Federal Civil Practice

In civil proceeding in which govt. sought forfeiture of tractor-trailer and $304,980 in drug-related cash that was found in secret compartment within tractor-trailer, Dist. Ct. did not err in denying motion by defendants (claimed owners of tractor-trailer and cash) to suppress results of police search of tractor-trailer based on claim that defendant-truck driver did not consent to said search. Dist. Ct. could properly find that defendant gave consent to search tractor-trailer, where record showed that defendant told officer to “go ahead” with requested search and voluntarily unlocked tractor-trailer so that officer could conduct search. While defendant argued that he withdrew his consent prior to officer finding said cash when defendant wrote “UNDER PROTEST” on consent form, defendant’s initial consent gave officer permission to search into any hidden compartments, and defendant’s “protest” was ambiguous where officer held reasonable belief that defendant had signed form without reservations, and where defendant engaged in casual conversation following his signature that was inconsistent with any revocation or limitation of consent.

In action by plaintiff-insured seeking declaration that defendant’s insurance policy covered certain business interruption losses, Dist. Ct. erred in granting defendant’s motion for summary judgment after excluding plaintiff’s expert witness, who provided testimony with respect to plaintiff’s alleged damages arising out of collapse of building that prevented plaintiff from having access to its office space for more than one year. Record showed that expert used acceptable method to calculate said damages, which was set forth in policy, and Dist. Ct.’s determination that expert’s use of only five-month period of time to calculate estimated growth of plaintiff’s profits and to ultimately project plaintiff’s lost profits rendered expert’s analysis unreliable was essentially factual matter that should have been determined by trier of fact, as opposed to issue that could have been resolved in summary judgment proceeding.

Plaintiff failed to state viable section 1983 action alleging that defendant violated his due process rights when defendant, in her capacity as school guidance counselor, criticized plaintiff’s parenting methods and called him “bad father.” Plaintiff essentially asserted defamation action, which, under Paul, 424 US 693, is insufficient to state viable due process violation where, as here, there was no other alleged official action taken by defendant.

Dist. Ct. did not err in granting defendant-govt.’s motion to dismiss plaintiff’s FTCA action alleging medical malpractice in connection with amputation of plaintiff’s leg, where said motion was based on defendant’s claim that plaintiff’s action was untimely, since it was filed beyond applicable Illinois 4-year statute of repose for medical malpractice actions. Fact that plaintiff had filed instant action within six months of Dept. of Veterans Affair’s dismissal of plaintiff's administrative complaint did not require different result. Ct. rejected plaintiff’s claim that Ill. statute of repose was preempted by FTCA’s own procedural scheme, and Ct. further observed that there was no conflict between state and federal law, since record showed that plaintiff had 18 months to file instant action in federal court prior to expiration of statute of repose.

In section 1983 action in which plaintiff received $25 million judgment based on allegations that defendants-police officer and City violated plaintiff’s due process rights by using coercive tactics to convince witnesses to falsely identify plaintiff as culprit in murder charge, Dist. Ct. did not commit reversible error in sustaining plaintiff’s Batson objection to peremptory challenge used by defendants against African-American juror, where defendants conceded that they could not show that any biased juror sat on instant jury as result of any Batson error. Additionally, defendant waived any issue regarding Dist. Ct.‘s denial of defendants’ motion for judgment as matter of law based on plaintiff’s failure to introduce into evidence entire transcripts of his original criminal trial, where defendant failed to raise said issue in Dist. Ct. Moreover, Dist. Ct. did not err in allowing plaintiff’s expert to testify on reasonable police practices, where said testimony was not tantamount to legal conclusion, and where expert did not offer opinion on credibility of other witnesses.

Dist. Ct. erred in dismissing without leave to amend plaintiff-prisoner’s section 1983 action alleging that defendants-jail officials willfully failed to prevent other inmates from assaulting him, where instant dismissal was based on oral statements made by plaintiff during telephonic “merit-review hearing” that occurred after complaint had been docketed, but before any other filings, except for granting of in forma pauperis petition, had occurred. Dist. Ct. could not dismiss instant case, where Dist. Ct. resolved material factual disputes on oral representations made by plaintiff, under circumstances, where Dist. Ct.’s questions took form of judicial cross-examination designed to elicit admissions from plaintiff. As such, if Dist. Ct. was unclear about any aspect of instant complaint, it should have dismissed it with leave to amend, after giving plaintiff guidance as to areas that needed clarification.

Ct. of Appeals lacked jurisdiction to consider appeal of insurance company/prospective intervenor, which sought intervention for purpose of undoing settlement that its insured made with plaintiff-class in action alleging violation of Telephone Consumer Protection Act. While insurance company filed timely notice of appeal of order denying its intervention motion, portion of its notice of appeal that challenged propriety of settlement order was untimely as it was filed more than 30 days after entry of said order. Moreover, Ct. of Appeals lacked jurisdiction over portion of appeal that challenged intervention order, because Ct. of Appeals could not provide insurance company with any meaningful relief with respect to settlement order, even if intervention order was reversed.

Dist. Ct. erred in granting govt.’s motion for summary judgment in civil forfeiture proceeding, alleging that $100,120 in defendant’s briefcase that DEA agent seized after dog alerted agent to recent presence of drugs was either proceeds of illegal drug transaction or was intended to facilitate such transaction. Defendant’s affidavit, although self-serving, was sufficient to create triable issue as to whether said cash could have been legally obtained by defendant, where defendant claimed that said cash had been generated through life-time of savings in expense-free environment. Moreover, testimony from defendant’s expert witness created triable issue as to whether dog’s training was sufficient to demonstrate that dog’s alert was reliable evidence that subject cash had recently been in contact with illegal drugs.

In product liability action alleging that ladder manufactured by defendant contained defective design that caused plaintiff to incur certain personal injuries, Dist. Ct. erred in allowing jury to examine exemplar ladder, which had been built to exact specifications of ladder used by plaintiff, that defendant’s expert used as demonstrative evidence during his testimony, where said ladder had not been introduced into evidence. Plaintiff objected to jury’s request to examine said ladder during jury deliberations, and as general matter, materials not admitted into evidence should not be sent to jury for use during its deliberations. Moreover, record showed that Dist. Ct. had originally overruled plaintiff’s objections to expert’s use of said ladder during his testimony, where Dist. Ct. noted that it would be used only for demonstrative purposes and would not be admitted into evidence. Instant error was not harmless since both parties had substantial evidence supporting their positions.

Ct. of Appeals denied defendant’s motion to dismiss appeal, even though defendant argued that plaintiff had filed her notice of appeal 113 days after Dist. Ct.’s entry of Rule 77(d) order that was entered day after Dist. Ct. had entered “Memorandum Opinion and Order” that dismissed plaintiff’s employment discrimination claim with prejudice. While defendant argued that Rule 77(d) order, which recited Dist. Ct.’s dismissal order, as well as canceled as moot other scheduled matters, complied with Rule 58’s requirement of filing separate document that reflected Dist. Ct.’s judgment, so as to trigger time frame for filing notice of appeal, Ct. of Appeals found that Rule 77(d) order did not satisfy requirements of Rule 58, where instant Rule 77(d) order was confusing about whether it was meant as a separate judgment, and where Rule 77(d) order was not signed by court clerk. As such, official judgment date was 150 days after Dist. Ct.’s dismissal order, and thus instant notice of appeal was timely.