Federal Civil Practice

Dist. Ct. erred in dismissing as untimely plaintiff-prisoner’s FTCA lawsuit alleging that defendant-federal govt. caused plaintiff to lose eyesight when fellow inmate attacked him under circumstances where defendant allowed instant prison to become overcrowded and failed to protect plaintiff from violence caused by said overcrowding. Plaintiff requested that applicable 6-month limitation period be tolled due to his lack of eye-sight and his difficulties in establishing residency once he left prison, and Dist. Ct. gave only cursory explanation for refusing to allow instant filing of lawsuit that was otherwise filed 19 months after expiration of limitations period. Moreover, record did not show that govt. had been prejudiced by said delay, and thus remand was required for new determination of equitable tolling issue.

In section 1983 action alleging that defendants-police officers arrested plaintiff on firearm charges without probable cause, Dist. Ct. did not abuse its discretion by denying plaintiff’s motion to excuse juror for cause, even though said juror held erroneous belief that her son’s parole prohibited anyone from possessing firearm in home. Said juror’s alleged bias was immaterial, since it had no bearing on constructive possession issue in plaintiff’s case. Moreover, juror gave unequivocal assurance that she could perform her jury duties impartially. Dist. Ct. also did not abuse its discretion in denying plaintiff’s motion to set aside parties’ agreement regarding process to select jury so as to increase likelihood of African-American sitting on instant jury, since plaintiff could not ask Dist. Ct. to be “race conscious” in jury selection.

Ct. of Appeals lacked jurisdiction to consider Dist. Ct.’s order remanding to state court, plaintiff’s state-court wrongful death action, after Dist. Ct. had granted plaintiff’s motion to add two non-diverse employees of defendant as defendants, which served to destroy diversity jurisdiction that formed basis of initial removal of case to federal court. Under section 1447(d), such remand orders are not reviewable, and Ct. of Appeals lacked jurisdiction to review order that added two new non-diverse defendants since said order was not final and appealable. Moreover, defendant was not entitled to mandamus relief, where propriety of order granting plaintiff’s motion to add non-diverse defendants could be reviewed in state court.

Dist. Ct. erred in granting defendant-police officer’s motion for summary judgment in section 1983 action alleging that said officer used excessive force when arresting plaintiff, under circumstances where, according to plaintiff, he was lying on ground in spread eagle fashion when defendant broke plaintiff’s jaw by jumping off top of fence and deliberately landing on his jaw. While Dist. Ct. believed that said officer’s actions were accidental, Dist. Ct. was required to accept plaintiff’s version of facts. However, Dist. Ct. did not err in granting other defendant-officer’s motion for summary judgment on plaintiff’s claim that said defendant should have protected him from other officer landing on his jaw since said defendant could not have anticipated actions of other officer. (Partial dissent filed.)

Dist. Ct. did not err in dismissing plaintiff’s section 1983 action alleging malicious prosecution arising out of plaintiff’s acquittal on aggravated battery charge, even though plaintiff contented that defendants-police officers and City prepared false police reports that defendants used to persuade prosecutor to file instant criminal charge against plaintiff. Under Newsome, 256 F.3d 747, plaintiff’s section 1983 action claim was properly dismissed since plaintiff had adequate state law remedy to raise instant claim in state court. Ct. rejected plaintiff’s argument that he had valid malicious prosecution claim under 4th Amendment, where record showed that plaintiff had been seized in course of instant malicious prosecution at time when defendant was already in custody on unrelated charge. Moreover, any continued detention created by filing of aggravated battery charge was not 4th Amendment violation.

Dist. Ct. lacked jurisdiction to consider plaintiff’s state court lawsuit against defendants (attorneys for individual in pending Fair Housing Act lawsuit alleging that instant plaintiff rendered inferior legal services on account of individual’s race in underlying foreclosure proceeding), where instant state court action alleged claims of defamation, conversion, tortious interference with business relationships. Only potential for jurisdiction was defendants’ invocation of civil-rights removal statute under 28 USC section 1443(1), where defendants argued that instant lawsuit was calculated to deny them their rights under section 818 of Fair Housing Act to be free from threats to their providing legal assistance to individual in pending Fair Housing Act case. However, defendants did not satisfy requirements for removal under section 1443(1) since they failed to show that they would be denied their civil-equality rights in state court. Moreover, defendants could not show that federal law gave them right to engage in alleged misconduct in instant case, even when rendering services on behalf of individual in Fair Housing Act claim.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiff’s lawsuit alleging that defendant violated Ill. Consumer Fraud and Deceptive Business Practices Act when it labeled as sales promotion its offer to give plaintiff two free shirts upon purchase of one shirt, where, according to plaintiff, said sales promotion was actually defendant’s practice to advertise normal retail prices as temporary price reduction. Plaintiff failed to allege that he paid more than actual value of merchandise he received, or that he actually shopped around and found same shirts for lower price. Fact that plaintiff claimed that he had impractical ability to comparison shop did not require different result, where case law required that plaintiff gather sufficient factual information to include in complaint alleging fraud.

In action seeking damages against Internet user and others who improperly gained access to plaintiff’s pornographic videos on its website without paying to see videos, Dist. Ct. did not err in granting defendant-Internet viewer’s motion for attorney fees against plaintiff’s three attorneys as sanction under Rule 54(d)(2) and 28 USC section 1927, and in assessing additional costs when said attorneys failed to pay said fees within deadline set by Dist. Ct., after Dist. Ct. had granted plaintiff’s motion for voluntary dismissal and after Dist. Ct. found that said attorneys had been abusive in attempting to obtain personal information about 6,600 other Internet users who plaintiff claimed had also improperly accessed its website. Ct. rejected two of plaintiff’s attorneys’ claims that they never received proper notice of sanctions motion, where record showed that notice was given to third attorney, and where record showed that other two attorneys were affiliated with said attorney. Moreover, Dist. Ct. did not err in granting similar motion for sanctions filed by defendants-ISPs where plaintiff’s claim, that ISPs violated Computer Fraud and Abuse Act by failing to prevent its customers from accessing plaintiff’s website and for resisting plaintiff’s attempt to obtain customers’ personal information, was frivolous.

Ct. of Appeals lacked jurisdiction to consider defendant’s appeal of Dist. Ct.’s order denying defendant’s request to have arbitrator include year 2008 in pending arbitration proceeding to determine withdrawal liability owed by defendant to plaintiff-pension fund for year 2009. While section 16(a)(1)(B) of Federal Arbitration Act allows interlocutory appeals from orders denying requests for arbitration under section 4 of FAA, defendant could not rely on FAA to establish jurisdiction of Ct. of Appeals to review said denial since section 4 of FAA pertains only to requests to arbitrate contained in written agreements, and instant request for arbitration under Multiemployer Pension Plan Amendments Act did not concern any written agreement to arbitrate by instant parties. Moreover, because arbitration with respect to year 2009 is still pending, issue as to whether year 2008 should be included in said arbitration must first be decided by arbitrator. As such defendant must wait until pending arbitration has been completed in order to seek review of arbitrator’s decision with respect to inclusion of year 2008.

Dist. Ct. erred in dismissing for lack of jurisdiction plaintiff’s qui tam action under False Claims Act, alleging that defendant overcharged certain school districts for telecommunication services it provided under Education Rate Program, where Dist. Ct. found that plaintiff’s action was barred under public disclosure doctrine due to fact that plaintiff had relied on information contained in Wisc. Dept. of Administration’s web site. Public disclosure doctrine did not apply, since plaintiff alleged that he had used independent investigation and analysis to discover discrepancy in defendant’s charges for telecommunications, and since information contained in web site would not have alerted anyone to fact that defendant might have overcharged any school district without knowledge of facts developed by plaintiff.