Federal Civil Practice

Dist. Ct. did not err in denying plaintiff’s motion to certify proposed class action in plaintiff’s Telephone Consumer Protection Act lawsuit, seeking statutory penalties for itself and on behalf of class of recipients of purportedly unsolicited facsimile advertisements sent by defendant. Dist. Ct. could properly find that plaintiff failed to carry its burden of demonstrating predominance, where there was no generalized proof that could be used to resolve issue of prior permission to send faxes on class-wide basis across various methods that defendant used to obtain fax numbers. This is so, Ct. of Appeals found, where defendant demonstrated that it had large variety of contracts, relationships and personal contacts with recipients of instant fax, and that entities such as plaintiff signed franchise contracts in which they agreed to use approved vendors like defendant to stock and furnish their hotels. Ct. rejected plaintiff’s contention that defendant was required to present evidence of permission given by significant percentage of proposed class to defeat class certification.

Dist. Ct. did not err in dismissing on forum non conveniens grounds plaintiff’s lawsuit alleging that defendant bribed Mexican government officials to sell unregistered medical products in Mexico. Record showed that Mexico was available alternative forum, where defendant consented to service of process and personal jurisdiction in Mexico, and where there was no risk that plaintiff would be wholly deprived of remedy by litigating case in Mexican courts. Moreover. Dist. Ct. could properly conclude as favoring dismissal of case in favor of litigating case in Mexico, fact that: (1) Mexico had relative ease of access to sources of proof; (2) availability of compulsory process and costs for attendance of witnesses favored Mexico, where relevant witnesses resided in Mexico; and (3) ease of enforcement of any judgment favored Mexico. Ct. further noted that: (1) purported contracts were executed in Mexico between Mexican parties; and (2) Mexican agents carried out alleged bribery scheme, and any injury occurred in Mexico. Ct. rejected plaintiff’s claim that instant lawsuit presented only local controversy in Indiana, which was defendant‘s home state, and that United Nations Convention Against Corruption treaty altered forum non conveniens analysis, where Ct. held that said treaty did not constitute binding federal law.

Dist. Ct. did not err in denying plaintiff’s motion to remand her class action to state court, where plaintiff’s action had been removed by defendants to federal court under Class Action Fairness Act (CAFA). Plaintiff alleged that defendants had improperly charged her $61.23 in fees for making electronic copies of her medical records, under circumstances where said fees represented costs for making paper copies of her records. While plaintiff argued that defendants had failed to provide good-faith estimate that amount in controversy in instant case exceeded $5 million jurisdictional minimum for CAFA class actions, Ct. of Appeals found that allegations in plaintiff’s complaint, that there were “several thousand” class members, with each having multiple separate claims and with each having up to $25,000 in punitive damages, were sufficient to establish $5 million jurisdictional minimum. Moreover, Ct. looked to one defendant’s statement that said that defendant had fulfilled about 727,500 relevant requests for medical records, which would require proof of average compensatory damages of only $6.88 in overcharges to meet $5 million jurisdictional limit, which was substantially less than plaintiff’s alleged $61.23 compensatory damages. Also, instant matter did not qualify for local controversy exception to assuming jurisdiction under CAFA, where record showed that another class action had been filed within relevant three-year period that had raised similar allegations against one defendant in instant lawsuit. Ct. rejected plaintiff’s contention that exception applied because prior class action was not filed by or on behalf of same purported class of plaintiffs in instant case.

Dist. Ct. did not err in granting defendants-prison officials' motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants denied plaintiff his Due Process rights, where defendants placed him in solitary confinement for period of four years without receiving any meaningful review of his solitary confinement status. Dismissal of plaintiff’s lawsuit was proper, where plaintiff had failed to exhaust his administrative remedies prior to filing instant lawsuit. Record showed that throughout relevant four-year period when plaintiff was held in solitary confinement, plaintiff failed to appeal any of 35 Reports of Classification Hearing or 21 “30-day reviews” that dealt with plaintiff’s continued need for being housed in solitary confinement. Ct. rejected plaintiff’s argument that administrative exhaustion requirement did not apply to him because prison official has misled him regarding his ability to appeal any of 30-day reviews he had received from prison officials.

Dist. Ct. did not err in granting defendants-prison guard and prison hearing officer’s motion for summary judgment, alleging that defendants’ seizure and destruction of papers found in third-party-inmate’s cell violated plaintiff-prisoner’s constitutional rights, under circumstances where third-party inmate was acting as plaintiff-prisoner’s jail-house lawyer in plaintiff’s attempt to file future lawsuit against prison authorities. While plaintiff argued that said seizure and destruction of said records amounted to denial of access to courts, plaintiff failed to show that said seizure and destruction of records created any meaningful impediment to claims plaintiff had sought to bring to court, given plaintiff’s personal knowledge with respect to contents of documents as they pertained to each claim. However, Dist. Ct. erred in granting defendant-prison guard’s motion for summary judgment with respect to plaintiff’s retaliation claim that said seizure was motivated by belief that seizure would lessen chance of complaint being filed against defendant-prison guard, where two other prisoners submitted sworn affidavits indicating that: (1) defendant prison guard told third-party inmate that he intended on telling defendant-hearing officer that documents seized from third-party inmate’s cell were “contraband;” and (2) defendant-prison guard thereafter told plaintiff that “you can’t sue me now,” because of said seizure.

Dist. Ct. did not err in dismissing for failure to state valid cause of action plaintiffs’ RICO action against defendants-Church, College and Church leader, alleging that defendant-Church leader sexually harassed them in late 1970s, and that defendant-College conspired with other defendants to cover up said sexual abuse. Dist. Ct. could properly dismiss complaint, where plaintiffs had not alleged injury to their business or property as required for RICO civil actions. Moreover, although plaintiffs asserted that they satisfied injury-to-business or property requirement by alleging that defendants used plaintiffs’ fees and donations to fund sham investigation into their claims of sexual abuse, plaintiffs failed to plead connection between fees paid in 1970s and investigation that took place thirty years later. Also, fact that plaintiffs alleged some pecuniary consequences arising out of sexual abuse, said consequences did not qualify as business or property damages.

Dist. Ct. did not err in granting defendants’ motion for summary judgment in plaintiff’s action, alleging malicious prosecution arising out of defendants’ initial filing and ultimate withdrawal of their state court actions, alleging that plaintiff breached contract and committed professional negligence in generating appraisal of property at $3.23 million, when said property was subsequently appraised at $200,000. While plaintiff claimed that defendants lacked probable cause to file underlying contract/professional negligence claim, Dist. Ct. could properly find that defendants had probable cause to file said action, where, prior to filing said action, defendants had consulted independent appraiser and others who opined that plaintiff had committed several errors when generating its appraisal. Moreover, plaintiff failed to point out existence of any error in report generated by one of defendants' experts that would discredit expert’s report to reasonably intelligent and prudent person. Dist. Ct. also did not err in denying defendants' request for attorney’s fees under Indiana frivolous litigation statute, even though it had prevailed in instant malicious prosecution action, since there was no evidence that plaintiff brought instant action to injure defendant, and since plaintiff made rational argument on merits of malicious prosecution claim.

Dist. Ct. did not err in denying plaintiffs’ Rule 60(b)(1) motion for reconsideration of Dist. Ct.’s dismissal of their MDL product liability claims, where: (1) plaintiffs’ counsel failed to abide by Dist. Ct.’s deadline for filing profile forms for plaintiffs that contained details regarding their cases; and (2) plaintiffs’ counsel waited until approximately 13 months to file instant motion. Counsel explained that he had failed to receive electronic docket notification of defendant’s motion to dismiss, and that delay in filing motion to reconsider was caused by problems with his email account. However, denial of plaintiffs’ motion to reconsider was appropriate, where counsel failed to comply with Rule 60(c)(1), which mandates that instant request for reconsideration that was predicated on claim of excusable neglect must be brought within one year of entry of judgment. Moreover, plaintiffs’ counsel could not rely on catch-all provisions contained in Rule 60(b)(6) to avoid time bar set forth in Rule 60(c)(1). Ct. further noted that had plaintiffs’ counsel taken steps outlined in Dist. Ct.’s order regarding filing of profile forms or monitored docket more closely, he could have avoided dismissal in first instance.

Dist. Ct. did not err in granting defendants-three correctional officers’ motion for summary judgment in plaintiff-pre-trial detainee’s section 1983 action, alleging that defendants failed to come to his aid when two other pre-trial detainees physically assaulted him in jail. Record showed that, at time of assault, one defendant, who had hearing loss and who had failed to wear hearing aid on day of attack, was patrolling jail, and plaintiff claimed that said officer’s failure to wear hearing aid precluded officer from hearing his cried for help. Plaintiff, though, failed to show that officer's hearing loss prevented him from hearing commotion without hearing aid. However, record showed that three other officers without hearing loss were standing near brawl and denied hearing any telltale noise. As such, plaintiff failed to show that officer’s failure to wear hearing aid caused plaintiff’s injuries. Moreover, plaintiff did not present any evidence showing that any defendant was put on notice that he was facing serious risk of harm from his fellow inmates. Also, plaintiff failed to establish that remaining two defendants, as supervisors, were liable for knowingly hiring and retaining hearing-impaired officer, where there was no evidence that: (1) another officer with no hearing impairment would have heard brawl and intervened earlier; and (2) supervisors knew that third officer was not wearing hearing aid.

Dist. Ct. did not err in granting defendants-prison medical officials’ motion for summary judgment in plaintiff-prisoner’s section 1983 action, alleging that defendants were deliberately indifferent to plaintiff’s painful abscesses associated with his Crohn’s Disease. While plaintiff asserted that defendant-doctor was deliberately indifferent by pursuing course of treatment known to be ineffective and by failing to make earlier referral to surgeon, record showed agreement between parties that doctor provided reasonable care when doctor first treated plaintiff and disagreement in medical opinion as to whether doctor should have made earlier referral to surgeon. As such, instant disagreement of medical opinion, without more, did establish any 8th Amendment violation. Also, reasonable jury could not find that defendant-nurse was deliberately indifferent to plaintiff’s care, where: (1) nurse provided care on two occasions, with first occasion coming immediately after plaintiff saw doctor, and where nurse provided treatment that was consistent with doctor’s orders; and (2) with respect to second treatment, nurse followed doctor’s orders and provided bandages and gauge to alleviate plaintiff’s immediate issues. Moreover, while plaintiff argued that defendant-prison health administrator ignored his sick call requests, record contained evidence that: (1) said requests did not reach medical personnel; (2) administrator testified that plaintiff’s method of making said requests had greater chance of requests being lost; and (3) plaintiff failed to present evidence that administrator was aware that frequency of lost requests was so high so as to make plaintiff’s method of submission of said requests unacceptable.