing to sue. View "Casillas v. Madison Avenue Associates, Inc" on Justia Law

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Chicago awarded a construction contract to a joint venture formed by Gillen and other entities. The joint venture subcontracted some of the work to Gillen, which subcontracted with others for labor and materials. The joint venture obtained over $30 million in Fidelity performance and payment bonds. Fidelity received an indemnity agreement and a net worth retention agreement, both executed by Gillen. Gillen promised to maintain a net worth greater than $7.5 million. During 2012, several subcontractors sued Gillen in state court and named Fidelity as a co-defendant based on its bond obligations. Fidelity sued Gillen in federal court, alleging: breach of the indemnity agreement; a request for an accounting of contract payments; breach of the net worth retention agreement; quia timet; and a demand for access to books and records. Historically, litigants have used bills quia timet to pursue preemptive relief; on that claim, Fidelity sought $2.5 million from Gillen as bond collateral and an order requiring Gillen to satisfy all bond obligations and prohibiting Gillen from disbursing money without court approval. The parties settled all claims in mediation, except for Fidelity’s quia timet claim, agreeing their settlement would not impact the quia timet claim or Gillen’s defenses. The district court granted Gillen summary judgment on the quia timet claim. The Seventh Circuit affirmed. Fidelity negotiated for specific indemnification and collateralization rights, sued on those rights, and settled its breach of contract claims. It may not augment its contractual rights with the ancient equitable doctrine of quia timet. View "Fidelity and Deposit Co. of Maryland v. Edward E. Gillen Co." on Justia Law

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At its LASI site, Varlen plated locomotive engine parts in chrome. At its Silvis site, Varlen’s operations included refueling diesel engines. Varlen discovered groundwater contamination at both sites, spent millions of dollars in damages and remediation expenses, and sought indemnification from its insurer. Liberty Mutual denied coverage based on a policy exclusion for property damage arising out of chemical leaks or discharges. Varlen cited a policy provision stating that, despite the exclusion, Liberty would cover chemical leaks or discharges that were “sudden and accidental.” Varlen proffered the expert testimony of a geologist (Rogers) that the LASI contaminants were released because the concrete sump leaked and that the releases were “sudden and accidental” because they were not intended and occurred in sudden spurts when the sump failed. Rogers explained that he had experience working with sumps and had personal knowledge of these sumps in particular. Rogers testified that the Silvis releases were likely “sudden and accidental” because the contamination around the refueling area was too large to have occurred by minor leakage and was “consistent with overfills of diesel locomotives.” Rogers claimed that contamination at the chlorinated solvent storing area was “indicative of a drum overturning and suddenly leaking out.” The district court struck Rogers’s opinions as unreliable and speculative under Federal Rule of Evidence 702. The Seventh Circuit affirmed. To satisfy Daubert, Rogers needed to explain how the evidence led to his conclusions; Rogers failed to demonstrate that his conclusions were anything more than guesses. View "Varlen Corp. v. Liberty Mutual Insurance Co." on Justia Law

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Lopez-Aguilar went to the Indianapolis Marion County Courthouse for a hearing on a misdemeanor complaint charging him with driving without a license. Officers of the Sheriff’s Department informed him that an ICE officer had come to the courthouse earlier that day looking for him. He alleges that Sergeant Davis took him into custody. Later that day, Lopez-Aguilar appeared in traffic court and resolved his misdemeanor charge with no sentence of incarceration. Sergeant Davis nevertheless took Lopez-Aguilar into custody. He was transferred to ICE the next day. Neither federal nor state authorities charged Lopez-Aguilar with a crime; he did not appear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified “immigration case” against Lopez-Aguilar was pending when he sued county officials under 42 U.S.C. 1983. Following discovery, the parties settled the case. The district court approved the Stipulated Judgment over the objection of the federal government and denied Indiana’s motion to intervene to appeal. The Seventh Circuit reversed. The state’s motion to intervene was timely and fulfilled the necessary conditions for intervention of right. The district court was without jurisdiction to enter prospective injunctive relief. The Stipulated Judgment interferes directly and substantially with the use of state police power to cooperate with the federal government in the enforcement of immigration laws. View "Lopez-Aguilar v. Indiana" on Justia Law

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After the defendants filed an answer, Carter moved to voluntarily dismiss the complaint that she had filed against Morelli, Henderson, and the City of Alton. Her motion did not explicitly say that she sought a dismissal without prejudice, but stated that “neither party will be prejudiced by the granting of this Motion.” The defendants argued that the court should grant Carter’s motion with prejudice. Carter amended her motion to specify that she sought a dismissal without prejudice. The district court dismissed Carter’s complaint with prejudice and denied Carter’s motion for reconsideration. The Seventh Circuit vacated. Under FED.R. CIV. P. 41(a)(2), the court had the discretion to dismiss the case either with or without prejudice but before entering the dismissal order, it should have given Carter an opportunity to withdraw her voluntary dismissal motion. Carter requested just such an opportunity, and the court erroneously refused to give it to her. View "Carter v. Alton" on Justia Law

Posted in: Civil Procedure

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The Indian Gaming Regulatory Act, 25 U.S.C. 2701–21, allows some gambling on land held in trust for tribes, in every state, without prior approval. Class III gambling, which includes slot machines and table games such as blackjack, may be offered only in certain states if the tribe and state enter into a contract. Since 199,2 Stockbridge-Munsee Community, a federally-recognized tribe, has conducted gaming in Shawano County, Wisconsin. In 2008 Ho-Chunk, another federally-recognized tribe, opened a casino in Shawano County. Both feature class III gaming, authorized by contracts. In 2016 Ho-Chunk announced plans to add more slot machines and gaming tables, plus a restaurant, a bar, and a hotel. The Community sought an injunction, arguing that the Ho-Chunk land was not held in trust for the tribe on October 17, 1988. The parcel was conveyed to the tribe in 1969, but with a condition that was not lifted until 1989; in 1986, the Department of the Interior declared the parcel to be Ho-Chunk’s trust land. The Community argued that Ho-Chunk’s state contract treats its casino as an “ancillary” gaming facility and that the state has not enforced that limitation. The court dismissed the suit as untimely, reasoning that the Community knew or could have learned of both issues by 2008. The Act does not contain a statute of limitations, so the court looked to the Wisconsin limitations period for breach of contract or the Administrative Procedure Act's limitations period—each set a six-year limit. The Seventh Circuit affirmed, applying Wisconsin law. View "Stockbridge-Munsee Community v. Wisconsin" on Justia Law