Federal Civil Practice

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.

Dist. Ct. did not err in dismissing for failure to state cause of action third-party plaintiff’s counterclaims alleging contribution arising out of plaintiff’s personal injury claim, as well as claims alleging state and federal antitrust violations, even though third-party plaintiff essentially argued on appeal that Dist. Ct. lacked jurisdiction over state and federal antitrust counterclaims since said federal claims were “too weak” to invoke federal question jurisdiction under 28 USC section 1331, and that its state claims did not fall within scope of supplemental jurisdiction under 28 USC section 1367(a). Plaintiff’s federal antitrust claims that concerned alleged misuse of market power and alleged conspiracy with another entity were sufficient to invoke subject matter jurisdiction so as to permit Dist. Ct. ability to ultimately dismiss said claims. Moreover, Dist. Ct. could properly consider and dismiss instant state law counterclaims where they formed part of same case or controversy as federal antitrust counterclaims. Ct. noted, though, that counterplaintiff’s strategy on appeal of arguing lack of jurisdiction with respect to its own counterclaims placed counterplaintiff at risk for imposition of Rule 11 sanctions.

Dist. Ct. did not err in dismissing for failure to state cause of action plaintiff’s section 1983 action against defendants-City and its police dept., where plaintiff alleged that police officer subjected plaintiff to false arrest by submitting affidavit that mistakenly named plaintiff as culprit in drug trafficking offense. Defendant-City could not be held liable for actions of police officer on respondeat superior basis in instant section 1983 action, and plaintiff failed to identify any custom or policy that officer was acting upon when drafting affidavit. Moreover, plaintiff could not sue defendants State of Indiana or its state police in their official capacities since they are not “persons” who may be sued under section 1983. Also, plaintiff could not proceed directly against police officer, since Indiana Tort Claims Act provided immunity to said officer, who, according to complaint, was acting within scope of his employment.

Dist. Ct. abused its discretion in denying plaintiff-prisoner’s motion for recruitment of counsel prior to granting defendants-medical personnel employed by prison’s motion for summary judgment in section 1983 action alleging that defendants were deliberately indifferent with respect to medical treatment of plaintiff’s eye that ultimately resulted in removal of part of said eye. Dist. Ct. should have granted request for recruitment of counsel in light of plaintiff’s vision problems and his 10th grade education, and said error was prejudicial since lawyer could have presented facts to create genuine issue regarding why prison doctor failed to follow eye specialist’s recommendations regarding treatment of eye, or why prison doctor advised series of ineffective treatments that allegedly prolonged plaintiff’s pain.

Dist. Ct. erred in dismissing plaintiff-Bank’s case seeking to enjoin defendants-customers from arbitrating dispute against bank’s affiliated securities dealer and two of Bank’s employees regarding losses defendants allegedly incurred in setup and oversight of investment account held by plaintiff, but controlled by defendants. Although contract between defendants and affiliated securities dealer contained arbitration clause, plaintiff had standing to file instant lawsuit, even though plaintiff was not named as party in defendants’ lawsuit, since: (1) any arbitration of defendant’s dispute would violate forum selection clause in defendants’ separate contract with plaintiff; and (2) plaintiff would ultimately be responsible for paying any judgment against its employees in defendants’ lawsuit against them. Fact that plaintiff was not named in defendants’ lawsuit did not require different result.