Federal Civil Practice

Dist. Ct. erred in denying defendants-police officials’ motion for summary judgment asserting that they were entitled to qualified immunity in plaintiff’s section 1983 action alleging that defendants subjected plaintiff to unreasonable seizure of his motorcycle during incident in which defendant-police officer allowed plaintiff’s former roommate to remove said motorcycle from plaintiff’s home, even though plaintiff had claimed to said officer that he was rightful owner of said motorcycle. Record showed that police officer did not knowingly violate any law, where: (1) plaintiff and former roommate presented officer with issue regarding ownership of said motorcycle; (2) roommate produced certificate of title to motorcycle, which created rebuttable presumption that roommate owned said motorcycle; and (3) officer ran computer check, which did not confirm plaintiff’s claim that title to motorcycle had been recently stolen.

Dist. Ct. erred in denying plaintiff-prisoner’s motion to proceed in forma pauperis (IFP) and then dismissing for failure to pay filing fee his section 1983 action against defendants-jailhouse officials, alleging that he incurred personal injuries arising out of defendants’ indifference to his medical needs. Basis for denying IFP motion was Dist. Ct.’s finding that plaintiff: (1) had failed to include his prison identification number and prison location on applicable form, as well as failed to deposit into his prison trust account $188 gift belonging to relative; and (2) indicated in second IPF application form “N/A” instead of “no” for each question seeking information about his sources of funds. However, Dist. Ct. had access to plaintiff’s identification number and prison location in other documents contained in his case file, and plaintiff need not deposit or declare $188 gift belonging to relative. Moreover, record otherwise supported plaintiff’s claim that he was indigent and was qualified to proceed IFP.

Dist. Ct. did not err in remanding back to state court instant class action that had been removed to federal court under Class Action Fairness Act (CAFA) by additional counter-claim defendant that had been brought into state court action after case had been filed. Under First Bank, 598 F.3d 915, only original defendant in state court action is entitled to remove state-court class actions to federal court, and instant “additional” counterclaim-defendant could not remove instant case under CAFA.

Dist. Ct. did not err in denying plaintiffs’ motion to certify proposed class action arising out of plaintiffs’ claim that defendant-former employer’s refusal to pay plaintiffs pro rata vacation pay upon their termination violated Ill. Wage Payment and Collection Act. Plaintiff’s proposed class definition, which consisted of “all persons separated from hourly employment…who were subject to [defendant’s] vacation policy and who did not receive all earned vacation pay” described improper “fail safe” class, since: (1) person who qualified as member of plaintiffs’ class depended on whether said person had valid claim; and (2) “fail safe” class is impermissible because class member either wins case or, by virtue of losing case, is defined out of said class, and thus would not be bound by Dist. Ct.’s judgment. Moreover, plaintiffs’ alternative definition, which merely struck reference to class member’s failure to receive vacation pay, did not satisfy class action requirements under Rule 23, since plaintiffs failed to identify any unlawful conduct on defendant’s part that was common to entire proposed class and had caused all class members to suffer same injury.

Dist. Ct. did not err in finding that Indiana’s anti-robocall statute (Ind. Code section 24-5-14-5) did not violate First Amendment, even though plaintiff argued that said statute as whole disfavors political speech, and thus entailed content discrimination as set forth in Reed, 135 S. Ct. 2218. Nothing in statute disfavored political speech, since statute only restricted how plaintiff could contact individuals, rather than content of plaintiff’s speech. Ct. also rejected plaintiff’s contention that First Amendment required that instant anti-robocall statute carve out exception for political speech and further noted that courts have rejected similar challenges to federal statutes that limit unsolicited calls to cell phones and allow FTC to maintain do-not-call registry for landline phones.

In Title VII action alleging that defendant discriminated against plaintiff based on his national origin and then terminated him, Dist. Ct. did not err in dismissing case, after finding by preponderance of evidence that plaintiff had engaged in witness tampering by offering bribe to co-worker to provide false, but favorable testimony under circumstances where no other co-worker would support plaintiff’s discrimination claims. Ct. rejected plaintiff’s contention that Dist. Ct. was required to find existence of witness tampering under clear and convincing evidence standard and held, by overruling Maynard, 332 F.3d 462, that determination as to whether sanctionable misconduct has occurred may be established under preponderance of evidence standard. Moreover, record supported Dist. Ct.’s finding of plaintiff’s misconduct, where record showed that plaintiff made calculated effort to bolster his otherwise floundering discrimination claim by offering payment to co-worker to provide testimony in support of his allegations of discrimination. Also, dismissal of case was appropriate sanction where witness tampering is among most serious abuses of judicial process.

Dist. Ct. did not abuse its discretion in denying request for attorneys’ fees by two law firms that represented entity that plaintiff-FTC believed was controlled by defendant, where law firms generated said fees in unsuccessful attempt to establish that entity was not controlled by defendant, and thus not liable for $38 million that had been imposed against defendant as contempt sanction. While law firms argued that Dist. Ct. should have awarded them their fees before submitting balance of assets from said entity to satisfy contempt sanctions, Ct. found that all assets of entity (i.e., $8 million) were properly sent to FTC on behalf of defendant’s victims, since law firms had failed to seek permission from Dist. Ct. prior to their engagement with entity and had failed to give Dist. Ct. proposed course of conduct. Moreover, defendant was directed turn over all proceeds of his improper commercial activities prior to law firms’ engagement to entity, such that instant turnover order served as lien on entity’s assets that was superior to any later claims for fees asserted by law firms.

In section 1983 action by plaintiff-prisoner against defendants-prison officials, alleging that he experienced excessive force, and that defendants had failed to protect him from inmates by refusing his request to be placed in prison in which he had no known enemies, Dist. Ct. did not err in denying plaintiff’s request to continue his trial after it had granted request by plaintiff’s appointed counsel to withdraw from case on day prior to trial. Both counsel and plaintiff stated that plaintiff did not personally trust counsel, and Dist. Ct. mitigated any adverse impact caused by late withdrawal of counsel, where: (1) Dist. Ct. required counsel to remain as standby counsel; (2) plaintiff was familiar with facts of case that was already 32 months old; (3) plaintiff had prior experience litigating matters; and (4) continuance would work hardship on assembled jurors. Fact that plaintiff’s request for continuance was his first request for continuance did not require different result. Dist. Ct. also did not commit plain error in admitting evidence of defendant’s prior burglary conviction or his May 2007 disciplinary report, where: (1) plaintiff had revealed existence of his burglary conviction in his opening statement; and (2) details of May 2007 report served to impeach defendant’s claim that he should have been allowed to refuse instant transfer, where he had previously been allowed to refuse transfer to different prison.

Dist. Ct. did not err in granting defendants-police officers’ motion for summary judgment in section 1983 action, alleging that defendants left out exculpatory information in their police reports regarding plaintiff’s alleged theft of Hertz rental vehicle that, according to plaintiff, would have defeated finding of probable cause with respect to said theft charge and issuance of arrest warrant. Record showed that plaintiff was arrested in Montana after he had failed to return rental vehicle by date listed in Wisconsin rental agreement. Moreover, while plaintiff argued that arrest warrant would not have issued had trial court been aware that plaintiff had eventually returned rental vehicle to Hertz location in Montana, plaintiff failed to present evidence indicating that defendants were personally aware of such information at time they made their reports available to trial court. Ct. further found that defendants were entitled to qualified immunity with respect to instant lawsuit, where affidavit containing omitted information arguably would have been sufficient to establish probable cause with respect to theft charge given specific return date in rental agreement, as well as defendants’ knowledge that plaintiff had not returned vehicle by said date.

Record contained sufficient evidence to support jury’s $307,733.82 award in plaintiff-prisoner’s section 1983 action against defendants-prison guards, where plaintiff alleged that defendants used excessive force and then ignored his medical needs that caused him to incur crushed eye socket that resulted in him suffering double and blurred vision. Ct. rejected defendants’ argument that state-law sovereign immunity barred plaintiff’s state-law claims, where, as here, plaintiff established that defendants, as agents of State, had acted in violation of statutory (i.e., aggravated battery) and/or constitutional (i.e., 8^th Amendment) law. Dist. Ct., though, erred in allocating only 10% of damages award to satisfy attorney fees award, where Prison Litigation Reform Act (42 USC section 1997(e)d) required that 25% of plaintiff’s damages award be applied to attorney fees award before defendants would be required to contribute more to fees award.