Federal Civil Practice

Dist. Ct. erred in dismissing without prejudice plaintiff-prisoner’s lawsuit against defendant-former prison official, where basis of dismissal was U.S. Marshall’s failure to locate and serve defendant with copy of complaint, as well as plaintiff’s own unsuccessful attempt to serve defendant with copy of complaint. Rule 4(c)(3) requires Dist. Ct. to direct Marshall to serve defendant with copy of complaint, where, as here, plaintiff was authorized to proceed in forma pauperis, and instant two-day unsuccessful effort by Marshall to locate defendant was insufficient for Dist. Ct. to allow Marshall to abandon search, where there was no indication that Marshall had checked Bureau of Prisons’ records for applicable address for defendant.

Dist. Ct. erred in dismissing under Rule 13 portion of plaintiff's 2013 complaint against individual defendants alleging claims of conspiracy to facilitate plaintiff’s false arrest, where Dist. Ct. found that said claims were compulsory counterclaims to defendant-former employer’s 2011 complaint against plaintiff, which alleged conversion and fraud arising out of plaintiff’s alleged theft of former employer’s property, because both 2011 and 2013 actions concerned same transaction and because individual defendants in 2013 lawsuit could have been joined under Rule 20 as parties in counterclaim in 2011 action. Rule 20 sets forth standard for permissive joinder of parties, and Ct. of Appeals rejected defendants’ contention that because individual defendants could have been joined as parties in 2011 action under Rule 20, it was appropriate to treat plaintiff’s current claims against these defendants as compulsory counterclaims in 2011 action. However, Dist. Ct. did not err in dismissing under Rule 13 plaintiff’s abuse of process claim against defendant-former employer, where such claim existed against said defendant at time plaintiff filed her answer in 2011 action, and where, as result, such claim was compulsory counterclaim that should have been asserted by plaintiff in 2011 action.

Dist. Ct. did not err in denying defendants-police officials’ motion for summary judgment in action alleging that defendants used excessive force when conducting search of plaintiff’s home. Record showed that: (1) search was conducted after discovery of police threats that had been posted on plaintiff’s unsecured internet network; (2) police at time of search had seen neighbor two doors down whom they knew had issued prior police threats; (3) instant search was conducted by 11-man SWAT team, who broke open plaintiff’s door and window, used flash bang grenades and handcuffed elderly plaintiff and her daughter; and (4) day after search police confirmed that said neighbor had actually posed threats. Defendants were not entitled to qualified immunity where use of flash bang grenades without conducting sufficient investigation of actual culprit was unreasonable.

Dist. Ct. did not err in granting defendants-prison doctors’ motion for summary judgment in plaintiff-prisoner’s section 1983 action alleging that defendants were deliberately indifferent to plaintiff’s medical needs by failing to provide adequate care for his torn Achilles tendon. While plaintiff argued that one defendant was deliberately indifferent by failing to immobilize his ankle with boot immediately after his injury, and that second defendant was deliberately indifferent when he did not order physical therapy despite recommendation for such therapy from another physician, any delay in waiting to give plaintiff boot did not constitute indifference, where: (1) plaintiff was given other measures to immobilize his ankle at same time; (2) defendants presented testimony that torn Achilles tendon would probably heal without boot. Moreover, failure to order physical therapy was not so contrary to accepted professional standards, where plaintiff had already received full range of motion in ankle as result of existing treatment at time physical therapy had been recommended. (Dissent filed.)

Dist. Ct. did not err in granting plaintiff’s motion for class certification in action that defendant fraudulently represented that its product (Instaflex) relieved joint discomfort, even though defendant argued that Dist. Ct. abused its discretion by not first finding under heightened “ascertainable” standard that proposed class members were sufficiently ascertainable by first examining any potential difficulty in identifying particular members of class and by evaluating ability of Dist. Ct. to distinguish fraudulent claims that might be submitted by putative class members. Ct. found that existing requirements under Rule 23 already address balance of interests when determining suitability of proposed class action in instant low value consumer action, where it might be unreasonable to expect consumers to have saved proof of purchase of defendant’s product. As such, Ct. would allow putative class members to submit affidavits to establish said purchases. It also rejected defendant’s insistence that class demonstrate as initial matter existence of administratively feasible mechanism for determining whether putative class members fell within proposed class definition. Rather, Ct. emphasized that refusing to certify proposed class on manageability grounds should be matter of last resort.

Dist. Ct. erred in granting defendants-prison officials’ motion for summary judgment in section 1983 action by plaintiff-prisoner alleging that defendants were deliberately indifferent to his gastroesophageal reflux disease (GERD) condition by failing to renew his Zantac prescription to treat said condition for period of two months. GERD is potentially dangerous and painful disease, which, if left untreated for two months, is dereliction of medical duty, especially where treatment requires only few over-the-counter pills. On remand, Ct. directed Dist. Ct. to consider whether appointed counsel would be necessary to assist plaintiff.

Dist. Ct. lacked subject matter jurisdiction to consider plaintiffs’ state-court action seeking declaration that they did not owe defendant-insurance company $44,000 in interest payments that accrued over years that plaintiffs borrowed against cash value of variable life-insurance policy issued by defendant, where plaintiffs’ action had been removed to federal court by defendant. Defendant could not establish requisite $75,000 amount in controversy requirement to establish removal jurisdiction, where said interest payments were well below jurisdictional threshold. Moreover, plaintiffs’ separate request in lawsuit to cancel entire loan balance of $70,000 could not be used to satisfy amount in controversy threshold requirement, where there was no legal basis for plaintiff’s request. Also, plaintiff’s subsequent amendment seeking to add federal securities-law claim did not supply Dist. Ct. with jurisdiction since: (1) applicable timeframe for establishing removal jurisdiction is date of removal; and (2) instant securities-law claim was time-barred.

Dist. Ct. erred in denying plaintiff’s request for attorney fees in action challenging Indiana’s retention of interest from lost property held under Indiana’s Unclaimed Property Act, where Ct. of Appeals initially found that said retention was unconstitutional, and where Indiana subsequently amended said Act to provide interest payments to claimants of lost property. While Dist. Ct.’s denial of attorney fee request was based on finding that amendment of Act rendered plaintiff’s underlying constitutional claim moot, plaintiff was still prevailing party both before and after Indiana amended said Act, and thus was entitled to said fees.

In action by decedent’s estate for redetermination of IRS disallowance of estate’s claimed $14 million deduction that represented payouts of estate’s property to decedent’s heirs, Tax Court did not err in denying estate’s request to vacate estate’s prior settlement with IRS that would allow estate to take 52.5% of claimed deduction, even though estate asserted that subsequent lawsuit filed by heirs resulted in estate paying heirs more money than what was at issue at time of settlement. By entering into settlement, estate took risk that new information discovered after settlement agreement would be harmful to estate. Moreover, Ct. rejected estate’s argument that: (1) subsequent lawsuit by heirs constituted “mutual mistake” that supported vacatur of settlement under circumstances where claimed deduction was less than what estate had originally agreed to pay heirs; and (2) IRS made misrepresentation during settlement negotiations by failing to inform estate that heirs might initiate new lawsuit against estate.

Dist. Ct. did not err in dismissing as frivolous plaintiff’s section 1983 action against defendants-financial institutions involved in foreclosure of plaintiff’s mortgage, where plaintiff asserted that defendants violated his federal Constitutional rights by foreclosing on mortgage without holding actual note or mortgage at time of foreclosure. Plaintiff failed to allege that defendants were state actors so as to render them suable under section 1983. Ct. further noted that instant complaint failed to invoke jurisdiction of Dist. Ct. because there was no possibility that Dist. Ct. could have given plaintiff any relief.