Federal Civil Practice

Remand was required to determine citizenship of members of one of plaintiff’s limited liability companies for purposes of finding if all parties were diverse in instant state court action seeking to determine whether plaintiffs had any additional obligation to pay defendants on defaulted loan, where such action had been removed to federal court. Record showed that members of said limited liability company were two pension funds that had established trusts. While Dist. Ct. looked to citizenship of trustees of said trusts when determining if limited liability companies were diverse from defendants to support any removal jurisdiction, under Americold, 136 S.Ct. 1012, Dist. Ct. should have examined citizenship of members of said trusts (i.e., current workers paying into pension funds and funds’ beneficiaries), some of whom lived in same states in which defendants were citizens. Thus, remand was required to determine whether these individuals were citizens of states in which they resided, and if they were, Dist. Ct. judgment in favor of defendants must be vacated and matter remanded to state court for new determination of plaintiffs' claim on the merits in that forum.

Dist. Ct. erred as dismissing as frivolous under 28 USC section 1915A plaintiff-prisoner’s section 1983 action alleging that defendants-police officers used excessive force when arresting him, where Dist. Ct. based dismissal on his consultation with newspaper account of defendant’s car chase that led to his arrest. According to plaintiff, police car chased plaintiff’s car until defendants shot at him and rammed their vehicle into his vehicle, and Dist. Ct. could not screen plaintiff’s lawsuit based on newspaper account of incident. Moreover, while certain portions of plaintiff’s pro se lawsuit might have been defective, plaintiff alleged at least one legally viable claim that could not be dismissed as frivolous, where defendant claimed that he was shot with stun gun on multiple occasions without allegation that said shooting took place during car chase. As such, appropriate remedy would be dismissal of complaint with leave to amend, rather than outright dismissal of lawsuit.

Dist. Ct. lacked jurisdiction over plaintiff’s breach of contract and interference of contract claims against defendant arising out of plaintiff’s contention that plaintiff had conspired with third-party to convince National Guard to sponsor third-party at various Indy Car races instead of sponsoring plaintiff as Guard had previously done, where said action had been removed to Dist. Ct. While plaintiff’s amended complaint alleged that alleged conspiracy agreement violated “multiple federal statures and regulations,” essence of complaint alleged only state-law causes of action that would not support removal jurisdiction. Moreover, defendants could not invoke jurisdiction under federal officer statute (28 USC section 1442), even though one defendant gathered bids for Guard’s sponsorship, since said defendant was not “federal officer” for purposes of section 1442, where his actions fell short of closely monitored relationship necessary between private citizen and federal agency to support section 1442 jurisdiction.

Dist. Ct. erred in granting defendant-prison investigator’s motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendant violated plaintiff’s First Amendment rights by issuing plaintiff false disciplinary infraction about prison fight in retaliation for plaintiff having complained to warden about defendant’s lack of investigation into matters raised by plaintiff. Plaintiff’s administrative appeal on disciplinary infraction issued by defendant resulted in infraction being expunged, and record showed that Dist. Ct. had granted instant motion for summary prior to time that defendant had produced video of prison fight that would have been dispositive piece of evidence in instant retaliation action. As such, Dist. Ct. could not base instant grant of summary judgment on plaintiff’s failure to produce any evidence indicating that defendant’s issuance of disciplinary infraction was without factual support.

Dist. Ct. did not err in dismissing on lack of standing grounds plaintiff’s action seeking to enjoin defendants from enforcing Rule 12(3) of Indiana Rules for Admission to Bar and Discipline of Attorneys, which precludes for admission prospective attorneys who advocate overthrow of either State of Indiana or U.S. govt. Although plaintiff argued that Rule 12(3) violated his freedom of speech where he intended to engage in “revolutionary advocacy” while distributing, among other publications, Marx and Engels’ Communist Manifesto, record showed that plaintiff had not yet applied for admission to Indiana bar. As such, plaintiff lacked standing since he could not show present harm where there has been no finding that his proposed activities would violate said Rule.

Dist. Ct. erred in granting defendant-warden’s motion for summary judgment in section 1983 action by plaintiff-prisoner alleging that defendant violated plaintiff’s 8^th Amendment rights by failing to adequately address his complaints regarding infestation of vermin, insects and birds in his cell. Plaintiff alleged both physical and psychological harm resulting from his conditions of confinement, where plaintiff asserted that his asthma worsened due to conditions of his cell. Fact that plaintiff lacked medical affidavit to establish linkage between his health and conditions of his cell was not fatal to his claim, where there was potential common-sense link between excessive dust and insect dander and his compromised breathing. Also, defendant’s signature on response to plaintiff’s grievance about conditions of his cell was enough to create triable issue as to whether defendant had sufficient notice of prison’s condition and plaintiff’s health concerns and whether he was deliberately indifferent to defendant’s health condition.

In action by law firm seeking to recover legal fees on two client files taken by departing attorney from said law firm, Dist. Ct. erred in finding that law firm was entitled to 40% (instead of 10%) of $1.4 million in fees received by departing attorney based on $3.55 million settlement of products-liability lawsuit, where: (1) Dist. Ct. had failed to give adequate explanation to justify 40% figure; and (2) three witnesses gave unrebutted testimony that placed value of work done by law firm on lawsuit at 10%. However, Dist. Ct. did not err in rejecting departing attorney’s claim that law firm was not entitled to any fee (let alone $120,000 fee awarded by Dist. Ct.) for different products-liability claim, where: (1) Dist. Ct. found that law firm did essentially all of work on lawsuit prior to settlement of action by departing attorney at his new law firm; and (2) departing attorney failed to show how fact that law firm had previously settled case with one entity for $20,000 had decreased total recoveries from other entities on settlement negotiated by departing attorney. Dist. Ct. also erred in finding that with respect to instant fees that departing attorney owed to law firm, lien held by lender to law firm had priority to said fees over claims by victims of fraud committed by law firm, since provision in Indiana Code (section 30-4-3-22) gave priority to instant victims, where law firm committed breach of trust with respect to instant victims at time prior to when lender acquired its security interest to law firm’s proceeds.

Dist. Ct. did not err in dismissing for failure to state cause of action, plaintiff’s legal malpractice and fraud claims against defendants-former legal counsel, who represented plaintiff in class action until plaintiff terminated defendants and filed successful motion for voluntary dismissal shortly before settlement in class action had been finalized. Plaintiff could not assert legal malpractice claim where, at time he terminated defendants, he still had viable claim (and right to re-file said claim) in action that was subject of malpractice claim. Moreover, Dist. Ct. properly dismissed plaintiff’s fraud count based on defendants’ alleged misrepresentations regarding terms of proposed settlement in underlying action, because plaintiff’s allegations fell short of heightened pleading requirements set forth under Rule 9(b), where plaintiff failed to provide specific names, dates, times or content of misrepresentations or omissions that gave rise to alleged fraud. Ct. further noted that attachments to plaintiff’s complaint defeated his claim that defendants were not honest or clear about terms of proposed settlement agreement.

Dist. Ct. erred in granting defendant’s motion for summary judgment in action seeking to enjoin defendant from refusing to post plaintiff’s proposed print advertisement in its buses. Subject advertisement, which informed women of existence of “free resource” for women seeking healthcare, did not express or advocate any prohibited moral issue under defendant’s guidelines. Moreover, record did not support defendant’s claim that advertisement advocated plaintiff’s pro-life stance, since neither words “abortion” or “adoption” appeared in proposed advertisement. Also, Ct., which viewed proposed advertisement as public service announcement, found that defendant’s refusal to allow instant advertisement constituted unjustifiable and arbitrary restriction on plaintiff’s free speech rights, and defendant could not look to language in plaintiff’s website to support claim that proposed advertisement violated its policy that banned advertisements that expressed non-commercial, political, religious or moral speech.

Record contained sufficient evidence to support jury’s verdict in favor of defendant-police officer in section 1983 action alleging that defendant violated plaintiffs’ 4^th Amendment rights by shooting and killing plaintiffs’ labrador retriever while responding to call indicating that plaintiff’s dog was involved in dog fight with what appeared to be stray pit bull. While portions of record could support plaintiffs’ claim, defendant explained that he shot plaintiffs’ dog out of fear that stray pit bull posed danger to bystanders witnessing dog fight, and jury could find that defendant’s actions were not unreasonable where: (1) vicious dog was involved; (2) defendant shot at what he believed to be more aggressive dog; and (3) situation could have deteriorated at any time. Ct. rejected plaintiffs’ claim that Dist. Ct. erred in: (1) allowing defendant to testify that police dispatcher had told him that one dog was “almost dead,” even though defendant had failed to include said fact in his discovery responses, since plaintiff’s interrogatories did not tightly focus on description of incident and plaintiffs otherwise learned of defendant’s trial testimony from other sources; and (2) rejecting plaintiffs’ proposed jury instruction telling jury that use of deadly force against household pet is reasonable only if pet posed immediate danger and use of force was unavoidable.