Federal Civil Practice

In action alleging that defendant breached certain fiduciary duties owed to plaintiff arising out of plaintiff's sale of his interest in entity to defendant where plaintiff alleged that defendant had misrepresented fact that tenant was not paying rent to said entity in order to induce sale, Dist. Ct. did not err in granting defendant's motion to dismiss based on statute of limitations grounds where said sale took place two months after expiration of applicable five-year limitations period. While plaintiff argued that discovery rule applied based on his own affidavit that recalled conversation with individual that eventually led to his discovery of true status of tenant, plaintiff could not rely on his own affidavit to establish any discovery rule where plaintiff had previously indicated in deposition that he did not have said conversation during relevant time period. Ct. also did not err in granting defendant's motion for summary judgment alleging that plaintiff breached indemnification clause contained in parties' underlying purchase agreement where plaintiff filed instant lawsuit against defendant, even though plaintiff argued that indemnification clause pertained only to lawsuits filed by third-parties against either plaintiff or defendant.

Dist. Ct. did not err in dismissing plaintiff’s action alleging under Wisc. Statute that defendants had entered into conspiracy whereby defendants sought involuntary receivership of plaintiff’s company and generated false affidavit that misrepresented company’s financial condition and damaged plaintiff’s reputation. Record showed that plaintiff’s company had previously participated in action in which receivership was established for plaintiff’s company and in which court had found that plaintiff and his company had waived any right to seek damages for allegedly filing inaccurate documentation to support appointment of receivership. As such, plaintiff was precluded by collateral estoppel where instant lawsuit essentially sought to relitigate waiver issue in prior receivership action. Fact that plaintiff was not personal party in receivership action did not require different result where plaintiff stood in privity with his company.

Dist. Ct. did not err in granting defendants-police officials' motion for summary judgment alleging that defendants violated plaintiff's constitutional rights by unduly influencing witness to testify against plaintiff in criminal trial that resulted in guilty verdict, which was overturned on appeal. Plaintiff had previously filed similar section 1983 action that resulted in judgment in favor of some of instant defendants, such that said defendants could invoke res judicata to preclude instant action. Moreover, as to remaining defendants who were not included in prior lawsuit, instant lawsuit was untimely since it was filed more than two years after date of appellate court reversal in 2000. Ct. rejected plaintiff's argument that enactment of 2008 state statute that permitted plaintiff ability to obtain certificate of innocence triggered new limitations period.

Dist. Ct. erred in dismissing for failure to state viable cause of action plaintiff's RICO action under 18 USC section 1962(c), alleging that various co-workers participated in several acts of racketeering that included mail fraud associated with submission of false tax returns on behalf of plaintiff's employer, witness tampering by attempting to silence plaintiff through offers of increased pay, tampering with evidence by directing plaintiff to destroy certain tax-related documents and retaliation against plaintiff by terminating him for his whistle-blowing activities. While Dist. Ct. believed that instant complaint was deficient because plaintiff alleged two separate, unrelated schemes involving tax fraud and retaliation, complaint sufficiently alleged relationship between retaliatory acts and underlying tax fraud scheme where: (1) plaintiff accused one individual of participating in both mail fraud and retaliation acts and accused others of participating in witness tampering and retaliation; and (2) plaintiff asserted that alleged acts of mail fraud, witness tampering and retaliation occurred within compact five-month time frame.

Dist. Ct. did not err in dismissing all but 44 out of 268 plaintiffs from instant civil rights and breach of contract case due to said plaintiffs' failure to comply with formal and informal deadlines for responding to defendant's discovery requests. Record showed that said plaintiffs missed five discovery deadlines and violated two court orders, and that plaintiff's counsel had failed to speak with majority of plaintiffs that he represented. Fact that Dist. Ct. did not expressly warned plaintiffs of potential for dismissal prior to entry of dismissal order did not require reversal where: (1) language in Ball, 2 F3d 752, that talked about need for explicit warning should only be interpreted as guideline; and (2) plaintiffs' counsel was adequately warned of potential for dismissal via multiple requests for said sanction in defendant's prior motions for issuance of sanctions and via Dist. Ct.'s observation that last granted extension was "final." Ct. also held that plaintiffs' premature notice of appeal was rendered timely when plaintiffs belatedly sought and obtained Rule 54(b) judgment from Dist. Ct.

Dist. Ct. did not err in granting defendants-prison officials’ motion for summary judgment in section 1983 action by defendant-prisoner alleging that defendants were deliberately indifferent in failing to protect plaintiff-prisoner from attack by other prisoners. While plaintiff argued that there was issue as to whether defendants were aware of excessive risk to his safety where defendants placed him in area of prison that had history of prisoners possessing shanks, and where defendants knew that officer had linked plaintiff to gang that placed plaintiff at risk from attack by rival gang members in prison, plaintiff conceded that he had not reported any problems with fellow prisoners prior to instant attack, and defendants’ knowledge of general risk of violence in instant prison unit did not establish knowledge of substantial risk of harm to plaintiff. Fact the one officer who witnessed attack did not personally intervene on behalf of plaintiff out of concern for her own safety did not require different result.

In action challenging constitutionality of Wisc. statute that limited to $10,000 amount that individuals could contribute to political action committees, Dist. Ct. erred in granting defendant's motion seeking to have Dist. Ct. abstain from ruling on plaintiff's request for preliminary injunction pending resolution of another case under consideration by Wisc. Supreme Court that challenged other amended campaign-finance rules; abstention was not warranted where ruling in case before Wisc. Supreme Court did not directly pertain to constitutionality question raised in instant case. Moreover, Ct. held that plaintiff was entitled to preliminary injunction based upon likelihood of success of case on its merits since application of instant $10,000 aggregate annual contribution cap to independent-expenditure committees such as plaintiff violated their First Amendment rights under Citizens United, 130 SCt 876, where justification for said cap did not apply to independent expenditure committees whose contributions posed no threat of corruption of candidates for public office.

Dist. Ct. erred in dismissing plaintiff-prisoner’s section 1983 action alleging that defendant-prison doctor was deliberately indifferent by failing to provide adequate care for plaintiff’s hernia. According to plaintiff's complaint, defendant ignored plaintiff’s multiple requests to surgically repair hernia where plaintiff had become concerned about his hernia becoming strangulated, and plaintiff further alleged that defendant’s conservative approach to treating hernia over two-year period was ineffective in face of plaintiff’s complaints of debilitating pain as well as fact that hernia had become worse over said period of time.

Dist. Ct. erred in granting defendant-union’s motion for summary judgment in action by plaintiffs-certain Midwest Airlines flight attendants seeking declaration under McCaskill-Bond Amendment to Federal Aviation Act that they were entitled to certain seniority rights when Republic Airways Holding purchased Midwest Airlines and later took over Midwest Airlines operations. Under said Amendment, Republic was required to merge Midwest’s flight attendant seniority list with seniority list for flight attendants workinjg for its airline, and Dist. Ct. erred in finding that Republic’s subsequent decision to abandon Midwest’s certificate to engage in air transportation activities meant that Republic had not acquired “air carrier” for purposes of enforcing requirements set forth in McCaskill-Bond Amendment.

Dist. Ct. did not err in granting defendant-Housing Authority’s motion for summary judgment in action alleging various violations of Fair Housing Act arising of defendant’s issuance of first of three eviction notices based upon incident in which individual, who was invited into plaintiff’s home by her son, was involved in shooting incident at plaintiff's housing complex. Plaintiff’s claim was moot where: (1) she subsequently left her housing apartment for reasons unrelated to issuance of first eviction notice after she had received two other eviction notices arising out of different incidents; (2) as result of her departure, plaintiff had no legally cognizable interest with respect to issuance of first eviction notice; and (3) plaintiff failed to demonstrate that she incurred any sort of cognizable injury arising out of issuance of first eviction notice. Ct. further rejected (for lack of evidence) plaintiff’s claim that she was victim of discrimination arising out of defendant’s placement of housing complex in predominantly African-American neighborhood.